The Case of Border Controls (Legal and Moral)
The movement of people has accompanied the growth of mankind, until in our days becoming an increasingly complex phenomenon. However, the perception about migration has always been clouded by various gut feelings and misconceptions that are often the result of prejudices and, more generally, the fear of the other. At the time being, the so-called “European refugee crisis” has captured public, media and political attention. An unprecedented number of migrants and asylum seekers has been crossing the Mediterranean Sea to enter Europe in order to escape wars and persecution or simply in search of a better life. The eternal recurrence of an international moral panic about migration has thus pervaded the public discourse, once again.
Global migration intrinsically raises several ethical and legal questions. One of the most salient is whether, and to what extent, liberal democratic societies have an obligation to open their borders to “the other”. What shall we, the Western liberal democratic societies, do with the hundreds of thousands of desperate people who wait at our doorsteps? What is the role of law in the present, admittedly chaotic, situation?
Political philosophers have provided different elaborated answers to the vexata quaestio of whether or not admitting outsiders in a given political community. In this regard, much ink has been spilled to depict an adequately exhaustive account of the major arguments involved in the ethics of migration. It emerges, however, that political philosophy seems to have scarce impact on the improvement of immigration laws and policies.
But what if political philosophers may not have tried to answer the right question? Instead of questioning whether or not, and to what extent, admitting more or less necessitous outsiders, political philosophers should be more interested in discussing and determining a new theoretical framework that will give voice to migrants and enhance their agency, with predictable and effective laws and policies. In this regard, indeed, legal philosophy proves to be resourceful. In what follows, I suggest that legal philosophy, starting from considerations of procedural justice, can have a significant impact on the conceptualization of immigration policies more responsive to issues of global inequality. In this respect, the emergence of rule of law values in the migration law discourse is a significant, albeit still embryonic, advancement.
The Inner Morality of Immigration Law
Control over national borders has been defined as the last bastion of sovereignty. States have the sovereign right to control who is in and who is out of their national community. To this end, states have elaborated immigration laws and rules that through various criteria, such as nationality, age, education, wealth, and marital status, bestow or refuse people the right to enter and settle in a specific territory.
The ethics of migration has been the object of extensive and profound scrutiny by political philosophers. In doing so, they discussed at length the justification for admitting or excluding aliens, balancing a priori and general reasons for admission or exclusion. It is possible to recognize two main approaches to the question of alien admission. On the one hand, the conventional position maintains that states have broad discretion over immigration policy because of their inherent sovereign power to close their borders protecting thereby their community and identity. On the other hand, the open borders position holds that states have a moral obligation to admit prospective immigrants by virtue of the inherent equality in freedom and rights of every human being.
From the previous paragraph, it emerges that the common denominator of the longstanding and fluctuating debate about open or closed borders is the search for some standards or fixed criteria under which admission decisions should be rendered. By the same token, there is a general consensus among political philosophers that immigration restrictions should be justified. However, instead of raising the question of how this justification can take place, they focus their analysis on what makes a justification good enough in order to admit or exclude aliens. The need for justification of admission/exclusion decisions reflects an “inner morality” at the foundation of immigration law and border controls. By referring to the “inner morality of law,” I evoke Lon Fuller’s conception of the rule of law, intertwined with the notion of procedural justice. Fuller’s fundamental contention is that law’s essential function consists in indicating rules as guidelines for people’s behaviour. Accordingly, he identifies eight procedural principles a legal system must comply with in order to be considered as such. These eight desiderata are: generality; public promulgation; non-retroactivity; clarity; non-contradiction; possibility of compliance; constancy; congruence between declared rule and official implementation. If a legal system violates these conditions there is no legal or moral obligation for people to obey its laws. Furthermore, Fuller contrasts the notion of internal morality with that of external morality. Whereas the former is concerned with the law-making process, the latter refers to the substantive content of the law which a given decision-maker should apply in a given situation. Internal morality is not concerned with any substantive issue of law, but with the procedures that are necessary to enact the law.
In this brief blog post, I do not defend a specific position with regard to external morality, i.e. the substantive content of immigration law and migration policies, conversely I maintain that the focus of the philosophical and legal discussion should be adjusted and oriented towards internal morality of immigration laws. Form a legal perspective the discussion about aliens admission has been neglected, since the discretionary power of states over their borders is thought as the sine qua non for sovereignty, and therefore represents an a priori condition, intrinsic in the very nature of state power. From a philosophical perspective, the discussion revolves around considerations of global justice and equality that appear difficult to be transposed into legal obligations. I suggest that a discussion about the way in which admission decisions are rendered would prove useful in this context. In order to have a legal system that is responsive to the vulnerable legal situation of migrants, it is necessary (although probably not sufficient) to establish which are the procedural principles at the base of admission decisions.
