Abstract
It seems a common view in European political practice that the state’s broad sovereign right to exclude noncitizens from its territory at the border releases it from any special obligations toward irregular immigrants, who reside on its territory without its consent. In this article the author reflects on the validity of that view. In so doing, she begins with the common-sense doctrine that special obligations are generated by significant interactions. On conventional accounts of special obligations, a significant interaction between the state and immigrants arises if and only if (a) the state enters into a formal relationship with them, by issuing, for instance, a residence permit, or (b) the state can be blamed or held liable for harm that they have suffered. Contrary to this account, the author argues that the state inevitably interacts with immigrants through the process of enforcing its borders. This presumes a relational account of borders as a space of interaction rather than as a fixed line of separation that divides a domestic realm of state action from an international realm. In the process of enforcing its borders, the state necessarily interacts with immigrant in this space, and thereby assumes special obligations to them.
The question of whether the state has any special, positive, obligations to provide irregular immigrants with social goods and legal protections, 1 beyond that which follows from a general duty to avoid harm and assist people in need, recurrently stirs heated political debate in Europe and other countries today. A main issue of contention in this debate is whether the state’s broad sovereign right to exclude noncitizens from the scope of special obligations at the territorial border justifies excluding irregular immigrants from it in the state’s interior, given that the state does not authorize their presence there. The purpose of this article is to consider the validity of this “chain of reasoning,” as one commentator has called it (Council of Europe, 2006, sec. C.I.i). Does it follow from the state’s exclusionary right at the border that it is unbound by any special obligations to noncitizens who reside on its territory without its consent?
In reflecting on this question, I shall accept the commonsense doctrine that there are certain special, positive, obligations that the state has to only a particular group of people, with whom it stands in some “significant sort of relation,” or with whom it has, or has had, “certain significant sorts of interactions” (Scheffler, 2001, p. 49), 2 and that these obligations are more extensive and demanding than the state’s general duties, which it has to people as such, absent any relationship or interaction with them (Dworkin, 1986, pp. 195-216; Scheffler, 2001, chap. 3). However, this premise does not say anything about which forms of relationships and interactions qualify as morally significant, and so cannot alone serve to determine who should be included in the group of people to whom the state owes special obligations. A main aim of this article is to point to forms of morally significant interactions between the state and immigrants, which conventional accounts obscure, and which give us reason to extend the scope of the state’s special obligations to immigrants with whom the state engages in none of the standard significant interactions, to paraphrase Robert Goodin.
On conventional accounts of how significant forms of interaction between the state and immigrants occur, the state can choose whether or not interaction shall take place, and hence whether, and to what extent, it has any special, positive obligations to them. On this view, the state is bound by special obligations to noncitizens only when it undertakes an act the point of which is to assume such obligations to them, for instance, that of issuing a residence or work permit, or when they can be derived from the state’s general negative duty to refrain from intentionally harming anyone. 4 On this choice-based conception of significant interaction, irregular immigrants fall outside the scope of special state obligations, so long as the state refrains from actively and directly harming them. However, this conclusion overlooks the many ways in which the state interacts with irregular immigrants through the very means by which it seeks to avoid it, namely, its internal borders. To see this we need to replace the account of state borders as a fixed device that demarcates a realm within which state action occurs, with one that defines borders as constituting a space through which state action, and hence, interaction, takes place.
On the revised account, state borders constitute a space of action through which the state necessarily engages in significant interaction with those subject to them, by virtue of the constraints that its borders place on their actions and daily dealings with others. The interaction is inevitable as border enforcement constitutes an integral part of the state as sovereign, acting agent; the state asserts itself through its borders, not merely in a realm within or outside them. Provided that significant forms of interactions generate special obligations, it follows that, rather than excluding irregular immigrants from the realm of special state obligations, the state’s internal borders generate state obligations toward them.
