SOVEREIGN STATES CONTROL OF IMMIGRATION: A GLOBAL JUSTICE PERSPECTIVE

Yaffa Zilbershats*
Global justice is a relatively new concept that is being developed both by scholars, who belong to the political school of thought, and by others, who dene themselves as cosmopolitans. Whereas political scholars believe that the global implications of justice contemplate states or peoples, cosmopolitans refer to the individual as the subject of justice even when dealing with it on a global scale. Despite the differences between the two schools, this Article shows that none has clearly called for the imposition of additional obligations upon states that would force them to allow immigrants to enter those states territory. Further, our survey shows that the ve scholars examined believe that considerations of global justice should compel developed states to offer at least some assistance to burdened or poor states in order to reduce the causes of migration. All differ regarding the type and scope of assistance but agree that the reasons for migration should be reduced in the state of origin. What is missing in the scholarly works on global justice is a solution to the forced migration of masses of people. This problem cannot be solved, at least in the short run, solely by assisting the state of origin. As long as the lives of the migrants are threatened, states must open their gates to save them and agree that an international body will administer this issue and ensure that the burden is shared proportionally among the various states of the world. Such an international body will also be competent to promote programs of assistance to states, which will in turn reduce the need to migrate.

INTRODUCTION
This Article questions whether considerations of global justice require a change in the rules of international law that provide that sovereign states have almost absolute control of their immigration policy. Global justice is a relatively new concept that is being developed both by scholars, who belong to the political school of thought, and by others, who dene themselves as cosmopolitans. Their respective starting points for the consideration of global justice are totally different. Whereas political scholars believe that the global implications of justice contemplate states or peoples, cosmopolitans refer to the individual as the subject of justice even when dealing with it on a global scale.

Professor of Law, Bar Ilan University.

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Our examination of the work of various scholars from different schools of thought on global justice and immigration explores that despite the differences between them, none has clearly called for the imposition of additional obligations upon states that would force them to allow immigrants to enter those states territory. Further, our survey shows that all these scholars believe that considerations of global justice should compel developed states to offer at least some assistance to burdened or poor states in order to reduce the causes of migration. The various scholars differ regarding the type and scope of assistance but all agree that the reasons for migration should be reduced in the state of origin. What is missing in the scholarly works on global justice is a solution to the forced migration of masses of people. This problem cannot be solved, at least in the short run, solely by assisting the state of origin. As long as the lives of the migrants are threatened, states must open their gates to save them. Since we believe that global justice imposes this duty on the international community, and not on any random single state to which the refugees may arrive, states must agree that an international body will administer this issue and ensure that the burden is shared proportionally among the various states of the world. Such an international body will also be competent to promote programs of assistance to states, which will in turn reduce the need to migrate.

I. WHY SHOULD STATES CONTROL OF IMMIGRATION BE RECONSIDERED?

The term immigration may be dened in both a narrow and a broad manner. The narrow denition refers to a situation in which citizens or inhabitants of state A leave their state in order to live permanently in state B and become its citizens. This can happen either because the migrants voluntarily decide to settle in another state or because they have been forced to leave their state of origin following political persecution, natural disasters, or wars. A broader denition includes not only those who move to state B for good, but also people who leave state A and decide to enter state B for a dened period of time to live there as temporary residents. This denition includes people who come from state A in order to work in state B for a few years (migrant workers) as well as people who are forced to ee their state of origin and look for temporary refuge in state B while fully intending to return to state A once the threat has passed.1 Immigration does not encompass the situation of visitors from state A who enter state B as tourists for a short stay.
1 Another element to be considered is the legality of entry, i.e., whether the denition should also include those who enter the state illegally; however, this issue lies beyond the scope of this Article.

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Immigration is a global issue by denition. It refers to a situation where a state is asked to absorb non-citizens, either temporarily or permanently. It relates to the rights of people beyond state borders. We shall not deal here with the consequences of immigration in terms of the right to citizenship, or any other right that may be accorded to immigrants after entering the state, but shall focus on the permission granted to foreigners to cross the borders of a state and enter it for any purpose other than tourism or a short stay. International law underwent an immense change in the second half of the 20th century, with the imposition of a duty upon sovereign states to apply basic human rights within their territories and in areas under their jurisdiction. International law has not extended its reach to impose obligations upon states to open their borders to immigrants save in very limited and dened cases of refugees. According to the current development of international law, the shaping of all aspects of a states immigration policy, both narrow and broad, is decided solely by the individual state. The commonly held view is that the world consists of sovereign states which, as part of their sovereignty, possess the right to decide who will be allowed to cross their borders and enter their territory. The international law of human rights allows every person to leave any country including his own but only imposes a duty upon states to allow entry to citizens and perhaps also to permanent residents.2 Any other person who wishes to enter the state, either as an immigrant or as a tourist, is dependent upon the discretion of the state whether or not to allow him entry. The only exception to this general rule is the right accorded to refugees by the 1951 Convention on the Status of Refugees, which provides for the non-refoulement of people who come within the ambit of the Convention.3
2 Universal Declaration of Human Rights, art. 13 (2), G.A. Res. 217 A(III), U.N. Doc. A/810 at 71 (Dec. 10, 1948) [hereinafter UDHR]; International Covenant on Civil and Political Rights, art. 12(4), Dec. 16, 1966, 999 UNTS 171; Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, art. 3(2), E.T.S. No. 46; IAN BROWNLIE, BASIC DOCUMENTS ON HUMAN RIGHTS 347(3d 1992); African [Banjul] Charter on Human and Peoples Rights, art. 12(2), June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982); American Convention on Human Rights, art 22(5), Nov.22, 1969, 1144 U.N.T.S. 123; see also YAFFA ZILBERSHATS, THE HUMAN RIGHT TO CITIZENSHIP 43-56 (2002). 3 United Nations Convention Relating to the Status of Refugees, art. 1 July 28, 1951, 1989 U.N.T.S 137, provides that a refugee is: any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

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This legal situation should be reconsidered for a variety of reasons: First, it stands in contradiction to the idea of freedom of movement especially when we are dealing with voluntary migration. Voluntary migration reects the will of a person to give effect to his liberty by moving from his country in order to live in another. Once states use the power accorded to them by international law to almost totally control immigration they prevent people from moving freely around the globe. International law allows every person to leave any country including his own, but if hypothetically all the states in the world would decide not to allow immigration, as is possible under international law, then the right to leave the country would have no meaning. In other words, a person might have the right to leave his country but he would not have anywhere to go and would probably, therefore, not move at all. Even in less extreme cases, freedom of movement might still be infringed as a result of the restrictions on immigration. A person may wish to emigrate to state A, which could respond by closing its borders; while a move to state B might not be similarly advantageous. The result, in such a case, is that the person may be able to leave his country but his freedom of movement will still be infringed. Second, the current legal situation fails to adequately resolve current dilemmas of forced migration, including, in particular, of refugees. The 1951 Convention on the Status of Refugees imposes a duty upon states not to return refugees to a place where their life is in danger (the concept of non-refoulement). There is consequently a duty on states either to allow the refugees entry, or, to send them to a third state which abides by the rules of the Convention and will not return the refugees to their state of origin as long as the danger to them persists. Still, the doctrine of non-refoulement applies only to individual political refugees as dened by the Convention and not to other groups of people who are forced to ee their homes and countries as a result of wars, natural disasters or famine. Such caseswhich are not covered by the Convention and which usually involve large groups as opposed to individualshave no solution under current rules of international law. These people cannot return to their country of origin, where their lives are threatened; yet, no state in the world is under an obligation to allow them to enter its territory. It is necessary to consider whether this legal situation is consistent with principles of justice and, if it is not, whether the law should be altered.

Article 33 of this convention provides the right of non-refoulement, according to which a refugee who has already reached the borders of another state must be permitted entry if sending him to another state would threaten his life or freedom by reasons of his race, nationality, membership in a particular social group or political opinion.

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Third, in recent decades the world has witnessed a process of globalization. Since globalization makes immigration less difcult than before and since it has ramications for various societies that might be ameliorated by easing policies of immigration, the strict rules of international law with regard to immigration should be reconsidered. The main feature of globalization is that it involves a blurring of boundaries,4 or put differently, de-bordering.5 It embraces a cluster of related changes that increase the interconnectedness of a world6 in which capital, commodities, services, technologies, images, ideologies, and people move across boundaries with ever growing speed and frequency.7 This process of de-bordering and increasing interconnections causes an extension and acceleration of an ongoing process of transnationalism that excludes some human and economic activities from the sole jurisdiction of state regulation8 and places them in the domain of transnational multinational organizations and corporations.9 Societies are more interdependent in a globalized world and have an increased economic, ideological, and cultural homogeneity and solidarity.10 To a certain extent, this development makes international borders meaningless and provides grounds for easing the ability of people to migrate from one state to another without the imposition of undue restrictions either by the state of origin or by the absorbing state. The reason for this change of magnitude in the ow of capital, commodities, services, images, and ideologies is the development of technology that has enabled this process to occur. The immense development of computer and telecommunication technology has facilitated the ow of capital, information, ideas, and culture and has enabled easy interconnection between individuals and various institutions inter se and with each other.11 The fact that people are able to become familiar with the

4 Judith Gans, Citizenship in the Context of Globalization, 1 Immigration Policy Working Paper, 2005, available at udallcenter.arizona.edu/immigration/publications/Citizenship%20and%20Global ization.pdf. 5 Armin Von Bogdandy & Sergio Dellavalle, The Paradigms of Universalism and Particularism in the Age of Globalization: Western Perspectives on Premises and Finality of International Law, in 2 COLLECTED COURSES OF THE XIAMEN ACADEMY OF INTERNATIONAL LAW 53 (2009). 6 JOSEPH E. STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS 9 (2002). 7 Paul Schiff Berman, From International Law to Law and Globalization, 43 COLUM. J. TRANSNATL L. 485 (2005); Gans, supra note 4. 8 Serge Sur, The State between Fragmentation and Globalization, 3 EUR. J. INTL L. 421, 425 (1997). 9 Gans, supra note 4; STIGLITZ, supra note 6, at 9-10; Bogdandy & Dellavalle, supra note 5, at 13. 10 Sur, supra note 8, at 428. 11 Id.

