Abstract
This chapter examines the plausibility of establishing a normative stance on immigration using cosmopolitan theories based on the notion of original common ownership of the earth. First, the Kantian cosmopolitan stance and the (qualified) right to mobility from which this idea is deduced are examined. Then, the common ownership of the earth theory recently proposed by Risse is examined. Though limited in its scope, Kant’s theory allows current legal understandings of immigration to be broadened, both in regards to refugees and certain economic immigrants. For its part, Risse’s theory proves unsuitable for addressing current migratory pressure. Lastly, a more extensive understanding of the right to immigrate is argued for based on a conception of common humanity articulated as an equal opportunity principle.
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- 1.
This is not to be considered a right of residence, that is, an unlimited right to force contact or a right to remain in a place. In order to claim a right to residence and thus a certain temporary permanence, a special contract of a benefic nature would be necessary. The Cosmopolitan Right should be limited to conditions of hospitality .
- 2.
Internal legal systems have only partially integrated the Convention. What is lacking is an instrument to turn it into a binding law (ius cogens), and its most important provisions are not formulated as subjective rights of refugees but as duties of States.
- 3.
Through private agencies in Nauro and Papa New Guinea, Australia has installed immigrant and refugee retention and expulsion camps where the living conditions are degrading and inhumane. The country turns back small boats and rafts carrying immigrants and refugees (Australia proposed to do this in unsinkable rafts with no windows) to the coast of origin, placing many of these immigrants in life-threatening situations.
- 4.
The concept of climate refugees originates in the social sciences but is rejected by international law. A New Zealand Court of Justice that rejected the claim of the citizen of Kiribati, Ioane Teitiotas, to be recognized as the first climate refugee, has recently established this. The usual definition of “environmental refugee” comes from the El-Hinnawi report of the United Nations environmental program: “Environmental refugees are defined as those people who have been forced to leave their traditional habitat, temporary or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life. By “environmental disruption” in this definition is meant any physical, chemical and/or biological changes in the ecosystem (or the resource base) that render it, temporarily or permanently, unsuitable to support human life” (Elhinnawi 1985: 4).
- 5.
Risse rejects the interpretation of Joint Ownership and Private Ownership due to the requirements involved in their institutionalization. The first requires an institutional advisory mechanism in which all co-owners participate in order to approve any use made of joint ownership. The second assumes that everyone has the right to the same amount of resources.
- 6.
Referring to Hohfeld’s (1919) classic analysis of rights, Risse successively postulates liberty rights, claim rights and immunity right.
- 7.
Risse , who has addressed this issue, sustains: “the inhabitants of Kiribati, like all human beings, are co-owners of the earth and as such have claims to relocation in the event that their existence becomes impossible where they presently live and regardless of who was responsible for creating this situation ” (Risse 2009: 282).
- 8.
This value includes the biophysical conditions that determine the usefulness of this region for human purposes (such as climate, vegetation, location, topography, etc.), and includes resources that do not circulate in the market, such as minerals or unexploited resources.
- 9.
Here, the position of Risse is similar to that defended by Rawls in The Law of Peoples. If Rawls’ realist utopia became a reality, so that all societies were liberal and decent, immigration would cease to be a relevant phenomenon (Rawls 1999: 9). But given that Rawls does not recognize any principle of global distributive justice , migration will continue to be an element of pressure in his international society (Nussbaum 2006).
- 10.
A way of sustaining both principles simultaneously involves sustaining that the first conceptualization refers to world citizens as co-owners, whereas the second refers to States as co-owners. This interpretation is possible, but it means establishing a marked normative difference between individuals and States. And while it may seem reasonable to argue from a cosmopolitan perspective that individual right based on the satisfaction of basic needs carries more weight than States’ right to exclude, it does not appear reasonable, at least from a cosmopolitan perspective, to argue that States’ right to exclude carries more weight than the claims individuals bring before States to allow entry in the event that the latter underuses natural resources.
- 11.
The Kantian interpretation of the right of necessity illustrates this point well: while the right of necessity allows the shipwrecked man to take a piece of wood from another shipwrecked man in order to remain afloat, this is due to the fact that, according to Kant , the threat of punishment can never be harsher than the consequence of not taking the piece of wood (in both cases, death). But from the perspective of Kantian moral theory, it is evident that what the shipwrecked man does is opposed to moral law: he is using others only as a means to his end (to stay alive). Furthermore, if according to the Kantian interpretation the right of necessity is reduced to cases of imminent vital risk, it is not especially suggestive if it is a matter of substantiating distributive obligations, at least not if these obligations are raised above the minimum of that which is necessary to maintain vital functions.
- 12.
The alternative option is to use relational foundations. For example, Rawls refers to shared citizenship , conceiving of society as a cooperative enterprise for mutual benefit. Another relational possibility, different from that of Rawls, is to assign to shared nationality , instead of citizenship, a particularist normative value that draws on common national identity (Miller 1995, 2007).
- 13.
Luck egalitarianism relies upon distinctions between circumstances and choices (Dworkin 1981a, b) or the difference between morally arbitrary contingencies and responsibility for one’s own decisions (Rawls 1971), even though Dworkin and Rawls limit the validity of egalitarian justice to politically organized societies.
- 14.
Egalitarian globalism is not necessarily compelled to opt for principles of free mobility . In fact, reasons of efficiency can come to oppose these principles and opt in their place for principles of global distribution versus principles of free mobility, in Loewe (2012).
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Acknowledgments
This work has been realized within the framework of the project Fondecyt (1160982) and Derechos humanos y justicia global en el contexto de las migraciones internacionales [Human rights and global justice in the context of international migrations] (FFI2013-42521-P).
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Loewe, D. (2019). Common Ownership of the Earth and Immigration: Human Mobility in a Kantian Perspective. In: Velasco, J., La Barbera, M. (eds) Challenging the Borders of Justice in the Age of Migrations. Studies in Global Justice, vol 18. Springer, Cham. https://doi.org/10.1007/978-3-030-05590-5_4
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