The argument presented here presumes that the state has a prima facie right to exclude noncitizens from its territory. The disagreement on this matter is profound and long-lasting, in practice as well as in theory (for an overview of core texts in this debate, see Abizadeh, 2008). Some theorists think that we should focus theoretical reflection on the question of whether borders should be “(fairly) open” or “(fairly) closed” exactly for this reason (e.g., Bader, 2005, p. 332). However, from the viewpoint of practical philosophy, which aims at moving actual political practice, the longevity of this controversy suggests that we should try instead to adjudicate between the “open/closed” borders standpoints to move the debate forward (to paraphrase Rawls, 1993, p. 5). I choose, therefore, to follow the lead of those theorists who accept the premise that the state has a broad sovereign right to determine the conditions for entrance, residence, and membership in the community, but who problematize the moral limits of that right (e.g., Carens, 2008a, 2008b; Offe, 2011). In this article I seek to do so by scrutinizing the received conception of what counts as obligation-generating interactions between the state and noncitizens.
I develop my argument in four sections. In the following section, I illustrate how the “chain of reasoning” is visible in European case law and conceptualize it as a version of what Linda Bosniak (2006) terms the “convergence” view of the relationship between state sovereignty and the nature of special state obligations toward resident noncitizens. In the third section I show that the “convergence” view is unsatisfactory because of its reliance on an idealized account of state borders as a device of separation and argue for a conception of state borders as a space of interaction. In the fourth section, I introduce the concept of “forward-looking” obligations to articulate the moral implication of understanding borders as a space of interaction, with respect to the question of special state obligations toward irregular immigrants.
State Obligations Toward Irregular Immigrants: The Chain of Reasoning
The discussion in this article is a critique of the reasoning behind what appears to be the dominant view in European political practice regarding what the state owes irregular immigrants—that is, immigrants who reside on a state’s territory without official authorization. A person’s legal status may be considered irregular in this sense if she or he enters a state’s territory through unofficial channels, overstays her or his work, study, or tourist visa, or fails to depart following a refusal of her or his asylum application.
One way of getting an idea of European states’ understanding of their special obligations to irregular immigrants is to look to court cases at the national and European levels concerning the legality of state practices toward irregular immigrants. Presuming that the state’s position in the court roughly corresponds with its understanding of what it is morally required to do for irregular immigrants, 5 there seems to be a presumption that the state’s freedom to exclude immigrants from the realm of special state obligations at the territorial border means that it is also free to exclude irregular immigrants from the scope of special obligations and full legal protections in the state’s interior. Consider the following, illustrative examples:
Negative duties
Perhaps the most apparent expression of European states’ application of a narrow definition of their negative duties toward irregular immigrants is the widespread use of administrative detention centers for this group of resident immigrants. European states generally accept that there are procedural restrictions on the state’s access to deprive irregular immigrants of their liberty. However, there are several examples of states seeking to narrow the meaning of what counts as “arbitrary” detention (European Court of Human Rights [ECtHR], 2002, Conca v. Belgium), 6 as well as to stretch the definition of what counts as “necessary” detention and “reasonable” time (ECtHR, 1996, Chacal v. United Kingdom; European Court of Justice [EJC], 7 2011, Case C-61/11 PPU: Hassen El Dridi v. Italy). 8
Special, positive obligations deriving from negative duties
European states seem also to generally accept that they have a special, positive obligation to undertake the actions necessary to meet the prohibition against interfering with irregular immigrants’ liberty and private life in a harmful or arbitrary way. However, they have contested the content of these obligations. For instance, in a recent ECtHR judgment, Greece was deemed guilty of failing to meet its obligation to provide detained irregular immigrants with adequate detention facilities, in line with the duty not to subject anyone to maltreatment (ECtHR, 2011, M.s.s. v. Belgium and Greece).
Moreover, European states have denied that the prohibition against subjecting irregular immigrants to maltreatment places a special, positive obligation on the state to protect them from maltreatment by private individuals. The case of Siliadin v. France, where the ECtHR found that France had failed to meet its duty to provide adequate legal provisions to protect irregular immigrants against forced labor by their employer, illustrates this position (ECtHR, 2005, Siliadin v. France). Similarly, in Courage v. Crehan (United Kingdom), the ECJ deemed that the law that prevents migrant workers with illegally formed contracts from asserting their work rights in the domestic courts violated the United Kingdom’s duty to protect individuals’ contract rights (ECJ, 2002, QB 507).
