Immigration and the Constraints of Justice by Ryan Pevnick, and: Migration and Human Rights: The United Nations Convention on Migrant Workers’ Rights by Paul De Guchteneire, Antoine Pécoud, Ryszard Cholewinski (review)

I Introduction

Rights seem useful in moral and legal argument about public law precisely because of their boundary-setting nature. Whatever uncertainty there might be about which policies are effective, popular, or prudent, rights promise to identify those measures that cannot be countenanced no matter what. Those who believe in a right to free speech, for example, believe none but the most urgent policy goals can justify its restriction. People disagree on how far-reaching its protection should be. However, the starting point for such disagreement is the shared belief that something vital is at stake and ought to be protected.¹ That is, the starting point is that there is some such right.

Such starting points are elusive in immigration governance. One of the key points to emerge from the debate in the philosophical literature over global justice from the past decade or so is the uncertain moral standing of individuals such as migrants relative to countries of which they are not citizens.² Cosmopolitans defend the equal moral status of everyone in the world.³ Anti-cosmopolitan statists or nationalists argue that we are each entitled to give less or no weight at all to the interests of non-compatriots.⁴ It would seem reasonable to adopt an intermediate position giving the interests of non-citizens some weight but not as much as those of citizens.⁵ One difficulty with such an intermediate position is that it makes it harder to arrive at firm conclusions about what rights migrants ought to have. The justice or injustice of public law thus becomes cloudier when non-citizens are concerned. That has two consequences. One, it makes the inclination to resort to rights talk more urgent: faced with greater uncertainty about the proper balance among the interests at stake, rights seem to have a more important role to play. Second, though, the uncertainty about how to weigh the interests of migrants against those of citizens undermines the potential of rights talk to achieve broad consensus about the limits of policy in immigration governance.

Both books under review in different ways take up the role of rights in immigration governance. The edited volume Migration and Human Rights might be called a work of academic advocacy on behalf of the largely unsigned and unratified International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families⁶ (the ICRMW or the Convention). The ICRMW provides a long wish list of rights for documented and undocumented workers. For instance, all migrants are said to enjoy such basic rights as a right to life, a right against inhuman or degrading treatment, and the rights to freedom of thought, religion, and expression⁷ as well as some rights that might be thought less basic, such as a right to property, cultural identity, and the right to participate in trade unions.⁸ The documented, in particular, are also given such protections as a right of family reunification; rights to freedom of movement, employment, and residence; and rights of equal access to services like education and training, housing, and social and health services.⁹

Migration and Human Rights, then, begins with a conclusion – that the ICRMW ‘is a vital instrument to ensure respect for migrants’ human rights’ (‘Introduction’ 1) – and seeks an argument that such rights ought to be recognized. In contrast, a rights-based program for migrant workers is not the beginning but the end of the argument in Immigration and the Constraints of Justice, a work of political philosophy by Ryan Pevnick. Pevnick develops what he calls an ‘associate ownership’ view of the state, under which citizens are said to have an ownership claim over their country that establishes their right to...