Do self-determining states have a conditional right to exclude would-be immigrants?

In recent years, we have seen a wave of states restressing the importance of their sovereignty and a tendency to close state borders. This trend takes place along with the rise of populism and nationalism across the globe. As the unexpected COVID-19 pandemic facilitates states to gain more power by claiming emergency status, the trend is strengthened even more. It seems that the cosmopolitan ideal of a ‘global village’ has gradually faded away, despite new technologies breaking down physical obstacles between individuals living in different parts of the world. The UK’s ex-Prime Minister Theresa May’s statement that ‘if you are a global citizen, you are a citizen of nowhere’, though highly controversial and widely criticised, is somehow becoming a (worrying) reality.

It is time that we rethink our current system of states. Why should (or should not) we have a system of different states that each claim both internal sovereignty and external sovereignty? How can the state gain its legitimate authority to rule? What is the problem with the ideal of the ‘global citizen’? How should states respond to different groups’ secession claims? To what extent should states have the right to control their borders? If one finds such questions intriguing, one should read Anna Stilz’s book Territorial Sovereignty: A Philosophical Exploration, which provides important insights on these questions.

In Territorial Sovereignty, Stilz deals with one of the oldest questions in political philosophy. The book explores the normative grounds for states’ territorial sovereignty and its normative implications for the international laws and treaties we currently have, as well as some policies that states implement. In today’s world, modern states claim the rights to territorial jurisdiction, non-intervention, border controls and use of resources on their territories (p. 1). In brief, Stilz argues that despite historical injustices and contingencies, a system of territorial states still serves to protect important values that are key to living an autonomous life. The arguments in this book are developed based on three core values, namely, occupancy, basic justice and collective self-determination. In short, a system of territorial states can serve these three core values, and it is the realisation of these core values that allows the state to legitimately acquire a right to rule a particular territory. On such normative grounds, Stilz argues against cosmopolitan theorists, who believe that the territorial state system has deep-rooted systemic problems and lacks moral justification. She also argues against the liberal nationalists, who ground the state’s territorial rights on the nation’s interests in preserving their culture, their way of life and the right to govern themselves. One of the main contributions of the book is that it identifies a much broader normative ground for the state’s territorial rights: a system of different states can be justified despite histories burdened with injustices, contingencies and arbitrarily shaped national identities. In brief, Stilz takes three steps to justify this system. First, individuals must occupy a particular physical space – a territory – to live an autonomous life. Second, the territory must have a definite boundary within which a state authoritatively defines, specifies and enforces individuals’ private rights to secure basic justice. Third, to respect individuals’ interests in collective self-determination, we should have separate states that are immune from external interference.

Individuals’ right to occupy a particular place is the first pillar of Stilz’s theory. Occupancy rights explain ‘the basis on which certain people have a special claim to live in a specific area’ (p. 33). According to Stilz, this is a property-like right, which entitles individuals to participate in social, religious and economic practices in a specific physical space. In this particular area, individuals form and pursue their located life plans. A stable expectation of such patterns of residence is of great importance to their well-being and personal autonomy. Appealing to the interest-based theory of rights, Stilz argues that given the importance of individuals’ interests in forming, implementing and controlling their located life plans, they have a right to occupy a particular geographical area. The right protects individuals against territorial removal and expulsion. Individuals’ occupancy rights are the basis of the state’s foundational title to its territory. However, as Stilz has noted, for most people, their life plans involve a much smaller space than the whole territory of their state. How can the state aggregate these smaller spaces occupied by its subjects and assert jurisdiction over a sharply delimited set of them? From individual occupancy right to state-level territorial rights, there is still a gap. To fill in this gap, the state needs to ‘legitimately represent rightful occupants’ (p. 56) by realising another two important values: basic justice and self-determination.

Basic justice is the second pillar of Stilz’s theory. As with many other political theorists (for example, Allen Buchannan), Stilz argues that the state is an essential institution to provide basic justice and that the provision of the minimum conditions of justice, in turn, is a necessary condition for the state to acquire territorial rights. A minimally just state must protect its citizens’ security rights, subsistence rights, core personal autonomy rights and political rights that are preconditions of collective self-determination (p. 113). The state, as a coercive institution, provides a unitary, consistent and enforceable interpretation of these rights so that individuals’ reciprocal freedom has relatively clear boundaries. For this reason, states need to be territorially defined (p. 11).

