Is Legitimate Exclusion Incompatible with the Sovereign Right to Exclude?

• Published in: AJIL unbound 2024-01, Vol.118, p.219-223
• Main Author: Schmid, Lukas
• Format: Article
• Language: English
• Subjects: Enforcement; Equal rights; Equality; Human rights; Immigrants; Immigration policy; International law; Jurisdiction; Legitimacy; Noncitizens; Politics; Sovereignty
• ISSN: 2398-7723; 2398-7723
• DOI: 10.1017/aju.2024.37

Scholars of international law have been increasingly troubled by states’ vast powers and practices of migrant exclusion. There is no doubt that much of this uneasiness is catalyzed by a keen sense of the demands of a basic liberalism at the international legal order's core. Indeed, the increased construction of border walls, 1 the continuously widespread use of deportation as a migration control tool, 2 and new digital bordering technologies 3 have all come under scrutiny precisely because of the challenges they pose to the notion of supposedly universal entitlements, both substantive and procedural, that often appear disabled or overridden when it comes to the treatment of different sorts of migrants. My goal in this contribution is not to add to such legal critiques, but rather to provide the contours of a broader normative argument to rebuke—or at least complicate—what is often called the state's “right to exclude” all or most would-be immigrants. This right is not just standardly assumed in legal and political practice—indeed, standardly viewed as the linchpin of sovereignty—but has also enjoyed sophisticated defense by liberal political theorists. 4 The main goal of my argument is to suggest that anyone with basic liberal inclinations—including political theorists, lawyers, and practitioners of politics—should be able to agree that, under current circumstances, granting states a potent “right to exclude” entails deep tensions with basic moral standards of legitimate authority. This is because the deeply entrenched characteristics and historical background conditions of immigration control today tend structurally to push states to violate the appropriate moral conditions of their legitimate authority to enforce immigration restrictions. 5 While moving above and beyond legal argumentation, my hope is that the argument may underscore and give further analytical expression to some of the animating concerns of contemporary legal contestations of states’ exclusive powers and practices.