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SOVEREIGN STATES CONTROLOF IMMIGRATION:A GLOBAL JUSTICE PERSPECTIVE

Yaffa Zilbershats*

Global justice is a relatively new concept that is being developed both by scholars, who belong

to the political school of thought, and by others, who define themselves as cosmopolitans.Whereas political scholars believe that the global implications of justice contemplate states or

peoples, cosmopolitans refer to the individual as the subject of justice even when dealing with

it on a global scale.

Despite the differences between the two schools, this Article shows that none has clearly

called for the imposition of additional obligations upon states that would force them to allow

immigrants to enter those states territory. Further, our survey shows that thefive scholars

examined believe that considerations of global justice should compel developed states to offer

at least some assistance to burdened or poor states in order to reduce the causes of migration.

All differ regarding the type and scope of assistance but agree that the reasons for migration

should be reduced in the state of origin.

What is missing in the scholarly works on global justice is a solution to the forced migration

of masses of people. This problem cannot be solved, at least in the short run, solely by assisting

the state of origin.As long as the lives of the migrants are threatened, states must open theirgates to save them and agree that an international body will administer this issue and ensurethat the burden is shared proportionally among the various states of the world. Such an

international body will also be competent to promote programs of assistance to states, which

will in turn reduce the need to migrate.

INTRODUCTION

This Article questions whether considerations of global justice require a change in

the rules of international law that provide that sovereign states have almost absolute

control of their immigration policy. Global justice is a relatively new concept that is

being developed both by scholars, who belong to the political school of thought, and by

others, who defi

ne themselves as cosmopolitans. Their respective starting points for theconsideration of global justice are totally different. Whereas political scholars believe

that the global implications of justice contemplate states or peoples, cosmopolitans refer

to the individual as the subject of justice even when dealing with it on a global scale.

* Professor of Law, Bar Ilan University.


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127SOVEREIGN STATES CONTROLOF IMMIGRATION2010]

Our examination of the work of various scholars from different schools of thought

on global justice and immigration explores that despite the differences between them,

none has clearly called for the imposition of additional obligations upon states that

would force them to allow immigrants to enter those states territory. Further, our

survey shows that all these scholars believe that considerations of global justice

should compel developed states to offer at least some assistance to burdened or poor

states in order to reduce the causes of migration. The various scholars differ regarding

the type and scope of assistance but all agree that the reasons for migration should be

reduced in the state of origin.

What is missing in the scholarly works on global justice is a solution to the forcedmigration of masses of people. This problem cannot be solved, at least in the short run,

solely by assisting the state of origin. As long as the lives of the migrants are threatened,

states must open their gates to save them. Since we believe that global justice imposes

this duty on the international community, and not on any random single state to which

the refugees may arrive, states must agree that an international body will administer this

issue and ensure that the burden is shared proportionally among the various states of

the world. Such an international body will also be competent to promote programs of

assistance to states, which will in turn reduce the need to migrate.

I. WHY SHOULD STATES CONTROLOF IMMIGRATION BE RECONSIDERED?

The term immigration may be defined in both a narrow and a broad manner. The

narrow definition refers to a situation in which citizens or inhabitants of state A

leave their state in order to live permanently in state B and become its citizens. This

can happen either because the migrants voluntarily decide to settle in another state

or because they have been forced to leave their state of origin following political

persecution, natural disasters, or wars. A broader definition includes not only those

who move to state B for good, but also people who leave state A and decide to enter

state B for a defined period of time to live there as temporary residents. This definition

includes people who come from state A in order to work in state B for a few years

(migrant workers) as well as people who are forced tofl

ee their state of origin andlook for temporary refuge in state B while fully intending to return to state A once

the threat has passed.1 Immigration does not encompass the situation of visitors from

state A who enter state B as tourists for a short stay.

1 Another element to be considered is the legality of entry, i.e., whether the definition should alsoinclude those who enter the state illegally; however, this issue lies beyond the scope of this Article.


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128 ISRAEL LAW REVIEW [Vol. 43:126

Immigration is a global issue by definition. It refers to a situation where a state

is asked to absorb non-citizens, either temporarily or permanently. It relates to the

rights of people beyond state borders. We shall not deal here with the consequences

of immigration in terms of the right to citizenship, or any other right that may be

accorded to immigrants after entering the state, but shall focus on the permission

granted to foreigners to cross the borders of a state and enter it for any purpose other

than tourism or a short stay.

International law underwent an immense change in the second half of the 20th

century, with the imposition of a duty upon sovereign states to apply basic human

rights within their territories and in areas under their jurisdiction. International lawhas not extended its reach to impose obligations upon states to open their borders to

immigrants save in very limited and defined cases of refugees.

According to the current development of international law, the shaping of all

aspects of a states immigration policy, both narrow and broad, is decided solely by

the individual state. The commonly held view is that the world consists of sovereign

states which, as part of their sovereignty, possess the right to decide who will be

allowed to cross their borders and enter their territory. The international law of human

rights allows every person to leave any country including his own but only imposes

a duty upon states to allow entry to citizens and perhaps also to permanent residents.2

Any other person who wishes to enter the state, either as an immigrant or as a tourist, is

dependent upon the discretion of the state whether or not to allow him entry. The onlyexception to this general rule is the right accorded to refugees by the 1951 Convention

on the Status of Refugees, which provides for the non-refoulement of people who

come within the ambit of the Convention.3

2 Universal Declaration of Human Rights, art. 13 (2), G.A. Res. 217 A(III), U.N. Doc. A/810 at71 (Dec. 10, 1948) [hereinafter UDHR]; International Covenant on Civil and Political Rights, art.12(4), Dec. 16, 1966, 999 UNTS 171; Protocol No. 4 to the Convention for the Protection of HumanRights and Fundamental Freedoms, art. 3(2), E.T.S. No. 46; I AN BROWNLIE, BASIC DOCUMENTS ONHUMAN RIGHTS 347(3d 1992); African [Banjul] Charter on Human and Peoples Rights, art. 12(2),June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982); American Convention onHuman Rights, art 22(5), Nov.22, 1969, 1144 U.N.T.S. 123; see also YAFFA ZILBERSHATS, THE HUMAN

RIGHTTO CITIZENSHIP 43-56(2002).3 United Nations Convention Relating to the Status of Refugees, art. 1 July 28, 1951, 1989U.N.T.S 137, provides that a refugee is:

any person who owing to well-founded fear of being persecuted for reasons of race,religion, nationality, membership of a particular social group or political opinion, is outsidethe country of his nationality and is unable, or owing to such fear, is unwilling to availhimself of the protection of that country; or who, not having a nationality and being outsidethe country of his former habitual residence as a result of such events, is unable or, owing tosuch fear, is unwilling to return to it.


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This legal situation should be reconsidered for a variety of reasons: First, it stands

in contradiction to the idea of freedom of movement especially when we are dealing

with voluntary migration. Voluntary migration reflects the will of a person to give

effect to his liberty by moving from his country in order to live in another. Once

states use the power accorded to them by international law to almost totally control

immigration they prevent people from moving freely around the globe. International

law allows every person to leave any country including his own, but if hypothetically

all the states in the world would decide not to allow immigration, as is possible under

international law, then the right to leave the country would have no meaning. In

other words, a person might have the right to leave his country but he would not haveanywhere to go and would probably, therefore, not move at all. Even in less extreme

cases, freedom of movement might still be infringed as a result of the restrictions

on immigration. A person may wish to emigrate to state A, which could respond by

closing its borders; while a move to state B might not be similarly advantageous.

The result, in such a case, is that the person may be able to leave his country but his

freedom of movement will still be infringed.

