State system legitimacy, assigned responsibilities, and the moral right to exclude

I. CLARIFYING THE HOLISTIC LEGITIMACY THESIS

In order to reach an adequate understanding of HLT, we need to specify what we should mean by ‘the moral right to exclude’, ‘the state system’, and ‘legitimacy’ for the purposes of it.

It’s a substantive moral question whether states can ever have a moral right to exclude, and if they do have such a right, how extensive it is. But we can identify different ways in which it might be construed for the purposes of HLT. A state’s moral right to exclude could in principle relate to different types of exclusion. It could be a moral right to exclude from territory or a moral right to exclude from membership, that is, to exclude from citizenship. It could be more or less restrictive in terms of what it recognises as permissible grounds for exclusion from each. With respect to type of exclusion, I shall assume that HLT is concerned with exclusion from territory, since that is what defenders of it have focused upon. With respect to grounds of exclusion, there are a number of ways in which the moral right to exclude might be understood. First, it might be regarded as a moral right possessed by a state to refuse entry to would-be migrants whatever their needs or predicament, for any reason whatsoever.⁴ Or, second, it might be regarded as a moral right possessed by a state to refuse entry to ordinary would-be migrants, that is, migrants that have no special claim to entry, whether on grounds of family connection or refugee status, but no moral right to exclude refugees, regardless of whether it has admitted its fair share of the latter. Or, third, it might be regarded as a moral right possessed by the state to refuse entry to ordinary would-be migrants and to refuse entry to refugees when it has admitted its fair share of them (including taking up its fair share of any slack created by other states not admitting their fair share), provided it does not return them to dangerous conditions from which they have fled. Of course, there are many other ways of construing it. For the purpose of evaluating HLT, I’m simply going to presuppose the third formulation I have given. This seems to me to be the formulation that can be deployed to make HLT interesting and challenging, not only in its general form but also in the domain-specific version that applies to refugees.

By ‘state system’, I shall mean a system of territorially demarcated units each of which possesses an extensive legal right to exclude, that is, an extensive legal right to determine who is a member of it and who should be admitted to the territory over which it has jurisdiction, together with a legal right to set its own laws and policies within that territory. We could in principle characterise the state system in such a way that it did not necessarily involve its members possessing a legal right to exclude of any kind, but for the purposes of evaluating HLT, it makes sense to specify it in such a way that it does, since that enables us to put centre-stage the issue of whether states are morally justified in possessing such a legal right. No substantive issues are settled by doing so. The state system can take somewhat different forms depending on the precise specification of the legal right to exclude and what other legal rights and duties are enshrined within it. But the claim being made by HLT is that each state’s moral right to exclude, generally or in a specific domain, is conditional in some way on the legitimacy of the system of states to which it belongs or the legitimacy of that domain of it.

But what does it mean to say that a state system is legitimate or illegitimate, or that some domain of it is legitimate or illegitimate? When laws and policies are described as legitimate, this is usually taken to imply that the state is morally permitted to enforce them. Indeed, that is often regarded as constitutive of what it is for a law or policy to be legitimate. Sometimes instead legitimacy is understood as a property of procedures through which laws and policies are made, without any necessary implications for the morally permissible exercise of state power. Interpreted in this way, the claim is that these procedures meet some standard that gives us a reason, but not a conclusive reason, for abiding by laws and policies that are the outcome of these procedures.⁵ Neither of these interpretations seems relevant to the state system, however, since in its current form at least it is not a law-making or law-enforcing body with its own procedures. In this context, talk of legitimacy seems to relate directly to the moral justifiability of that system or some domain of it.

As a first pass, we might suppose that a state system (or some domain of it) is legitimate if and only if it is fully morally justified all things considered. In that case the legitimacy of the state system (or some domain of it) would seem to depend in part on whether it has adequate procedures (in that domain) for protecting people who are failed by the states to which they belong. But if we construe legitimacy in this way, then both the general version of HLT, and the domain specific version of it that applies to refugees, would seem to have the radical implication that states lack a moral right to exclude when the state system, or the domain of it that relates to refugees, has only minor moral defects. For even minor moral defects, such as moral imperfections in the procedures for allocating refugees to different countries, will mean that it is not fully morally justified all things considered.