Also, European states have contested the claim that it follows from the prohibition against subjecting anyone to inhumane treatment that they have a positive obligation to provide irregular immigrants in need with means of subsistence, such as housing, food, or clothes (England and Wales Court of Appeal, 2003; Norwegian Supreme Court Appeals Selection Committee, 2005; U.K. House of Lords, 2005). Furthermore, they have contested that the duty to respect life and protect individuals against inhumane treatment obliges the state to provide irregular immigrants with medical treatment beyond emergency or lifesaving treatment, such as, for instance, prenatal and palliative care (ECtHR, 1997, D v. UK; also see ECtHR, 2008, N v. UK). 9
Special, positive obligations independent of negative duties
With respect to special obligations independent of negative duties, European states broadly deny that they have a special, positive obligation to provide irregular immigrants with subsistence benefits, such as food, clothes, and social housing, or that they are under a special obligation to provide them with preventive and curative health treatment, education, juridical assistance for other purposes than court procedures or access to social security programs (European Committee on Social Rights, 2003; European Union Agency for Fundamental Rights, 2011; Platform for International Cooperation on Undocumented Migrants, 2011).
To recapitulate, several European states have, on different occasions, defended the view that (a) the state is bound by a narrower range of procedural and material restrictions on the exercise of state power over irregular immigrants, than over legally residing immigrants, and (b) the state has no special, positive obligations to provide irregular immigrants with social goods and services, independent of those that can be said to follow from a negative duty that the state recognizes.
One reason that can be—and often is—given to defend this narrow conception of what the state owes irregular immigrants is that their presence on the state’s territory violates the state’s broad sovereign right to exclude noncitizens from it. The implicit claim here is that since the state could, given the chance, have excluded these immigrants at the territorial border, it can also deny them certain liberties and exclude them from the social rights associated with legal stay in the state’s interior. As Bosniak (2004) observes, states view the exclusion of irregular immigrants from liberties and social rights in the state’s interior “as both an extension of the State’s exclusionary powers and a substitute for actual exclusion at the [territorial] border” (p. 332). In other words, the state’s freedom to exclude immigrants from the scope of special obligations at the territorial borders is understood to also justify exclusion from it in the state’s interior. In the remainder of this article, I consider the validity of this “chain of reasoning.”
There are two views prevailing in the relevant literature on the validity of the “chain of reasoning’s” account of state obligations to resident immigrants, which were first articulated by Michael Walzer (1983) in his chapter on “Membership,” and which Bosniak (2006, p. 75) has termed the convergence and separation view. On the first view (the convergence view), the state’s special obligations to resident immigrants should be determined with reference to the state’s sovereign right to exclude noncitizens at the territorial border (see, e.g., Perry, 1979). This means, as we saw above, that the state’s right to exclude immigrants from the scope of special state obligations at the territorial border also applies in the territorial interior. By contrast, on the second view (the separation view), the question of the state’s special obligations toward resident immigrants should be decided on the basis of some principle other than that of state sovereignty, even if the principle of state sovereignty applies at the territorial border.
Walzer (1983, chap. 1) is an example of a theorist who defends a “separation” account of special state obligations to resident immigrants, with reference to his general theory of justice, according to which no one should be able to convert power in one sphere of society (e.g., the economic sphere) into power in another sphere (e.g., the political sphere). Applied to the state, this theory entails that the state’s discretionary powers in the policy sphere governing admission and exclusion at the territorial border cannot justifiably be converted into discretionary state power in the policy sphere in the territorial interior, which governs terms of residence and membership. Instead, Walzer argues, state policies toward resident immigrants should be governed by a principle of equal membership, which he derives from the presumably shared understanding of the meaning of political membership in contemporary liberal democratic societies, the antithesis of which is the tyranny of one group dominating another (Bosniak, 2006, chap. 3; Walzer, 1983, pp. 52-63). On Walzer’s account, the state’s sovereign power vis-à-vis resident noncitizens is overruled by the principle of equal membership in the territorial interior; a principle which internal logic requires that the state treat all resident noncitizens as equal members after a period of time, and which binds the liberal democratic state unconditionally, given that it is constitutive of its very existence.
The convergence and separation models of special state obligations differ regarding the proper scope of the state’s sovereign authority to impose disabilities on resident immigrants. On the convergence account, the state is as free to exclude immigrants from the scope of the state’s special obligations in the interior as it is at the territorial border. On the separation account, the state is free to exclude immigrants from the scope of the state’s special obligations at the territorial border, but its freedom to do so in the interior is restricted by moral considerations other than that of state sovereignty, which bind the state unconditionally. However, on Walzer’s version of the separation model, it is only when the immigrant has crossed the state’s territorial border that these moral considerations “kick in” as it were. Walzer’s version of the separation view thus shares with the convergence model the presumption that state borders mark the space within which the state’s special obligations apply. That is, both seem to assume an understanding of state borders as a fixed device of separation between a domestic and an international moral realm.
