Economic Migration and Territorial Sovereignty: Is Territorial Exclusion Justifiable?
Since the establishment of the Westphalian state order, the attempt to control and restrict territorial access has been a core state activity (cf. Andreas 2003). States have always imposed some sort of (direct or indirect) entry barriers, whether to dissuade military interventions, to avoid a wide range of economical burdens, or to keep out undesirable people. Given the increasing reliance of human activities upon computer-based communications across territorial borders it can be tempting to assume, as it has been suggested (cf. Schroer 2006: 195-207), that territorial boundaries are more and more eroding. New cybernetic boundaries, made up of screens and passwords, seem to rule out (at least in our collective imagination) classical interstate frontiers. On the other hand, as far as immigration policy is concerned, real erosion of boundaries is still a long way off, and the trend is not all in the expected direction. Rather than simply being eroded, territoriality in Europe is persisting – but with a gradual shift in emphasis away from economic and military borders, and towards (anti-) immigration law enforcement. In liberal political theory the significance of territoriality has been often either neglected or oversimplified. Liberal cosmopolitanism regards territorial boundaries as an unpleasant remnant from a past era. It has been argued that state borders are historically unjust or at least historically contingent and therefore morally arbitrary. Liberal communitarians, on the other hand, tend to oversimplify the political and moral significance of territorial boundaries. Their focus is, unsurprisingly, on the preservation of cultural integrity and plurality. However, since national cultures are, in their view, somehow rooted in historically meaningful landscapes every communitarian theory of justice is likely to grant to citizens the right, at least conditional, to exclude foreigners from the common soil. Only libertarianism develops a rather consistent account about the relationship between territoriality and immigration. Its proposal is straightforward: state territory ought to be considered as a private space, whose legitimate owners – the private landowners – have the right (again: more or less conditional) to exclude intruders. Once territory is assigned to individuals, who acquire full property rights over their pieces of land, the right to exclude intruders should be given to private landowners either. This is why for libertarianism there can be – strictly speaking – no right to immigration. “It is the private property owners, not the authorities of the host country, who decide, under libertarian premises, on immigration” (Merle 2002). Maybe this is one reason why both supporters and opponents of immigration were mainly inclined to abandon the link between property and sovereignty as the “weakest, most confused and confusing option when it comes to liberal justifications for membership controls” (Cole 2000: 160). I think this is going too far. The link between property and (territorial) sovereignty is worth being specified, but not necessarily abandoned. And this will be my main task here. My argument will be that liberal cosmopolitan efforts are better served if the parallelism between sovereignty and property is developed to a better level of consistency. Several theoretical and practical examples from modern immigration law show that the link between sovereignty and property by itself doesn’t necessarily support a nationalistically motivated refusal of immigration. Moreover, once the analogy between territorial sovereignty and property has been drawn, modern theories of property would raise the question whether territorial exclusion, as an exclusion from wealth, is really justified. Even libertarians would face the problem of justifying permanent material privileges that arbitrarily exclude immigrants. But before I go deeper into this, I would like to raise a preliminary question: is immigration really challenging the idea of territorial sovereignty?