February 2014, somewhere on the Mediterranean Sea, between Turkey and Greece: two gunshots ring out from a Greek coastal guard vessel. Passengers on a smuggler’s boat headed for the Greek island of Chios begin to panic. Through loudspeakers a Greek coastal guard screams “Stop!” repeatedly, like a mantra. But the smuggler doesn’t stop the boat. A bullet hits a passenger in the lower back – a Syrian refugee – then another passenger gets shot in the shoulder; and the smuggler finally abides and stops the boat. As the coastal guards board the smuggler’s vessel, they violently beat the driver, an elderly man from Turkey, before handcuffing him. The wounded are being transported to a hospital in Chios, Greek; the other passengers are being interrogated by the police. A Frontex Incident Report would later document a total of 16 bullet holes in the boat, but doesn’t once mention those three seriously wounded refugees. According to unredacted reports by the European Border and Coast Guard Agency, Frontex, one of the coast guards was arrested after admitting to have shot a clip of 30 bullets. A month later, however, a Greek court ruled he had done nothing wrong.
While the world is in the grip of a pandemic, Frontex has again been accused of employing dangerous pushback methods on migrant boats crossing the Aegean Sea, reports the Guardian on 24 October 2020. One interviewee, Ali (22) from Syria, was trying to reach Lesbos that day. Coast guards, he remembers, “kept telling us to go back to Turkey”. When the vessel didn’t turn around, the coastal guard’s ship started making waves, making it impossible for the migrant’s dinghy to maneuver safely. “Water was leaking into the boat, we were trying to empty it back out”, Ali told the Guardian. Despite the decreased media attention from the height of the refugee crisis, migration to the European Union continues.
What Frontex did in both situations described above is exercising a right to exclude. Most people’s intuition, I imagine, would say that states qua being states have, as long as they are legitimate, a moral authority to exclude non-citizens, and most states do certainly act as though they have this right to exclude. But there is a question as to whether states or state-like institutions like the European Union really do have this right, and if so, where this right came from to begin with.
Those of us who are cosmopolitan globetrotters regularly apply for visas; we have internalized the idea that states can open and close their borders to non-citizens at their own discretion. The state is an entity such that it can self-sufficiently determine its “terms and conditions of membership”, just like golf clubs, orchestras, and Hegel Reading Groups do. But isn’t there a profound difference between membership in Hegel Reading Groups and being the citizen of a state?
While being excluded from the Hegel Reading Group can be a disturbing experience, it doesn’t compare to the terrifying consequences of being a stateless person. After all, the Hegel Reading Group is a voluntary association, membership is optional, and you may as well (although I’d personally doubt that) live a decent life joining the Kant Reading Group instead. In a world made up of states, on the other hand, there is no sensible alternative to being the citizen of a state.
What lies underneath our (habituated) acceptance of these states-of-affairs? What, if there are any, are the grounds for a state’s general right to exclude?
Some might argue that a liberal, democratic state’s right to exclude is grounded in a democratic people’s right to decide who may and may not become a member––a right to self-determination and association. I will pick up on this line of thought below. Others might say that it is an indispensable function of the sovereign state to have authority over whom to include and whom not to include. But that would only suggest that there are particular cases in which certain values, such as the security of the citizens, for instance, override a particular request to migrate––a criminal’s request, perhaps. This doesn’t yet justify a general right to exclude. Furthermore, one might object that the member states of the European Union didn’t cease to be sovereign states even though they no longer have the right to exclude the citizens of other EU-member states. One of the most promising objections, however, takes the argument from self-determination ad absurdum: Assume that it is morally permissible for states to restrict immigration because they have a right to self-determination. It would seem to follow that states can also decide to deport or denationalize their own citizens, but hardly anyone would want to accept and defend that. The idea that a state must exercise a general or even a pro tanto right to exclude in order for it to gain or maintain sovereign statehood is thus deeply flawed. What, then, if anything, grounds this right to exclude?
