Mayaki Kimba | Staying and Moving: Widespread Moral Assumptions in Alternatives to Existing Border Regimes

By Mayaki Kimba

I.

Some years ago, I was working an admissions event at my undergraduate college. A visitor needed directions to an information session, and as I was walking him to the appropriate auditorium, he began quizzing me on my background. Upon learning I was Dutch, he desired to know the specifics of my family’s migration history. Finding this line of questioning intrusive, I sought to cut off the conversation. Accordingly, to a question about why my father moved from Ghana to the Netherlands, I replied: “I don’t know, people just go places.”

My passive aggressive rejoinder was a spontaneous reaction, but upon reflection, there appears some substance to it. People move. States aim to manage, regulate, and in some cases, forbid such movement. Some of those efforts at regulating movement are as commonplace as they are uncontested. Traffic lights, pedestrian crossings and speed limits fall in this category. Yet other efforts at regulating movement are at the heart of political contestation and controversy. Efforts to regulate movement across borders in particular run into political hot water and yield successive “crises” at borders, shores and the many other sites where immigration enforcement penetrates.

Perhaps efforts to regulate movement across borders remain so politically volatile because when it comes to migration, states appear uniquely resistant to the human tendency to move. The moment a border is involved, states no longer aim to merely organize movement in an orderly fashion. Rather, they force people to move through specific entry points to ensure that only certain kinds of people who meet specific requirements are allowed to pass through. The truism that “people just go places” does not seem true at all at these border sites, where the ability of people to go where they want remains subject to state control. Successful resistance to such control abounds, regardless of the gargantuan sums of money spent on and stunning levels of violence involved in border policing, migrant detention and deportations. As Harsha Walia writes in Border and Rule, “the mere existence of autonomous ‘illegal’ migration … defies attempts to control it.”[1] Those attempts continue to be made because the border, as Walia notes, can serve “as a key method of imperial state formation, hierarchical social ordering, labor control, and xenophobic nationalism.”[2]

The readings for Abolition Democracy 12/13 offer alternatives to existing border and migration regimes. Joseph Carens makes the case for open borders on the basis of human freedom and equality of opportunity.[3] Walia finds open borders an insufficiently expansive aspiration and instead aligns “with a leftist politics of no borders” that abandons capitalism and resists “displacement and immobility in all its forms.”[4] Seyla Benhabib advocates for a position of cosmopolitan interdependence that can balance dual claims of territorial sovereignty and international human rights.[5] And Paulina Ochoa Espejo importantly distinguishes border control from immigration control as well as other territorial rights.[6] With respect to border control, she argues for a pluralist conventionalist view that grounds the right to control borders not in internal legitimacy—as is the case with rights to jurisdiction and natural resources—but in international conventions.[7] Regarding immigration control, she proposes a place-based view of ius situs that disentangles borders from migration, rejects membership-based views of migration, and “grants rights to a person by simply being in a place”—specifically place-specific rights necessary for both citizens and noncitizens to participate in local schemes of cooperation.[8] And in contrast to the hegemonic view of borders as the “pristine shores” of desert islands, Ochoa Espejo likens border spaces to the muddiness of watersheds: bordered jurisdictions intersect, interconnect and interdepend.[9] Borders should then not be justified on the basis of shared civic identity, but rather on their ability to sustain institutions that manage a socially recognized and accepted feature of social-ecological systems: water.[10]

In this blog post, I will center the ways in which these alternatives to existing border regimes treat implicit assumptions about migration. As Carens has noted, those assumptions are quite powerful. Indeed, “assumptions about the state’s right to control entry and settlement pervade our consciousness” to such degrees that when it comes to migration, people readily exchange the assumption that restrictions on freedom require justification for the view that freedom itself must be justified.[11] Contesting such prevalent and powerful assumptions is a daunting task. Yet interestingly, while Carens on the one hand wants to reject widely held assumptions, he wants to use other widely held assumptions as the foundation for his case for open borders. I will discuss this and the somewhat similar approach taken by Ochoa Espejo, before comparing them to the approaches taken by Walia and Benhabib. I will use that comparison to argue that alternatives to existing border regimes must not necessarily appeal to widely held intuitions, but rather to general human behavior as well as historical and present-day realities.

II.