The alternative is to suppose that a state system (or some domain of it) is legitimate if and only if it meets some moral standard, for example, it has procedures that are generally adequate for protecting the human rights of people who are failed by their states. This is more plausible. I shall take it to be the claim that is being advanced.⁶ But it faces some of the same problems as a sufficiency standard for distributive justice, such as problems that arise from thresholds effects.⁷ If a state system (or a domain of it) falls fractionally short of whatever standard is specified, then states that are part of it will possess no moral right to exclude, whether generally or in that domain, whereas if it meets that standard by a small margin, then states will possess a full moral right to exclude. In order to address this problem, we can suppose that legitimacy comes in degrees, and that there is some threshold above which a state system (or some specific domain of it) has some degree of legitimacy and below which it has none. HLT might then claim that anything less than full legitimacy has some effect on states’ moral rights to exclude; that the greater the distance from full legitimacy, then the greater the threat that lack of legitimacy poses to states’ moral rights to exclude; and that states’ moral rights to exclude are nullified completely (or in a specific domain) when the state system (or some domain of it) has no degree of legitimacy. Such an approach would not yield the conclusion that individual states possess a full moral right to exclude if the system to which they belong meets some standard of legitimacy, but it does entail that when a state system or some domain of it falls below that standard, then states that belong to it lack a moral right to exclude whether generally or in that domain.

II. THE HOLISTIC LEGITIMACY THESIS AS A NORMATIVE PRESUPPOSITION OF THE STATE SYSTEM

Some who endorse HLT argue that it draws attention to a ‘normative presupposition’ of participating in the state system’s practices. This argument can take different forms. According to one version, participation in the state system involves consenting to its rules, and therefore states incur moral responsibility for the foreseeable consequences of those rules, including the foreseeable failure of some states to follow some or all of them. But this seems implausible. A state’s participation in the state system, including complying with its rules, does not constitute or imply valid consent to those rules any more than an individual’s abiding by domestic laws constitutes or implies valid consent to these laws. At the very least, valid consent in both cases requires that there be a reasonable alternative available. Of course, states may enter into explicit agreements to conform to rules and conventions, such as the 1951 Refugee Convention, and that generates its own obligations to do so. But that is different from claiming that mere participation in a practice involves valid consent to the rules that govern it.

How else might HLT be justified by reference to the involvement of states in the state system? Without committing himself to HLT, Joseph Carens argues that the role that states play in constructing that system means that they incur various responsibilities towards people who are failed by it:

Because the state system assigns people to states, states collectively have a responsibility to help those for whom this assignment is disastrous. The duty to admit refugees can thus be seen as an obligation that emerges from the responsibility to make some provision to correct for the foreseeable failures of a social institution… [O]ne of the responsibilities we have in constructing an institution is to anticipate the ways in which it might fail and to build in solutions for those failures…. Thus, we can see that states have a duty to admit refugees that derives from their own claim to exercise power legitimately in a world divided into states.⁸

Although this passage does not commit Carens to either the general version of HLT or a domain specific version of it, the idea that individual states exercise power legitimately only if they fulfil the collective responsibilities that are generated by their role in constructing or producing the state system, might be thought to provide a building block for it. It provides a potential building block for the general version of HLT because we might think that if the state system does not have adequate mechanisms in place to deal with refugees, the failure of states to fulfil the collective responsibilities they acquire as a result of constructing it together means that no state that is part of it has a moral right to exclude anyone, even ordinary would-be migrants. It also provides a potential building block for a version of HLT that applies specifically to refugees, because we might think that if the state system does not have adequate mechanisms in place to deal with refugees, then the failure of states to fulfil the collective responsibilities they acquire as a result of constructing it together means that no state that is part of it has a moral right to exclude refugees even when it has taken its fair share.

Carens is in effect maintaining that because states are co-producers (or, perhaps more accurately, co-reproducers) of the state system, they incur collective moral responsibility for its practices, including the foreseeable ways in which these practices may leave some people vulnerable to injustices, including the violation of their rights. This is a powerful argument, but the idea that ‘states collectively’ have moral responsibility for the outcomes to which the state system foreseeably gives rise, and that individual states incur duties because of their share of that responsibility, faces difficulties. The state system is not a group agent because it does not itself perform actions or have the capacity to do so. Since it does not perform actions or have the capacity to do so, it’s unclear how we could justifiably ascribe duties to it that can then, in some form, be distributed to the individual states that make it up.

Perhaps the phrase ‘states collectively’ is not meant to imply that the state system is a group agent or has its own responsibilities. But in any case, it is obscure why the failure of the state system should necessarily have any impact on the rights of the individual states that make it up. Individual states cannot generally opt out of the state system, and they may have very little influence on the rules that govern it or the failure of other states to comply with them. Given these facts, can states that do comply with these rules justifiably be regarded as incurring even a share of the moral responsibility for the consequence of such failures simply in virtue of being part of the state system and contributing causally to its reproduction? This would effectively be to attribute strict moral liability to states for the foreseeable failures of the state system. But just as the most plausible defences of strict legal liability appeal to the benefits in some contexts of treating people or corporations as liable in law for the consequences of their behaviour even when they are not at fault or in full control of creating those consequences, so too the most plausible defence of treating states as incurring strict moral liability for the foreseeable consequences of the state system must surely appeal to the benefits of doing so. In that case, we would no longer be in the business of extracting the normative presuppositions of participation in the state system, at least not in any straightforward way.