Second,the current legal situation fails to adequately resolve current dilemmas offorced migration, including, in particular, of refugees. The 1951 Convention on the

Status of Refugees imposes a duty upon states not to return refugees to a place where

their life is in danger (the concept of non-refoulement). There is consequently a duty

on states either to allow the refugees entry, or, to send them to a third state whichabides by the rules of the Convention and will not return the refugees to their state of

origin as long as the danger to them persists. Still, the doctrine of non-refoulement

applies only to individual political refugees as defined by the Convention and not to

other groups of people who are forced to flee their homes and countries as a result

of wars, natural disasters or famine. Such caseswhich are not covered by the

Convention and which usually involve large groups as opposed to individualshave

no solution under current rules of international law. These people cannot return to

their country of origin, where their lives are threatened; yet, no state in the world is

under an obligation to allow them to enter its territory. It is necessary to consider

whether this legal situation is consistent with principles of justice and, if it is not,whether the law should be altered.

Article 33 of this convention provides the right of non-refoulement, according to whicha refugee who has already reached the borders of another state must be permitted entryif sending him to another state would threaten his life or freedom by reasons of his race,nationality, membership in a particular social group or political opinion.


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Third, in recent decades the world has witnessed a process of globalization. Since

globalization makes immigration less difficult than before and since it has ramifications

for various societies that might be ameliorated by easing policies of immigration, the

strict rules of international law with regard to immigration should be reconsidered.

The main feature of globalization is that it involves a blurring of boundaries, 4 or

put differently, de-bordering.5 It embraces a cluster of related changes that increase the

interconnectedness of a world6 in which capital, commodities, services, technologies,

images, ideologies, and people move across boundaries with ever growing speed and

frequency.7 This process of de-bordering and increasing interconnections causes an

extension and acceleration of an ongoing process of transnationalism that excludessome human and economic activities from the sole jurisdiction of state regulation8

and places them in the domain of transnational multinational organizations and

corporations.9 Societies are more interdependent in a globalized world and have

an increased economic, ideological, and cultural homogeneity and solidarity.10 To

a certain extent, this development makes international borders meaningless and

provides grounds for easing the ability of people to migrate from one state to another

without the imposition of undue restrictions either by the state of origin or by the

absorbing state.

The reason for this change of magnitude in the flow of capital, commodities,

services, images, and ideologies is the development of technology that has enabled

this process to occur. The immense development of computer and telecommunicationtechnology has facilitated the flow of capital, information, ideas, and culture and

has enabled easy interconnection between individuals and various institutions inter

se and with each other.11 The fact that people are able to become familiar with the

4 Judith Gans, Citizenship in the Context of Globalization, 1 Immigration Policy Working Paper,2005, available atudallcenter.arizona.edu/immigration/publications/Citizenship%20and%20Globalization.pdf.

5 Armin Von Bogdandy & Sergio Dellavalle, The Paradigms of Universalism and Particularismin the Age of Globalization: Western Perspectives on Premises and Finality of International Law, in2 COLLECTED COURSESOFTHE XIAMEN ACADEMYOF INTERNATIONAL LAW 53 (2009).

6

JOSEPH E. STIGLITZ, GLOBALIZATIONAND ITS DISCONTENTS9 (2002).7 Paul Schiff Berman,From International Law to Law and Globalization, 43 COLUM. J. TRANSNATLL. 485 (2005); Gans,supra note 4.

8 Serge Sur, The State between Fragmentation and Globalization, 3 EUR. J. INTL L. 421, 425(1997).

9 Gans,supra note 4; STIGLITZ,supra note 6, at 9-10; Bogdandy & Dellavalle, supra note 5, at13.

10 Sur,supra note 8, at 428.11Id.


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way of life in other states and have contacts in different parts of the world increases

their capacity to move to another state where they believe they might lead a better

life. Technological developments have also allowed travel to become more rapid and

relatively inexpensive thereby easing the movement of individuals around the globe

and facilitating immigration.12 The question that needs to be addressed is whether

these changes render existing international law strict rules on immigration more or

less relevant or necessary. Loss of control over border movement, may invite either a

loosening of legal controls (law reflecting reality) or tightening of legal controls (law

addressing new challenges). What is the proper way to choose?

But it is not only technology that has shaped the process of globalization. Politicalconsiderations have also made an important contribution to its development. Post

Second World War Western Europe was united for economic purposes and the passing

years saw increased cooperation and de-bordering of European states. After the fall of

the Soviet Union and the Berlin Wall, many East European states joined the process,

and the united Europe of the twenty-first century is now part of the globalization

process. The European model of de-bordering includes flexible rules of migration

from one European state to another. Should such rules be adopted to the world at

large? It might be argued that the fact that Europe has removed borders control in the

context of an economic union may suggest that the latter is a prerequisite for lifting

existing immigration restrictions. But it might also be argued that Europe represents

a world political change beyond the economic union and its outcomes such as easingimmigration policies should become a global tendency.

The globalization process has been widely reviewed and evaluated. There is

no doubt that it carries many benefits. One is transparency that helps to prevent

tyranny and violations of human rights in various areas of the world. 13 There are

also other benefits. Joseph Stiglitz wrote: Many, perhaps most, of these aspects of

globalization have been welcomed everywhere. No one wants to see their child die

where knowledge and medicine are available somewhere else in the world. 14 But

globalization does not have only benefits. Globalization has been strongly criticized

as a form of modern imperialism wherein the rich developed western states, led by

the United States, become more prosperous while the natural resources of developingcountries are being depleted and their work force exploited. 15 The control over the

12 Gans,supra note 4.13 Bogdandy & Dellavalle,supra note 5, at 14-15.14 STIGLITZ,supra note 6, at 10.15 Another criticism is that globalization was conceived as the imposition of U.S. hegemony over

the world through international economic institutions such as the WTO and IMF. See Berman,supra


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developing states and their resources is not direct but is exerted through transnational

corporations that are based in developed countries and are loyal only to the concept

of capitalist gains, even if these are achieved by exploiting various populations in

the developing countries.16 According to Seyla Benhabib, developing states are also

disadvantaged by virtue of the fact that when the globalization process started, these

countries resources had already been depleted by decades of imperialist exploitation.17

Jrgen Habermas has described globalization as increasing productivity with

growing impoverishment processes of economic development with processes

of underdevelopment. Globalization splits the world into two and at the same time

forces it to act cooperatively as a community of shared risks.18

The facts show thatsome participants in this game have greater power than others to negotiate terms for

their own benefit. This leads to a world in which strong developed states promote

their interests while exploiting weak developing societies. By participating in a

global economic order that is governed by unfavorable terms of the worst off, we are

complicit in keeping those who live in desperate poverty from moving out of their

condition.19

note 7, at 170-71; Sur,supra note 8, at 429-30; Gans,supra note 4, at 2.

This development has been widely criticized on the ground that these strong internationaleconomic bodies impose their policies (which are undemocratic per se since they are controlled bythe U.S.) upon weak developing states. The receiving states are actually forced to comply with thesebodies decisions and policies, with the result that the democratic decision-making process within thestates is impaired. See Bogdandy & Dellavalle,supra note 5, at 10.

It is not only the democratic process within states that is endangered by globalization but alsoits essence. Developing and other states have criticized the imposition of western norms on localcultures with the ensuing creation of an hegemony of ideas in various areas of life, including ineconomic and human rights issues. See Berman,supra note 7, at 170-71.

Critics also argue that U.S. hegemony and the imposition of its policies upon economies indeveloping countries is incompatible with these states political development and their capacity toabsorb these processes. It causes more harm than good and does not reduce poverty in the world.See STIGLITZ,supra note 6, at 11-20.

16 STIGLITZ,supra note 6, at 2, 7. See also Eliezer Schweids criticism of globalization as modernimperialism in STUDIESON JEWISH PEOPLE, IDENTITYAND NATIONALITY 17, 27 ((Naftali Rothenberg &

Eliezer Schweid eds., 2008) [in Hebrew].17 Seyla Benhabib, The Law of Peoples, Distributive Justice and Migrations, 72 FORDHAM L. REV.1761, 1782, 1778 (2003-04). For a comprehensive survey of various cosmopolitan approaches, seeSimon Caney,International Distributive Justice, 49 POL. STUD. 974 (2001).