Carens most extensively discusses the role of implicit and widely held assumptions, and he both wants to challenge and to build off them. On the one hand, he wants to contest conventional morality, as becomes clear in his response to the critic who claims that “the idea of open borders ‘defies common sense.’” Carens points out that many practices and institutions we would today recognize as obviously unjust—e.g., racial segregation and the legal subordination of women to men—were once deemed “common sense” and morally acceptable.[12] In this way, the project of Carens is to challenge implicit and widely held assumptions. On the other hand, Carens wants to build off implicit and widely held assumptions. Rather than deducing the case for open borders from a general theory of human freedom (or mobility), he adopts a “bottom-up” approach that “appeals to familiar, widely shared democratic principles.”[13] These “deepest principles,” Carens argues, “have implications that those who first developed those principles did not foresee”: open borders.[14]

Ochoa Espejo similarly both challenges and builds on common assumptions. On the one hand, Ochoa Espejo takes aim at the Desert Island Model of borders that presupposes a unified people owning “a distinct land, clearly separated from all others,” in which they “have the unilateral right to control everything that happens inside it and at its edges.”[15] Insofar as Ochoa Espejo challenges this dominant Desert Island Model and the related assumption that border questions are questions of identity, she is contesting widely held views. On the other hand, she frames ius situs—place-specific rights that allow one to fulfill place-specific duties—as “an intuition” and argues that it already shapes “extant jurisprudence in the United States and other receiving countries.”[16] Accordingly, she discusses the 1848 Treaty of Guadalupe Hidalgo in which the United States and Mexico committed themselves to the right of the population in ceded territories to stay. For Ochoa Espejo, this treaty exemplified the “widely held intuition that people have a right to stay in the place where they live, irrespective of their citizenship or national membership.”[17] Insofar as this intuition resembles Ochoa Espejo’s argument, Ochoa Espejo mirrors Carens in both rejecting and building on widely held assumptions.

This approach of Carens and Ochoa Espejo comes with challenges. Carens acknowledges one of these challenges. He cautions his critics not to appeal to their “conventional moral intuitions about the state, since the claim is precisely that these intuitions are faulty.”[18] This advice is useful, but it also points to the difficulty with his approach. How do we distinguish moral assumptions that we use as foundations for our theory from the assumptions that we seek to challenge? How do we, for instance, disentangle “conventional moral intuitions about the state” from “familiar, widely shared democratic principles”? In addition, insofar as both Carens and Ochoa Espejo critique conventional ways of thinking, their own work identifies the ways in which relying on or appealing to widely held intuitions can be misguided. How do we know that the widely held assumptions on which we do want to build our theories are not also mistaken in some way that we have not identified because we take the assumptions for granted? And if some widely held assumptions can be wrong, as Carens and Ochoa Espejo compellingly show, then why should we privilege other widely held assumptions over marginal and perhaps more radical ones?

I would propose that instead of grounding alternative border regimes (including the abolition of borders) in widely shared assumptions, we ground them in empirical and historical realities as well as general human behavior. In other words, we may for instance begin with the truism with which I began this blog post: “people just go places.” The cosmopolitan interdependence of Benhabib moves in this direction. Indeed, Benhabib writes that “cosmopolitanism proceeds from the premise that human mobility is an anthropologically deep-seated drive of the human species and that the regulation of human mobility through national borders is quite recent in human history.” Benhabib also states that “the cosmopolitan perspective enjoins us to investigate and analyze … how, if at all, our national and regional policies may have contributed to such [refugee and migrant] movements.”[19] Such an approach that begins with empirical and historical realities may not only avoid premising one’s argument on assumptions that may turn out to be flawed, but may also closer align one’s theory with the actually existing struggles, injustices and oppressions that existing border regimes continue to produce.

Indeed, by “analyzing the border as part of historic and contemporary imperial relations,” Walia is able to identify the “shared logic of immobilization” through which not just borders, but also prisons and police operate.[20] In doing so, she connects movements against existing border regimes to the abolitionist movements that have been at the forefront of the preceding Abolition Democracy 13/13 sessions. As such, centering general human behavior and realities of the present and the past avoids not just the difficulties that come with simultaneously rejecting and building off widely shared assumptions, but also helps connect theories for change with movements for change.

What I find attractive in Ochoa Espejo’s position of ius situs is then not so much its adherence to widely shared assumptions, but rather its respect for the existence and embeddedness of people in places. Some people find their very existence in places problematized because they are not classified as belonging to the favored (civic) identity group. In failing to view the existence of people in places per se as a reason to grant a right to stay, identity-based and other conventional views of membership disregard the general human tendency to be embedded in place-based relations and the present-day and historical reality that restrictions on and negations of people’s freedom to stay have often only been enforceable through brutal coercion and horrific acts of violence. Ius situs, in contrast, takes place seriously and avoids the violence that is otherwise necessary to constrain people’s freedom to stay. In that sense, my call to forgo appeals to widely shared intuitions is not intended to critique ius situs, but rather to suggest that ius situs is most compelling when grounded in general human tendencies and the historical and present-day realities of border regimes that could not persist absent the oppressions and injustices they create, tolerate and perpetuate.