In this article I propose an adjusted version of the separation model, one that takes into account state borders as an integral part of the state as acting agent. As sovereign agent the state acts, and thereby asserts itself, through its borders, not merely in a realm inside or outside them. As I argue in the next section, borders should therefore be understood as constituting a space of state action, rather than a static device of separation. Provided that all action that constrains the action of others constitutes a significant form of interaction, which in turn generates special obligations, it follows that, rather than state borders demarcating the realm within which special state obligations apply, they constitute a space in which special obligations are generated.
Borders as a Space of Interaction
The view that territorial exclusion entails exclusion from the space of special state obligations involves an understanding of the state as ontologically independent, that is, that the state exists within a private “domain of activity,” within which it does not affect and is not affected by others until it chooses to do so (Young, 2007, p. 46). This is reminiscent of the idea that moral agents occupy a bounded sphere independent of relations to others, and depend on such relations only when they place themselves in a relation with them through a voluntary act, by, for instance, assuming an obligation, entering into, or remaining in, some sort of association with others, or by acting in a way that the agent foresees will harm someone (Green, 2010; Simmons, 1979). The core idea here is that the moral agent “steps out,” as it were, from its private domain to interact or connect with others only when it chooses to do so, and that, consequently, it does not engage in any obligation-generating interactions with others unless it chooses to. I argue, however, that this image of the state as a bounded, self-contained self amounts to an idealization of the state’s capacity for independence. The case of state borders is a particularly conspicuous example of the way in which the state continuously interacts with others in numerous ways it did not choose, intend, or even foresee.
The Classical Conception of State Borders
The image of the state as a bounded, self-contained self presupposes a classical conception of state borders as a territorial device that marks out a geographic realm. On this account, state borders are “natural,” self-sustaining containers of state action that separate the domestic realm of state action from that of the international one, and that constitute a point of interaction between the state and the “outside” only when the state so chooses (Anderson & Bigo, 2002, pp. 8-10; G. Blake, 2002).
In the migration context, this classical conception of state borders suggests that the only contact between the state and an immigrant occurs, either at the discrete points of entry at the territorial border, which are the state’s self-chosen points of interaction with immigrants, or when the state chooses to enter into a formal relation with an immigrant, by for instance processing her or his asylum application, or accepting her or his application for a residence or work permit. The only other way in which interaction can occur between the state and an immigrant on this account is if a public officer directly and actively harms her or him, for instance in the course of denying her or his entrance, or in the process of arresting, detaining, or deporting her or him.
There are several problems with the classical conception of state borders. Most important for our discussion here, perhaps, is that the image of state interaction with immigrants that it seems to entail, does not correspond with reality. This becomes clear when we consider that states not only draw borders around their geographical space but also draw nonterritorial borders within society, around and across its economic, social, and political spheres. As Balibar and other border scholars argue, a significant feature of state borders is that they exist not only at the edge of the territory but also in the state’s interior, as invisible, institutional markers, serving to ease as well as to restrict mobility inside society (Balibar, 2004; Newman, 2006; Rumford, 2006). This means that even if a noncitizen finds herself or himself within the territorial border of a state, there are legal and administrative barriers to her or his access to the various spheres of society inside the state territory.
The state’s internal borders are the state’s laws and administrative rules that regulate resident noncitizens’ economic and political activities, as well as their access to publicly funded goods and services (Thränhardt & Miles, 1995). With respect to irregular immigrants, these limitations involve restricted or no legal access to social assistance, which is meant to cover basic subsistence needs such as food, clothes, and housing, and restricted access to health treatment beyond life-saving treatment. Most countries also deny irregular immigrants formal access to public services such as legal aid, and education and work-related public services that are meant to protect workers in the workplace (European Union Agency for Fundamental Rights, 2011; Sciortino & Bommes, 2011; Triandafyllidou, 2010).
