ASPCP Immigration Moral Dilemma Discussion

please make one post of at least 50 words on whatever you find interesting in this topic. You could, for example, explain what moral issues immigration policy raises, or you could find something in Wellman or Muller’s articles that you disagree with, and explain why you disagree with it. You could even raise a moral dilemma concerning immigration. Those are just some examples; feel free to talk about something else if you prefer.

EJPT
Article
The ethics of commercial
human smuggling
European Journal of Political Theory
0(0) 1–19
! The Author(s) 2018
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DOI: 10.1177/1474885118754468
journals.sagepub.com/home/ept
Julian F. Müller
Brown University, USA
Abstract
Even though human smuggling is one of the central topics of contention in the political
discourse about immigration, it has received virtually no attention from moral philosophy. This article aims to fill this gap and provide a moral analysis of commercial human
smuggling. The article accomplishes this by analyzing whether the moral outrage against
human smugglers during the European refugee crisis can be justified. To do this, the
article first analyzes whether (commercial) human smuggling is inherently wrong.
Answering this question in the negative, this article then asks whether the wholesale
condemnation of human smuggling in the European case can nevertheless be justified by
recourse to a nation-state’s purported right to political self-determination.
Keywords
Human smuggling, immigration, migration, people smuggling, refugee crisis
Introduction
In the wake of the European refugee crisis, not one day has passed by without a
high-ranking politician condemning human smuggling. They have demanded
that ‘‘Europe must take even more decisive action against human smugglers,’’
celebrated military operations against smugglers as an ‘‘impressive symbol of determination and solidarity’’ (Gebauer et al., 2014), and called out commercial human
smuggling for being a ‘‘disgusting crime’’ (ARD, 2015). Even international organizations have been quick to morally condemn organized human smuggling. The
UN Office on Drugs and Crime (UNODC) (2010b: 29), for instance, has recently
published a 300-page handbook titled Toolkit to Combat Smuggling of Migrants.
The public thus finds itself in a situation, as van Liempt and Sersli (2013: 2) point
out, in which it is constantly confronted with the ‘‘[d]iscursive associations between
smugglers and crime [. . .] by politicians, the media, and academics.’’
Corresponding author:
Julian F. Müller, Political Theory Project, Brown University, Box 2005, 8 Fones Alley, Providence, RI 02906,
USA.
Email: julian_mueller@brown.edu
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However, from a purely moral point of view, it does not seem obvious that this
round-about moral condemnation against human smugglers is justified. First off,
human smuggling should not be confused with human trafficking. While human
trafficking concerns ‘‘the recruitment, transportation, transfer, harboring or receipt
of persons, by means of threat or use of force’’ (UNODC, 2004: 42, emphasis
added), commercial human smuggling is defined as ‘‘the procurement, in order
to obtain [. . .] a financial or other material benefit of the illegal entry of a person
into a State Party of which the person is not a national or a permanent resident’’
(UNODC, 2004: 54).1 Moreover, human smuggling rings are often the only way for
refugees and other people in desperate need to escape unjust states of affairs and
find sanctuary. Even the UN recognizes that human smugglers are often the only
way for refugees and the destitute to get out of harm’s way. Against this background, some might ask whether we should instead praise human smugglers for
helping the worst-off to secure their rights, rather than condemning them. At the
very least, these preliminary thoughts should motivate us to articulate a more
nuanced view on the moral status of human smuggling.
In the recent decade, there has been a surge of interest in political philosophy
and ethics with respect to the morality of immigration. The most prominent issue in
immigration ethics is surely whether nation-states have the moral right to exclude
people from immigrating into their territory. Other questions in immigration ethics
include whether wealthy nations have different obligations to refugees and the
desperately poor, whether highly-skilled immigrants in some circumstances have
an obligation to remain in their country of origin, whether citizenship should be for
sale, and how nation-states should deal with the fact that globally, millions of
people in the foreseeable future will try their best to cross the borders into wealthy
nations in the hope of a better life.
Although philosophers have spent much time and ink discussing the morality of
immigration, the moral status of human smuggling is an issue that has been virtually absent from academic discussion in philosophy. That human smuggling is
indeed an issue that is usually overlooked in migration ethics is reflected in the fact
that the most recent treatises on the morality of immigration, David Miller’s (2016)
Strangers in Our Midst and Joseph Carens’s (2013) The Ethics of Immigration, fail
to provide an analysis of the moral status of human smuggling and indeed do not
even flag the issue as one of philosophical concern. This is curious as human
smuggling is one of the core issues—as pointed out earlier—in the public debate
about immigration. William Smith (2015: 90) recently noted that the literature in
immigration ethics mainly focuses ‘‘on the morality of border controls’’ while
mostly ignoring issues concerning the morality of border crossing.2 This is an
unfortunate situation, as it entails, as he rightly points out, ‘‘that political theory
offers little guidance about the normative issues raised by unauthorised economic
migration, understood as unlawful entry to or residence in a state by persons from
less wealthy societies looking to enhance their occupational opportunities.’’3 In this
article, I want to discuss a specific aspect of border crossing, namely, the moral
status of human smuggling, an issue that is both politically important as well as
philosophically understudied.4
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The motivating question that drives this article is whether the public outcry
against human smugglers in the wake of the European refugee crisis was justified,
and if so, for what reason. I approach this question in three parts. The first part is
purely analytical and aims to provide a better understanding of the moral status of
human smuggling in general.5 The second part inquires whether the public moral
condemnation of human smugglers in the European case can be justified on
other grounds. In particular, I will be concerned with whether the public wholesale
condemnation can be grounded in the nation-state’s purported right to selfdetermination. The goal of the third part is to discuss some of the moral and empirical implications of my results. In particular, I will be concerned with the question
of how Europe could respect the right of the desperately poor and persecuted to
apply for sanctuary, given real-world feasibility constraints.