The picture is somewhat different for more powerful states that have the capacity to re-shape the rules of the international system, or have greater influence on other states, including whether they follow the existing rules or violate them. We might think these powerful states have a responsibility to exercise their power in a way that minimises rights violations and promotes just outcomes. But this wouldn’t justify either the general version of HLT or a specific version of it that applies to refugees. At best it would show that when a state has the capacity to re-shape international practices, or make it the case that other states obey the existing rules of those practices, its failure to do so may diminish its right to self-determination, including its right to exclude. For example, if a state has the capacity to persuade another to accept its fair share of refugees but does not use its influence, then this may place it under a duty to accept more than its fair share, and in that way either limit its moral right to exclude or the legitimate exercise of it.

III. THE ASSIGNED RESPONSIBILITIES MODEL AND THE JUSTIFICATION OF THE STATE SYSTEM

Even if we cannot justify HLT by appealing to the idea that it is a normative presupposition of participating in the state system, we might nevertheless think that focusing on the supposed benefits of the state system is the best way of justifying that system, and provides the basis for the best available defence of HLT, or at least, the general version of it.⁹ Following Robert Goodin, I shall call an approach to justifying the state system that appeals to the benefits of allocating people to states, and then giving each state primary responsibility for protecting the rights of those allocated to it, ‘the assigned responsibilities model’. It seems to make possible a rather different defence of the general version of HLT, one that justifies each state’s moral right to exclude by reference to the beneficial consequences of the state system under ideal circumstances, but regards that right as being thrown into question when these circumstances are absent or present only to a limited extent.

I shall consider whether this kind of defence of the general version of HLT could be successful. I shall argue that it too faces difficulties, but that it points us in the direction of an alternative account of the duties of states under non-ideal conditions that provides a different way of unpacking the normative presuppositions of the state’s right to exclude. When this model is suitably refined and combined with a fitting account of the state’s duties under unjust circumstances, it suggests a more nuanced understanding of the relationship between the legitimacy of the state system and individual states’ moral rights to exclude. According to the view that I shall develop in light of this model, the legitimacy of the state system is not a straightforward condition on states’ moral rights to exclude. Rather, a state’s moral right to exclude is affected in a complex way by whether it has fulfilled various moral duties that it incurs under non-ideal circumstances when the system of which it is part is defective in one or more respects.

What, then, is the assigned responsibilities model and what, according to it, would make the state system legitimate or illegitimate? There are different variants of this model. According to the influential version of it defended by Goodin, the global moral community has a moral duty to protect the vulnerable that is discharged by dividing the world’s population into separate territorially-bounded sovereign states each of which is assigned the primary moral responsibility to ensure that its members are protected against various threats to their interests.¹⁰ The special moral duties thereby assigned to states are ‘merely devices whereby the moral community’s general duties get assigned to particular agents.’¹¹ Goodin’s primary purpose in defending his version of the assigned responsibility model is to show how the state’s special moral duties to its own citizens might be justified without appealing to the power of the relationship of nationality (or citizenship) to generate them directly, and without appealing to any express or tacit consent that might be involved in generating or sustaining that relationship. The model nevertheless has implications for the justification of the state system. It in effect proposes that the state system is morally justified to the extent that it succeeds in fulfilling the moral community’s general duties to each of its members. More generally, we might think of the assigned responsibility model as a theory that justifies the state system, and the specific rights and duties that are part of it, by reference to its effectiveness in delivering just outcomes, with what counts as a just outcome determined by the best theory of justice. The assigned responsibilities model does not provide us with an account of what criteria should be used in dividing the world’s population into states and its surface into territories. But the overall picture it provides requires us to consider empirical evidence concerning which ways of dividing up its population and the earth’s surface will be conducive to delivering just outcomes. For example, if it can be shown that allocating people to states on the basis of shared identities or shared values is conducive to doing so, then the assigned responsibilities model will need to take that into account.

If the assigned responsibilities model is going to provide a justification of HLT, then part of its story must be that recognising a right to exclude could, when various conditions are met, reasonably be expected to generate just outcomes, or outcomes that meet some threshold of adequacy from the point of view of justice. This is at best an outline of the justificatory thesis that is being advanced by the assigned responsibilities model. Fleshing it out fully would require specifying criteria for judging when an outcome is just, or meets some threshold of adequacy from the point of justice. But I am going to remain silent on what particular theory of justice we should employ to assess outcomes. It seems to me that the assigned responsibilities model can in principle be developed in terms of any of a wide range of theories of justice.