As I see it, by subjecting irregular immigrants to internal borders in the form of legal disabilities, the state engages in a form of significant interaction with them, in virtue of the constraints it thereby places on their actions and daily dealings with other residents. 10 The classical conception of state borders as “fixed rigid boundaries between states” (Knop, 1993, p. 325) defies the complexity of contemporary state bordering, “with its emphasis on administrative internal migration control systems” (Engbersen, 2001, p. 223), and so fails to accommodate this form of interaction between the state and immigrants who are subject to its border regime. Which conception of state borders would correspond better to this reality? I want to suggest that a conception of state borders as a space of interaction better corresponds to it.
State Borders as a Space of Interaction
John Crowley (2002, p. 29) has suggested that rather than thinking of state borders as territorial lines in a geographic space, they are better understood as “discontinuity in space,” which structures our actions, movement, and choices. We draw borders to distinguish between people, and to restrict, prohibit, and channel movement, choices, and actions in social space (Young, 2007, p. 168). As Crowley points out, our everyday language of social inequality reflects this idea of borders as structures: we talk about “glass ceiling,” “poverty traps,” “barriers to social mobility” and so on (Crowley, 2002, p. 30). This image of borders as structures that channel and restrict movement, action, and choices seems to better describe the internal borders to which irregular immigrants are subject. It is not that they are unfree to move within a given space. Rather, their access to social goods and services is constrained as is the range of choices and actions that they can undertake in relation to others with whom they interact in their everyday life.
Structures that constrain the range of choices and options for action in social space constitute borders that are institutional, technological, and symbolic, rather than territorial. Examples of nonterritorial borders include the legal and administrative rules that tie work permits to one specific sector of the economy, the rules that constrain immigrants’ access to the public health system and other welfare benefits. (Dijstelbloem & Meijer, 2011). These borders are not fixed and easily identifiable, as most territorial borders, but multiple and shifting, depending on the political purpose that they serve.
The deterritorialized conception of state borders entails that, contrary to the classical conception, state borders cannot be described as “natural,” fixed lines that separate a domestic realm of state action from that of an international one. Rather, borders are better understood as political processes, expressive of shifting political purposes, which become meaningful in light of political aims, ideas, and ideals (Crowley, 2002, p. 28; Newman, 2006). As Jennifer Nedelsky (1990) has suggested, rather than thinking of borders as containers of a space within which policy decisions are made and implemented, they are better thought of as the embodiment of “a particular set of decisions that stands in a special relation to other decisions” (p. 176). For instance, the increasingly dense network of internal borders in European countries, and the way in which European states manage these borders, must be considered in light of the enlargement of the European Union, and the significance of securing free mobility within the union for this purpose.
The understanding of state borders as processes that are driven by shifting political purposes entails that borders no longer can be perceived as an immutable container of state action. Rather, borders constitute a dynamic space through which state action is played out. This idea of borders is reminiscent of Donnan and Wilson’s (1999) conception of borders as “sites for the expression of state power.” I prefer the term space however, as it better conveys the idea that the border constitutes a field through which state action or power is actually undertaken. Walters (2006) comes closer to articulating the idea of borders as a space of state action when noting that borders are “spaces and instruments for the policing of a variety of actors, objects and processes” (p. 188).
The description of state borders as a space of state action means that borders also constitute a space of interaction between the state and those subject to them. Borders do not function merely as a “wall” that excludes persons from a geographic or physical realm. Rather, they constitute a space that persons enter into, rather than cross over, and that structures those persons’ actions and interaction with others. Borders thus understood are not necessarily divisive, in the sense of separating one bounded community from another, but a space which structures people. One might say that the state’s internal border scheme constitutes a form of background, institutional structure in Rawls’s sense (1971, p.96), “regulating the interaction of people operating within it” (Pogge 1989, p. 96).
One implication of this conception of state borders as a structural space is that state decisions and acts constrain immigrants’ action not just at discrete points of entry and deportation into and from the state’s territory. Rather, in the process of enforcing its borders, the state necessarily and continuously constrains, and therefore interacts with, immigrants in the space that its borders constitute. The more intricate the state’s system of external and internal borders, the more direct and dense the interaction between the state and those subject to them.
If we accept the commonsense judgment that significant forms of interaction generate special obligations, the revised account of state borders entails that rather than disconnecting irregular immigrants from the realm of state action and special state obligations, the state’s internal borders inevitably generate special obligations toward them, by virtue of the constraining effect that its border regime has on their action and interaction with others. How can we best articulate the special state obligations that state borders understood as a space of state action and interaction generate? I want to suggest that a so-called forward-looking conception of special obligations is most suitable for this purpose. I elaborate on this conception of obligations in the next and final section of this article.