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way of life in other states and have contacts in different parts of the world increases their capacity to move to another state where they believe they might lead a better life. Technological developments have also allowed travel to become more rapid and relatively inexpensive thereby easing the movement of individuals around the globe and facilitating immigration.12 The question that needs to be addressed is whether these changes render existing international law strict rules on immigration more or less relevant or necessary. Loss of control over border movement, may invite either a loosening of legal controls (law reecting reality) or tightening of legal controls (law addressing new challenges). What is the proper way to choose? But it is not only technology that has shaped the process of globalization. Political considerations have also made an important contribution to its development. Post Second World War Western Europe was united for economic purposes and the passing years saw increased cooperation and de-bordering of European states. After the fall of the Soviet Union and the Berlin Wall, many East European states joined the process, and the united Europe of the twenty-rst century is now part of the globalization process. The European model of de-bordering includes exible rules of migration from one European state to another. Should such rules be adopted to the world at large? It might be argued that the fact that Europe has removed borders control in the context of an economic union may suggest that the latter is a prerequisite for lifting existing immigration restrictions. But it might also be argued that Europe represents a world political change beyond the economic union and its outcomes such as easing immigration policies should become a global tendency. The globalization process has been widely reviewed and evaluated. There is no doubt that it carries many benets. One is transparency that helps to prevent tyranny and violations of human rights in various areas of the world.13 There are also other benets. Joseph Stiglitz wrote: Many, perhaps most, of these aspects of globalization have been welcomed everywhere. No one wants to see their child die where knowledge and medicine are available somewhere else in the world.14 But globalization does not have only benets. Globalization has been strongly criticized as a form of modern imperialism wherein the rich developed western states, led by the United States, become more prosperous while the natural resources of developing countries are being depleted and their work force exploited.15 The control over the
Gans, supra note 4. Bogdandy & Dellavalle, supra note 5, at 14-15. 14 STIGLITZ, supra note 6, at 10. 15 Another criticism is that globalization was conceived as the imposition of U.S. hegemony over the world through international economic institutions such as the WTO and IMF. See Berman, supra
12 13

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developing states and their resources is not direct but is exerted through transnational corporations that are based in developed countries and are loyal only to the concept of capitalist gains, even if these are achieved by exploiting various populations in the developing countries.16 According to Seyla Benhabib, developing states are also disadvantaged by virtue of the fact that when the globalization process started, these countries resources had already been depleted by decades of imperialist exploitation.17 Jrgen Habermas has described globalization as increasing productivity with growing impoverishment processes of economic development with processes of underdevelopment. Globalization splits the world into two and at the same time forces it to act cooperatively as a community of shared risks.18 The facts show that some participants in this game have greater power than others to negotiate terms for their own benet. This leads to a world in which strong developed states promote their interests while exploiting weak developing societies. By participating in a global economic order that is governed by unfavorable terms of the worst off, we are complicit in keeping those who live in desperate poverty from moving out of their condition.19

note 7, at 170-71; Sur, supra note 8, at 429-30; Gans, supra note 4, at 2. This development has been widely criticized on the ground that these strong international economic bodies impose their policies (which are undemocratic per se since they are controlled by the U.S.) upon weak developing states. The receiving states are actually forced to comply with these bodies decisions and policies, with the result that the democratic decision-making process within the states is impaired. See Bogdandy & Dellavalle, supra note 5, at 10. It is not only the democratic process within states that is endangered by globalization but also its essence. Developing and other states have criticized the imposition of western norms on local cultures with the ensuing creation of an hegemony of ideas in various areas of life, including in economic and human rights issues. See Berman, supra note 7, at 170-71. Critics also argue that U.S. hegemony and the imposition of its policies upon economies in developing countries is incompatible with these states political development and their capacity to absorb these processes. It causes more harm than good and does not reduce poverty in the world. See STIGLITZ, supra note 6, at 11-20. 16 STIGLITZ, supra note 6, at 2, 7. See also Eliezer Schweids criticism of globalization as modern imperialism in STUDIES ON JEWISH PEOPLE, IDENTITY AND NATIONALITY 17, 27 ((Naftali Rothenberg & Eliezer Schweid eds., 2008) [in Hebrew]. 17 Seyla Benhabib, The Law of Peoples, Distributive Justice and Migrations, 72 FORDHAM L. REV. 1761, 1782, 1778 (2003-04). For a comprehensive survey of various cosmopolitan approaches, see Simon Caney, International Distributive Justice, 49 POL. STUD. 974 (2001). 18 JRGEN HABERMAS, THE INCLUSION OF THE OTHER 183 (1998). 19 GILLIAN BROCK, GLOBAL JUSTICE 87, 25-26 (2009); Joseph Stiglitz elaborates on the economic problems caused to poor, undeveloped states by globalization. He mainly blames multinational corporations and international organizations such as the World Bank, the International Monetary Fund and the WTO. See STIGLITZ, supra note 6, at 6-21.

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The injustices caused by globalization need resolving. It is arguable that the injustice caused to developing societies by globalization may be repaired by enabling people from these societies to easily migrate to developed states for purposes of work or permanent stay. Such a solution cannot be imposed today upon states according to the current rules of international law as these leave sovereign states the prerogative to decide whom to let into their borders. We have shown above that for reasons of freedom of movement, protection of refugees, and the process of globalization, the current international law rules, according to which states bear an almost absolute discretion to control their borders, need to be reexamined. As we are attending to a cross border issue, it cannot be considered within the framework of local justice. Immigration, whether voluntary or forced, whether permanent or for a limited period, is a global phenomenon. It has to address at least two states and in many cases more than two. It relates to the movement of people from one state to another and affects immigrant and has an inuence on the absorbing state and its population and, to an equal degree, on the state of origin and those who remain there. The immigration phenomenon requires consideration to be given to the issue of distribution of goods among various bodies; membership in the new society; liberty of movement; the economic benets gained by the new immigrant; the economic benets gained by the immigrants relatives in his homeland; and the economic development or losses sustained by society in the state of origin or in the absorbing state. Whether or not further obligations should be imposed upon states to open their borders to immigrants, is a dilemma that should be analyzed in the light of global justice theory.

II. IMMIGRATION AND GLOBAL JUSTICE

A. INTRODUCTION
The discussion on global justice by scholars is relatively new and has not yet been crystallized; albeit, some meaningful work has already been carried out on the matter generally and with reference to immigration in particular.20 Global justice deals with

20 Franck J. Garcia, Globalization and the Theory of International Law, 1-5, 9-10, (Boston College Law School Faculty Papers, 2005), available at lsr.nellco.org/cgi/viewcontent.cgi?article= 1093&context=bc_lsfp.

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the minimum standards of human rights that must be enforced upon each and every state in the world and also with international criminal law under which a person who commits a criminal offense against the law of nations is brought to justice by the international community in the name of global justice. Global justice also deals with distributive justice on a global scale by attempting to delineate the proper way in which wealth and opportunities should be distributed among nations. In this respect, it is concerned with the obligations of wealthy developed states toward poorer, developing ones. When immigration law is being analyzed from a global justice perspective it should encompass the human rights dimensions, particularly in examining forced migration, in which return of the migrant to his state of origin might place his life in jeopardy. It should also be considered from the economic distributive justice aspect as migration is motivated by the desire of inhabitants of impoverished countries to move to wealthy, developed states where they believe they have a greater opportunity to lead a better life. We now proceed to analyze the works of ve scholars who study global justice and immigration. Both their theory and their reference to institutional changes needed in the world in order to apply their theory, is examined. This is important since we believe that a just application of immigration policy requires global cooperation through an international institution. We begin by reviewing the works of John Rawls and Michael Walzer on global justice with a particular focus on how they believe it should be applied to issues of immigration. Both scholars belong to the political school of thoughtalbeit they discuss global justice and refer to the issue of immigration and global justiceaccording to which the major discussion and application of justice should take place within closed societies. Both are leading scholars of our time and while Rawls is considered a liberal, Walzer is a communitarian. The other scholars, Gillian Brock, Joseph H. Carens, and Thomas Nagel belong to a cosmopolitan school of thought, which tends to accord much less moral force to states and closed communities. Each of these scholars refers differently to the way in which global justice should be applied to immigration.