18 JRGEN HABERMAS, THE INCLUSIONOFTHE OTHER 183 (1998).19 GILLIAN BROCK, GLOBAL JUSTICE87, 25-26 (2009); Joseph Stiglitz elaborates on the economic

problems caused to poor, undeveloped states by globalization. He mainly blames multinationalcorporations and international organizations such as the World Bank, the International MonetaryFund and the WTO. See STIGLITZ,supra note 6, at 6-21.


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The injustices caused by globalization need resolving. It is arguable that the

injustice caused to developing societies by globalization may be repaired by enabling

people from these societies to easily migrate to developed states for purposes of work

or permanent stay. Such a solution cannot be imposed today upon states according to

the current rules of international law as these leave sovereign states the prerogative to

decide whom to let into their borders.

We have shown above that for reasons of freedom of movement, protection

of refugees, and the process of globalization, the current international law rules,

according to which states bear an almost absolute discretion to control their borders,

need to be reexamined. As we are attending to a cross border issue, it cannot beconsidered within the framework of local justice. Immigration, whether voluntary

or forced, whether permanent or for a limited period, is a global phenomenon. It

has to address at least two states and in many cases more than two. It relates to

the movement of people from one state to another and affects immigrant and has an

influence on the absorbing state and its population and, to an equal degree, on the

state of origin and those who remain there. The immigration phenomenon requires

consideration to be given to the issue of distribution of goods among various bodies;

membership in the new society; liberty of movement; the economic benefits gained by

the new immigrant; the economic benefits gained by the immigrants relatives in his

homeland; and the economic development or losses sustained by society in the state

of origin or in the absorbing state.Whether or not further obligations should be imposed upon states to open their

borders to immigrants, is a dilemma that should be analyzed in the light of global

justice theory.

II. IMMIGRATIONAND GLOBAL JUSTICE

A. INTRODUCTION

The discussion on global justice by scholars is relatively new and has not yet been

crystallized; albeit, some meaningful work has already been carried out on the mattergenerally and with reference to immigration in particular.20 Global justice deals with

20 Franck J. Garcia, Globalization and the Theory of International Law, 1-5, 9-10, (BostonCollege Law School Faculty Papers, 2005), available atlsr.nellco.org/cgi/viewcontent.cgi?article=1093&context=bc_lsfp.


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the minimum standards of human rights that must be enforced upon each and every

state in the world and also with international criminal law under which a person who

commits a criminal offense against the law of nations is brought to justice by the

international community in the name of global justice. Global justice also deals with

distributive justice on a global scale by attempting to delineate the proper way in which

wealth and opportunities should be distributed among nations. In this respect, it is

concerned with the obligations of wealthy developed states toward poorer, developing

ones.

When immigration law is being analyzed from a global justice perspective it

should encompass the human rights dimensions, particularly in examining forcedmigration, in which return of the migrant to his state of origin might place his life in

jeopardy. It should also be considered from the economic distributive justice aspect

as migration is motivated by the desire of inhabitants of impoverished countries to

move to wealthy, developed states where they believe they have a greater opportunity

to lead a better life.

We now proceed to analyze the works offive scholars who study global justice

and immigration. Both their theory and their reference to institutional changes needed

in the world in order to apply their theory, is examined. This is important since we

believe that a just application of immigration policy requires global cooperation

through an international institution. We begin by reviewing the works of John Rawls

and Michael Walzer on global justice with a particular focus on how they believe itshould be applied to issues of immigration. Both scholars belong to the political school

of thoughtalbeit they discuss global justice and refer to the issue of immigration and

global justiceaccording to which the major discussion and application of justice

should take place within closed societies. Both are leading scholars of our time and

while Rawls is considered a liberal, Walzer is a communitarian. The other scholars,

Gillian Brock, Joseph H. Carens, and Thomas Nagel belong to a cosmopolitan

school of thought, which tends to accord much less moral force to states and closed

communities. Each of these scholars refers differently to the way in which global

justice should be applied to immigration.

B. JOHN RAWLS

Rawls published his work entitled A Theory of Justice in 1971, in which he set out

the principles of justice that ought to govern liberal societies. He employed the

hypothetical original position behind the veil of ignorance according to which people

would decide to follow two principles: first, protect equal basic liberties and second,


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permit social and economic inequalities, when these accord the greatest benefit to

the least advantaged (the difference principle) and are attached to positions that

are open to all under conditions of fair equality of opportunity (the fair equality of

opportunity principle).

It is important to note that inA Theory of Justice Rawls focused on principles that

were relevant only to closed communities. Such a theory did not contemplate the

interdependence of states in the age of globalization and did not relate to questions of

justice beyond the borders of a state.

This lacuna was filled by Rawls in another monumental work called The Law of

Peoples. There Rawls referred to the issue of justice not only within closed societiesbut also between them. A perusal ofThe Law of Peoples shows that Rawls is not a

cosmopolitan. His point of departure in examining global justice is the present and

future existence of peoples. Rawls is a dualist. He believes that the subjects of global

justice are not individuals but peoples.21 His assumption is that if peoples follow the

rules of justice in their domestic and international relations, it will be individuals who

will benefit the most. Rawls explains: The ultimate concern of cosmopolitan view is

the well being of individuals and not the justice of societies. What is important to the

Law of Peoples is the justice and stability for the right reasons of liberal and decent

societies living as members of a society of well-ordered peoples.22

Rawls states that in developing the law of peoples, the first step is to work out the

principles of justice for domestic societies.23 Here he takes an important step and isready to agree that not only a liberal society but also a decent and well ordered yet

non-liberal society can be just. A society is to be considered decent provided its

basic institutions meet certain specified conditions of political right and justice and

lead its people to honor a reasonable and just law for the society of peoples, a liberal

people is to tolerate and accept that society.24 In order to be decent two standards,

one internal and the other external, must be met by the state.

21 JOHN RAWLS, THE LAWOF PEOPLES 119-20 (1999).22Id. at 119. This thesis was heavily criticized by cosmopolitans as is made clear below. One

point of criticism contests Rawls assumption that if regimes are decent there will be no poverty orsuffering within states. Stephen Macedo asserts that Rawls disregards reality when distress ensuesfrom geographical factors such as disease, floods, and other natural disasters. Rawls also disregardsthe past exploitation of undeveloped states by colonial regimes and present exploitation due toglobalization. See Stephen Macedo, The Law of Peoples, What Self-Governing Peoples Owe to OneAnother: Universalism, Diversity and the Law of Peoples, 72 FORDHAM L. REV. 1721, 1727 (2003-04).

23 RAWLS,supra note 21,at 26.24Id. at 54.


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At the internal level a decent society must abide by a special class of urgent

rights such as freedom from slavery and serfdom, liberty of conscience and security

of ethnic groups from mass murder and genocide25 but not necessarily comply with

the whole gamut of human rights observed within liberal societies.26 The institutions

in a decent society need not be identical to those in a liberal society but they must

reach a certain standard of decency while the judges and others who administer the

legal system must believe that the law in that decent society incorporates a concept

of justice based on the common good. To reach the required standard of decency, a

consultation hierarchy, in which the significant interests of all the members of society

are taken into account, must also exist.27

At the external level, liberal and decent peoples,28 put behind a veil of ignorance,

choose to govern their international relations according to eight principles.29 The last

principle Rawls mentions is: Peoples have a duty to assist other peoples living under

unfavorable conditions that prevent their having a just or decent political and social

regime.30 Seeking to explain what this duty includes Rawls draws a distinction

between burdened societies and decent, well ordered ones. Burdened societies are

societies that lack the political and cultural traditions, the human capital and know-

how and often the material and technological resources needed to be well ordered.