Border Management as Productive of Special Obligations
The concept of forward-looking obligations is better understood, perhaps, in contrast to the more common concept of special obligations as backward looking. The backward-looking concept of special obligations derives from legal reasoning to identify guilt or fault for a harmful outcome. It defines obligations as a matter of rectifying or repairing harm following from acts that were undertaken in the past. Under this model, an act generates reparative obligations if there is a fairly direct connection between it and a specific harmful outcome, and if the act was undertaken with adequate control and adequate knowledge of the situation (in the sense that the agent was not compelled to undertake it by some external force, and that she or he understood the likely consequences of what she or he was doing). It is important here to distinguish between blame and strict-fault models of backward-looking obligations. The former holds an agent liable if the outcome was intended, whereas the latter holds agents liable also for unintended harmful outcomes, provided that the agent could reasonably have foreseen that the act could be harmful (Cane, 2002; Hart, 1968; Honoré, 1999).
Backward-looking conceptions of obligations are appropriate to articulate claims of special state obligations to immigrants in many situations where the state’s border management constrains their action adversely. It enables us to articulate claims of state obligation to compensate or rectify instances of harmful constraints that can be traced to specific state officials or citizens. Presumably, liberal democratic states would refrain from directly and actively harming irregular immigrants, by, for instance, removing all legal protections for that group of immigrants or putting in place rules that demanded state officials to constrain their actions in a harmful way. However, if we expand the conception of obligation-generating acts to include the strict-liability model, the state assumes special, reparative obligations toward irregular immigrants for policies that it could reasonably have foreseen could constrain their action in a harmful way, even if it did not intend it. For instance, on this model, the state can be held morally responsible for the actions of an employer who harasses or exploits an irregular immigrant worker, if the legal system denies irregular migrant workers access to the labor courts or judicial assistance. The employer’s harassment or exploitation of the worker is arguably a foreseeable, although presumably not an intended, effect of legal rules that deny irregular migrant workers legal standing in this and other forms of work conflicts. A strict-fault model of backward-looking obligations would allow us to claim that the state is responsible for rectifying or compensating for that harm, even if it is not directly to blame for it. 11
However, border management regimes can also constrain immigrants’ actions in ways that do not fit into backward-looking conceptions of how special obligations are generated, even if we apply the more sophisticated strict-fault model. Most significantly, backward-looking conceptions focus on the wrong or rightfulness of conduct that takes the form of one-off, time-bound interferences. Consequently, the structure within which action takes place is not subject to evaluation on this model. Instead it is premised on an understanding of harmful acts as temporary deviations from a legal and social background structure that is assumed as normal (Fletcher, 1998, pp.69-70; Young, 2007, p. 176). In addition, the concern with conduct rather than with background structure means that, temporarily speaking, the focus is on constraints on action that occurred in the past, and that now have come to an end–for instance, the police officer’s use of violence last week, or the medical personnel’s failure to provide life-saving medical assistance yesterday.
However, as we have seen, the state’s border regime can also constrain immigrants in a structural, and consequently ongoing, way. The state’s internal borders constitute a space of action where legal rules and formal exclusion from resources confluence to structure the choices and actions of those subject to it on a continuous basis. For instance, rules that exclude irregular immigrants from the official job market, or that prevent them from opening a bank account, or access preventive health treatment close down the possibility for irregular immigrants to make claims against employers, private money and bank account lenders, and health personnel. This in turn makes irregular immigrants dependent on their subjective will to access the goods or services that they can provide. A person will experience this form of systematic positional asymmetry, not necessarily in the form of interferences that harm her or his body or property, but as an existential reality, which permeates her or his everyday interaction with others, as it makes it difficult or impossible to “walk tall” and assert herself or himself in her or his dealings with them. In a temporal sense, then, the state’s decisions and acts in the management of its borders affect those subject to them, not only in the form of one-off events of physical interferences, but also in an ongoing, structural way.