III.

I have argued against a grounding of alternatives to existing border regimes in widely held assumptions, instead advocating for a grounding of those alternatives in historical and empirical realities and general human behavior. In closing, I want to briefly reflect on that general human behavior. Believing that something of the sort exists hints at a kind of universalism. Universalisms risk treating what is particular as universal, as some of the most privileged perspectives and experiences often enjoy treatment as the perspectives and experiences of the whole world. Moreover, an analysis of historical and empirical realities may very well militate against universalism insofar as those realities show themselves to be time- and place-specific. Nevertheless, I do not want to give up the idea of general human tendencies or behaviors, in part because of an Abolition Democracy 12/13 reading that I have thus far left undiscussed: Hannah Arendt’s “We Refugees.” When discussing Jews who seek to disguise their identity, Arendt writes:

If we should start telling the truth that we are nothing but Jews, it would mean that we expose ourselves to the fate of human beings who, unprotected by any law or political convention, are nothing but human beings. I can hardly imagine an attitude more dangerous, since we actually live in a world in which human beings as such have ceased to exist for quite a while; since society has discovered discrimination as the great social weapon by which one may kill men without any bloodshed; since passports or birth certificates, and sometimes even income tax receipts, are no longer formal papers but matters of social distinction.[21]

Upon reading this passage, it gives me pause to think of a world where being human is not enough. Where unless you have papers or passports or birth certificates to prove your social distinction, the very fact of your humanity entitles you to (too) little. Where exposure to being “nothing but human” is dangerous indeed, as it was for the stateless Jewish refugees fleeing Nazi terror in Europe. Whether this should lead us to “a right to have rights” or some other conception of human rights is beyond the scope of this blog post. The point is rather that the very fact of one’s humanity should entitle one to basic freedoms. Being “nothing but human” should be more than enough for such freedoms. Freedoms that cover one’s ability to stay and, if I may quote my spontaneous truism again, one’s ability to “just go places.”

Notes

[1] Harsha Walia, Border & Rule: Global Migration, Capitalism, and the Rise of Racist Nationalism (Chicago: Haymarket Books, 2021), conclusion, https://blogs.law.columbia.edu/abolition1313/files/2021/03/Border-and-Rule-Harsha-Walia.pdf.

[2] Walia, introduction.

[3] Joseph Carens, “The Case for Open Borders,” in The Ethics of Immigration (Oxford: Oxford University Press, 2014), https://cccct.law.columbia.edu/sites/default/files/content/Readings/Carens%20-%20The%20Ethics%20of%20Immigration%20Excerpts.pdf.

[4] Walia, Border & Rule, conclusion.

[5] Seyla Benhabib, “The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights,” Jus Cogens 2, no. 1 (August 2020): 75–100. https://blogs.law.columbia.edu/abolition1313/files/2020/08/end-of-1951-Convention-pdf-Copy-1-1.pdf

[6] Paulina Ochoa Espejo, On Borders: Territories, Legitimacy, and the Rights of Place (Oxford: Oxford University Press, 2020), 203–204, 208–211 https://doi.org/10.1093/oso/9780190074197.001.0001.

[7] Ochoa Espejo, 221.

[8] Ochoa Espejo, 223–30, 234–40.

[9] Ochoa Espejo, 19.

[10] Ochoa Espejo, 5–8, 188­–89.

[11] Carens, “Case for Open Borders,” 237.

[12] Carens, 232.

[13] Carens, 231.

[14] Carens, 233.

[15] Ochoa Espejo, On Borders, 6.

[16] Ochoa Espejo, 224–25, 240.

[17] Ochoa Espejo, 230–33.

[18] Carens, “Case for Open Borders,” 232.

[19] Benhabib, “End of the 1951 Refugee Convention?,” 94.

[20] Walia, Border & Rule, introduction.

[21] Hannah Arendt, “We Refugees,” in The Jewish Writings, ed. Jerome Kohn and Ron H. Feldman (New York: Schocken Books, 2007), 273, https://www.jus.uio.no/smr/om/aktuelt/arrangementer/2015/arendt-we-refugees.pdf.

Fonda Shen