Well-ordered peoples have a duty to assist burdened societies and the latter are the

25Id. at 78.26 For example, Rawls describes a hypothetical decent stateKazanistanin which there is no

separation of religion and state, and only members of one of the religions adhered to by the citizensof that state may be elected to become judges, legislators, or ministers. Citizens of Kazanistan whobelong to other religions can profess theirs but cannot be elected to high positions of government. IfKazanistan has basic institutions of government and observes a narrow list of basic human rights, thefact that it does not confer upon all its citizens the right to be elected does not make it an indecentstate. Id. at 75-78.

27 RAWLS,supra note 21,at 65-66.28Id. at 63.29Idat 37. The principles are:a) Freedom and independence to be respected by their peoples;

b) Observation of treaties and other international undertakings;c) Equality of peoples;d) Observation of nonintervention;e) Avoidance of use of force except for self defense;f) Observation of human rights;g) Observations of the laws of war (jus in bello);h) Peoples have a duty to assist other peoples living under unfavorable conditions that prevent

their having a just or decent political and social regime.30Id.


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only societies that need help. Assistance should include creating and preserving just

or decent institutions within the burdened society. It should not include the increase

(much less the maximization) of the wealth of any society or any class in society.31

Rawls believes that wealth owes its origin and maintenance to the political structure

and culture of society and not to its resources. Thus, merely dispensing funds will not

suffice to rectify basic political and social injustices ...32 The goal is to assist states

to become decent, create decent institutions, and abide by decent rules of behavior

thereby enabling them to stand on their own feet and provide their inhabitants with a

minimum, decent standard of living.

Rawls refers to immigration in a very brief manner.33

He states that a societyand its government, as the agent of society, have property rights in a territory. Since

that property is capable of supporting them in perpetuity, they bear responsibility for

keeping it. The perpetuity condition is crucial. People must recognize that they cannot

make up for failing to regulate their numbers or care for their land by conquest in war,

or by migrating into another peoples territory without their consent. According to

Rawls, migration to a state without its consent is forbidden and should not be allowed

so as conquering that state by the use of force. It is widely accepted that conquest

by force is totally prohibited under international law and international justice and

consistently, according to Rawls, so is migration to a state without its consent.

Rawls continues his analysis by referring to the reasons for immigration. He

mentions the persecution of religious and ethnic minorities and the denial of theirhuman rights; various forms of political oppression; starvation and exploitation

of the population in the homeland; inequality of women and subjection. 34 Rawls

believes that all these negative phenomena within a society stem from the absence

of a decent government to regulate peoples lives. If a decent regime would be

established within the realistic utopia described by Rawls, then people would not

31Id. at 107 the aim is to realize and preserve just (or decent) institutions, and not simplyto increase, much less to maximize indefinitely, the average level of wealth of any society or any

particular class in society.32Id. at 108. Bietz totally disagrees with Rawls. He thinks that in the age of globalization it isimmoral to confine principles of social justice to domestic societies. In his opinion, it has the effectof taxing poor nations so that others may benefit from living in just regimes. In such situations, theprinciples of domestic justice will be genuine only if they are consistent with principles of justicefor the entire global scheme of social cooperation. See CHARLES R. BEITZ, POLITICAL THEORYANDINTERNATIONAL RELATIONS 149-150 (revised ed. 2001).

33 BEITZ, supra note 32,at 8-9, 39, & 39 n.48.34Id. at 9.


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be motivated to emigrate from their society. Thus, religious freedom and liberty of

conscience, political freedom and constitutional liberties and equal justice for women

are fundamental aspects of sound social policy for a realistic utopia. The problem of

immigration is not, then, simply left aside, but is eliminated as a serious problem in a

realistic utopia.35

What, according to Rawls, is the duty owed by the well-ordered, decent or liberal,

developed societies toward the immigrants? Since realistic utopia has not yet been

achieved, people need and wish to emigrate from burdened societies to well-ordered

ones. What then is the duty of the well-ordered society? Must it allow the immigrants

to enter? Can it ignore them and close its borders? Rawls does not refer to thisquestion directly and his approach must be inferred from his theory. Within his

scheme of global justice, well ordered peoples have a duty to assist others living in

unfavorable conditions to achieve a decent political and social regime.36 The duty to

assist does not necessarily include a duty to transfer wealth to the burdened society.

The aim is to realize and preserve just (or decent) institutions in the burdened society

so that it can operate on its own to provide its inhabitants with both basic human needs

and liberty.37

From this it can be inferred that Rawls does not believe that the duty of assistance

of the well-ordered state includes a duty to open its borders to immigration. The

well-ordered state has a duty to eliminate the causes of immigration by assisting the

burdened state to become well-ordered and establish institutions based on decentprinciples.38

Rawls speaks about societies and their duties toward one another. He does not refer

directly to the immigrant and his rights. This is because his concept of global justice

is dualistic. He believes that justice between societies should be handled by societies

and not by individuals. Once societies reach a just level of decency, individuals will

gain maximum benefits.

35Benhabib places a large question mark on Rawls assumption that once a regime is decent,

people will not wish to emigrate. In her words:This is certainly a vision of ordered world, but it isalso a vision of a static dull world of self satisfied peoples, who are indifferent not only to each othersplight but to each others charms as well. Benhabib, supra note 17,at 1773. Benhabib adds that thisassumption was never tested empirically, id. at1777.

36 RAWLS,supra note 21, at 37.37Seesupra text and note 31. Benhabib argues that Rawls assertion better conditions in the

state of origin will avoid emigrationhas not been tested in reality. See Benhabib,supra note 17,at 1781 & n.56.

38 To see what these principles include seesupra, text adjacent to notes 25-27.


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But what is more difficult to understand is that Rawls speaks about immigration

in a very broad manner. He does not refer to the elements that distinguish between

different types of immigration, such as the distinction between forced migration and

voluntary migration.39 Let us take, for example, a situation in which there is a natural

disaster in state A that causes people to run away from their homes and seek refuge

in state B. These people need immediate assistance, which state A cannot provide.

Arguing that state A has an obligation to set up decent institutions and become well-

ordered and that state B has a duty to assist with the establishment of such institutions

in state A cannot save the refugees lives.

Rawls approach might be applicable when dealing with voluntary immigrationthat is not urgent. In such circumstances, a plan to build decent institutions within

a state might reduce the need and demand of people to emigrate. In cases, however,

where people urgently need to escape their state because of an imminent threat to their

lives, long term projects cannot reasonably remedy their distress.

Although Rawls ideas on global justice prove that he remains a believer in closed

societies, he does make some comments about international governance through

international organizations. After setting out the rules of behavior that decent states

have to adopt in their international relations,40 he asserts that societies should establish

an international organization to regulate international commerce, a world bank to enable

states to borrow money for further development and a confederation of states resembling

the UN.41 Rawls mentions that depending on their size (and probably development andwealth as well) some states will have to make larger contributions to the cooperative

bank than others and will have to pay larger dues to the confederation of peoples.42 He

does not discuss whether such bodies play a role in the global justice scheme or elaborate

upon the nature of any such role. Rawls also refrains from dealing with the role of

international organizations in resolving immigration dilemmas as he only mentions the

need to establish these bodies without explaining how they should act.

C. MICHAEL WALZER

In a recent article entitled Global and Local Justice, Walzer defi

nes global justiceand local justice and the difference between the two concepts. He writes:

39See Benhabib,supra note 17, at 1773.40Seesupra, text adjacent to note 29.41 RAWLS,supra note 21, at 42.42 Id.