The structural aspect of the effect of state borders on a person’s actions and dealings with others means that, to evaluate whether the state’s internal borders generate state obligations, we need a concept of obligations understood as generated by “deeds already underway,” to borrow a term from Hans Jonas (1984, p. 128), rather than as retrospectively generated by deeds already done. The “deeds underway” that constrain the actions of irregular immigrants refer to legal and social structures that constrain a person’s actions by conditioning her or his social position vis-à-vis others on a continuous, everyday basis. The backward-looking model’s focus on the right or wrongfulness of conduct in the past,rather than on the justice of background structures within which conduct takes place, means that it lacks the conceptual apparatus for evaluating whether ‘continuous action’ in the form of structures generate state obligations.
Moreover, according to backward-looking conceptions of special obligations, obligations are generated only in the event that a harmful outcome can be linked to an identifiable wrongdoer. As Young (2007) explains, this “identity condition” implies that one isolates “the one or ones liable . . . thereby distinguishing them from others, who by implication are not responsible” (p. 176; also see Birnbacher, 2000, p. 12). The focus is on determining whether one particular agent is liable or strictly liable for a harmful outcome and on sanctioning that particular wrongdoer only. However, with respect to the question of whether state borders’ constraining effect on irregular immigrants generates state obligations toward them, this isolating, identity-bound concept of obligations is too narrow, given the plurality of actors involved in the bordering processes to which irregular immigrants are subject. These include a variety of state agencies, such as public service agencies, health providers, and schools, as well as private actors, such as humanitarian organizations and security agencies, which uncoordinated actions combine to drive the bordering process. Indeed, as Young points out, those who contribute to maintain a system do not necessarily interact with those most harmed by it (Young, 2007, p. 176).
In other words, it may not be possible to identify a direct connection between the acts of particular individuals or organizations and harmful constraints on action experienced by an immigrant. However, that does not mean that no one is obliged to take responsibility for mitigating or compensating for that harmful constraint, or for preventing that it occurs in the first place. To articulate claims of special state obligations toward irregular immigrants, we need a conception of special obligations that allows us to speak of state obligations even when the identity condition is not fulfilled.
A third problem with the backward-looking conception of how special obligations are generated is that it recognizes only harmful constraints on action that follow from acts that the agent controlled and could at least have foreseen the consequences of. With respect to supporting claims of state obligations toward immigrants subject to the state’s border regime, these criteria are not always appropriate. One important reason is that we cannot always know what harmful effects our acts will have on others, even if we know that they will have some negative effect. State border management is a policy field in which state power exceeds our ability to foresee all possible specific effects of the political decisions and actions in social and geographic space. Indeed, Jonas’s (1984) observation that “the original [political] intent may become distorted” and that “[a]ny long-range prognosis [of its effects]is at best an informed guess” seems a particularly apt description of the reality of state border management (see, e.g., Engbersen & Broeders, 2011). For instance, it may not be possible to foresee whether and in what way “the presence of strong, internal controls will . . . increase the dependence of the migrant on informal (and sometimes criminal) networks agencies and institutions” (Cvajner & Sciortino, 2010, p. 223). It may not be possible to foresee the negative effects that a state policy may have on irregular immigrants. Yet, this does not mean that the state therefore has no special obligations towards them, for instance to enable them to exit relationships of dependency. However, in order to articulate such claims we need a conception of special obligations that allows us to speak of state obligations generated by state action which concrete harmful consequences we do not yet know.
I have argued that although indispensible to articulating claims of special state obligations in many cases, a backward-looking concept of how special obligations are generated is insufficient when it comes to articulating claims of state obligations to alleviate and prevent the effects that a state’s border regime can have on irregular immigrants. To do so, we need a conception of how special obligations are generated that takes into account that state borders constitute ongoing processes of political decision making and actions, which are undertaken by a plurality of actors, which in turn create complex relations of interaction, and which produce future consequences that are not necessarily foreseeable. As I see it, a forward-looking concept of special obligations fulfils these criteria.
At the core of the forward-looking concept of special obligations is the notion that ascribing obligations to an agent concerns, “the forward determination of what is to be done,” either to create a desirable outcome or to prevent an undesirable one. The focus is on what should be done and by whom, rather than on something that has been done, and sanctioning or holding someone responsible for it (Jonas, 1984, p. 92; Richardson, 1999). Time-wise the forward-looking model is thus more directed to the future than to the past. This makes it particularly apt for articulating claims of state obligations related to its border regime: The temporality of assigning state obligations for bordering processes is more forward looking than backward looking, inasmuch as “the injustices produced through [these processes] have not reached a terminus but are ongoing” (Young, 2007, p. 178). By applying a forward-looking concept of obligations, we may articulate claims of a state obligation to interfere in bordering processes to which irregular immigrants are subject, which we deem unjust and “which we understand [are] likely to continue producing more harm unless there are interventions in [them]” (Young, 2007, p. 178).