It is potentially compatible with Lockean and other theories that recognise natural rights, that is, rights that are prior to the establishment of states. The idea would then be that a state system provides the most effective means of safeguarding these rights, or providing them with adequate protection.¹² It is compatible with minimalist theories which deny that states have obligations of distributive justice to those beyond their borders, and which claim that they merely owe a duty of assistance to burdened societies. It is also compatible with various theories of global justice, including relational and non-relational theories; sufficiency theories that posit that an outcome is just in global terms if everyone has enough, with the potential to employ different criteria for setting this level; or prioritarian theories that hold that an outcome is just in global terms if it gives weighted priority to the interests of the worse off, with the potential to give different accounts of the weighting that is required; or egalitarian theories that hold that an outcome is just in global terms when there is equality of access to advantage, with advantage understood in terms of primary goods, well-being, resources, capabilities, or some combination of these; or a republican theory that supposes that outcomes are just in global terms to the extent that they honour or promote freedom understood as non-domination. At a more concrete level, what constitutes a just outcome might be explicated, in part, by reference to various important goods that it is argued should be respected, or promoted in accordance with some distributive principle. These goods might include collective self-determination, or the ‘people relationship goods’¹³ that can be secured through exercising it, or the good realised when there is an appropriate ‘fit’ between a people and the territory it occupies.¹⁴

The assigned responsibility model should be regarded as part of an ideal theory of the state system.¹⁵ For it would be implausible to suppose that the state system as it exists now generates just outcomes, judged from the perspective of any theory of justice worth taking seriously. But defenders of the assigned responsibilities model can argue that this is because it is not (yet) properly set up, and that various conditions need to be met before a state system could reasonably be expected to produce just outcomes or meet some threshold of adequacy from the point of view of justice.¹⁶ But what would those conditions be? There is room for empirically informed debate here, but we might think that the following – call it ARM – is a plausible way of spelling out the basis for the justificatory thesis that is being advanced by the assigned responsibilities model.

ARM. When the world is divided into states with their own territorially demarcated jurisdictions and (i) each person is a member of at least one state, (ii) each state has within its jurisdiction a fair share of resources (taking into account the entitlements of its individual members and rectifications for past injustices), (iii) each state has a just constitutional structure for protecting the civil and political liberties of each of its members, then granting each state a right (a) to set law and policy within its jurisdiction, (b) to exclude would-be migrants from its territory, and (c) to determine its own membership, would provide the most effective means of promoting the most just overall outcomes, or of meeting some threshold of justice, compared to any other feasible global structure.

If the conjecture made by ARM is justifiable, then it is a short step from it to the conclusion that when conditions (i) to (iii) are met, we are morally justified in attributing rights to states to set law and policy within their jurisdiction, to exclude would be migrants from their territories, and to determine their own membership. Under these conditions we are in effect justified in regarding states as possessing a moral right to make such decisions.

ARM is neither tautologous nor trivial. It is not tautologous because even when a state system meets conditions (i)–(iii), it could lead to unjust outcomes. Even under these conditions, the state’s right to exclude would-be migrants from its territory could be exercised in ways that give far too little weight to the interests of non-members, including for example those displaced by natural disasters. Furthermore, states might fail to protect the civil and political liberties of their own citizens when setting law or policy even when they have a just constitutional structure. It is not trivial because we might think that even when (i)–(iii) are met, there are alternative global configurations that would produce more just overall outcomes, or be more effective at achieving some adequate threshold of justice.

What alternative global configurations can be conceived? The two most obvious logical possibilities are a world in which there are no states and a world in which there is just one state, that is, a global state. But there is also an interesting grey area where the notion of a state system reaches a potential limit, namely, a global structure in which some aspects of each state’s right to exclude, or determine its own laws and policies, are transferred irrevocably to institutions at the transnational or global level, that is, in such a way that they possess no legal right to dissociate from these institutions, for example, global institutions that are tasked with allocating each state a fair share of people displaced by natural disasters, and with determining what counts as a fair share in this context.¹⁷ This is clearly different from states transferring some of their rights to transnational or global institutions but retaining a legal right to dissociate from these institutions at some later date. We might think that the former involves at least a partial abandonment of the state system, whereas the latter preserves it.

I shall sidestep the issue of whether a different global configuration would be more effective at achieving just outcomes, or meeting some threshold of justice. In so far as part of the point of ARM is to provide guidance for us now, it matters what alternative global configurations are feasible given our current historical situation. In this context feasibility is best understood in a Rawlsian way as concerned with what could be achieved from where we are now in the best of foreseeable future conditions.¹⁸ Neither a world without states nor a global state seems feasible in this sense.¹⁹ But what about a transformation that involved states irrevocably transferring aspects of their right to exclude to the global level, such as that envisaged by some models of cosmopolitan democracy?²⁰ Given the entrenchment of the current international system, and the reluctance of states to give up any aspects of their sovereignty, it is hard not to be sceptical. We might reasonably think that policies aimed at transforming the existing state system in a way that brought it closer to establishing conditions (i)–(iii), would be more likely to achieve more just overall outcomes or, at least, would stand a better chance of achieving the relevant threshold of justice, than policies that aimed at creating a radically different global structure. In any case, it is plausible to think that in practice realising (i) to (iii) is necessary before any such structure could be put in place.