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Mutual aid in time of crisis and political responsibility for injuriesacross borders are the two necessary aspects of global justice whichis and ought to be a response to urgent need, to the suffering of theworst-off, the victims of natural disaster and human depredation,the poor and the powerless. Its time constraint is right now. But thelong term distribution of social goods among people who have beenfreed from the urgencies of poverty and powerlessness that should

be their own work. That is local justice. And for that there is no timeconstraint: the work goes on and on. At any given moment we aresimply engaged.43

Walzer believes that the creation of a long term project of global justice is

problematic. Since there is no international government that can decide its content and

apply it, there is no chance of reaching a consensus regarding its nature in a divided

world embracing different cultures. Moreover, Walzer believes that it would be

improper to have a single theory of global justice since this would blur the differences

between various societies and destroy cultures which are essential to human existence.

Nonetheless, in Walzers view, the fact that we cannot and should not have a single

theory of global justice does not exempt human society from contending with poverty,

starvation, disease, genocide, and ethnic cleansing.

To solve this problem, Walzer suggests extending the duty of mutual aid asserted

by Rawls in relation to closed societies and applying it to governments and individuals

beyond territorial borders. According to Rawls the principal form of suffering thatmust be reduced is that stemming from deep poverty. Deep poverty causes significant

additional suffering, for example, disease and deportations (ethnic cleansing) that

usually strike the weak and the poor.44

Walzer asserts that mutual aid as is a kind of reparative justice offered at a

given moment of suffering. It does not (and according to Walzer should not) advance

43 Michael Walzer, Global and Local Justice, Collegio Carlo Alberto 15 (2008), available atwww.carloalberto.org/files/globalandlocaljustice.pdf.

44 Walzer offers three answers to the question of how we can achieve the goal of reducing acutepoverty:

First, if it is true that a certain small percentage of the worlds wealth can solve the globalproblem of acute poverty, then there is a duty to force wealthy people and prosperous states to usethat share of their wealth to achieve the goal of eliminating acute poverty. BEITZ,supra note 32, at137-43, also suggests redistribution of natural resources as part of this scheme.

Second, citizens of wealthy states should compel their governments to avoid cooperating withburdened corrupt regimes which rob their countrys resources and cause their inhabitants to lead alife of acute poverty.

Third, states should try to modify trade policies in a way that would secure minimum wagestandards, protect the environment and promote other important projects.


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a project of comprehensive global justice. The aim of right now assistance is to

enable societies to overcome crises and proceed to apply local justice within their

borders. According to Walzer, relief and repair will create a world considerably more

equalitarian than it is today, but there is no need to create absolute universal equality.

Each society should enhance its concept of equality in order to enable the continuing

creation and existence of diverse cultures.

Walzer refers widely to the issue of immigration in his bookSpheres of Justice,

published in 1983, well before he wrote about global justice and how to govern the

globe. It is very interesting to uncover the extent to which his analysis of proper

immigration policy from a perspective of justice fits his ideas about global justice.Indeed, although he did not use the term global justice in 1983 when talking about

immigration, he did refer to immigration from a global justice perspective.45

Walzer considers the dilemma of immigration on the basis of two premises: the

first concerns the membership of the immigrants and the second their economic well

being. Walzer argues that allowing a foreigner to enter and stay in a country of which

he is not a citizen, lead his life and eventually become a citizen, actually amounts to

distributing a primary good to him, namely, membership.The primary good that we distribute to one another is membership insome human community. And what we do with regard to membershipstructures all our other distributive choices: it determines with

whom we make those choices, from which we require obedienceand collect taxes, to which we allocate goods and services.46

Since human beings are mobile (especially in the contemporary age of

globalization), many wish to leave their country where they feel they have fewer

opportunities and immigrate to more affluent well-ordered states. The citizens of

the migrants country of destination must decide to whom they wish to distribute the

primary good of membership.47 Walzer believes in the distinctiveness of cultures

and groups as a valuable basic feature of human life. 48 The unconditional opening

of borders to immigration undermines this value. The desire to retain distinctiveness

leads societies to adhere to closure and the conclusion that a sovereign state should

45 MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 61 (1983).46Id. at 31.47 Id. at 32.48 Eliezer Schweid thinks that nationality of value is essential to the existence of a democratic

state in the modern era, as it is the basis for a distinct cultural creation that expresses the humanexistence. Schweid,supra note 16, at 29-32.


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control its borders and set its own admission policy.49 The distribution of membership

in a state is actually a political decision.The right to choose an admission policy is more basic than any ofthese, for it is not only a matter of acting in the world, exercisingsovereignty and pursuing national interests. At stake here is theshape of the community that acts in the world .... Admission andexclusion are at the core of communal independence. They suggestthe deepest meaning of self determination. Without them therecould not be communities of character, historically stable, ongoingassociations of men and women with some special commitment toone another and some special sense of their common life. 50

According to Walzer, a states immigrant admission policy, which actually refers

to the distribution of its membership, is, and should remain, a political question to be

decided by every state as part of its sovereignty and self-determination.

But this approach does not consider the other aspect of immigration, namely, the

proper manner of distributing economic resources. Can and should we keep out needy

people who cannot lead a decent life in their impoverished burdened state just because

we want to preserve our identity, community, and self-determination?

Walzer resolves this dilemma through his concept of mutual aid. Mutual aid

extends across political borders. We are not supposed to confront the poor and the

needy without assisting them. It is not exactly clear what we owe these foreigners but

we are positively required to assist them if (a) the need is urgent and (b) the risks andcosts entailed in providing that aid are relatively low.

Groups of people ought to help necessitous strangers when theysomehow discover ... but limit on risks and costs in these cases issharply drawn. I need not take the injured stranger into my home,except briefly, and I certainly need not care for him or even associatewith him for the rest of my life. 51

By analogy we can say that if a state is approached by needy immigrants, the duty

of mutual-aid, or what Walzer later calls the duty of justice-right now,52 imposes an

49

WALZER,supra note 45, at 39. Joseph H. Carens criticizes Walzers idea that distinctivenesscan exist only if there is closure. He looks at societies within states that are distinct from one anothereven though full freedom of movement exists within states. See Joseph Carens,Aliens and Citizens:The Case for Open Borders, in THEORIZING CITIZENSHIP 229, 245(Ronald Beiner ed., 1995). Benhabibargues that such an approach disregards the advantages offered by immigration movements for theenrichment and development of cultures. Benhabib,supra note 17, at 1772.

50 WALZER,supra note 45,at 61-62.51Id. at 33.52 Walzer,supra note 43, at 11.


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obligation on affluent society to assist them. But it does not necessarily impose an

obligation to allow permanent entry into the state. Assistance can also be achieved

by supporting the potential immigrants in their state of origin. How much assistance

is the affluent state obliged to provide the necessitous strangers? Walzer believes that

the assistance must be limited and fall considerably short of simple equality53 since

it is a short term duty within the scheme of mutual aid as part of global justice. A

more comprehensive scheme should be applied by the state of origin as part of local

distributive justice.