B. JOHN RAWLS
Rawls published his work entitled A Theory of Justice in 1971, in which he set out the principles of justice that ought to govern liberal societies. He employed the hypothetical original position behind the veil of ignorance according to which people would decide to follow two principles: rst, protect equal basic liberties and second,

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permit social and economic inequalities, when these accord the greatest benet to the least advantaged (the difference principle) and are attached to positions that are open to all under conditions of fair equality of opportunity (the fair equality of opportunity principle). It is important to note that in A Theory of Justice Rawls focused on principles that were relevant only to closed communities. Such a theory did not contemplate the interdependence of states in the age of globalization and did not relate to questions of justice beyond the borders of a state. This lacuna was lled by Rawls in another monumental work called The Law of Peoples. There Rawls referred to the issue of justice not only within closed societies but also between them. A perusal of The Law of Peoples shows that Rawls is not a cosmopolitan. His point of departure in examining global justice is the present and future existence of peoples. Rawls is a dualist. He believes that the subjects of global justice are not individuals but peoples.21 His assumption is that if peoples follow the rules of justice in their domestic and international relations, it will be individuals who will benet the most. Rawls explains: The ultimate concern of cosmopolitan view is the well being of individuals and not the justice of societies. What is important to the Law of Peoples is the justice and stability for the right reasons of liberal and decent societies living as members of a society of well-ordered peoples.22 Rawls states that in developing the law of peoples, the rst step is to work out the principles of justice for domestic societies.23 Here he takes an important step and is ready to agree that not only a liberal society but also a decent and well ordered yet non-liberal society can be just. A society is to be considered decent provided its basic institutions meet certain specied conditions of political right and justice and lead its people to honor a reasonable and just law for the society of peoples, a liberal people is to tolerate and accept that society.24 In order to be decent two standards, one internal and the other external, must be met by the state.

JOHN RAWLS, THE LAW OF PEOPLES 119-20 (1999). Id. at 119. This thesis was heavily criticized by cosmopolitans as is made clear below. One point of criticism contests Rawls assumption that if regimes are decent there will be no poverty or suffering within states. Stephen Macedo asserts that Rawls disregards reality when distress ensues from geographical factors such as disease, oods, and other natural disasters. Rawls also disregards the past exploitation of undeveloped states by colonial regimes and present exploitation due to globalization. See Stephen Macedo, The Law of Peoples, What Self-Governing Peoples Owe to One Another: Universalism, Diversity and the Law of Peoples, 72 FORDHAM L. REV. 1721, 1727 (200304). 23 RAWLS, supra note 21, at 26. 24 Id. at 54.
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At the internal level a decent society must abide by a special class of urgent rights such as freedom from slavery and serfdom, liberty of conscience and security of ethnic groups from mass murder and genocide25 but not necessarily comply with the whole gamut of human rights observed within liberal societies.26 The institutions in a decent society need not be identical to those in a liberal society but they must reach a certain standard of decency while the judges and others who administer the legal system must believe that the law in that decent society incorporates a concept of justice based on the common good. To reach the required standard of decency, a consultation hierarchy, in which the signicant interests of all the members of society are taken into account, must also exist.27 At the external level, liberal and decent peoples,28 put behind a veil of ignorance, choose to govern their international relations according to eight principles.29 The last principle Rawls mentions is: Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime.30 Seeking to explain what this duty includes Rawls draws a distinction between burdened societies and decent, well ordered ones. Burdened societies are societies that lack the political and cultural traditions, the human capital and knowhow and often the material and technological resources needed to be well ordered. Well-ordered peoples have a duty to assist burdened societies and the latter are the

Id. at 78. For example, Rawls describes a hypothetical decent stateKazanistanin which there is no separation of religion and state, and only members of one of the religions adhered to by the citizens of that state may be elected to become judges, legislators, or ministers. Citizens of Kazanistan who belong to other religions can profess theirs but cannot be elected to high positions of government. If Kazanistan has basic institutions of government and observes a narrow list of basic human rights, the fact that it does not confer upon all its citizens the right to be elected does not make it an indecent state. Id. at 75-78. 27 RAWLS, supra note 21, at 65-66. 28 Id. at 63. 29 Id at 37. The principles are: a) Freedom and independence to be respected by their peoples; b) Observation of treaties and other international undertakings; c) Equality of peoples; d) Observation of nonintervention; e) Avoidance of use of force except for self defense; f) Observation of human rights; g) Observations of the laws of war (jus in bello); h) Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime. 30 Id.
25 26

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only societies that need help. Assistance should include creating and preserving just or decent institutions within the burdened society. It should not include the increase (much less the maximization) of the wealth of any society or any class in society.31 Rawls believes that wealth owes its origin and maintenance to the political structure and culture of society and not to its resources. Thus, merely dispensing funds will not sufce to rectify basic political and social injustices ...32 The goal is to assist states to become decent, create decent institutions, and abide by decent rules of behavior thereby enabling them to stand on their own feet and provide their inhabitants with a minimum, decent standard of living. Rawls refers to immigration in a very brief manner.33 He states that a society and its government, as the agent of society, have property rights in a territory. Since that property is capable of supporting them in perpetuity, they bear responsibility for keeping it. The perpetuity condition is crucial. People must recognize that they cannot make up for failing to regulate their numbers or care for their land by conquest in war, or by migrating into another peoples territory without their consent. According to Rawls, migration to a state without its consent is forbidden and should not be allowed so as conquering that state by the use of force. It is widely accepted that conquest by force is totally prohibited under international law and international justice and consistently, according to Rawls, so is migration to a state without its consent. Rawls continues his analysis by referring to the reasons for immigration. He mentions the persecution of religious and ethnic minorities and the denial of their human rights; various forms of political oppression; starvation and exploitation of the population in the homeland; inequality of women and subjection.34 Rawls believes that all these negative phenomena within a society stem from the absence of a decent government to regulate peoples lives. If a decent regime would be established within the realistic utopia described by Rawls, then people would not

Id. at 107 the aim is to realize and preserve just (or decent) institutions, and not simply to increase, much less to maximize indenitely, the average level of wealth of any society or any particular class in society. 32 Id. at 108. Bietz totally disagrees with Rawls. He thinks that in the age of globalization it is immoral to conne principles of social justice to domestic societies. In his opinion, it has the effect of taxing poor nations so that others may benet from living in just regimes. In such situations, the principles of domestic justice will be genuine only if they are consistent with principles of justice for the entire global scheme of social cooperation. See CHARLES R. BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS 149-150 (revised ed. 2001). 33 BEITZ, supra note 32, at 8-9, 39, & 39 n.48. 34 Id. at 9.
31

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be motivated to emigrate from their society. Thus, religious freedom and liberty of conscience, political freedom and constitutional liberties and equal justice for women are fundamental aspects of sound social policy for a realistic utopia. The problem of immigration is not, then, simply left aside, but is eliminated as a serious problem in a realistic utopia.35 What, according to Rawls, is the duty owed by the well-ordered, decent or liberal, developed societies toward the immigrants? Since realistic utopia has not yet been achieved, people need and wish to emigrate from burdened societies to well-ordered ones. What then is the duty of the well-ordered society? Must it allow the immigrants to enter? Can it ignore them and close its borders? Rawls does not refer to this question directly and his approach must be inferred from his theory. Within his scheme of global justice, well ordered peoples have a duty to assist others living in unfavorable conditions to achieve a decent political and social regime.36 The duty to assist does not necessarily include a duty to transfer wealth to the burdened society. The aim is to realize and preserve just (or decent) institutions in the burdened society so that it can operate on its own to provide its inhabitants with both basic human needs and liberty.37 From this it can be inferred that Rawls does not believe that the duty of assistance of the well-ordered state includes a duty to open its borders to immigration. The well-ordered state has a duty to eliminate the causes of immigration by assisting the burdened state to become well-ordered and establish institutions based on decent principles.38 Rawls speaks about societies and their duties toward one another. He does not refer directly to the immigrant and his rights. This is because his concept of global justice is dualistic. He believes that justice between societies should be handled by societies and not by individuals. Once societies reach a just level of decency, individuals will gain maximum benets.

35 Benhabib places a large question mark on Rawls assumption that once a regime is decent, people will not wish to emigrate. In her words:This is certainly a vision of ordered world, but it is also a vision of a static dull world of self satised peoples, who are indifferent not only to each others plight but to each others charms as well. Benhabib, supra note 17, at 1773. Benhabib adds that this assumption was never tested empirically, id. at 1777. 36 RAWLS, supra note 21, at 37. 37 See supra text and note 31. Benhabib argues that Rawls assertion better conditions in the state of origin will avoid emigrationhas not been tested in reality. See Benhabib, supra note 17, at 1781 & n.56. 38 To see what these principles include see supra, text adjacent to notes 25-27.

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But what is more difcult to understand is that Rawls speaks about immigration in a very broad manner. He does not refer to the elements that distinguish between different types of immigration, such as the distinction between forced migration and voluntary migration.39 Let us take, for example, a situation in which there is a natural disaster in state A that causes people to run away from their homes and seek refuge in state B. These people need immediate assistance, which state A cannot provide. Arguing that state A has an obligation to set up decent institutions and become wellordered and that state B has a duty to assist with the establishment of such institutions in state A cannot save the refugees lives. Rawls approach might be applicable when dealing with voluntary immigration that is not urgent. In such circumstances, a plan to build decent institutions within a state might reduce the need and demand of people to emigrate. In cases, however, where people urgently need to escape their state because of an imminent threat to their lives, long term projects cannot reasonably remedy their distress. Although Rawls ideas on global justice prove that he remains a believer in closed societies, he does make some comments about international governance through international organizations. After setting out the rules of behavior that decent states have to adopt in their international relations,40 he asserts that societies should establish an international organization to regulate international commerce, a world bank to enable states to borrow money for further development and a confederation of states resembling the UN.41 Rawls mentions that depending on their size (and probably development and wealth as well) some states will have to make larger contributions to the cooperative bank than others and will have to pay larger dues to the confederation of peoples.42 He does not discuss whether such bodies play a role in the global justice scheme or elaborate upon the nature of any such role. Rawls also refrains from dealing with the role of international organizations in resolving immigration dilemmas as he only mentions the need to establish these bodies without explaining how they should act.