Social exclusion presupposes a social entity which one can in principle belong to: a football club, a Hegel Reading Group, or, for that matter, a state. Unlike your average Hegel Reading Group, however, modern states didn’t come into existence peacefully. State-formation is premised on the seizure of previously unowned––yet communally inhabited––land. As we all know, in practice, this involved colonial atrocities, war, slavery, and expropriation. The history of state-formation is a history of injustices. Regardless of whether the process of state-formation could under ideal circumstances be a peaceful and democratic process, the modern (liberal, democratic) nation-state’s claim to a right to exclude is premised on past wrongdoings.
I here want to make the case that if states or state-like institutions like the European Union exercise a right to exclude migrants on the grounds of claiming legitimate sovereignty over a territory, then this claim requires the supersession of the past wrongs committed by violent state-formation. Supersession, briefly, is the idea that there are circumstances under which past wrongs can be forgiven and eventually turned into not-wrongs (and potentially even into rights).
The supersession theory can arise in a variety of settings. One of the most distinct normative articulation of suppression was put forward by Jeremy Waldron addressing the land-rights of indigenous populations in the wake of colonialism. Starting from the idea of supersession, Waldron argues against the return of lands to expropriated indigenous people, notwithstanding the original injustices involved. The centerpiece of this argument is a change in circumstances since the original injustice: There was an original wrong, but circumstances changed, which in effect also transformed our moral calculus. I will have a look at some of those game-changing circumstances below.
The fundamental question with respect to supersession theory is: Why? Why can––or normatively speaking, should––a wrong become a right, regardless of whether a chance in circumstances suggests a transformation of a past wrong, or not?
This is a question I wish to bracket for the moment. I, for now, want to take for granted that the supersession of past wrongs is in principle possible and defendable. The argument I wish to make here is if legitimate sovereignty over a territory can be granted on the grounds of a supersession of past injustices, then migrants too can supersede unavoidable wrongdoings, such as unlawfully transgressing state boundaries in search of asylum. If, however, past wrongs cannot be superseded, then states or state-like institutions never had a right to exclude migrants and refugees from entering their territory in the first place. Let me unpack this:
Applied to the migrants right to stay, the scaffolding of a suppression argument has the following structure:
(1) Assume a migrant has wrongfully violated a state’s border laws by irregular migration. Technically, this is what every refugee must do in order to be in the position to claim asylum. Refugees will thus almost inevitably transgress positive law in the jurisdiction which they enter. A failure to comply with a state’s right to limit ingress of non-citizens into its territory results in a legal wrong that is generally subject to sanction.
(2) Now that the irregular migrant has entered the territory, there has been a change in circumstances: Having territorial presence over a certain period of time produces what some migration ethicists have called “social membership”. Time is here a placeholder for the social relationships forged between migrants and local population or the migrant’s own contributions to the state, such as taxes payed. Germany, for instance, has an eight-year minimum residency requirement prior to the naturalisation of non-citizens. Time alone, however, is usually not sufficient. Almost all supersession accounts assume that certain criminal acts or controversial political affiliations can interfere with a migrant’s claim to social membership.
(3) When (2) is the case, the original wrong (1) is transformed into a not-wrong; the irregular migrant can be granted a regular migrant status and put on his/her way to formal citizenship (in which case the initial wrong has been superseded and transformed into a right).
As I have argued above, some supersession theorists like Jeremy Waldron belief that legitimate sovereignty over a territory can be granted on the grounds of a supersession of past injustices. Some readers will be familiar with Animal Crossing, a popular online game, where the player acts as a quasi-colonialist. The game begins with the player purchasing a deserted island from a native Tanuki, a Japanese racoon dog. The aim of the game is for the player to settle on this island. Other players can be invited on the island, but they may not enter without permission. We can think of this island as a state-like institution.
The actual formation of modern states of course doesn’t resemble the peaceful and contractual transmission of land suggested in Animal Crossing. If Animal Crossing were to follow the processes of actual state-formation, the game would rather look like this:
First, the island is taken without permission or purchase.
Second, the Tanuki is expropriated and enslaved.
Third, a capitalist market emerges which makes life on other islands increasingly intolerable.