According to Walzer, states may also fulfill their duty of mutual aid to necessitous

immigrants by allowing them temporary refuge. Entry will be allowed save if itinterferes materially with the efforts of the government to maintain an adequate

standard of life especially to the poor classes. But the community mightwell decide

to cut off immigration even before that, if it were willing to export (some of) its

superfluous wealth. Its members would face a choice ... they could share their wealth

with necessitous strangers outside their country or with necessitous strangers inside

their country. 54

In contrast to Rawls, who refers generally to immigration without distinguishing

between ordinary immigrants and refugees,55 Walzer pays special attention to the

admission of refugees when addressing justice in immigration. He admits that

refugees are different from other immigrants in the sense that their claims cannot be

met by the export of wealth. They cannot remain in their country of origin wheretheir lives are in danger. They can only be assisted by being permitted entry into the

country of refuge.56 The victims of political or religious persecution make the most

forceful claim for admission. If not taken in, they might be killed.57 Walzer asserts

that if the number of refugees is small, then the principle of mutual aid imposes a duty

upon the state of asylum to admit the refugees so long as the latter do not advocate

ideas that contradict the basic beliefs of the state of asylum. He gives an example of

the refugees from Hungary following the failed revolution of 1956. It was natural

for the United Kingdom and the United States to offer these refugees asylum, but the

converse would have been true had the revolution succeeded, with the result that the

supporters of Stalin would have looked for refuge in these countries. Refugees must

53 WALZER,supra note 45,at 48.54 Id. at 48.55Supra, text adjacent to note 39.56 WALZER,supra note 45, at 48.57Id. at 49.


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appeal to the sense. One wishes them success, but in particular cases, with reference

to a particular state, they may well have no right to be successful.58

Walzer makes it clear that the previous statement regarding the duty to admit

refugees as part of the mutual aid duty is relevant only to small as opposed to large

numbers of refugees. The right to seek asylum is intended to apply to individuals,

considered singly, where their numbers are so small that they cannot have any

significant impact upon the character of the political community.59 Walzer has no

clear answer regarding what should be done with masses of refugees seeking asylum

at the gates of a foreign state. He assumes that there are limits to collective liability

but he cannot specify them. To take in large numbers of refugees is moral but theright to restrain the flow remains a feature of communal self-determination. The

principle of mutual aid can only modify and not transform admissions policies rooted

in a particular communitys understanding of itself.60

In another article published in 2000, entitled Governing the Globe, 61 Walzer

discusses whether a world government is necessary in the age of globalization or

whether the present world order should best be left alone. He presents a scale of

seven models of world order in which at the extreme left there is a central government

of a world empire and on the extreme right there is international anarchy.62 Walzer

recommends adhering to a world order that lies between these two extremes. He does

not advise a solution embracing a world federation as he is afraid that this might lead

to tyranny. A world federation does not resemble any existing federation of states

58Id. at 50.59Id. at 50-51.60Id. at 51.61 MICHAEL WALZER, ARGUINGABOUT WAR171 (2004).62 It is very clear why the world should not be governed by an anarchical regime which engages

in wars, conquests, oppression, etc. The other extreme situation of a global world order is where aglobal government is established. The benefits which may be gained from such a regime are obvious:It will limit wars between states as there will only be one world state with a central world governmentand have the capacity to apply global distributive justice and transfer natural resources and fundsfrom one part of the globe to another. However, Walzer does not suggest that these benefits should

convince us to adopt such an extreme solution as a world government has the potential to become aworld tyranny that will not be balanced by competing forces. In addition, Walzer does not believethat it is realistically possible to create global unity. Peoples of the world are unwilling and incapableof leading lives which do not express their traditions and cultures. Demands for public expression ofcultural divergence would be rejected by a world government and, if accepted, would move the worldin a more rightwing direction and away from global unity. Pogge adopts a similar view. Like Walzer,he rejects the idea of a world empire, but unlike Walzer he believes that sovereign states should notnecessarily remain the organizational units of society. See Thomas W. Pogge, Cosmopolitan andSovereignty, 103 ETHICS 48, 63-75 (1992).


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because next to existing federations one can still find additional states or additional

federations capable of creating a balance of powers. Walzers suggested solution for

the future global order is to establish a set of alternative international centers alongside

existing states and increasingly develop social ties that would cross state boundaries

through these centers.63 Walzer recommends using existing international bodies as the

international centers and developing new ones as needed. He argues for the existence

of numerous competitive international bodies which would function alongside states.

This scheme would prevent the emergence of a single overly strong international

organization which might abuse its power. It would also allow traditions and cultures

to flourish without neglecting the advancement of international interests.64

Like Rawls, Walzer does not explain whether such bodies would play a role in

the global justice scheme and assist in solving problems of immigration. Rawls

and Walzer have been criticized for disregarding the strong interdependence between

societies in recent years. They have also been accused of being too state-centric and

not giving enough consideration to the blurring of borders and the injustices caused by

globalization. Rawls and Walzer have been criticized for giving the community and

the state too much weight at the expense of individuals.

Cosmopolitans undertook the task of presenting a theory of justice which considers

all these problems. According to cosmopolitans, the duties of justice do not stem

from any political organization but from the nature of humanity and they apply to all

human beings, irrespective of their associations, and the relationship to them. Thecosmopolitan view is based on the idea that all human beings are owed a certain

standard of treatment simply by virtue of their humanity and adequate treatment

includes duties of justice.65 This leads to a perception of the cosmopolitan person

as a citizen of the world. He is considered to have multiple identities; ties to one

national community are not necessary for him to lead a happy and meaningful life.

The cosmopolitan person is deemed to be responsible for all human beings and equally

all are responsible for him.66

63See also FUYUKI KURASAWA, THE WORKOF GLOBAL JUSTICE: HUMAN RIGHTSAS PRACTICES 5-6(2007).

64 In contrast to Walzer, Habermas does believe in a world federation as the best structure toapply global justice. Like Walzer, he does not call for the abolition of states, see Habermas,supranote 18, at 180-81.

65 BROCK,supra note, at 39, 88; Thomas Nagel, The Problem of Global Justice, 33 PHIL. & PUB.AFF. 113, 119, 130 (2005).

66 BROCK,supra note19,at 8-9; Pogge,supra note 62, at 56.


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We now turn to an analysis of global justice and immigration as given by three

cosmopolitan scholars.

D. GILLIAN BROCK

Gillian Brock presents a comprehensive approach to the issue of global justice. She

defines herself as cosmopolitan and is what one calls a moderate (soft) cosmopolitan.

According to her theory, global justice should seriously consider the equal moral

worth of persons, yet leave scope for some form of nationalism along with other

legitimate identifications and affiliations.67

Her soft approach to cosmopolitanismfollows from her belief that the world will become one global state and until that time

comes cosmopolitan ideas should be advanced through existing institutions, namely,

nation states.

Brock also rejects the extreme approach of cosmopolitanism that asserts that there

is no room for national identities and that disregards the benefits encompassed by

nationalism. She undertakes the task of presenting a system of global justice in which

the equal moral worth of persons finds room within nationalism.68

Brock criticizes Rawls for not extending the distributive justice scheme, discussed

inA Theory of Justice, on a global scale.69 She adopts a view, previously presented by

other cosmopolitans such as Charles Beitz, Thomas Pogge, Carens and Moellendorf,

according to which individuals (and not states) acting as representatives should beput behind a cosmopolitan veil of ignorance to agree upon principles that will avoid

inequalities.70 However, she then diverges on a different point. While the above

mentioned cosmopolitan theorists believe that people behind this global veil of

ignorance will select the same principles as those behind a closed societys veil of

ignorance, Brock asserts that they would not make exactly the same decisions. Like

their counterparts behind the states veil of ignorance, they will agree that everyone

should enjoy some equal basic liberties, for example, freedom from assault and

freedom from extreme coercion, but when dealing with inequalities, people behind a

global veil of ignorance will not select principles in which inequalities of distribution

67 BROCK,supra note19, at 4.68 Id. at 4.69Id. at 46.70Id. at 47. See Charles Beitz , Cosmopolitan Ideas and National Sentiment, 80 J. PHIL.591,

593, 595-596 (1983); Pogge, supra note 62, at 48-55; DARREL MOELLENDORF, COSMOPOLITAN JUSTICE17(2002); Carens,supra note 49, at 251-52.


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that derive from different talents and abilities will be of maximum benefit to the least

advantaged.71

Brock believes that when dealing with global equal opportunities we should be less

ambitious. We should first and foremost see that people have equal opportunities to

obtain water, food, sanitation, education, and medicine. She suggests that on a global

scale we should not look at equal opportunities from the occupational perspective but

from a broader perspective. The goal is to give people genuine opportunities to secure

decent lives rather than the pretension of trying to achieve transnational equality of

opportunity.72

Brock attempts to deal with policy issues so as to constitute real progress towardsachieving global justice.73 One of the topics she discusses is immigration.