C. MICHAEL WALZER
In a recent article entitled Global and Local Justice, Walzer denes global justice and local justice and the difference between the two concepts. He writes:

See Benhabib, supra note 17, at 1773. See supra, text adjacent to note 29. 41 RAWLS, supra note 21, at 42. 42 Id.
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Mutual aid in time of crisis and political responsibility for injuries across borders are the two necessary aspects of global justice which is and ought to be a response to urgent need, to the suffering of the worst-off, the victims of natural disaster and human depredation, the poor and the powerless. Its time constraint is right now. But the long term distribution of social goods among people who have been freed from the urgencies of poverty and powerlessness that should be their own work. That is local justice. And for that there is no time constraint: the work goes on and on. At any given moment we are simply engaged.43 Walzer believes that the creation of a long term project of global justice is problematic. Since there is no international government that can decide its content and apply it, there is no chance of reaching a consensus regarding its nature in a divided world embracing different cultures. Moreover, Walzer believes that it would be improper to have a single theory of global justice since this would blur the differences between various societies and destroy cultures which are essential to human existence. Nonetheless, in Walzers view, the fact that we cannot and should not have a single theory of global justice does not exempt human society from contending with poverty, starvation, disease, genocide, and ethnic cleansing. To solve this problem, Walzer suggests extending the duty of mutual aid asserted by Rawls in relation to closed societies and applying it to governments and individuals beyond territorial borders. According to Rawls the principal form of suffering that must be reduced is that stemming from deep poverty. Deep poverty causes signicant additional suffering, for example, disease and deportations (ethnic cleansing) that usually strike the weak and the poor.44 Walzer asserts that mutual aid as is a kind of reparative justice offered at a given moment of suffering. It does not (and according to Walzer should not) advance

43 Michael Walzer, Global and Local Justice, Collegio Carlo Alberto 15 (2008), available at www.carloalberto.org/les/globalandlocaljustice.pdf. 44 Walzer offers three answers to the question of how we can achieve the goal of reducing acute poverty: First, if it is true that a certain small percentage of the worlds wealth can solve the global problem of acute poverty, then there is a duty to force wealthy people and prosperous states to use that share of their wealth to achieve the goal of eliminating acute poverty. BEITZ, supra note 32, at 137-43, also suggests redistribution of natural resources as part of this scheme. Second, citizens of wealthy states should compel their governments to avoid cooperating with burdened corrupt regimes which rob their countrys resources and cause their inhabitants to lead a life of acute poverty. Third, states should try to modify trade policies in a way that would secure minimum wage standards, protect the environment and promote other important projects.

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a project of comprehensive global justice. The aim of right now assistance is to enable societies to overcome crises and proceed to apply local justice within their borders. According to Walzer, relief and repair will create a world considerably more equalitarian than it is today, but there is no need to create absolute universal equality. Each society should enhance its concept of equality in order to enable the continuing creation and existence of diverse cultures. Walzer refers widely to the issue of immigration in his book Spheres of Justice, published in 1983, well before he wrote about global justice and how to govern the globe. It is very interesting to uncover the extent to which his analysis of proper immigration policy from a perspective of justice ts his ideas about global justice. Indeed, although he did not use the term global justice in 1983 when talking about immigration, he did refer to immigration from a global justice perspective.45 Walzer considers the dilemma of immigration on the basis of two premises: the rst concerns the membership of the immigrants and the second their economic well being. Walzer argues that allowing a foreigner to enter and stay in a country of which he is not a citizen, lead his life and eventually become a citizen, actually amounts to distributing a primary good to him, namely, membership. The primary good that we distribute to one another is membership in some human community. And what we do with regard to membership structures all our other distributive choices: it determines with whom we make those choices, from which we require obedience and collect taxes, to which we allocate goods and services.46 Since human beings are mobile (especially in the contemporary age of globalization), many wish to leave their country where they feel they have fewer opportunities and immigrate to more afuent well-ordered states. The citizens of the migrants country of destination must decide to whom they wish to distribute the primary good of membership.47 Walzer believes in the distinctiveness of cultures and groups as a valuable basic feature of human life.48 The unconditional opening of borders to immigration undermines this value. The desire to retain distinctiveness leads societies to adhere to closure and the conclusion that a sovereign state should

MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 61 (1983). Id. at 31. 47 Id. at 32. 48 Eliezer Schweid thinks that nationality of value is essential to the existence of a democratic state in the modern era, as it is the basis for a distinct cultural creation that expresses the human existence. Schweid, supra note 16, at 29-32.
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control its borders and set its own admission policy.49 The distribution of membership in a state is actually a political decision. The right to choose an admission policy is more basic than any of these, for it is not only a matter of acting in the world, exercising sovereignty and pursuing national interests. At stake here is the shape of the community that acts in the world .... Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self determination. Without them there could not be communities of character, historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life. 50 According to Walzer, a states immigrant admission policy, which actually refers to the distribution of its membership, is, and should remain, a political question to be decided by every state as part of its sovereignty and self-determination. But this approach does not consider the other aspect of immigration, namely, the proper manner of distributing economic resources. Can and should we keep out needy people who cannot lead a decent life in their impoverished burdened state just because we want to preserve our identity, community, and self-determination? Walzer resolves this dilemma through his concept of mutual aid. Mutual aid extends across political borders. We are not supposed to confront the poor and the needy without assisting them. It is not exactly clear what we owe these foreigners but we are positively required to assist them if (a) the need is urgent and (b) the risks and costs entailed in providing that aid are relatively low. Groups of people ought to help necessitous strangers when they somehow discover ... but limit on risks and costs in these cases is sharply drawn. I need not take the injured stranger into my home, except briey, and I certainly need not care for him or even associate with him for the rest of my life. 51 By analogy we can say that if a state is approached by needy immigrants, the duty of mutual-aid, or what Walzer later calls the duty of justice-right now,52 imposes an

49 WALZER, supra note 45, at 39. Joseph H. Carens criticizes Walzers idea that distinctiveness can exist only if there is closure. He looks at societies within states that are distinct from one another even though full freedom of movement exists within states. See Joseph Carens, Aliens and Citizens: The Case for Open Borders, in THEORIZING CITIZENSHIP 229, 245 (Ronald Beiner ed., 1995). Benhabib argues that such an approach disregards the advantages offered by immigration movements for the enrichment and development of cultures. Benhabib, supra note 17, at 1772. 50 WALZER, supra note 45, at 61-62. 51 Id. at 33. 52 Walzer, supra note 43, at 11.

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obligation on afuent society to assist them. But it does not necessarily impose an obligation to allow permanent entry into the state. Assistance can also be achieved by supporting the potential immigrants in their state of origin. How much assistance is the afuent state obliged to provide the necessitous strangers? Walzer believes that the assistance must be limited and fall considerably short of simple equality53 since it is a short term duty within the scheme of mutual aid as part of global justice. A more comprehensive scheme should be applied by the state of origin as part of local distributive justice. According to Walzer, states may also fulll their duty of mutual aid to necessitous immigrants by allowing them temporary refuge. Entry will be allowed save if it interferes materially with the efforts of the government to maintain an adequate standard of life especially to the poor classes. But the community might well decide to cut off immigration even before that, if it were willing to export (some of) its superuous wealth. Its members would face a choice ... they could share their wealth with necessitous strangers outside their country or with necessitous strangers inside their country. 54 In contrast to Rawls, who refers generally to immigration without distinguishing between ordinary immigrants and refugees,55 Walzer pays special attention to the admission of refugees when addressing justice in immigration. He admits that refugees are different from other immigrants in the sense that their claims cannot be met by the export of wealth. They cannot remain in their country of origin where their lives are in danger. They can only be assisted by being permitted entry into the country of refuge.56 The victims of political or religious persecution make the most forceful claim for admission. If not taken in, they might be killed.57 Walzer asserts that if the number of refugees is small, then the principle of mutual aid imposes a duty upon the state of asylum to admit the refugees so long as the latter do not advocate ideas that contradict the basic beliefs of the state of asylum. He gives an example of the refugees from Hungary following the failed revolution of 1956. It was natural for the United Kingdom and the United States to offer these refugees asylum, but the converse would have been true had the revolution succeeded, with the result that the supporters of Stalin would have looked for refuge in these countries. Refugees must

WALZER, supra note 45, at 48. Id. at 48. 55 Supra, text adjacent to note 39. 56 WALZER, supra note 45, at 48. 57 Id. at 49.
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appeal to the sense. One wishes them success, but in particular cases, with reference to a particular state, they may well have no right to be successful.58 Walzer makes it clear that the previous statement regarding the duty to admit refugees as part of the mutual aid duty is relevant only to small as opposed to large numbers of refugees. The right to seek asylum is intended to apply to individuals, considered singly, where their numbers are so small that they cannot have any signicant impact upon the character of the political community.59 Walzer has no clear answer regarding what should be done with masses of refugees seeking asylum at the gates of a foreign state. He assumes that there are limits to collective liability but he cannot specify them. To take in large numbers of refugees is moral but the right to restrain the ow remains a feature of communal self-determination. The principle of mutual aid can only modify and not transform admissions policies rooted in a particular communitys understanding of itself.60 In another article published in 2000, entitled Governing the Globe,61 Walzer discusses whether a world government is necessary in the age of globalization or whether the present world order should best be left alone. He presents a scale of seven models of world order in which at the extreme left there is a central government of a world empire and on the extreme right there is international anarchy.62 Walzer recommends adhering to a world order that lies between these two extremes. He does not advise a solution embracing a world federation as he is afraid that this might lead to tyranny. A world federation does not resemble any existing federation of states