The forward-looking concept’s focus on creating a desirable outcome or preventing an undesirable future state of affair also means that it can accommodate claims of state obligations toward irregular immigrants absent an identifiable wrongdoer. The focus is not on a particular wrong committed by an identifiable agent who merits or “deserves” blame and punishment, but on getting the right people and institutions to work together to producing a state of affairs that is deemed good, or to preventing a bad outcome (Cane, 2002, pp. 31-33). This emphasis on outcomes permits a shift of focus from evaluating the right or wrongness of individual conduct against irregular immigrants to assessing the justifiability of state border schemes, and articulating claims of a special state obligation to continuously ensure that the patterns of interaction that it engenders qualify as just.
And finally, forward-looking conceptions of how special obligations are generated allow us to articulate claims of state obligations toward irregular immigrants absent evidence of intention and motives for a specific harmful act, or a direct connection between an act committed by a state representative and a harm suffered by an immigrant. What matters for special state obligations to be generated on the forward-looking model is not an event in the past but the combination of a valuable outcome, and the state’s capacity or power to act to fulfill or undermine it. A central premise underlying the concept of forward-looking obligations is thus that our obligation to act so as to produce a desirable state of affairs or to prevent bad outcomes in the future increases proportionally with our power over others and thereby our ability to constrain their actions (cf. Jonas, 1984, p. 93). Bordering processes are essentially exercises in state power, which constrain the actions and choices of those subject to them, in a continuous, structural way. To articulate claims of special state obligations toward irregular immigrants on the forward-looking model, then, it suffices to show that the state has the power to constrain their actions and interactions with others, regardless of the state’s intention to do so, or its ability to foresee the particular consequences of its actions.
Conclusion
The restriction of the scope of special state obligations to the citizens of bounded political communities resounds with the commonsense judgment that there are certain special obligations that individuals have to particular others with whom they stand in some sort of “significant relation,” which they do not have to people in general. This judgment may well be justified. It is counterintuitive to suggest that moral agents have the same obligations to everyone everywhere, regardless of special relations or other special circumstances.
However, as I hope to have shown in the above discussion, state sovereignty in the immigration policy sphere does not entail moral independence with respect to immigrants who reside on the state’s territory against its will. The view that obligation-generating interaction between the state and immigrants can arise only when the state voluntarily “steps out” of its private sphere of action to form an agreement, or when it directly and actively interferes in their private domain, relies on an idealization of borders as a fixed devise of separation. In its stead I proposed a relational conception of borders as a space of interaction, in which the state necessarily interacts with immigrants whose everyday choices and actions the state’s border regime constrains. Provided that significant forms of interactions generate special obligations, the state is bound by special obligations to everyone who enters the space of state action that state borders constitute. Specifically, the state has a forward-looking, ongoing obligation to ensure that the patterns of interaction that its border regime engenders qualify as just.
This conclusion shifts attention from the state’s authority to act independently of other states, and the importance of protecting that authority, to the responsibility that comes with that authority. As Kathleen Jones (1991, p. 123) proposes, “[W]e can replace the voice of the sovereign master . . . with efforts to recognize and admit responsibility for patterns of relationships that sovereign boundaries aim to negate.” One way of doing this is to reconceptualize state borders as constituting a space of interaction, rather than a wall of separation demarcating the area within which the state acts.
Footnotes
Acknowledgements
This article has benefitted very much from the constructive comments on previous drafts from May Thorseth, Joseph H. Carens, Richard Wyn Jones, Timo Skrandies, Jonathan Seglow, and three anonymous reviewers. I presented an earlier version of this article at the Nordic Network of Political Ethics’s “Scandinavian Conference and PhD Course in Normative Political Philosophy/Theory” on June 1, 2011. I am grateful to the audience there for helpful comments, and especially to Martin Lemberg Pedersen. Evidently, I alone am responsible for the argument presented.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
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