It should be noted that this list of the minimal conditions for basic justice is still quite demanding and many states cannot satisfy these minimal conditions. We can expect complaints that according to this over-demanding list, maybe only a few real-world states can legitimately rule their territories and populations. It follows that Stilz’s theory, given the over-demanding criteria for basic justice, actually denies the legitimacy of most states. Apparently, Stilz does not attempt to be so radical in this book. For Stilz, despite this long list of minimal conditions, it is not especially difficult for real-world states to reach the threshold criteria for basic justice. In her view, ‘most well-ordered states will implement substantive rights that go beyond these minimal conditions’ (p. 115). One reason for her to think in this way is perhaps that basic justice does not require the actual guarantee of each basic right, but only the state’s good-faith attempt to secure these rights. Legitimate states are allowed to make mistakes about justice, but they must demonstrate a commitment to basic justice (p. 114). However, in the following chapters, Stilz does not offer much explanation about her perception of what is ‘minimal’ or ‘basic’. Before she gives a further response, it is still not clear if she sees the attempt to secure the basic rights as more important than the actual implementation of the rights.

Going back to Stilz’s own framework, however, providing basic justice to the rightful occupants on the territory is still not enough for a state to legitimately enforce its system of rights. Even when some occupants are not subject to grave injustice, their political autonomy, understood as ‘being subject to political institutions that in some way reflect their judgements and priorities’ (p. 104), can be violated. That is why most people believe that benign colonialism is wrong despite the civilised political order it may establish and maintain. The wrongness of benign colonialism lies in the lack of correspondence between the political institutions and the subjects’ shared will to cooperate under these institutions in certain ways. The same rationale applies to a proposal of a global government, no matter how just it could be. The third value, self-determination, is the most important reason that a system of separate states should be favoured.

The need to respect individuals’ political autonomy requires that our political institutions must afford collective self-determination to a group of individuals who share some common political commitments. Self-determination protects individuals against alien coercion of the state, under which they are denied the authorship of their own institutions. In her argument, Stilz carefully distinguishes the value of personal autonomy and the value of political autonomy. To respect individuals’ personal autonomy, state institutions need to define and secure some individual rights so that each person is ‘free from the will of others when forming her own values and expressing these in the conduct of her life’ (p. 114). Political autonomy is the political analogue to personal autonomy (p. 106). It proposes requirements on the institutions which define individuals’ rights to protect their personal autonomy. Although the state is a coercive institution, by protecting individuals’ political autonomy, it mitigates the threat of alien coercion. Inspired by Kant, Stilz stresses that even a just scheme of rights cannot be enforced unilaterally upon a group of people. The political institutions need to ‘reflect the shared political will of a significant majority of cooperators’, and the shared political will needs to be the actual joint commitment to uphold their political institutions (p. 117).

As for political dissenters who do not share the joint commitment or are alienated from the shared will of the majority, Stilz argues that under certain circumstances, they might have a claim to institutional reforms that grant them more political independence or even secession. But these claims are only valid when they are consistent with basic justice and when alternative institutional solutions are feasible (pp. 112–113).

Stilz’s self-determination theory of territorial rights has important practical implications for many controversial questions we have had in the past and continue to have now, perhaps most interestingly the debate over open borders. Although she firmly believes in the value of collective self-determination, she offers a powerful challenge to the self-determination argument for states’ discretionary right to exclude would-be immigrants. For example, in her critique of Christopher Wellman, she recognises the importance of citizens’ control of the character of their society, but she denies that the state’s right to free association, derived from collective self-determination, is parallel to individuals’ right to choose whom to associate with. The state’s right to choose its members faces more constraints than an individual’s right to choose whom to marry. It must be demonstrated, argues Stilz, that ‘the state’s freedom of association is somehow necessary to serve or protect its members’ interests, especially their interest in being ruled by an institution that reflects their own (morally acceptable) values and priorities’ (p. 193). Indeed, would-be immigrants sometimes do pose such actual threats to those values, priorities and institutions, but it needs evidence to support exclusion. Thus, on the self-determination ground, according to Stilz, states only have a conditional right to exclude would-be immigrants. Exclusion is justified only when a ‘significant harm’, a setback to certain legitimate moral interests, would occur upon the immigrants’ entry.

At first glance, the conditional model of exclusion suggests some radical changes to the current immigration policies that many states adopt. However, it still shrinks away from some key questions that lie at the centre of the open border debate. One of them is: who is the ‘self’ in self-determination? This question is thought to be perhaps the most significant challenge for the self-determination arguments. ¹ We recognise the importance of self-determination as it protects individuals’ personal and political autonomy, but who counts as the members of the self-determining community that should have control of and make decisions on the character and future of the community? The conditional model still needs to address this question.