Id. at 50. Id. at 50-51. 60 Id. at 51. 61 MICHAEL WALZER, ARGUING ABOUT WAR 171 (2004). 62 It is very clear why the world should not be governed by an anarchical regime which engages in wars, conquests, oppression, etc. The other extreme situation of a global world order is where a global government is established. The benets which may be gained from such a regime are obvious: It will limit wars between states as there will only be one world state with a central world government and have the capacity to apply global distributive justice and transfer natural resources and funds from one part of the globe to another. However, Walzer does not suggest that these benets should convince us to adopt such an extreme solution as a world government has the potential to become a world tyranny that will not be balanced by competing forces. In addition, Walzer does not believe that it is realistically possible to create global unity. Peoples of the world are unwilling and incapable of leading lives which do not express their traditions and cultures. Demands for public expression of cultural divergence would be rejected by a world government and, if accepted, would move the world in a more rightwing direction and away from global unity. Pogge adopts a similar view. Like Walzer, he rejects the idea of a world empire, but unlike Walzer he believes that sovereign states should not necessarily remain the organizational units of society. See Thomas W. Pogge, Cosmopolitan and Sovereignty, 103 ETHICS 48, 63-75 (1992).
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because next to existing federations one can still nd additional states or additional federations capable of creating a balance of powers. Walzers suggested solution for the future global order is to establish a set of alternative international centers alongside existing states and increasingly develop social ties that would cross state boundaries through these centers.63 Walzer recommends using existing international bodies as the international centers and developing new ones as needed. He argues for the existence of numerous competitive international bodies which would function alongside states. This scheme would prevent the emergence of a single overly strong international organization which might abuse its power. It would also allow traditions and cultures to ourish without neglecting the advancement of international interests.64 Like Rawls, Walzer does not explain whether such bodies would play a role in the global justice scheme and assist in solving problems of immigration. Rawls and Walzer have been criticized for disregarding the strong interdependence between societies in recent years. They have also been accused of being too state-centric and not giving enough consideration to the blurring of borders and the injustices caused by globalization. Rawls and Walzer have been criticized for giving the community and the state too much weight at the expense of individuals. Cosmopolitans undertook the task of presenting a theory of justice which considers all these problems. According to cosmopolitans, the duties of justice do not stem from any political organization but from the nature of humanity and they apply to all human beings, irrespective of their associations, and the relationship to them. The cosmopolitan view is based on the idea that all human beings are owed a certain standard of treatment simply by virtue of their humanity and adequate treatment includes duties of justice.65 This leads to a perception of the cosmopolitan person as a citizen of the world. He is considered to have multiple identities; ties to one national community are not necessary for him to lead a happy and meaningful life. The cosmopolitan person is deemed to be responsible for all human beings and equally all are responsible for him.66

63 See also FUYUKI KURASAWA, THE WORK OF GLOBAL JUSTICE: HUMAN RIGHTS AS PRACTICES 5-6 (2007). 64 In contrast to Walzer, Habermas does believe in a world federation as the best structure to apply global justice. Like Walzer, he does not call for the abolition of states, see Habermas, supra note 18, at 180-81. 65 BROCK, supra note, at 39, 88; Thomas Nagel, The Problem of Global Justice, 33 PHIL. & PUB. AFF. 113, 119, 130 (2005). 66 BROCK, supra note 19, at 8-9; Pogge, supra note 62, at 56.

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We now turn to an analysis of global justice and immigration as given by three cosmopolitan scholars.

D. GILLIAN BROCK
Gillian Brock presents a comprehensive approach to the issue of global justice. She denes herself as cosmopolitan and is what one calls a moderate (soft) cosmopolitan. According to her theory, global justice should seriously consider the equal moral worth of persons, yet leave scope for some form of nationalism along with other legitimate identications and afliations.67 Her soft approach to cosmopolitanism follows from her belief that the world will become one global state and until that time comes cosmopolitan ideas should be advanced through existing institutions, namely, nation states. Brock also rejects the extreme approach of cosmopolitanism that asserts that there is no room for national identities and that disregards the benets encompassed by nationalism. She undertakes the task of presenting a system of global justice in which the equal moral worth of persons nds room within nationalism.68 Brock criticizes Rawls for not extending the distributive justice scheme, discussed in A Theory of Justice, on a global scale.69 She adopts a view, previously presented by other cosmopolitans such as Charles Beitz, Thomas Pogge, Carens and Moellendorf, according to which individuals (and not states) acting as representatives should be put behind a cosmopolitan veil of ignorance to agree upon principles that will avoid inequalities.70 However, she then diverges on a different point. While the above mentioned cosmopolitan theorists believe that people behind this global veil of ignorance will select the same principles as those behind a closed societys veil of ignorance, Brock asserts that they would not make exactly the same decisions. Like their counterparts behind the states veil of ignorance, they will agree that everyone should enjoy some equal basic liberties, for example, freedom from assault and freedom from extreme coercion, but when dealing with inequalities, people behind a global veil of ignorance will not select principles in which inequalities of distribution

BROCK, supra note 19, at 4. Id. at 4. 69 Id. at 46. 70 Id. at 47. See Charles Beitz , Cosmopolitan Ideas and National Sentiment, 80 J. PHIL. 591, 593, 595-596 (1983); Pogge, supra note 62, at 48-55; DARREL MOELLENDORF, COSMOPOLITAN JUSTICE 17(2002); Carens, supra note 49, at 251-52.
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that derive from different talents and abilities will be of maximum benet to the least advantaged.71 Brock believes that when dealing with global equal opportunities we should be less ambitious. We should rst and foremost see that people have equal opportunities to obtain water, food, sanitation, education, and medicine. She suggests that on a global scale we should not look at equal opportunities from the occupational perspective but from a broader perspective. The goal is to give people genuine opportunities to secure decent lives rather than the pretension of trying to achieve transnational equality of opportunity.72 Brock attempts to deal with policy issues so as to constitute real progress towards achieving global justice.73 One of the topics she discusses is immigration. As explained earlier, according to Brocks concept of global justice it is necessary to ensure that peoples basic needs and basic liberties are protected. Accordingly, one would expect Brocks ideas about immigration to include an approach supporting open borders enabling a person who lives in state A, where his liberties and basic needs are not protected, to move easily to state B where basic needs and liberties are met. But Brock applies her concept of global justice to immigration in a much wider fashion. According to her analysis, immigration has economic inuences on three populations: the immigrants themselves, the population in the state of origin and the population in the state of immigration.74

71 BROCK, supra note 19, at 47. Brock argues that people would agree that everyone should be protected from certain real (or highly probable) risks of serious harm so that they would have what is necessary to meet their basic needs. She continues that people should be adequately provided for in terms of assistance if they are incapable of meeting their own needs. Id. at 50-52. Brock bases her assessment about how people behind a global veil of ignorance will act on empirical studies which she has conducted on the matter. Id. at 54-57. Rawls asserts that behind a states veil of ignorance people would agree upon the fair equality of opportunity principle. Here too, Brock deviates from Rawls ideas when dealing with this principle on a global scale. She poses the question whether we really want a child from agricultural Mozambique to have the same statistical opportunity to become a banker as the son of a Swiss banker? In her view, an afrmative answer to such a question would disregard the difference between cultures. Id. at 59. 72 Id. at 62-63. Brock proceeds to dene what she means by a decent life, or alternatively a life where ones freedom and basic needs are met. She states that it includes what is necessary for social functioning, without its satisfaction one would be unable to carry out four basic social roles: those of a citizen, parent, householder and worker (id. at 70-71); this requires the promotion of capabilities that would enable people to meet their needs. According to Brocks theory, the account of basic needs is more fundamental than the account of human rights; the latter is broader and cannot be developed unless the demands of basic needs are met. Id. at 72. 73 Id. at 5. 74 Id. at 192, 195, 198.

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Immigrants tend to believe that they would benet signicantly from immigrating and be able to lead better lives encompassing both more liberties and a greater ability to supply their own basic needs. The same can be said about the state of destination. There is no evidence that immigrants increase the crime rate or that they impose heavy burdens on social security resources.75 Brock provides us with studies carried out by economists that prove that there are extensive economic benets to the absorbing state. The assertion that the immigrants take jobs from the local population is also inaccurate.76 In the long run, immigrants create work since they need housing, food, and the like, thus spurring the development of the economy of the absorbing state. Brock also provides us with information that shows that immigrants only reduce the salaries of blue-collar workers.77 This, however, is not necessarily a disadvantage as it has been shown that such processes compel local workers to progress and seek higher professional qualications. In addition, the low salaries paid to immigrants can increase consumption, indirectly develop the economy, and create more work places. Brock points out that in the near future, in western developed states, there will be 2.5 workers for each retired person as opposed to the ration in 1960 of ve workers for each retired person. Failure to allow immigration will thus lead either to increased taxation of the working population or a decrease in the amount paid by social security to the retired population.78 Consequently, Brock concludes that there is much agreement among economists that immigration increases the wealth of the host countries79 but is this an overall gain for promoting what I have identied as the goals of global justice?80 Her answer to this question is in the negative since there is another population to consider, that of the state of origin. According to Brock: the evidence here suggests that developed countries permitting entry to more immigrants can have disastrous effects for the counties they exit ... 81 more movement of peoples can sometimes make things worse for these who remain in the country of origin.82 Brock contends that the biggest problem faced by the population of the state of