As explained earlier, according to Brocks concept of global justice it is necessary

to ensure that peoples basic needs and basic liberties are protected. Accordingly, one

would expect Brocks ideas about immigration to include an approach supporting

open borders enabling a person who lives in state A, where his liberties and basic

needs are not protected, to move easily to state B where basic needs and liberties are

met. But Brock applies her concept of global justice to immigration in a much wider

fashion. According to her analysis, immigration has economic influences on three

populations: the immigrants themselves, the population in the state of origin and the

population in the state of immigration.74

71 BROCK,supra note19,at 47. Brock argues that people would agree that everyone should beprotected from certain real (or highly probable) risks of serious harm so that they would have what isnecessary to meet their basic needs. She continues that people should be adequately provided for interms of assistance if they are incapable of meeting their own needs. Id. at 50-52. Brock bases herassessment about how people behind a global veil of ignorance will act on empirical studies whichshe has conducted on the matter. Id. at 54-57. Rawls asserts that behind a states veil of ignorancepeople would agree upon the fair equality of opportunity principle. Here too, Brock deviates fromRawls ideas when dealing with this principle on a global scale. She poses the question whether wereally want a child from agricultural Mozambique to have the same statistical opportunity to becomea banker as the son of a Swiss banker? In her view, an affirmative answer to such a question woulddisregard the difference between cultures. Id. at 59.

72

Id. at 62-63. Brock proceeds to defi

ne what she means by a decent life, or alternatively a lifewhere ones freedom and basic needs are met. She states that it includes what is necessary forsocial functioning, without its satisfaction one would be unable to carry out four basic social roles:

those of a citizen, parent, householder and worker (id. at 70-71); this requires the promotion ofcapabilities that would enable people to meet their needs. According to Brocks theory, the accountof basic needs is more fundamental than the account of human rights; the latter is broader and cannotbe developed unless the demands of basic needs are met. Id. at 72.

73Id. at 5.74 Id. at 192, 195, 198.


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Immigrants tend to believe that they would benefit significantly from immigrating

and be able to lead better lives encompassing both more liberties and a greater ability

to supply their own basic needs. The same can be said about the state of destination.

There is no evidence that immigrants increase the crime rate or that they impose

heavy burdens on social security resources.75 Brock provides us with studies carried out

by economists that prove that there are extensive economic benefits to the absorbing

state. The assertion that the immigrants take jobs from the local population is also

inaccurate.76 In the long run, immigrants create work since they need housing, food,

and the like, thus spurring the development of the economy of the absorbing state.

Brock also provides us with information that shows that immigrants only reduce thesalaries of blue-collar workers.77 This, however, is not necessarily a disadvantage

as it has been shown that such processes compel local workers to progress and seek

higher professional qualifications. In addition, the low salaries paid to immigrants can

increase consumption, indirectly develop the economy, and create more work places.

Brock points out that in the near future, in western developed states, there will be 2.5

workers for each retired person as opposed to the ration in 1960 offive workers for

each retired person. Failure to allow immigration will thus lead either to increased

taxation of the working population or a decrease in the amount paid by social security

to the retired population.78

Consequently, Brock concludes that there is much agreement among

economists that immigration increases the wealth of the host countries79 but is thisan overall gain for promoting what I have identified as the goals of global justice?80

Her answer to this question is in the negative since there is another population

to consider, that of the state of origin. According to Brock: the evidence here

suggests that developed countries permitting entry to more immigrants can have

disastrous effects for the counties they exit ... 81 more movement of peoples can

sometimes make things worse for these who remain in the country of origin. 82

Brock contends that the biggest problem faced by the population of the state of

75Id. at 197 n.17.76Id. at 196 n.11 & 12.77Id. at 196.78Id. at 196-97.79 Id. at 196 n.10.80 Id. at 197.81Id. at 198.82Id. at 193.


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origin is the emigration of qualified people. This causes a brain-drain that reduces

the local populations well being.83

It has been argued that emigration, including even that of qualified people, may

assist the population of the state of origin as the emigrants send part of their earnings

home to their relatives. Brock agrees that this process has some advantages but still,

statistics show that the emigrants send money home only in the first years that they are

away, and if they stay in the absorbing state, they will eventually stop sending money

home.84 Another problem is that such money does not necessarily increase the well-

being of certain sections of the population back home since it lowers their motivation

to work and improve their conditions themselves.85

Brock contends that where immigration is allowed, it should be subject to the

payment of compensation by the absorbing state to the state of origin in order to

reduce the disadvantages suffered by the local population as a result of the process.86

She even recommends a prohibition on immigration in order to achieve global justice.

Restricting immigration may have the effect of compelling firms in the developed

world to export certain kinds of jobs, such as manufacturing, to developing countries

and this could provide much needed employment opportunities to those countries

aiming to develop.87 The goal of the developed states should not be to absorb

immigrants but to address structural poverty while creating wide-ranging economic

changes that may require external financial support for the budget of poor countries.88

The aim should be to bring desirable jobs to the people rather than bring the people tothe desirable jobs.89 Prospects for improved living are better secured by attending to

the situation in the home countries and examining what may be done to remedy initial

problems.90 Assisting poor states to improve the well-being of their entire population

83Id. at 199. Chang rejects the notion that immigration causes economic disadvantages to thestate of origin, and claims that if it does, these disadvantages can be overcome. According to Chang,this is not a good enough reason to restrict immigration. See Howard F. Chang, The Economics ofInternational Labor Migration, 41 CORNELL INTL L. J. 1, 6, 22-23(2008).

84 BROCK,supra note19,at 204-05, 207 n.68.85Id. at 206 n.58.86

Id. at 201.87Id. at 197.88Id. at 208 n.7189Id. at 208.90Id. at 193. See also Thomas Pogge,Migration and Poverty, in CITIZENSHIPAND EXCLUSION 12

(Veit Bader ed., 1997). Pogge, also a cosmopolitan who believes that rich states should assist needyforeigners and that distributive justice is a global issue, takes the same approach as Brocks regardingimmigration. He calls upon the wealthy states to assist the poor in their state of origin rather thanopen their borders to immigrants. He writes:


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would achieve more justice than trying to help individuals move away from their

homeland.91 Brocks final conclusion is thatwhatever gains there are from increased immigration may be small todecreased emigration coupled with improvements in crucial policies.Immigration, on balance, seems to do more for host countries andimmigrants ... but it is not clear that it does much, or enough, forthose remaining in the feeder country ... Examining root causes orreasons why people feel they have to leave their country of originin order to ensure prosperity for decent lives and addressing thosemight, all things considered, be a better strategy.92

Brock suggests letting states apply the principles of global justice so long as theyhave the capacity to do so. If they lack that ability, international cooperation should

be considered. Nonetheless, she does not recommend pressing for the establishment

of a world state since: An unjust world state would have no comparable independent

power capable of restraining it.93 In her view, the project of assisting the potential

immigrants state of origin, which is the application of global justice in immigration

issues, should be achieved through global institutions that have the resources, authority

and moral clout needed to make the required changes. The assistance could include,

for example, developments aid and a fair global taxation regime.94 From this one

can infer that Brock does not believe that states alone can conduct global justice in

immigration.

rather than try to get our compatriots to support admitting more needy foreigners and tosupport equal citizenship for foreigners already here, we should instead try to enlist themfor other moral projects with regard to which our mobilizing efforts can be much moreeffective..those who accept a weighty moral responsibility toward needy foreigners shoulddevote their time energy and resources not to the struggle to get more of them admitted intothe rich countries, but rather to the struggle to institute an effective programme of globalpoverty eradication.