In Chapter 5, Stilz adopts what she calls the ‘endogenous approach to peoplehood’ to define the ‘self’ in self-determination. Stilz argues that ‘a people is born only when its members engage in institutionalized political cooperation and come to endorse that cooperation’ (p. 124). That is to say, the formation of the ‘self’ requires both institutional structures which reflect the self-directed agency of its members and members’ endorsement of their roles to play in those institutions. Their willing participation in the state, rather than the mere existence of certain political institutions or cultural characters, is the key element constituting a ‘people’. According to this endogenous view, the members of the people do not need to be citizens. A long-term resident may also willingly participate in the political institutions of the state where she resides. On the list of the key activities which indicate one’s participation in the state, there are ‘obeying the law, paying taxes, voting, cooperating with officials, and contributing to the formation of the public opinion’ (p. 125). Perhaps the only activity a long-term resident cannot be engaged in is voting; in other areas, she can participate in the political institutions as much as other citizens. One might object on the ground that voting is so special and important that it is the defining element of willing participation, and insist that a long-term resident does not count as a participant in the self-determining community. However, it is noteworthy that not all citizens vote, and obviously this does not make them non-participants.

Does Stilz offer a satisfying response to the challenge of how to identify the ‘self’? Indeed, her argument avoids many difficulties that other self-determination arguments confront. Unlike the nationalists, the endogenous view does not confound the state and the nation, and thus it can be applied to multinational states, where the debate on immigration policies is much more heated. Unlike the freedom of association argument, the endogenous view does not appeal to the controversial and widely criticised analogy between a self-determining individual and a self-determining political community. Actually, as demonstrated above, Stilz does not believe that collective self-determination is enough to justify a discretionary right to exclude. Collective self-determination should serve individuals’ personal and political autonomy, and therefore it becomes a valid reason for exclusion only when the individuals’ autonomy is threatened. But there is still some ambiguity in Stilz’s self-determination argument for a conditional right to exclude, and it is unclear what this conditional right implies in real politics.

First, we question the composition of the ‘self’ partly because it is unfair that those ‘outsiders’ who are affected and coerced by the state’s immigration policies do not have a say in the process of making those policies. The self-determination argument for a conditional right to exclude still cannot address this concern. Rather, it addresses a relevant but different question: how should the members of a self-determining community control the characters and the future of the community, or, what principles should the members rely on when they decide the future of their community? We know from Stilz’s arguments that the answer is a version of the harm principle, but what if the members do not decide justly and reject the principle? In reality, we are familiar with politicians abusing the idea of harm, using reasons such as national security and the local’s job security to refuse admission of would-be immigrants and even refugees who seek urgent aid and shelter. Unfortunately, many citizens, as we see in today’s world, are persuaded by these kinds of reasons and perceive would-be immigrants as a potential danger to their political communities.

For Stilz, when the members reject the principle, persuasion seems to be the only solution. In Chapter 7, she argues that ‘I grant that citizens have the authority to decide their migration policy, and that if they decide wrongly (i.e., on my view, to exclude harmless migrants), this is a decision that outsiders are obliged to respect’ (p. 188). Despite her objection to a discretionary right to exclude, I wonder how this ‘authority to decide wrongly’ is different from a discretionary right. If we understand authority as the right to make decisions and rules that others follow and respect even when such decisions and rules are bad or wrong, is it meaningful to say that only on certain conditions can such a right be exercised? In my view, if they have the authority to make the decision, their right to exclude is discretionary.

More specifically, I wonder if Stilz’s self-determination argument can make any difference in practice. It seems to me that the argument is more likely to maintain the status quo. Indeed, if citizens can recognise that they have only a conditional right to exclude, state policies can be more friendly to would-be immigrants. However, it depends on whether a sufficient number of citizens can be persuaded by this line of argument and whether they can support their representatives to make the border more open. And even if the majority accept to follow the harm principle to admit harmless migrants, the policies still depend on the public’s perception of harm, which often exaggerates the harm or arbitrarily defines it. Nowadays, given the rising of populism and xenophobia in many states, it is doubtful that citizens can reasonably interpret what constitutes harm to their political institutions and autonomy.