Ideally, immigration law should be informed by the eight desiderata individuated by Fuller. The state’s power of exclusion, in order to be legitimately exercised, should provide excluded individuals with a clear, objective and predictable explanation. Moreover, with regard to the congruence between formulation and implementation, the rules promulgated or articulated in various legal instruments – with different degrees of “softness” – should be implemented effectively and even-handedly. This is not always the case, especially with regards to the mushrooming in the international community of “human rights statements” related to migrants’ protection that have a very low degree of effectiveness. In general, it appears that the traditional conception of state discretion in immigration matters is often reflected in decisions that are not completely consistent with the eight Fullerian principles and their core value: predictability.
In a recent blog post, Professor Hein de Haas incisively observes that both the closed and open borders positions are problematic and unrealistic. From his point of view, the ‘open borders’ proposition is naïve, as modern states need to establish rules about entry, residence and citizenship. However, he continues, the ‘closed border’ position is equally naïve, since total migration control would basically require a totalitarian state in order to effectively control all maritime and land borders. To put it differently, the open border / closed border debate oversimplifies the complex reality of migration and its related policies. De Haas explains that it is indeed possible to observe a tertium datur between those two dogmatic positions, a position that is more grounded on – and more responsive to the needs of – the complex reality of migration policy-making. He observes that the substance of modern migration policies is not about restriction or openness, but about the selection of migrants, by favouring the entry of some groups and discouraging the entry of others.
From a normative ethical perspective – one that aims at considering how one ought to act, and not one purely based on how one actually acts-, I should like to add that border controls should not correspond to exclusion without reasonable explanation.
Contrary to what is normally thought, states have generally been rather effective in regulating migration. As de Haas aptly observes, the images of migrants scaling fences or crossing the sea risking their lives in insecure boats may give the impression that borders are beyond control, conveying at the same time the idea of an “unregulated invasion”. Indeed, he observes that the vast majority of immigrants is aware of immigration rules and complies with them.
But who is this vast majority? Often, they are well-educated, young, wealthy and thus “acceptable” outsiders. The exception to this general rule a escaping from wars or natural disasters or family members of low-skilled migrants already residing in one of the prosperous Western states. According to Zygmunt Bauman, irregularized migrants and refugees are people who cannot be included as actors in the modern economy, i.e. as workers or consumers.
It is true that selection, as any process which implies a choice, inherently implies a certain degree of discretion. This discretion is generally legitimately exercised by states in their migration laws and policies. But it is also true that those states are bound not only morally, but also legally – according to customary and treaty-based human rights law – to respect the fundamental rights of everyone who is subject to their power and control.
This vulnerable minority of immigrants is often treated arbitrarily at the borders. Whether they are refused to entry, been returned – and sometimes even shot – at the border, or not duly protected during their journeys so as to risk their lives, their treatment at borders appears to be blatantly different compared to that reserved to other, “more desirable” migrants. When it comes to the respect and protection of the right to life and the right not to be subject to torture nor other inhuman or degrading treatment, irregularized migrants are ignored by states.
In a context where states discretion still resists the constraints imposed by a human rights approach to migration, the legal limits imposed by the rule of law in respect of border controls become crucial.
In the contemporary world, migration phenomena are the site of intense conflicts over access to membership, defence of identities and economic resources. This is reflected in the tendency of powerful states to militarize their borders and to increasingly criminalize migratory movements. Accordingly, migration control has been described as the last bastion of state sovereignty.
Given the current configuration of the relation between sovereignty, globalization and migration, the inherent values of the rule of law encapsulated by Fuller are vital. Indeed, absent the solidity of the rule of law as a rule of procedural justice constraining state discretion, migration would be internationally ungovernable and domestically subject to the constant fluctuations of politics. Clear and comprehensive institutional arrangements with regard to immigration law and policies would enable migrants to predict and plan their future, enhancing their agency while protecting their human dignity. This is not always the case, especially if we take a look at what is happening at the EU external borders, where asylum seekers are treated like cattle, object of diplomatic negotiations, ill-treated and detained in very poor conditions, or returned to unsafe countries by border authorities which do not have the time, the capability or the willingness to individually assess their situation and appropriately explain what is the law that they are implementing in the name of (us) EU citizenry.