Id. at 197 n.17. Id. at 196 n.11 & 12. 77 Id. at 196. 78 Id. at 196-97. 79 Id. at 196 n.10. 80 Id. at 197. 81 Id. at 198. 82 Id. at 193.
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origin is the emigration of qualied people. This causes a brain-drain that reduces the local populations well being.83 It has been argued that emigration, including even that of qualied people, may assist the population of the state of origin as the emigrants send part of their earnings home to their relatives. Brock agrees that this process has some advantages but still, statistics show that the emigrants send money home only in the rst years that they are away, and if they stay in the absorbing state, they will eventually stop sending money home.84 Another problem is that such money does not necessarily increase the wellbeing of certain sections of the population back home since it lowers their motivation to work and improve their conditions themselves.85 Brock contends that where immigration is allowed, it should be subject to the payment of compensation by the absorbing state to the state of origin in order to reduce the disadvantages suffered by the local population as a result of the process.86 She even recommends a prohibition on immigration in order to achieve global justice. Restricting immigration may have the effect of compelling rms in the developed world to export certain kinds of jobs, such as manufacturing, to developing countries and this could provide much needed employment opportunities to those countries aiming to develop.87 The goal of the developed states should not be to absorb immigrants but to address structural poverty while creating wide-ranging economic changes that may require external nancial support for the budget of poor countries.88 The aim should be to bring desirable jobs to the people rather than bring the people to the desirable jobs.89 Prospects for improved living are better secured by attending to the situation in the home countries and examining what may be done to remedy initial problems.90 Assisting poor states to improve the well-being of their entire population

83 Id. at 199. Chang rejects the notion that immigration causes economic disadvantages to the state of origin, and claims that if it does, these disadvantages can be overcome. According to Chang, this is not a good enough reason to restrict immigration. See Howard F. Chang, The Economics of International Labor Migration, 41 CORNELL INTL L. J. 1, 6, 22-23(2008). 84 BROCK, supra note 19, at 204-05, 207 n.68. 85 Id. at 206 n.58. 86 Id. at 201. 87 Id. at 197. 88 Id. at 208 n.71 89 Id. at 208. 90 Id. at 193. See also Thomas Pogge, Migration and Poverty, in CITIZENSHIP AND EXCLUSION 12 (Veit Bader ed., 1997). Pogge, also a cosmopolitan who believes that rich states should assist needy foreigners and that distributive justice is a global issue, takes the same approach as Brocks regarding immigration. He calls upon the wealthy states to assist the poor in their state of origin rather than open their borders to immigrants. He writes:

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would achieve more justice than trying to help individuals move away from their homeland.91 Brocks nal conclusion is that whatever gains there are from increased immigration may be small to decreased emigration coupled with improvements in crucial policies. Immigration, on balance, seems to do more for host countries and immigrants ... but it is not clear that it does much, or enough, for those remaining in the feeder country ... Examining root causes or reasons why people feel they have to leave their country of origin in order to ensure prosperity for decent lives and addressing those might, all things considered, be a better strategy.92 Brock suggests letting states apply the principles of global justice so long as they have the capacity to do so. If they lack that ability, international cooperation should be considered. Nonetheless, she does not recommend pressing for the establishment of a world state since: An unjust world state would have no comparable independent power capable of restraining it.93 In her view, the project of assisting the potential immigrants state of origin, which is the application of global justice in immigration issues, should be achieved through global institutions that have the resources, authority and moral clout needed to make the required changes. The assistance could include, for example, developments aid and a fair global taxation regime.94 From this one can infer that Brock does not believe that states alone can conduct global justice in immigration.

rather than try to get our compatriots to support admitting more needy foreigners and to support equal citizenship for foreigners already here, we should instead try to enlist them for other moral projects with regard to which our mobilizing efforts can be much more effective..those who accept a weighty moral responsibility toward needy foreigners should devote their time energy and resources not to the struggle to get more of them admitted into the rich countries, but rather to the struggle to institute an effective programme of global poverty eradication. Id. at 13, 14. Pogges reasoning is interesting. He believes that for every person that we admit into a rich country there will be thousands left in desperate need, and it will usually not be the most needy who will emigrate since some money and capacity are needed in order to move to another country. He also mentions that it is psychologically easier for us to admit aliens who stand in front of our borders than to assist the poor of the world whom we do not confront directly. We also tend to believe that real assistance can only be given within our state and according to our values. Pogge believes that this is a wrong approach and that the correct approach is to try to reduce poverty in the states of origin where help will be given to the most needy. See id. at 14, 22-24. 91 BROCK, supra note 19, at 193-94. 92 Id. at 211-12. 93 Id. at 53. 94 Id. at 193. Pogge supra note 90, at 18-22, suggests transferring assistance to the needy through international bodies such as UNICEF and avoiding giving money directly to corrupt governments.

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Brock focuses mainly on global distributive justice when considering the issue of justice in immigration. Her work disregards entirely situations where people are forced to leave their states due to persecutions, wars, or natural disasters. In such circumstances transferring funds to the state of origin cannot solve any problem since people are faced there with real danger to their lives and health. A comprehensive discussion on global justice and immigration policy should have coped with the issue of forced migration.

E. JOSEPH CARENS
As opposed to most theorists who devote a great part of their writings to global justice and derive from it their approach to immigration, Joseph Carens focuses primarily on immigration. His approach to global justice can be inferred from his theory on migration. Joseph Carens is considered the strongest advocate of open borders.95 It is possible to understand from his work that his ideal is a world without borders and without states. In his article on Realistic and Idealistic Approaches to the Ethic of Migration he writes one can move from asking questions about free migration to asking questions about the division of the world into states ... we might think of the question of what absolute justice requires with respect to migration as one component of the question of what a fundamentally just world order would look like. After all, it would seem odd to ask what the ideal is with regard to migration in an otherwise unchanged world.96 Carens cosmopolitanism can also be inferred from his comments on the work of Rawls. Carens belongs to a group of cosmopolitan thinkers who do not agree with Rawls and who believe that the principles applied in the original position behind the veil of ignorance of a state, should also be applied behind a global veil of ignorance. Carens explains that the theory should be extended on a global scale because every individual around the world, no matter where he lives and to whom he was born, has an equal moral worth and should be accorded the same justice benets as his fellow human beings.97 He explains: Liberalism ... emerged with the modern state and
95 Peter C. Meilaender, Liberalism and Open Borders: The Argument of Joseph Carnes, 33 INTL MIGRATION REV. 1062 (1999). 96 Joseph H. Carens, Realistic and Idealistic Approaches to the Ethics of Migration, 30 INTL MIGRATION REV. 156, 167 (1996). 97 Carens, supra note 49, at 255, 256, & 262. See also Thomas Pogge, The Incoherence Between Rawlss Theories of Justice, 5 FORDHAM L. REV. 1739, 1755-56 (2004); Beitz, supra note 32, at 124-

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presupposes it. Liberal theories were not designed to deal with questions about aliens. They assumed the context of the sovereign state. As historical observation this has some truth, but it is not clear why it should have normative force.98 Carens poses the following question: Borders have guards and the guards have guns. This is an obvious fact of political life but one that is easily hidden from viewat least from the view of those of us who are citizens of afuent Western democracies. Perhaps borders and guards can be justied as a way of keeping out criminals, subversives, or armed invaders. But most of those trying to get in are not like that. They are ordinary, peaceful people, seeking only the opportunity to build decent, secure lives for themselves and their families. On what moral grounds can these sorts of people be kept out?99 He notes that the typical argument used to restrict immigration is sovereignty of states which permits states to choose whether or not to be generous in allowing foreigners into the country, even though they are not obligated to do so. Carens rejects this notion and states his view in very sharp terms: borders should generally be open and ... people should normally be free to leave their country of origin and settle in another, subject only to the sorts of constraints that bind current citizens in their new country ...100 No moral argument will seem acceptable to us if it directly challenges the assumption of the equal moral worth of all individuals ... what is not readily compatible with the idea of equal moral worth is the exclusion of those who want to join.101 Carens states that opportunities for particular individuals may vary greatly from one state to another. The same can be said for cultural, religious and other interests which an individual might believe could better be achieved in a new state. Such an individual should be allowed to be exposed to the new state by providing him with freedom of movement to leave his country and enter the other. According to Carens, freedom of movement between states does not differ from freedom of movement within a state. As a liberal society will enable full freedom to move within its borders

136, 143-53; Beitz, supra note 70, at 591-600. For a different view which supports and defends Rawls distinction between global and local justice, see Macedo, supra note 22, at 1721-29. 98 Carens, supra note 49, at 244. 99 Id. at 99. 100 Id. at 251. See also Thomas Christiano, Immigration, Political Community and Cosmopolitanism, 45 SAN DIEGO L. REV. 933 (2008). 101 Carens, supra note 49, at 270.