Citizens’ authority to decide immigration policies also seems to be inconsistent with the boundary that Stilz draws for a self-determining community, which includes not only citizens but also long-term residents. Although in the current literature there is a convention to use the terms ‘citizens’ and ‘residents’ interchangeably, in this context, the difference between the two is quite important. Most long-term residents lack the right to vote and have little power to affect migration policies. However, they are still vulnerable to those policies, perhaps even more than people who are outside of the border, for the residents already have their located life plans within the border, and policy changes not only affect their life prospects but also interrupt the lives they currently live. Certainly, according to Stilz’s arguments, particularly around individuals’ right to occupancy, long-term residents should be granted access to citizenship, and then they have a say in shaping the future of the community they have been participating in. However, it is still those immigration policies that determine how long ‘long term’ should be. Our everyday perception of a long-term stay does not necessarily coincide with the legal definitions of states. All in all, although the long-term residents are not denied entry to a particular territory and have their many occupancy rights protected at the moment, the conditional right to exclude may still profoundly affect their interests and life plans.

Finally, the threshold for a state to be self-determining seems to be tailored for only modern democratic states. I wonder how the self-determination argument can ground or limit a state’s right to exclude if it does not count as a self-determining one. According to Stilz, collective self-determination is not possible for states that lack ‘uptake’ from their people. North Korea is the example Stilz uses to illustrate the point. Although North Korea has a decision-making structure and its institutions claim to act in the name of their people, there is a lack of connection between the collective agency of the state and the agency of its individual members (p. 125). The citizens cannot be seen as willingly participating in the state. Rather, it is coercion and manipulation that make them support their state’s institutions. Although most states are not as extreme as North Korea, one may wonder if other states can easily satisfy the institutional preconditions for collective self-determination. These preconditions include the protection of security, subsistence and personal autonomy rights, public deliberation and opportunities for revoking government authorisation (p. 128). Although Stilz is correct that these conditions are still not enough for democracy and thus we cannot equate collective self-determination and democracy, I suspect that only modern democracies can meet these conditions. As Margaret Moore (2020) claims, this self-determination theory ‘seems to apply most straightforwardly to groups that engage in democratic self-determination’.

Furthermore, according to Stilz, a self-determining yet non-democratic state does not have to protect ‘the equal right to vote, to associate in political parties, and to compete for office’ (p. 128). However, it is not clear why the lack of these institutions does not make collective self-determination impossible. In my view, these institutions are interdependent with those aforementioned preconditions for collective self-determination (the protection of security, subsistence and personal autonomy rights, public deliberation and opportunities for revoking government authorisation). The lack of equal political rights profoundly impacts citizens’ security, subsistence and personal autonomy rights. For example, in a state where women do not have equal political rights, they are probably less safe (physically and economically) and less free. If they do not have an equal right to vote, cannot freely associate with others in political parties or are barred from political competition for office, how can there be the effective formation of deliberative public opinion and how can the channels for revoking authorisation be secured? To clarify, I am not suggesting an even higher threshold for a state to be self-determining. The problem I aim to point out is that Stilz’s choices of criteria for collective self-determination seem arbitrary.

All in all, by highlighting that collective self-determination is not the same as democracy, Stilz attempts to lower the bar for collective self-determination. However, this attempt is not successful. It not only excludes most non-democratic states from the category of self-determining states but also seems arbitrary in delineating the institutional conditions for collective self-determination.

A practical difficulty that follows this threshold problem is that the self-determination argument for a conditional right to exclude would-be immigrants does not have much practical implication for states that do not reach the threshold. Do they have any rights to exclude would-be immigrants? If yes, on what grounds and to what extent do they have such rights? If no, it seems unfair that these states open their borders while other self-determining states can still maintain some level of control over the immigration flow. Within Stilz’s theoretical framework, the paradox can only be solved when most states can act as a collective self-determining agent that represents its people, which requires that the threshold cannot be so high. However, if she could lower the threshold to make more states meet it, this would take us back to the question of what collective self-determination is at all.

Given the complicated reality of our current system of states, certainly, we cannot expect Territorial Sovereignty to offer the final answers to most of the controversial issues around states’ sovereignty. But the book has done a great job of providing a liberal theoretical framework to reflect upon citizenship, immigration, succession claims, cosmopolitan ideals, the colonial legacy and disputes over borders and resources. It contributes to pushing the debates forward and helps to clarify the normative issues underlying the current world order. The liberal perspective lends much strength to the arguments, as it appeals to values that are thought to be universal. Both cosmopolitans and liberal nationalists need to take Stilz’s critique and responses seriously. On the other hand, however, my worry is that the liberal perspective also sets limits to the scope of readers that Stilz’s theory can persuade. Political communities that are not ready to fully accept the liberal values – for example, indigenous groups, historically dominated groups and some authoritarian societies – may have completely different views on the core values that Stilz defends. Given the limited space I have, I will not take up this issue further. But even for readers who are not so committed to liberalism, the book is still worth reading as a jumping-off point to the debates on territorial sovereignty.