By a human right, as distinct from a civil right, is meant, presumably, one one has independently of the polity to which she happens to belong. But a human right does not extend between sovereign jurisdictions. By this I mean that the freedom of religion that I enjoy in Canada, for example, does not entitle me to enter Saudi Arabia to make my Haj, even if Saudi Arabia honors freedom of religion no less than Canada does. Likewise, then, freedom of association does not give me license to travel to another country to associate with one of its nationals, nor does it entitle her to enter Canada to associate with me. So even though human rights, if they exist, are universal, their exercise is confined to within the sovereign jurisdiction that recognizes them.
And it seems strange to me that that doesn’t seem strange to people who are sanguine on human rights. One would think they’d at least lament this, if not protest it.
To be fair there are people who think the existence of borders is incompatible with human rights. They allow that sovereignty is compatible with human rights. That is, they acknowledge that rights require the protection of governments. But, they rightly point out, governments have duties beyond the protection of human rights, duties that entitle and obligate them to exercise sovereignty over these people here but not those over there. But if they can’t control who enters into their jurisdiction, they’re in no position to husband the resources necessary to fulfill those other duties.
Still, counters the open-borders advocate, the right of association does not entail a right to health care or employment or education. So why couldn’t we say that a Somali can associate with whomever wants to associate with her here in Canada, but association is a negative right. No one, including the Canadian government, has a right to interfere with their associating, but the government has no obligation to facilitate that association by providing whatever might prove to be the sine qua non of it, such as English language classes or bus fare.
The difficulty, however, is a practical one. We have good reason to believe that a two-tiered system of entitlements is morally and politically unviable. We simply can’t have millions of people freezing or starving to death for the other 364 days because they want to spend Christmas Day with one of us.
But the problem at the Mexico-US border and in Lampedusa is a very different one. It’s that those human rights to which people are entitled no matter where they live are not being afforded them where they live. What rights are those? In some cases subsistence. But as often as not they’re freedom of expression, of assembly, of religion … the so-called liberty rights. Rights which, unlike subsistence, could be afforded them even if subsistence couldn’t be. So they’ve come to the southern gates of America or Western Europe to access rights that either cannot be, or simply aren’t being, afforded them where they’ve been living.
If the problem is subsistence, the obvious solution is to feed them there so they don’t have to come here. And if the problem is oppression the obvious solution is to forcibly remove whoever’s oppressing them. And if this were what Trump and Salvini are trying to do, we could stand behind them. But it’s not. Instead they’re aiding and abetting the oppression that’s driving these people northward.
Too quick. Liberation invariably morphs into imperialism to cover its own costs. So on second thought we couldn’t stand behind imposing American-style democracy on the rest of the world.
So it’s a case of revealed preferences falsifying declared ones. What’s revealed is that we don’t really believe there are human rights that it’s incumbent upon us to ensure. There are only civil rights. And a civil right is one enjoyed only by members of the polity assigning them those rights. Members of that polity have a right to so remain. But no one has a right to become a member of that polity.
Nor does anyone have the right not to be discriminated against in her application to be a member. Any right not to be discriminated against can only be conferred by the polity to which one is applying for membership. But there’s no call for consistency between those rights and those conferred on its own citizens. So though in Canada I cannot refuse to rent to you because you’re black, my government can refuse to admit you into the country because you’re black.
That, at any rate, is the Trump-Salvini take on the migrant crisis on their respective southern borders. And it’s hard to see where they’re wrong, because, well, they’re not.
So the counterargument has to avoid rights-talk altogether and appeal instead to compassion. There is no right to rescue. But when you see someone drowning you reach over the side and you pull them in. If you don’t you’re not unjust. You’re just, but also ‘just’ a moral monster. Sending them back to Libya is just tossing them back in the water, because that’s where you’ll find them tomorrow. And the next day. And the next. Until what you’re pulling out of the water is a corpse. So what to do?
Trump and Salvini think of America and Europe as lifeboats. Any more taken on board and we capsize. So yes, hard though it may be, we do have to let them drown. It’s a matter of self-preservation.
The counterargument is that they’re cooking these carrying capacities. It’s not that America and Europe couldn’t feed and house and employ another ten or twenty million souls. Nor is the worry that all or any of them are rapists. It’s that they’ll change the smells coming from open windows. Our sons will marry their daughters, and then those smells will be coming from our open windows. Their call to prayers will make our own church bells ring quaint to us, as if they betoken just one invitation to worship among many. We’ll have lost community.
That “Tis always thus!” is no argument that we should let it be. There is no irresistible Marxist historical determinism to be succumbed to here!
But there is. It’s those skeletons in the dessert. It’s those corpses that keep washing up where Italians go to sunbathe. If live bodies won’t change us, dead ones will. It’s moral determinism. It’s not whether we’re going to change. It’s into what.