IV. THE ASSIGNED RESPONSIBILITIES MODEL IN NON-IDEAL CIRCUMSTANCES

By itself, ARM doesn’t provide an answer to the question of what effect the failure to meet the conditions it specifies has on the moral justification of the state’s right to exclude. But if the state system has to satisfy various conditions, relating to the allocation of membership, the sharing of resources between states, and the constitutional structures within states, before it could be effective at generating just outcomes or meeting some relevant threshold of justice, the extent to which it is morally justified is thrown into question when these conditions are unfulfilled. In so far as the moral justification of the rights of individual states, such as their right to exclude and their right to govern their own internal affairs, are dependent on meeting these conditions, then that justification is undermined when these conditions are wholly or partly unmet.

Might it be argued that because fulfilling these conditions is necessary for the moral justification, and therefore legitimacy, of the state system, that all states lack a moral right to refuse entry to ordinary would-be migrants, and to exclude refugees after it has admitted its fair share, when the state system doesn’t meet those conditions? This sort of defence of the general version of HLT has some plausibility. But it’s not clear that the failure to meet the relevant conditions (whether wholly or in part) is sufficient automatically to deprive every state of its moral right to exclude and determine its own internal affairs, for in principle at least an individual state may be doing all it can reasonably be expected to do to reform its own institutions, and to compensate others for its possession of an unjust share of resources within its jurisdiction (taking into account the entitlements of its individual members and any rectifications for past injustices). Moreover, this account doesn’t cohere well with the consequentialist framework that the assigned responsibilities model presupposes. From a consequentialist perspective, it is more plausible to think of a state’s rights as being conditional on a good faith attempt to satisfy various duties, with these duties being justified on the grounds that satisfying them will be the most effective means of promoting justice or achieving some minimum standard of justice. We can then regard the state’s right to exclude and its right to determine its own affairs as affected by the extent to which it has fulfilled its duties, or is making a good faith attempt to fulfil these duties. In other words, rather than thinking of a given state’s right to exclude as depending on the successful achievement of various conditions that are generally beyond its own control, we should think of that right as depending instead in a complex way upon its good faith attempt to fulfil various duties to act both domestically and internationally. We might regard a state’s fulfilling these duties as a normative condition on its possession of a moral right to exclude ordinary would-be migrants, and also refugees when it has taken its fair share and a refusal to take more would not involve returning them to dangerous conditions from which they have fled, or as a ‘normative presupposition’ of its claim to be exercising such a right legitimately.

Depending on the specific theory of justice that is used to give content to ARM, and whether outcomes are being judged against a threshold of justice, such as the protection of human rights, or against some higher standard, states may have a number of fundamental duties.²¹ First, duties within their own territories, including, inter alia, a duty to uphold just institutions and to reform unjust ones; a duty to enact just laws and policies, including those concerning the assignment of citizenship, and to revise those that are unjust. Second, duties beyond their own borders, that is, duties in relation to other states and their members, including, inter alia, a duty to adopt a just migration policy and a just foreign policy, a duty to rectify past injustices committed against other states or their members, and perhaps more generally a duty to transfer resources when that is required by justice. Third, duties of global governance, including, inter alia, a duty to support just schemes of global governance; to play a part in developing them when they don’t yet exist but their introduction would either facilitate just outcomes or is required to produce such outcomes; to play a part in reforming them when they are in existence but are not yet fully just. Such duties would need to be defended, in part, by reference to the role that fulfilling them under non-ideal conditions would play in promoting just outcomes or meeting some threshold of justice.²² As I have suggested, we can also see the fulfilment of these duties as a normative presupposition of a state’s claim to be exercising its power to exclude in a fully legitimate way.

Note that this approach does not involve the claim that the state’s moral right to exclude would-be migrants from its territory or determine its own membership is conditional on the legitimacy of the state system as a whole, or that the state’s moral right to exclude in relation to some specific domain is conditional on the legitimacy of the practices in that domain, that is, it is not committed to HLT in either its general or domain-specific form. But that should be regarded as a strength of my proposal. The implications of HLT make it implausible at least to some degree. The general version of it maintains that each and every state that is part of an illegitimate state system lacks a right to exclude ordinary would-be migrants, that is, migrants that have no special claim to entry, whatever measures it has put in place to help refugees. The domain specific version of it that applies to refugees has similar implications: if the legitimacy of the state system with respect to its treatment of refugees depends on the presence of adequate mechanisms to protect their human rights, then this would seem to imply that even those who have taken their fair share of refugees lack a moral right to exclude further refugees.²³ But that seems implausible, especially if these states have already taken up their fair share of the slack that is created by other states admitting fewer refugees than they should.

