Why 'illegal' migrants aren't violating state sovereignty

With the Mediterranean migrant crisis showing no sign of ending, the world’s response to irregular or “illegal” migrants is, with a few exceptions, getting ever harsher. Around the world, borders are militarised and irregular migrants criminalised, often with scant regard for the humanitarian consequences.

These policies are testament to the way immigration policy is tightly linked to claims about territory. Migrants crossing borders unauthorised are seen as a threat to states’ territorial rights – and the EU, Australia and the US (among others) all use that premise for military strategies to combat and criminalise irregular migration.

Yet the models of sovereignty on which these responses rely often rest on some questionable assumptions about what states' territorial rights actually are. Their biggest problem is that territorial sovereignty, which migration hawks so often invoke, does not necessarily imply discretion to stop people at a state border.

Nobody’s property

An analogy is often drawn between states’ territorial rights and private property rights. If I have a right to decide who can enter my house, the argument goes, states surely have the right to decide who can enter their territory. But states’ rights over territory are simply not the same as personal rights over property.

If we want to view states' rights as property rights, we either need to think of state territory as an aggregate of all citizens’ private property, or as something collectively owned by its citizens. Neither model bears much scrutiny.

In the first model, all citizens consent to the state’s power and freely incorporate their property into its territory. This has obvious problems: what happens if one person doesn’t want to be part of the state any more? What about people who don’t own any property?

In the second model, citizens collectively mix their labour with a territory, and therefore (in line with John Locke’s argument for private property rights) they have rights over it. But even scholars who defend this basis for states' territorial rights argue that the collective “mixing of labour” gives rise just to territorial rights, and not to property rights.

The purposes of property rights (such as to protect the private sphere and to protect individuals' independence) is different from that of territorial rights. Some theories of territory hold that the point of territorial rights is to establish justice in the territory – but this requires rights of jurisdiction, not property rights.

Open for business? The US-Mexico border fence.EPA/Larry W. Smith

The other version of the argument invokes people’s attachment to their territory. Most of our plans, projects and relationships depend on attachment to a certain place – and we therefore need stable residency there. We should not be expelled – and we also need means of controlling the territory collectively. But collective control over territory requires rights of jurisdiction, not property rights – and indeed, jurisdictional rights are what regulate property rights anyway.

Territorial rights consist of a bundle of rights, including the right to jurisdiction, the right to resources and the right to control borders. The right to jurisdiction is fundamental, since without it citizens cannot control their territory, but the other two rights don’t necessarily follow. We cannot take it as read that complete control over resources and borders have to be established to secure justice, or to grant people collective control over territory.

States don’t actually have to fully control who enters their territory in order to retain their jurisdictional authority. The important thing is that citizens have a strong ability to participate democratically and influence the future of their territory – and that depends on the integrity of their democratic system, not who else is there.

But who is there might matter as well if all migrants have access to the democratic system and if they have a radically different view on how to use the territory. That’s why states need to have a right to regulate naturalisation policies and potentially restrict migrants’ access to immediate citizenship in the case of large inflows of migrants.

Right to remain

Lastly, it is often argued that people who enter a territory unauthorised, or “illegally”, simply have no moral right to stay there. Yet some irregular migrants live for several years – and sometimes decades – in a territory before they are deported; many who came as children may have lived most of their life “illegally” in this way.

In her new book on territory, Margaret Moore argues that the way you came to have strong attachments to a territory doesn’t necessarily determine what rights you have to live in it. If it did, many states would not have rights to territory at all, since they came to control their territory through conquest or colonialism. We surely wouldn’t argue that many modern day Americans, Canadians, or Brazilians don’t have a right to live in and control the territory they are attached to.

Many assume that when a state claims rights over a territory, it claims the right to exclude everyone else in the world, but such strong exclusion is simply not necessary to protect citizens’ ability to control their territory and make it “theirs”.

Territorial rights are not like property rights; they are rights of jurisdiction, including jurisdiction regulating property, aimed at securing citizens' ability to control their territory. States do not need to stop everyone at the border from entering in order to effectively serve those rights – and those advocating for harsher treatment of “illegal” migrants should re-examine the moral basis on which they’re doing so.

Clara Sandelind received funding from The Royal Swedish Academy of Sciences; Karl Staaffs Memorial Fund. She is affiliated with Migro.