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as part of the meaning and content of liberty, this ability should also be applied between states.102 Carens elaborates on his theory basing it on an extension of Rawls theory of justice. He states that restrictions based on the assumption that immigration reduces the economic well-being of local citizens can be accepted only if immigration would reduce the economic well-being of local citizens below the level which the potential immigrants would enjoy if they were not permitted to immigrate. But he then goes on to say that according to Rawls theory, liberty has priority over economic considerations so that even if immigration causes economic burdens upon the absorbing state (which in his view means the reduction of the economic well-being of its citizens below the level enjoyed by the immigrants) liberty of movement should be preserved and immigrants should be allowed to enter the country.103 Carens himself believes that freedom of movement, including the right to enter a state, is not an absolute right. Like most rights, it can be restricted for the sake of public order or public security. Where it can be proven that immigration may cause chaos and a breakdown of order, or that it poses a threat to the security of the state, restrictions are justied. Carens warns that these restrictions should be applied with restraint. They should only apply when the expectation of damage to public order and security is based on evidence and on a way of reasoning acceptable to all, and only to the extent necessary to preserve public order and security.104 Carens addresses other arguments that support restrictions on immigration. He raises the problem considered by Brock about the damage immigration may cause to the citizens left behind in the state of origin105 and asserts that if the brain-drain phenomenon is a problem, then there must be ways to resolve it, such as by the absorbing states paying compensation to poor countries when skilled people emigrate from them. But to say that we should actually try to keep people from emigrating because they represent a valuable resource to their country of origin, would be dramatic departure from the liberal tradition in general and from the specic priority that Rawls attaches to liberty even under non-ideal conditions.106 Carens discusses another related concern, namely, that immigrants, who come from societies where liberal democracies are weak or absent, cannot be democratic

Id. at 258. Id. at 262. 104 Id. at 259-60. 105 Supra, text adjacent to notes 83-90. 106 Carens, supra note 49, at 261.
102 103

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themselves and their potential lack of commitment to the ideas of liberalism and democracy may therefore pose a threat to a just public order in the state of immigration.107 This concern was also raised by Thomas Christian, who considers himself a cosmopolitan and argues that the ultimate political aim for humanity as a whole must be a global political community ... only it can create a global legal order108 that will eventually lead to open borders. Christian contends that as this process of a global political community has not yet become a reality, and as the only bodies to push forward toward the establishment of a global political community are liberal democracies, then: to the extent that open borders would undermine the existence of normal functioning of liberal democratic states, such a policy should be rejected from a cosmopolitan standpoint because it derails the very institutions that give us some hope for realizing cosmopolitan justice in the future.109 I believe that Carens would agree with Christians approach but Carens still warns us to distinguish between reasonable expectationswhich justify restrictions on immigration when there is a real likelihood that immigration will jeopardize the continuing existence of a liberal democratic regimeand mere hypothetical speculationswhich provide insufcient cause to close borders.110 Carens uses his open borders theory to oppose Walzer who argues for closed borders. He states explicitly that the effect of immigration on the particular culture and history of the society would not be a relevant moral consideration so long as there was no threat to basic liberal democratic values.111 He disagrees with the view that distinctiveness depends on the possibility of formal closure and contends that Walzers comparison between states and neighborhood and clubs is inaccurate. Clubs are private zones while a state is a public zone where equal treatment should prevail over freedom of association. The neighborhood example is also inappropriate since within a state freedom of movement is a very basic liberty that overrides claims of local political communities.112 Carens proceeds to claim that: open immigration would change the character of the community but it would not leave the community without any character. It might destroy old ways of life but it would make possible new ways of life. To commit ourselves to open borders would not be to abandon

Id. at 260. Christiano, supra note 98, at 950. 109 Id. at 935. 110 Carens, supra note 49, at 260. 111 Id .at 262. 112 Id. at 266-68.
107 108

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the idea of communal character but to reconrm it. It would be an afrmation of the liberal character of the community and of its commitment to principles of justice.113 To summarize Carens view, it can be said that he believes in open borders and free immigration save in well-founded cases where immigration may pose a threat to public order or public safety, for example, by endangering the continuity of the democratic regime in the absorbing state.114 Over the years Carens softened his relatively extreme argument for open borders. This change can be traced in his work on Immigration and the Welfare State, where he agreed that equally afuent communities that satisfy minimum standards of welfare for their citizens might restrict immigration to one another. This is because it would be legitimate for them to decide to provide varying levels of welfare support and unrestricted movement might undermine their ability to do so generously: but if there are vast economic inequalities, they undermine the argument that it is fair to restrict entry in order to preserve the capacity of collective self determination ... preservation of the welfare state does not justify restriction of immigration from poor countries to rich ones.115 The most important work in which Carens reconsiders his open borders theory is Realistic and Idealistic Approaches to Ethics of Migration.116 Carens asserts that his original ideas calling for open borders were based on an idealistic approach to morality which was not attentive to the constraints that had to be accepted if morality was to serve as an effective guide in the modern world.117 A realistic approach would try to avoid the enormous discrepancy between what is and what ought to be. If that discrepancy is too great, the system of law and morals would lose its impact or be destroyed.118

Id. at 271. Carens theory on open borders was criticized by Peter Meilaender who asserts that Carenss argument rests upon an unexplained concept of liberalism that he himself does not defend. The problem with his argument is twofold: 1) Not all liberals agree with Carens that liberalism asserts open borders. Rawls himself is considered to be a liberal who still adheres to the view that a people has a qualied right to limit migration. 2) Even if we agree that liberalism includes freedom of movement into a state, Carens argument is not intended as an argument for open borders per se, but simply as an argument that liberals should support. See Meilaender, supra note 95, at 1078-79. 115 Joseph H. Carens, Immigration and the Welfare State, in DEMOCRACY AND THE WELFARE STATE 207, 227 (Amy Gutman ed., 1988). 116 Supra note 96. 117 Id. at 156. 118 Id. at 157.
113 114

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The reality that conicts with Carenss idealistic view of open borders has various aspects: There are still states and borders and all states adhere to the concept that they have exclusive authority to decide whom to admit into their territory. Also one cannot ignore the political resistance directed at the vast ood of immigrants that presently exists in the afuent societies of Europe and the United States.119 Carens gives psychological, sociological, and epistemological reasons why societies would favor a realistic moral approach supporting the closure of borders.120 The problem Carens has with adherence to a realistic morality is that it can drive us to lower our moral values. Carens gives the example of slavery, the perpetuation of which would be supported under a realistic view of morality in the seventeenth and eighteenth centuries.121 He admits that he does not suggest that restrictions on migration are an evil comparable to slavery, but he still maintains that they are wrong and problematic. Carens proposes that both theoriesrealistic and idealisticbe developed, and that the work on the ethics of migration be located along the continuum from realistic to idealistic.122 At the same time, he recommends adopting a practical realistic approach: Lets assume that in a just world we will talk about open borders and free migration, but it does not necessarily follow that we should enable free migration right now.123 To a certain extent I believe that Carens is able to shift from the idealistic to the realistic approach to immigration because he does not believe that poverty and misery in the world can be solved by enabling migration from poor to afuent states. This point has been claried by Thomas Pogge who states explicitly: there are much more effective ways of protecting these poor persons from the deprivations they now suffer than by trying to get them admitted into the rich countries . We should stop attempting to get more needy foreigners admitted into the rich countries and instead concentrate on improving the local living conditions of the global poor through international institutional reforms 124 This sharp shift to the realistic approach does not consider the problem of forced migration, which cannot be solved in the short-term solely by improving global conditions in the states of origin. When people seek refuge because returning to

Id. at 158-60. Id. at 160-64. 121 Id. at 165-66. 122 Id. at 169. 123 Id. at 168. 124 Pogge, supra note 90, at 25.
119 120

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disaster sites and wars would endanger their lives, it cannot be said that improving the economic conditions of their countries would solve their problems. Additional ways must be found to help them by allowing them safe haven for at least as long as the conditions in their state of origin cannot promise them security.

F. THOMAS NAGEL
The decision to list Nagel among cosmopolitan thinkers is not straightforward, as his theory on global justice is multi-dimensional. According to Nagel, a proper theory of justice ought to distinguish between two levels of morals found in two circles. The rst large circle is that consisting of very basic rights and duties. Nagel contends that they are universal and not contingent on specic institutional relations between people .... This minimal humanitarian morality governs our relations to all other persons ... this moral minimum does not depend on the existence of any institutional connection between us and other persons: It governs our relations with everyone in the world.125 Nagel suggests applying a cosmopolitan ideology to these very basic minimum standards of humanitarian morality. Inside this circle another circle of rights may be found which includes political equality, equality of opportunity, and distributive justice. These rights are contingent on institutional relations between people.126 We do not have such rights against all other persons or groups. These are rights that arise only because we are joined together with certain others in a political society under strong centralized control. It is only from such system and from our fellow members through its institutions, that we can claim a right to democracy, equal citizenship, nondiscrimination, equality of opportunity, and the amelioration through public policy of unfairness in the distribution of social and economic goods.127 Nagel notes that currently there are only political societies under strong centralized control within states. There is no global regime to control and administer humanity as a whole. In the absence of a global regime it is difcult to see how the idea of distributive justice could be applied beyond the borders of states. Nagel wishes to see the emergence of an international authority that will have the capacity to collect international taxes and to use the money for aid and development as and where needed.
Nagel, supra note 65, at 130, 131. Id. at 130. 127 Id. at 127.
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Such a program would be more secure and efcient than leaving the transfer of funds for aid and development to the discretion of states acting on their own. According to Nagel, there is no way tax can be collected for a global purpose without a global regime.128 Nagel asks himself whether one should aspire to such a global central regime. He considers the widely held view that such a regime is unwelcome because it would be imposed upon the world by strong states and consequently be undemocratic and unjust. However, Nagel believes that one should not be deterred by the process since the most likely path toward some version of global justice is through the creation of patently unjust and illegitimate global structures of power,129 which would eventually become democratically just.130 To conclude it can be said that Nagel does not believe that global distributive justice can be applied at present since no strong global governance is in existence, but he aspires to this end since, in his view, it is a decent tool for promoting global justice. Twice in his article, Nagel briey refers to the question of immigration. The view he expresses is in line with that advocating a political conception of justice. This follows from the fact that he considers immigration to be a matter of socio-economic justice that can be applied only by central political institutions, which, at present, exist only within states.131 He writes: Everyone may have the right to live in a just society, but we do not have an obligation to live in a just society with everyone.132 In his view: Immigration policies are enforced against foreigners who are nationals of other states. The laws of immigration are not imposed

128 Id. at 144. International organizations are recognized by Nagel as bodies that can promote global justice but are too weak to pursue this agenda. He sees them as a boat which we joined but which is different and perhaps leakier than the one created by nation-states. See id. at 142. 129 Id. at 146. 130 Id. at 145-47. 131 Chang does not agree with Nagel and argues that even if we assume that the absence of cosmopolitan state implies some limits on global distributive justice, however, this absence would not justify immigration restrictions that neglect principles of global distributive justice. After all, the admission of any given set of immigrants would make us responsible for their governance as well as responsible for their welfare. Upon joining our society, the immigrant could agree to the same terms of the social contract as the native born into our society. Why should our inability to govern immigrants prior to admission justify our failure to consider their welfare in the admission decision, as long as we can govern them after admission? Chang, supra note 83, at 21. 132 Nagel, supra note 65, at 132.