Like me, Gillian Brock argues that states’ rights to exclude depend on the fulfilment of their responsibilities. But we differ in two respects. First, and most importantly, her claim that states’ rights to exclude, and more generally their rights to self-determination, depend on the fulfilment of various duties, is entwined with the claim that their rights to self-determination depend on the legitimacy of the state system as a whole. Indeed, she doesn’t distinguish it clearly from that view, which is implausible.²⁴ Second, her account of the duties that states are under is focused around human rights, whereas my account is oriented towards identifying the conditions that need to be met in order to achieve just outcomes, or meet some threshold of justice, of which the securing of human rights may be merely one part. More generally, I have sought to identify the fundamental duties that states are under, the non-fulfilment of which may affect their right to exclude.

Christopher Bertram defends a similar account to mine of the additional duties that states need to fulfil in order to be in good standing in an unjust world in which other states do not fulfil theirs.²⁵ But the justification he offers is rather different to that provided by the assigned responsibilities model. According to the Kantian perspective he adopts, what matters is that the rules governing migration should be justifiable from a common standpoint, that is, justifiable to all (or at least, to all those affected). The assigned responsibilities model embodies a rather different conception of impartiality: it requires equal concern to be given to each person’s interests, though precisely what that involves depends on the particular version endorsed, for different versions invoke different theories of what it is to give equal concern to everyone’s interests. This might be regarded as providing a common standpoint of the sort involved in Bertram’s theory, but it would not necessarily provide a justification that is acceptable to all in the sense of one that no individual or state could reasonably reject.

V. TWO ILLUSTRATIONS

In order to defend the alternative picture I have sketched, we need to consider in greater detail how the state’s failure to fulfil its duties would affect their moral rights. In this section, l consider two kinds of case: the first concerns a failure to confer citizenship on the children of long-term residents who themselves lack citizenship of the country in which they are living; the second concerns states that have a greater share of resources than what they are entitled to but do nothing to rectify that injustice.

Let me illustrate the first kind of case. Suppose that a child is born in a country that assigns citizenship on the basis of jus sanguinis: it grants citizenship to a child born in its territory only if at least one of her parents is already a citizen of that country. Her parents, though long-term residents in the country, are not citizens of it because they have not gone through the required naturalisation process. Instead, her parents are citizens of a country that assigns citizenship on the basis of jus soli, that is, it gives citizenship only to children born within its territory. As a result, the child has no citizenship: she is not, at birth at least, assigned citizenship of any state. In this way, she does not enjoy the full set of legal rights that would be bestowed on her if she had citizenship of some country.²⁶

This example reveals a way in which assigning states a wide-ranging legal right to determine their own membership may lead to unjust outcomes when the state system does not ensure that each person is assigned membership of at least one state. What impact does this have on states’ moral right to determine their own membership? States have a duty to reform unjust institutions and policies, so at the very least states that operate with either pure jus sanguinis or pure jus soli rules have a duty to reform them so that an exception is made in such cases. We might also think that states are under an obligation to work together to put in place schemes of global governance that facilitate cooperation between states where individuals would otherwise fall through the net, in order to make sure that no one is left without citizenship at birth.²⁷ Unless a state fulfils these obligations, its moral right to deny citizenship to anyone born in its territory is undermined.

Consider a second illustration of how a state’s rights (or their permissible exercise) may be constrained in non-ideal circumstances. Suppose the citizens of some states have access to a greater share of resources or opportunities than they are entitled to, whilst citizens of other states have access to fewer resources and opportunities than they are entitled to, with the consequence that those belonging to states with more abundant resources have better opportunities for flourishing. When a state secures for its citizens an unfair share of resources or opportunities, this seems to call into question its moral right to determine its own internal affairs, for example, to use its resources or those of its citizens to pursue various projects within it for the exclusive benefit of its own citizens. When some states have jurisdiction over fewer resources than their citizens are entitled to, and others have jurisdiction over more, then the exercise of the rights that are constitutive of the state system will routinely tend to lead to unjust outcomes when states give priority to the interests of their own citizens.

