Migration and Self-determination

Migration and Self-Determination

ILYA SOMIN*

ABSTRACT

Free international migration has enormous benef‌its. But many argue that

governments can legitimately restrict migration in order to protect the supposed

“self-determination” of natives. Some claims of this type are based on group

rights theories, which hold that members of a particular racial, ethnic, or cul-

tural group are the “true” owners of a particular territory. Others are based on

notions of individual freedom of association, which analogize the rights of

national governments to those of private property owners or members of a pri-

vate club. This article criticizes both collective and individual rights theories

that purport to justify a power to exclude migrants. It also critiques claims that

migrants’ “home” governments can curtail emigration by forcing them to stay.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806

I. GROUP RIGHTS CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808

A. Ethnic and Cultural Self-Determination. . . . . . . . . . . . . . . . . 808

B. The Injustice of Discrimination Based on Parentage and

Place of Birth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812

C. The Sovereignty Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . 815

D. Democratic Self-Determination . . . . . . . . . . . . . . . . . . . . . . . 817

II. INDIVIDUAL RIGHTS CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 819

A. The House Analogy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 820

B. The Club Analogy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 821

C. Other Freedom of Association Arguments . . . . . . . . . . . . . . . 823

D. The Right to Avoid Unwanted Political Obligations . . . . . . . . 824

III. DO MIGRANTS HAVE A DUTY TO STAY HOME AND “FIX THEIR

OWN COUNTRIES”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 826

* Professor of Law. George Mason University. This article is adapted, with permission, from parts

of my recent book, Free to Move: Foot Voting, Migration, and Political Freedom, published by Oxford

University Press. © 2021, Ilya Somin.

805

IV. APPLICATIONS TO INTERNAL MIGRATION . . . . . . . . . . . . . . . . . . . . 831

A. Self-Determination Arguments for Restricting International

Migration Also Justify Restricting Internal Migration . . . . . . 831

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 835

INTRODUCTION

Few if any other policy changes can help so many people as much as breaking

down barriers to international migration. A recent World Bank report concludes

that “[i]gnoring the massive economic gains of immigration would be akin to

leaving billions of hundred dollar bills on the sidewalk.”

1

Allowing free migra-

tion throughout the world could potentially double global GDP, a far larger gain

than any other possible policy reform would produce.

2

As Harvard economist and

former Treasury Secretary Larry Summers stated, “I do not think there is a more

important development issue than getting questions of migration right.”

3

And that does not even account for the improvements free migration would

make for human rights and “noneconomic” elements of well-being. Expanded

migration rights can enable many more people to exercise political freedom by

choosing which government they wish to live under. For much of the world’s

population, international migration is virtually their only hope to exercise any

meaningful political freedom at all. Some 2.7 billion people (more than a third of

the world’s population) live in the 49 countries designated as “not free” in

Freedom House’s most recent annual survey of political freedom.

4

In “not free”

states, the government is undemocratic, and there is little or no protection for civil

liberties.

5

Another 1.8 billion people live in the 58 “partly free” countries, where

political rights and democracy are still very limited.

6

Freedom to migrate across state boundaries can also expand human rights in other

ways. Consider such cases as religious and ethnic minorities f‌leeing persecution,

women f‌leeing sexist patriarchal societies, and political dissenters f‌leeing repression.

7

1. CAGLAR OZDEN, ET AL. MOVING TO PROSPERITY: GLOBAL MIGRATION AND LABOR MARKETS 3

(2018). The phrase is adapted from Michael Clemens, Economics and Emigration: Trillion Dollar Bills

Left on the Sidewalk?, 25 J. ECON. PERSP. 83 (2011).

2. Clemens, supra note 1. See also discussion of this issue in ILYA SOMIN, FREE TO MOVE: FOOT

VOTING, MIGRATION, AND POLITICAL FREEDOM 67–70. (2020).

3. Lawrence H. Summers, Speech at the Center for Global Development: Rethinking Global

Development Policy for the 21

st

Century (Nov. 8, 2017 (transcript available at https://www.cgdev.org/

publication/rethinking-global-development-policy-for-the-21st-century).

4. Freedom in the World 2018: Table of Country Scores, FREEDOM HOUSE 6 (2018), https://

freedomhouse.org/sites/default/f‌iles/2020-02/FH_FIW_Report_2018_Final.pdf [https://perma.cc/E3H8-

8KWC].

5. Id at 2–3.

6. Id.

7. For more detailed discussion of the ways in which international migration can expand political

freedom and human rights, see SOMIN, supra note 2, at 64–79.

806 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 18:805