Id. at 13, 14.Pogges reasoning is interesting. He believes that for every person that we admit into a rich

country there will be thousands left in desperate need, and it will usually not be the most needy whowill emigrate since some money and capacity are needed in order to move to another country. Healso mentions that it is psychologically easier for us to admit aliens who stand in front of our borders

than to assist the poor of the world whom we do not confront directly. We also tend to believe thatreal assistance can only be given within our state and according to our values. Pogge believes thatthis is a wrong approach and that the correct approach is to try to reduce poverty in the states of originwhere help will be given to the most needy. Seeid. at 14, 22-24.

91 BROCK,supra note19,at 193-94.92Id. at 211-12.93Id. at 53.94Id. at 193. Pogge supra note 90, at 18-22, suggests transferring assistance to the needy through

international bodies such as UNICEF and avoiding giving money directly to corrupt governments.


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Brock focuses mainly on global distributive justice when considering the issue

of justice in immigration. Her work disregards entirely situations where people are

forced to leave their states due to persecutions, wars, or natural disasters. In such

circumstances transferring funds to the state of origin cannot solve any problem since

people are faced there with real danger to their lives and health. A comprehensive

discussion on global justice and immigration policy should have coped with the issue

of forced migration.

E. JOSEPH CARENS

As opposed to most theorists who devote a great part of their writings to global justice

and derive from it their approach to immigration, Joseph Carens focuses primarily

on immigration. His approach to global justice can be inferred from his theory on

migration. Joseph Carens is considered the strongest advocate of open borders.95 It

is possible to understand from his work that his ideal is a world without borders and

without states. In his article on Realistic and Idealistic Approaches to the Ethic of

Migration he writesone can move from asking questions about free migration toasking questions about the division of the world into states ... wemight think of the question of what absolute justice requires with

respect to migration as one component of the question of what afundamentally just world order would look like. After all, it wouldseem odd to ask what the ideal is with regard to migration in anotherwise unchanged world.96

Carens cosmopolitanism can also be inferred from his comments on the work of

Rawls. Carens belongs to a group of cosmopolitan thinkers who do not agree with

Rawls and who believe that the principles applied in the original position behind the

veil of ignorance of a state, should also be applied behind a global veil of ignorance.

Carens explains that the theory should be extended on a global scale because every

individual around the world, no matter where he lives and to whom he was born, has

an equal moral worth and should be accorded the same justice benefits as his fellow

human beings.

97

He explains: Liberalism ... emerged with the modern state and

95 Peter C. Meilaender,Liberalism and Open Borders: The Argument of Joseph Carnes, 33 INTLMIGRATION REV. 1062 (1999).

96 Joseph H. Carens, Realistic and Idealistic Approaches to the Ethics of Migration, 30 INTLMIGRATION REV. 156, 167 (1996).

97 Carens, supra note 49, at 255, 256, & 262. See also Thomas Pogge, The Incoherence BetweenRawlss Theories of Justice, 5 FORDHAM L. REV. 1739, 1755-56 (2004); Beitz,supra note 32, at 124-


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presupposes it. Liberal theories were not designed to deal with questions about aliens.

They assumed the context of the sovereign state. As historical observation this has

some truth, but it is not clear why it should have normative force.98

Carens poses the following question:Borders have guards and the guards have guns. This is an obviousfact of political life but one that is easily hidden from viewat leastfrom the view of those of us who are citizens of affluent Westerndemocracies. Perhaps borders and guards can be justified as a wayof keeping out criminals, subversives, or armed invaders. But mostof those trying to get in are not like that. They are ordinary, peaceful

people, seeking only the opportunity to build decent, secure livesfor themselves and their families. On what moral grounds can thesesorts of people be kept out?99

He notes that the typical argument used to restrict immigration is sovereignty

of states which permits states to choose whether or not to be generous in allowing

foreigners into the country, even though they are not obligated to do so. Carens rejects

this notion and states his view in very sharp terms: borders should generally be open

and ... people should normally be free to leave their country of origin and settle in

another, subject only to the sorts of constraints that bind current citizens in their new

country ...100 No moral argument will seem acceptable to us if it directly challenges

the assumption of the equal moral worth of all individuals ... what is not readily

compatible with the idea of equal moral worth is the exclusion of those who want tojoin.101

Carens states that opportunities for particular individuals may vary greatly from

one state to another. The same can be said for cultural, religious and other interests

which an individual might believe could better be achieved in a new state. Such an

individual should be allowed to be exposed to the new state by providing him with

freedom of movement to leave his country and enter the other. According to Carens,

freedom of movement between states does not differ from freedom of movement

within a state. As a liberal society will enable full freedom to move within its borders

136, 143-53; Beitz, supra note 70, at 591-600. For a different view which supports and defendsRawls distinction between global and local justice, see Macedo,supra note 22, at 1721-29.

98Carens,supra note 49, at 244.99Id. at 99.100Id. at 251. See also Thomas Christiano,Immigration, Political Community and Cosmopolitanism,

45 SAN DIEGO L. REV. 933 (2008).101 Carens,supra note 49, at 270.


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as part of the meaning and content of liberty, this ability should also be applied

between states.102

Carens elaborates on his theory basing it on an extension of Rawls theory of

justice. He states that restrictions based on the assumption that immigration reduces

the economic well-being of local citizens can be accepted only if immigration would

reduce the economic well-being of local citizens below the level which the potential

immigrants would enjoy if they were not permitted to immigrate. But he then goes on to

say that according to Rawls theory, liberty has priority over economic considerations

so that even if immigration causes economic burdens upon the absorbing state (which

in his view means the reduction of the economic well-being of its citizens belowthe level enjoyed by the immigrants) liberty of movement should be preserved and

immigrants should be allowed to enter the country.103

Carens himself believes that freedom of movement, including the right to enter

a state, is not an absolute right. Like most rights, it can be restricted for the sake of

public order or public security. Where it can be proven that immigration may cause

chaos and a breakdown of order, or that it poses a threat to the security of the state,

restrictions are justified. Carens warns that these restrictions should be applied with

restraint. They should only apply when the expectation of damage to public order and

security is based on evidence and on a way of reasoning acceptable to all, and only to

the extent necessary to preserve public order and security.104

Carens addresses other arguments that support restrictions on immigration. Heraises the problem considered by Brock about the damage immigration may cause

to the citizens left behind in the state of origin105 and asserts that if the brain-drain

phenomenon is a problem, then there must be ways to resolve it, such as by the

absorbing states paying compensation to poor countries when skilled people emigrate

from them. But to say that we should actually try to keep people from emigrating

because they represent a valuable resource to their country of origin, would be dramatic

departure from the liberal tradition in general and from the specific priority that Rawls

attaches to liberty even under non-ideal conditions.106

Carens discusses another related concern, namely, that immigrants, who come

from societies where liberal democracies are weak or absent, cannot be democratic

102 Id. at258.103Id.at262.104Id. at 259-60.105Supra, text adjacent to notes 83-90.106 Carens, supra note 49,at 261.


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themselves and their potential lack of commitment to the ideas of liberalism

and democracy may therefore pose a threat to a just public order in the state of

immigration.107 This concern was also raised by Thomas Christian, who considers

himself a cosmopolitan and argues that the ultimate political aim for humanity as a

whole must be a global political community ... only it can create a global legalorder108

that will eventually lead to open borders. Christian contends that as this process of

a global political community has not yet become a reality, and as the only bodies to

push forward toward the establishment of a global political community are liberal

democracies, then: to the extent that open borders would undermine the existence of

normal functioning of liberal democratic states, such a policy should be rejected froma cosmopolitan standpoint because it derails the very institutions that give us some

hope for realizing cosmopolitan justice in the future.109

I believe that Carens would agree with Christians approach but Carens still

warns us to distinguish between reasonable expectationswhich justify restrictions

on immigration when there is a real likelihood that immigration will jeopardize

the continuing existence of a liberal democratic regimeand mere hypothetical

speculationswhich p

zilbershats, yaffa. sovereign states control of immigration - a global justice perspective....

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