The current social and political situation seems to suggest a very pessimistic response to the challenges that the reality of global migration is facing. Policy makers seem more and more focused on creating the perception of complete control over national borders. But they concentrate less on the establishment of clear rules governing border management and the creation of legal and safe channels that will allow necessitous outsiders to arrive safely in potential host states. The European Union has a very sophisticated system of migration law and policy. This system contains very specific procedural rules protecting asylum seekers, which seems to be often misinterpreted in its translation into policies. This is mainly due to a certain degree of vagueness of some concepts included in such system and the broad margin of discretion left to member states. Let’s think, e.g., about the controversial notion of safe third countries and its application in the field of the EU external relation. It is sufficient to look at the EU-Turkey deal, where procedural rules were obliterated in favour of a political solution generally aimed at containing the influx of refugees for Turkey to Greece.
In such a context, characterised by fear, political tensions and divisions, it is better to prefer what Antonio Gramsci called the “optimism of the will”, rather than the “pessimism of the reason.” This crisis of solidarity can represent an opportunity to (re)think a new comprehensive and coherent migration system, characterized by what Lon Fuller called inner morality.
 I understand this rather generic and non-technical term as comprehending economic as well as forced or irregularized migrants. The following parts of this essay I will refer to the general legal category of aliens, which denotes legal subjects, or to the scholarly term migrants, which refers to the objects of migration policies.
 For a comprehensive overview of the philosophical discussion, see, inter alia, Veit Bader, ‘The Ethics of Immigration’ (2005) 12 Constellations 331; Matthew J Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Courier Corporation 2004); David Miller, ‘Is There a Human Right to Immigrate?’ in Sarah Fine and Lea Ypi (eds), Migration in Political Theory: The Ethics of Movement and Membership (Oxford University Press 2013).
 By no means I claim that this blog post will offer an exhaustive survey of the rich philosophical debate on the topic of the ethics of immigration ethics. The following paragraphs will attempt to offer a brief overview of the writings that appear more relevant for the limited purpose of this project.
 See, Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. Law Rev. 630–672 (1958); Lon L. Fuller, The Morality of Law, rev edn Yale University Press, New Haven (1969).
 Given the limited space, I will not explore in depth the Fullerian conception of procedural justice, but I will try to give a general overview, focusing on the main points of his theory that will be useful for the purpose of this essay.
 I use the term desiderata because the eight procedural principles indicate the perfection towards which a legal system must strive and the realization of which would lead to a legal utopia.
 Lon L. Fuller, Eight Ways to Fail to Make Law in Joel Feinberg and Jules Coleman (eds), Philosophy of Law 6th edn, Wadsworth/Thompson Learning (2000) 93.
 The discussion of which not only would require more extensive research and pondered reflection, but also would go beyond the scope of this paper.
 It is important to observe that Fuller specifically refers to laws directed towards orienting the conduct of citizens and not to aliens. In this respect, I rely on a relational conception of legitimate authority. The membership status of the person subject to any legal authority does not matter, because the relational view looks to the nature of the relationship alone in order to establish self-supporting legal standards and obligations between the parties. Moreover, in today’s world, the human rights of the individual, citizen or non-citizen result more and more protected by the emergence of a cosmopolitan framework of international human rights instruments. For further (and deeper) discussion on the relational conception of legal and political authority see Fox-Decent (n 58).
 As matter of well-established international law, states have the right to control migration and its sine qua non is the right to exclude aliens from their territories. This well-established doctrine has however been challenged, see e.g., B. Schotel: On the Right of Exclusion. Law, Ethics and Immigration Policy (Routlegde, Abingdon/New York 2012).
 Catherine Dauvergne, Making People Illegal.
 Chaterine Dauvergne, Irregualer Migration State Soveregnty and the Rule of Law, in Chetail (n 17).
 Antonio Gramsci, Quaderni dal carcere (Einaudi 1977).
Giulia Raimondo is a PhD student at the Graduate Institute of International and Development Studies, Geneva. Her doctoral research aims at contributing to the existing scholarship on European migration law and policies by linking two (normally separate) discourses: the first being research on the international responsibility of the European Union; and the second being the analysis of migration law through the lenses of contemporary legal and political philosophy. Prior to joining the Institute, Giulia obtained a law degree from the Catholic University of Milan and her Master of Laws from McGill University, Montreal. While attending law school, she worked as a legal trainee at the Tribunal of Milan, where she assisted the Judge of second instance during proceeding pertaining asylum seekers in Italy. Her research interests include legal and political theory, human rights law, and migration law.