In general, if a state has control over a greater share of resources and a greater range of opportunities than what its citizens are morally entitled to, then that will limit its morally permissible exercise of its right to give priority to their interests, for under these circumstances it will have duties to those beyond its borders. How this unfairness arose may be morally significant. When it arose from differences in brute luck concerning the presence of natural resources within territories, states that have secured for their citizens access to more than their fair share of resources may have a duty to participate in schemes to provide aid for countries whose citizens have access to less than their fair share, even when that adversely affects the interests of their own citizenry. Unfairness in access to resources may instead (or in addition) be the result of colonial exploitation or may reflect culpability on the part of those involved in drawing boundaries when states were granted independence from colonial powers. States that are complicit in past colonial injustices, including enslavement, may have a duty to compensate people made worse off as a result, for example, by participating in schemes to provide aid to these particular countries.

But when the citizens of a state have access to more than their fair share of resources, does that limit its moral right to exclude or its morally permissible exercise of that right? Do states whose citizens are in this position have a duty to adopt a permissive migration policy towards prospective migrants who do not have access to their fair share of resources or opportunities? When the injustices involved here are a product of some states subjecting others to colonial rule, does a former coloniser have a duty to rectify the injustice for which they were responsible specifically by admitting citizens from these states? Perhaps, as David Miller argues, there are dangers in practice with seeking to rectify injustices by adopting a more permissive immigration policy because this may have the effect of draining developing countries of skills that are badly needed by them.²⁸ Even if an unjustly enriched state were to make sure that its immigration policy did not incentivise people with sought-after skills living in unjustly deprived states to move, there are further questions concerning whether this is the most effective way of addressing the injustice, and whether, in the absence of a transfer of resources from unjustly enriched states to unjustly deprived states, it respects the right these people may have to stay where they are.²⁹ Arguably, at best states’ duties give them some degree of discretion in terms of how to meet their obligations: they must do so by providing aid to the citizens of unjustly deprived countries when it’s feasible to do so, but they may also do so by adopting permissive immigration policies that are tailored to avoid brain drain. Unless they comply with their obligations, then their moral right to exclude would-be migrants from unjustly deprived countries is undermined except in so far as it can be justified by the need to avoid brain drain.

VI. APPLICATION TO REFUGEES

The issue of whether the state’s moral right to exclude is conditional on the legitimacy of the state system has been addressed primarily in the context of the treatment of refugees.³⁰ Let me explain how my approach has different implications for this issue than HLT, either in its general form or in the domain-specific version that applies to refugees.³¹ I shall argue that a more plausible way of thinking about how the state’s moral right to exclude is affected by the plight of refugees is to see states as having obligations towards refugees the fulfilment of which is a condition of their possession of a moral right to refuse to take more, for example, through a resettlement program (when a refusal to take more would not mean that the refugees would be returned to a dangerous situation from which they have fled.) These obligations include an obligation to admit their fair share of refugees and, perhaps, to take up at least some of the slack when other states fail to do so, provided that is feasible; to support just global schemes for the resettlement of refugees and for providing them with aid in the meantime; to play a part in creating such schemes when they do not yet exist, and they are required to deliver just outcomes or are conducive to doing so; and to play a part in reforming them when they exist but in an unjust form. This approach has some of the same implications as HLT in either its general or domain-specific form, for example, it would deny that a state that has taken less than its fair share of refugees has a moral right to exclude refugees. But the two views potentially diverge in the case of a state that has taken its fair share.

If each state’s moral right to exclude refugees depends on the state system having in place a scheme that deals fairly with aiding and resettling them, then no state has a moral right to exclude refugees when this “legitimacy condition” is unsatisfied. This seemed to be David Owen’s conclusion when he wrote:

..in the absence of urgent action to redress this condition, the unprotected refugees are not obligated to accept the authority of the normative regime of governance that is the international order of states. Rather they are free to act in ways that breach those norms to the extent that is necessary for them to do so in order to protect themselves. They would, for example, be justified in ignoring legalities of entry into another state.³²

This seems to imply that when the state system lacks an adequate scheme for securing the human rights of refugees, then no state has a moral right to refuse to admit refugees even when they have taken their fair share and could do so without forcing them to return to the circumstances where their lives were under threat.³³ On the alternative view I am defending, a state that has taken its fair share of refugees (including admitting their fair share of those who are left unprotected because other states have failed to fulfil their duties) has a moral right to decline to admit further refugees through resettlement programs. This gives an ‘unprotected refugee’ a moral reason not to enter that state illegally (though they might be morally justified in doing so all things considered.) In short, the duty-based view is more nuanced that HLT. It doesn’t imply that each and every state that is part of a state system that is failing to deal adequately with refugees necessarily lacks a moral right to refuse to take more refugees nor, more radically, that it must lack a moral right to refuse to admit ordinary would-be migrants. Whether it does will depend on whether it is fulfilling its duties, to what extent and in what ways.