Fourth and finally, when waves of migration begin to hit the shores of the island, the player exercises her right to exclude.
But where did this right to exclude come from in the first place? After all, wasn’t the island taken without the Tanuki’s permission? Can any claim of sovereignty over the island be legitimate on the grounds of expropriating a Japanese racoon dog? Can legitimate sovereignty over a territory be grounded in what is clearly a moral wrong?
What makes this a contentious issue is, again, time: While our ancestors are directly responsible for the harms of colonialization, it is we who profit from those harms, and it is the present opponent to migration who exercises a right to exclude on precisely those grounds.
When asked to justify this right, those who today oppose migration often resort to the fact that they inherited the sovereignty over a certain territory from their ancestors. But what if our ancestors were never the legitimate sovereigns over that territory to begin with, e.g. perhaps because our ancestors appropriated the land? The anti-migration case would––not taking any unusual considerations into account––be void.
The opponent to migration may then want to resort to the idea of supersession in order to justify the right to exclude: the changes that have taken place in colonised states are, more often than not, those sorts of changes that lead to a supersession of past wrongs and transfer legitimate sovereignty and a right to exclude to the colonisers and their decedents, so goes the argument from suppression. After all, as mentioned above, having territorial presence over a certain period of time produces what some migration-ethicists have called “social membership”.
But here is the crux: We find ourselves in a dilemma if both migrants can supersede any inevitable perpetrations of territorial laws while states can simultaneously have their right to exclude migrants, provided they too can supersede their past wrongdoings. If supersession works, it works in both ways: migrants have a right to enter, and states have the opposing right to exclude. There is thus a discussion to be had about whether and under what circumstances one of those rights can override the other.
If supersession is a valid way of escaping the concerns about legitimacy associated with past injustices, a form of supercessory justification must also be open to migrants. But what if, after all, suppression theory is flawed and deceptive?
Supersession theory could be questioned for its inherent proclivity towards the status-quo and furthermore for its reinforcement of wrongdoings. Especially in the case of irregular migration we must search for alternatives to the current practice of asylum which is premised on the inevitability of doing wrong. This could of course easily be resolved by moving towards open or no borders––a proposal we repeatedly made by the political Left––but this is a debate that must be had elsewhere.
In any case, by this rationale, states did not have a right to exclude migrants to begin with––for they never had a claim to legitimate sovereignty over the territory in question. The act of transgressing borders as a migrant couldn’t ceteris paribus be a crime; irregular migration couldn’t exist. Supersession theory can thus be used against those statist-supercessionists who advocate a right to exclude on the basis of supersession theory.
While my analogy with Animal Crossing may sound cute or flippant, matters which it concerns are serious and affect the livelihood of migrants all around the world, not only at the borders of the European Union. These are fundamental ethical questions which need to be addressed, not only in academic research but in public political discourse, too.
Past and present, I hope to have shown, are always entwined in our debates about migration. What lies in the background here is yet another debate about the scope of the right to self-determination: Statists usually argue that, just like individuals, more complex social entities, such as states, have a right to self-determination, too. Reasoning from the same idea of continuity, we can argue that not only states but individuals too can supersede past wrongdoings. In fact, most states and transnational organisations already reason that way; the process of naturalizing non-citizens is a common and widely accepted practice embedded in most liberal states’ laws.
So, where do we go from here? Recognising that the state-formation of many Western states has been a violent and harmful process can be the first step towards shedding any unfounded beliefs in a right to exclude and one step towards a more welcoming society. Second, Frontex has to be hold accountable; not only for their abhorrent pushback methods, but potentially even prior to that, for exercising a right to exclude which is likely to be unfounded. Third, even if there is, after all, a robust right to exclude, there is still a debate to be had about the moral status and permissibility of exclusion methods. Whatever the status of the right to exclude, methods like shooting civilians on rubber boats or exposing them to the risk of drowning by making waves with a ship surely cannot be permissible exclusion methods.
Adrian Kreutz is a DPhil Candidate in Politics at the University of Oxford.