Revisiting unilateral border controls, a democratic dilemma?

Recently, increasing migration flows have prompted debates about the ethical significance of borders and the universal right to the freedom of mobility. Specifically, certain scholars question whether unilateral border control is democratically justifiable towards non-members by democratic states. As Arash Abizadeh argues – professor of Political Science at McGill University, a democratic state ought to justify the regime of border control both to its citizens and to foreigners because of the inconsistency with the democratic theory of popular sovereignty that violates the principle of autonomy. However, certain scholars such as David Miller – professor of Political Theory at Oxford University, demonstrate that border laws are instead preventive as they are avoidable by migrants in the first place.

Are border laws in fact coercive or preventive by their nature of unilateral border control? How can the principle of autonomy in democratic theory justify that unilateral border control is undemocratic?

This blog will attempt to justify unilateral border control as coercive and thus undemocratic, using the exchange of two political theory scholars.

Image Source: https://www.washingtonpost.com/immigration/2024/02/14/immigration-customs-enforcement-budget-deficit-republicans/

To understand whether border laws are coercive, one must examine their premise of use in democracies. Abizadeh writes that a nation justifies coercive institutions to its citizens in accordance with the core value of democratic theory and liberalism – autonomy (Abizadeh 2008). There are three conditions to a person's autonomy: appropriate mental capacities, an adequate range of valuable options, and independence. Autonomy is invaded through coercion that can take the form of direct coercive acts or intended threats (Abizadeh 2008). When an agent is coerced, they are detracted from certain options, their independence is subject to the will of another, and it destroys mental capacities (Abizadeh 2008). Aside from autonomy, the normative principles of democratic theory and liberalism are that all humans are considered free and equal (Abizadeh 2008). Liberalism emphasizes open borders and universal rights, whilst democratic theory notes the existence of a collective community within boundaries with its distinct identity. Its institutions and laws are shaped by the will of the people through representation in political elections and the rule of law providing democratic legitimacy. This is the principle of self-determination that demands internal control over borders and a membership to participate in the political processes.

In the context of borders, members determine who to exclude from their community, but that requires a democratic justification to non-members examining the reasons of exclusion. Abizadeh notes that a democratic justification is "owed to all those over whom power is exercised" (Abizadeh 2008). Further he adds, that "persons must have the opportunity to participate in the political processes that determine how power is exercised, on terms consistent with their freedom and equality" (Abizadeh 2008). Based on this principal, the coercive exercise of political power in the form of borders is to be justified to non-members and members, otherwise it invades a person’s autonomy inconsistent with the principle of democratic legitimacy. Borders as a political power, therefore, make the notion of political legitimacy incoherent because of a boundary problem. Democratic legitimacy holds that political power is legitimate when it is justified to those it subjects, consistent with values of the democratic theory. It is not to say that borders are illegitimate, but rather those bounding democracies require justification and the right to democratic participation to support the legitimacy claim of the democracy’s state laws. Therefore, when foreign members are not provided a democratic justification to the denial of their entry, their autonomy is infringed. This serves as a coercive act that is inconsistent with the core values of democratic legitimacy.

However, David Miller opposingly argues that immigration controls are preventive rather than coercive, as prevention does not necessarily constitute coercion (Miller 2009). For example, he points out that a neighbor preventing others with a fence from using his property restricts the other person's freedom, yet they are not coerced because their autonomy is not impacted – they still have other valuable options, their independence is at their will, and their mental capacities are retained (Miller 2009). The same idea is applied to immigration whereby individuals are prevented from entering a country given their capacities or objectives. Moreover, he adds that individuals denied entry to a liberal democracy still have a range of options available, thus not impeding their autonomy. Indeed, persons that seek to migrate from poor societies cannot immigrate freely due to economic constraints, but Miller provides that does not mean they cannot choose a different destination (Miller 2009). Further, he points out that coercion requires that an agent have the intention to direct someone's life - 'subject their will upon another person' (Miller 2009). Therefore, if the migrant cannot move to another state because of the denied entry to the state it does not infringe upon their autonomy because they still have a range of valuable options, independence, and adequate mental capacities to move to another state.

Miller critiques that coercive laws are aimed at compelling a specific action – such as tax laws, whilst preventive laws are threats aimed at preventing some action or intent – such as laws against murder (Miller 2009). Hence, borders simply prevent individuals entry by their nature of being a barrier, they do not compel that migrants return to their state nor compel a specific action. Using Raz’s definition of coercion employed by Abizadeh, he finds that being subject to coercion is conflated with hypothetical coercion by Abizadeh (Miller 2009). Hypothetical coercion “occurs in cases where a person would expose themselves to coercion if they were to decide to pursue a particular course of action” (Miller 2009). According to Friederich Hayek’s distinction of coercion, preventive laws are avoidable and act as hypothetical coercion, and if they were actual and unavoidable then they would be coercive (Miller 2009). Therefore, migrants can avoid facing border laws if they do not travel to a state in the first place – the US border is avoidable if you decide to travel to Canada. For instance, he uses the example of Peter and Jean to illustrate prevention. Going on a date with Jean, Peter wants to eat Thai food, but Jean dislikes Thai food and asks Peter provides another choice. According to Miller, this does not invade the autonomy of Peter because there are still ample of valuable options and Peter is independent to choose else. Peter is not coerced to choose differently but prevented from eating Thai food together with Jean.