Does it matter here what we mean by ‘a refugee?’ There are of course deep disagreements concerning how we should conceptualise the notion of a refugee,³⁴ but we can bracket that issue and simply distinguish four different groups of displaced persons irrespective of whether we regard them all as refugees:

• (i) those who have been displaced as a result of persecution, either by the state to which they belong or by other groups within the territory over which that state has jurisdiction but the state is unwilling or unable to protect them;

• (ii) those who have been displaced because their rights are under threat as a result of the actions of others even though they are not being persecuted by them, but the state to which they belong is unwilling or unable to protect them, for example, those who live in a war zone and whose lives are at risk as a result;

• (iii) those who have been displaced as a result of a natural disaster that has left them unable to meet their needs where they were living and the state to which they belong is unable to assist them, but neither it nor the global community bears any moral responsibility for their original displacement or their ongoing displacement;

• (iv) those who have been displaced as a result of a natural disaster that has left them unable to meet their needs where they were living and the state to which they belong is unable to assist them, but either it or the global community bears some moral responsibility for their original displacement or their ongoing displacement.

Some of the cases that we are initially inclined to locate in (iii) may not in fact fall under it, and may fall under (iv) instead, because the adverse circumstances that are faced by those displaced by a natural disaster may be, in part, a product of inadequate preparations on the part of the state to which they belong and hence reflect its failure to use its powers adequately to protect its own citizens, and hence its failure to discharge its duty to them. And some calamitous events that we regard as natural disasters may be partly created by failures of the state system, for example, failures of states to coordinate and take the measures necessary to avoid damaging climate change. But when the displacement of people is genuinely an instance of type (iii), then it does not reflect any culpable failure on the part of individual states or the global community.

How do states’ duties bear on these cases? That will depend in part on what schemes are already in place with respect to these different groups and what ones would need to be brought into existence for them to be treated justly. I have proposed that states are under a duty to support reasonably just schemes of global governance; to work to establish such schemes where they do not yet exist and are either required to produce just outcomes or facilitate these outcomes; and to work to reform schemes when those already in existence are not reasonably just or fully just. The failure to fulfil this duty will limit a state’s moral right to exclude or, at least, limit its permissible exercise of that right. But the ways in which this duty constrains a state’s moral right to exclude (or the permissible exercise of that right) will depend on the particular theory of justice to which we subscribe and its implications for the treatment of groups (i)–(iv). Nevertheless, it is hard to deny that even in relation to group (iii) there is a reason of justice to help them and that a just scheme of global governance should involve procedures and mechanisms to enable help to be provided, in the form of resettlement programmes or more temporary aid. That is true even if there are additional reasons to provide support for those who fall into group (i) that are grounded in the distinctive harm experienced by persecuted people.³⁵

VII. CONCLUSION

I have argued that the assigned responsibilities model can justify the conclusion that a state’s moral right to exclude depends in complex ways on its fulfilment of its duties, in particular, its duty to uphold just institutions within its own territory, to reform unjust ones, and to enact just laws and policies and revise those that are unjust; its duty to adopt just policies concerning migration, and concerning relations to other states and their citizens; and its duty to support just schemes of global governance, to play a part in developing them when they don’t yet exist but are required to produce just outcomes or facilitate such outcomes, and to play a part in reforming them when they are in existence but are not yet fully just.³⁶ But a state’s moral right to exclude does not depend directly on the legitimacy of the state system as a whole.

My argument has at least two important limitations, however. First, I have not considered all possible justifications of HLT. I have addressed the two ways of justifying it that intuitively strike me as the most plausible, but I need to leave open the possibility that there may be other approaches that avoid the problems I’ve raised. Second, I have not considered the full range of ways in which the state’s moral right to exclude might be justified, whether in ideal or non-ideal circumstances. For all I’ve said, it is possible that there are other defences of that right that show that it does not rely on the fulfilment of any duties. This would not demonstrate that a defence of it that appeals to the assigned responsibilities model is flawed since there may be more than one way of justifying it, but it would mean that my argument is less significant than it would otherwise be because it would not succeed in showing that the right to exclude is conditional on the satisfaction of various duties. I doubt, however, that there is any adequate defence of the state’s right to exclude that would deflate my argument in this way.

ACKNOWLEDGEMENTS

I’m grateful to Chris Armstrong, Sarah Fine, Andreas Føllesdal, and Eszter Kollar, for their very helpful written comments. The paper was presented at the New Horizons in Justice and Migration workshop at KU Leuven, as part of the GOODINT research project led by Annamari Vitikainen and Kasper Lippert-Rasmussen and funded by the Research Council of Norway. I’d like to thank the participants for their challenging questions, especially my commentator on that occasion, Johan Olsthoorn.

COMPETING INTERESTS

The author declares that he has no competing interests.