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in their names, nor are they asked to accept and uphold those laws. They take no part in the creation of such laws. Since that is so, no justication is required that explains why they should accept such discriminatory policies, or why their interests have not been given equal consideration. It is sufcient to claim that the policies do not violate their pre political human rights.133 In certain cases immigration will shift from the social justice category belonging to the inner circle of rights134 to the outer circle that includes the most fundamental human rights. This is the case when an immigrant seeks asylum because his life is in danger in his state of origin, and this is the reason for Nagels assertion that: Even a nations immunity from the need to justify to outsiders the limits of access to its territory is not absolute. In extreme circumstances, denial of the right of immigration may constitute a failure to respect human rights on the universal limits of rescue ... The most basic rights and duties are universal, and not contingent on specic institutional relations between peoples.135

CONCLUSIONS
The analysis of theories of global justice regarding immigration leads to a surprising outcome. One might have expected scholars such as Rawls and Walzer, who belong to the political school of thought to defend the current international law rule according to which sovereign states control immigration. But when dealing with cosmopolitan scholars, it is unexpected to nd out that they also do not call for a change in the current legal situation. All ve scholars whose work we have reviewed, have considered the argument that enabling people to emigrate from underdeveloped states to developed ones, where they can benet from the advantages of a developed economy, is necessary from a global distributive justice perspective. The study we have conducted into their scholarship proves that they all reach the conclusion that global distributive justice theory does not necessarily require the easing of immigration policies as part of global justice scheme, but they reach this conclusion by different routes. Rawls argues that justice beyond the borders of a state should refer to the relations between peoples and not to the relations between a state and foreign nationals. In his view distributive justice on the global scale

133 134

Id. at 129-30. See supra, text adjacent to notes 125-127.. 135 Id. at 130.

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will only obligate well ordered developed societies to assist the burdened societies to establish well ordered regimes. From this it can be learned that Rawls would not obligate developed well-ordered states to open their borders to immigrants even if they come from poor states. He takes the view that decent regimes will improve living conditions in states and eliminate the need and desire to emigrate. Walzer speaks of mutual aid as the basis for applying global justice. In his opinion one state has to give economic assistance to the citizens of another state if those citizens suffer extreme poverty. This is emergency aid and should not form part of a long term comprehensive distributive justice program. The latter program should be conned to domestic societies. The mutual aid concept as presented by Walzer is his vision of global distributive justice and does not demand that a states restrictive immigration policy be changed since aid can be given to those who need it in their state of origin. It is quite interesting to see that even Brock advocates assisting people in their state of origin instead of encouraging and enabling them to immigrate to a more afuent state. In her view, one cannot separate the implications of immigration from its impact on the population of the state of origin. She has conducted empirical studies that unequivocally conclude that immigration improves the economies of the absorbing states and the economic well-being of the immigrants themselves. However, immigration also causes signicant harm to the economies of the states of origin and undermines the well-being of their population. Accordingly, she asserts that the current rules of international law restricting immigration conform to global justice and afuent states owe a duty to poor states to provide economic assistance that will enable them to cope with the poverty within their borders and develop their economies. In fact, Brocks approach explicitly states that global justice demands that the rules of international law relating to immigration should be left unaltered. In contrast to Brock, Carens argues that the problem of the brain-drain phenomenon caused by immigration to developed states can be overcome by the rich, absorbing state paying compensation to the poor state of origin. According to Carens, the disadvantages, which migration causes to the population of the immigrants state of origin, can be overcome without the need to restrict migration. However even Carens, who is the strongest advocate for open borders and the easing of immigration policies, is ready to admit that it is not immigration to afuent states which will solve the problem of poverty and promote global justice. In his recent work he accepts the current situation that enables states to restrict immigration. It is not his ultimate goal; he would not accept it in as an ideal, but realistically, he is ready to admit that global justice can still be preserved even if borders are not being opened for immigration.

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Global justice calls primarily for the improvement of the local living conditions of the global poor and is not directed at encouraging the poor to immigrate to rich and well-ordered countries. The issue of freedom of movement is dealt with in Carens work but is glossed over in other scholars writings on global justice and immigration. Carens argues for the free movement of people between states equal to their free movement within a state. But at the same time, he is ready to admit that it should be limited and to agree that it must not be imposed upon states when dealing with immigration from developed countries. In such a case Carens is ready to permit continued restrictions on immigration; he also favors restricting immigration when it might endanger the democratic regime of a state. Carens does not agree to Walzers thesis about restricting immigration for cultural and communitarian ends, but does accept that restrictions may be imposed for the political objective of the preservation of democratic regimes. That being so, it would appear that freedom of movement is not a sufcient ground for forcing states to open their borders as there are stronger political and cultural reasons for restricting cross-border trafc than restricting movement within a state. The economic element of global justice or the liberty of movement should be considered when dealing with global justice and voluntary migration. But when dealing with forced migration, global justice calls for the protection of the very basic human rights to life and health. Neither Carens, Brock, nor Rawls refer to the divergent approach that should be adopted when dealing with forced, as opposed to, voluntary migration. International law refers to it in a very limited manner and provides for the rule of non-refoulement when dealing with individual political refugees. It does not contend with mass migration or with nonpolitical situations of forced migration that are due to wars, natural disasters, or the like. We can nd some limited reference to forced migration in the works of Walzer and Nagel. Walzer admits that if there is a danger to the life of a person due to political or religious persecution this cannot be overcome by economic assistance to his state of origin. According to Walzer, in such cases justice imposes a duty upon states to let the persecuted person enter. We should pay attention to the fact that Walzer speaks only about refugees due to political persecutions and not about the protection of people who ee their homeland for other reasons. The economic assistance to the state of origin suggested by Walzer, is not a sufcient answer for life threatening events such as war or natural disasters, at least in the short term. On occasion, returning normality takes years and sending refugees back to their homeland might endanger their lives. Walzer does not comment on this matter and also leaves unanswered the question of mass migration. He acknowledges

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that it is a problem since economic assistance alone cannot assist the refugees but allowing huge numbers to gain entry into a state may have an impact on its future existence and self determination. Nagel too explicitly asserts that considerations of justice impose a duty upon states to open their borders when their closure would threaten basic human rights. When denial of immigration shifts from being a social justice issue to being a basic human rights issue, a state loses its privilege to restrict immigration. Basic human rights are not dependent on any political institutions and stand above them. Nagel does not elaborate on whether the duty of states to open their borders by reason of threats to basic human rights refers to masses of refugees and whether it also encompasses people who are afraid to return to their homeland due to fears of wars or natural disasters. Nagel would agree to a more open policy of global migration if and when a global government is established to enable it to happen. It seems that Nagel took his analysis regarding the institutional element of global justice to the extreme. In his view, it is either possible to have a global government that can pursue global distributive justice or it cannot be referred to if it is not for the observance of basic human rights. Between the extreme situation of a global government described by Nagel and a world order that consists only of states; there can be a world order that continues to be organized by states accompanied by various international organizations that would play an important role. This is advocated by Walzer who believes that global issues should have global institutions to administer them. In his view, it would be possible to avoid tyranny by an excessively strong international body by establishing a number of international bodies that could create a balance of power. Walzer did not apply his institutional global justice theory to the issue of immigration, as we believe should be done. Based on Walzers general scheme for institutional global justice, we suggest that immigration policies would continue to be administered by states but in situations where global justice considerations impose duties upon states in relation to immigration, these duties would be decided and administered by an international body, which would do its utmost to spread the burden among states. Thus, for example, when single states are confronted with masses of refugeeswhether as a result of political and religious persecution or even for other reasonsglobal justice considerations require that solutions be found to the problems of these refugees. Walzer has correctly adverted to the huge problems involved in imposing a duty upon a single state to open its borders to masses of people even if they are in distress, while it is unequivocally unjust to send them back to their homeland where their life is in danger. He raised the problem but did not suggest any

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solution to it. The solution we propose is that an international body would monitor the number of refugees admitted by states; if too many tried to enter a particular state the excess numbers would be transferred to a third state. This solution could potentially also be used to meet situations where refugees seek refuge in a state that has no diplomatic relations with the state of origin and regards it as belligerent. In such cases, an international body would be able to conduct an exchange of refugees with a third state. Such an international body would also be able to administer the assistance to states in order to avoid emigration from them. From our study of the works of ve leading scholars analyzing global justice and immigration, it is possible to conclude that each calls for certain assistance to be provided to problematic societies from which people wish to emigrate in order to avoid these peoples need to emigrate. The assistance might either take the form of establishing decent regimes as proposed by Rawls; aid for the desperate poor in developing states as suggested by Walzer; or redistributing the worlds wealth as advocated by cosmopolitans such as Beitz, Pogge, Carens, and in a more moderate way by Brock. No scheme of assistance, whether broad or moderate, can be achieved without an international body to conduct it in the name of the international community. The institution would be responsible for collecting funds from the more developed states and establishing criteria regarding when and to what extent these funds are given to needy societies. Without the transfer of powers to an international body, which would regulate immigration, it will not be possible to achieve global justice.