As Miller continues, the right to exclude derives from the argument for self-determination and the freedom for association amongst groups to preserve themselves as a specific community (Miller 2009; Wellman 2008). This right is owed to all to satisfy moral rights of equality amongst humanity. Yet, a unilateral boundary control regime “could not be simply justified by appealing… to the preferences of only those persons whom a particular border picks out as members” (Abizadeh 2009). The existence of certain immigration controls is not preventative, but rather it is coercive and partial to justify the mobility of certain social groups vis a vis other. For example, the ICE agents in the US detain certain migrants and deny them entry or social integration for unjustified reasons whilst certain other non-members may freely enter to associate themselves with the state’s polity (Legal Aid Society 2023). In fact, it is contravening against the freedom for association where foreign migrants that wish to express preference and political association can only do so if they are allowed from within the state – even given they wish to reproduce the cultural and social values of the community (Abizadeh 2009). Hence, to satisfy principles of democratic legitimacy the denial of mobility ought to be justified by providing political participation in due processes to the non-members in the border controls. 

Nevertheless, the argument of coercive border controls does not withstand the right to the preservation of a unique community. Since, for a community to identify with a specific ethnicity, language, religion or belief, there needs to be partiality as David Miller provides in the argument for the Ethical Significance of Nationality (Miller 1988). Despite that, regardless of a person's objective or social background, subjection to the threat of physical force or to the intent of threat invades their independence and limits their options for political association, directly violating their autonomy. Border laws attack one of the most fundamental human rights as Joseph Carens writes, that is the subjection to the will of another entity (Carens 2000). The threat dissuades persons from pursuing their own ends, so it is coercive by all definitions argued. Whether it’s the intent of coercion such as a legal sanction or the use of physical force in crossing border, the autonomy is invaded and thus border laws must be justified to outsiders for purposes of democratic legitimacy. For instance, Canadian border patrol has the right to detain an individual indefinitely at a detention center for non-criminal reasons (Human Rights Watch 2023). A migrant may be detained for years in a maximum-security solitary confinement center before being justified entrance or worse – denied entry to Canada (Human Rights Watch 2023). This undermines Canada’s democratic interests that it as a nation seeks to pursue and defend.

Additionally, on Hayek’s point of unavoidability, migrants that do not have the economic resources to select from other options of destination cannot avoid border laws of specific nations and may, therefore, face actual coercion rather than hypothetical coercion by those laws. As Carens states, borders should be open because they limit the freedom of movement and hinder the equality of opportunity (Carens 2000). In contrast to Miller’s suggestion, both of these points compromise the core value of democratic theory autonomy as they decrease valuable options and obstruct independence. This is consistent with Abizadeh's argument for the coercion of borders. Hence, unlike Peter being prevented from eating Thai food and selecting from tens of other restaurants or cuisines to eat at with Jean, certain migrants only have the choice of a handful nations to migrate to.

Immigration should be more open into states to promote democratic values of equality and freedom, and the coercion to restrict the freedom to move inside the state should be democratically justified to migrants. Borders in themselves are not illegitimate, but their right to unilateral control should be justified to foreigners who face coercion as that violates their autonomy. Therefore, perhaps it is necessary to revisit immigration controls and border laws, so that we do not falter to uphold values of justice and basic moral principles towards humanity.

References

Abizadeh, Arash. “Democratic theory and border coercion.” Political Theory, vol. 36, no. 1, 2008, pp. 37–65, https://doi.org/10.1177/0090591707310090.

Abizadeh, Arash. “Democratic legitimacy and state coercion: A reply to David Miller.” Political Theory, vol. 38, no. 1, 2009, pp. 121–130, https://doi.org/10.1177/0090591709348192.

Carens, Joseph H. Culture, Citizenship, and Community, 2000, https://doi.org/10.1093/0198297688.001.0001.

Miller, David. “Why immigration controls are not coercive: A reply to Arash Abizadeh.” Political Theory, vol. 38, no. 1, 2009, pp. 111–120, https://doi.org/10.1177/0090591709348194.

Miller, David. “Why immigration controls are not coercive: A reply to Arash Abizadeh.” Political Theory, vol. 38, no. 1, 2009, pp. 111–120, https://doi.org/10.1177/0090591709348194.

“‘I Didn’t Feel like a Human in There.’” Human Rights Watch, 28 Mar. 2023, www.hrw.org/report/2021/06/17/i-didnt-feel-human-there/immigration-detention-canada-and-its-impact-mental.

“Las: Ice Is Deporting Immigrants without Due Process.” The Legal Aid Society, 31 Aug. 2023, legalaidnyc.org/news/ice-deporting-immigrants-without-due-process/.

Wellman, Christopher Heath. “Immigration and freedom of association.” Ethics, vol. 119, no. 1, 2008, pp. 109–141, https://doi.org/10.1086/592311.