Is commercial human smuggling inherently wrong?
There are various reasons why someone might object to human smuggling. To help
us work through them, consider the following example. There are two islands:
The first island, island A, is generally known to be a failing state that is poor
and persecutes some marginalized groups. Its political and economic institutions
are dysfunctional in such a way that the basic needs of a large part of society are
not met. Imagine further that there is an island B. Island B is a wealthy modern
democracy. At the shore of island A, there is Bert, who is unjustly persecuted and
whose minimal needs are not satisfied by his home country. Bert seeks to apply for
sanctuary in island B. Let us further imagine that Bert has a certain amount of
cash—maybe he has just sold his apartment, so he is now able to pay an agent to
ferry him over the sea to island B. Now imagine there is Anna. Anna is an average
person, neither rich nor poor, she has a boat, and for some reason she can travel
freely between A and B.6
The main goal of the first part is now to ascertain whether commercial human
smuggling is inherently wrong. In general, we can distinguish between acts that are
inherently wrong and acts that are contingently wrong. Acts that are inherently
wrong go down as a minus on the moral balance sheet regardless of the circumstances. Paradigmatic cases of inherently wrong acts are rape and killing people.7
The very act of raping or killing goes down as a negative in the moral balance sheet
regardless of what other values could be secured by these acts. That is not to say
that there is no situation in which there would be a trumping reason so that killing
could be justified—say, in cases of self-defense—but nevertheless, the act of killing
goes down as a minus in the moral balance sheet.8 In contrast, there are acts that
are only wrong for contingent reasons. Imagine, for instance, that Anna plays a
fast-paced video game. Usually, there is nothing wrong with playing such computer
games. Now imagine, however, that her friend Lucy, who suffers from epilepsy, is
with her. In this case, we might be justified in blaming Anna for starting that
computer game, given that she knows of her friend’s condition. An act that is
only contingently wrong is thus an act that does not necessarily go down as a
negative in the moral balance sheet, but can, if only for contingent reasons.
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Case 1: Anna ferries Bert from island A to island B for free
Let us first discuss the case of non-commercial human smuggling to get a better
understanding of the thought experiment and the issues at stake. Imagine that
Anna ferries Bert from island A, where his human rights are severely threatened,
to island B, where he is safe and able to exercise his basic human rights. Let us
further imagine that Bert is legally permitted to enter island B. For our example, it
is not important whether Bert might be able to provide for himself by taking a job
in B or whether B will endow him with the basic goods he needs to exercise his
rights. Furthermore, given that Anna has bent no law and has provided free passage for Bert, who was in desperate need of help, it seems quite obvious that Anna’s
act of ferrying Bert to island B seems to be morally permissible. Since Anna has
no particular responsibility to help Bert, her behavior might be judged morally
praiseworthy. How praiseworthy Anna’s actions are, however, seems to depend on
contingent facts. For instance, if Anna put herself in great danger by landing in
A to take Bert on board, or if she incurred great monetary costs for ferrying Bert
from A to B (she may have needed to rent an ocean-going ship) we would judge her
action morally praiseworthy. On the other hand, if Anna would have just landed
her private yacht in A to spend a few sunny days on the gorgeous beaches of A and
planned to go to B anyhow, then her act of ferrying Bert to B might still seem
praiseworthy but surely not to the same extent as in the first case.
Case 2: Anna illegally ferries Bert from island A to island B for free
Now, let us assume that by crossing the border of B, Bert is actually breaking the
law of island B. I take it that we usually understand human smuggling as involving
an illegal entry on the side of the smuggled. The new question is whether breaking
the law makes human smuggling inherently bad.
To approach this question, we might ask whether every type of action that
involves breaking codified law is wrong. It is easy to come up with a lot of actions
like stealing, killing and scamming that at first glance seem to be pro tanto wrongs
because they involve breaking the law. If we look more closely, however, we notice
that we would judge these actions morally wrong even in the case that this country’s set of laws would permit stealing, killing, and scamming. What is the reason
for that? The reason seems to be that these types of actions are not wrong because
they are against the law, but because they are against morality. It seems to me that
whether we are obliged to follow the law or obliged to break the law is dependent
on the moral status of the law (or body of laws). We might thus say that a type of
action is inherently wrong if it necessarily involves breaking a morally justified law.
The question then becomes whether human smuggling necessarily involves breaking justified law. Here, the answer seems to be straightforward. While human
smuggling might contingently involve breaking justified law, it does not do so
necessarily.
For instance, imagine the case that Bert has a morally legitimate claim to obtain
sanctuary in B, but at the same time, a morally unjustified legislation prevents him
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5
from crossing the border to B and claiming asylum. In that case, since the law that
prevents him from entering the country would be by definition unjustified, he
would be at liberty to cross the border to B.9 This case is particularly interesting
since it seems to adequately model the situation of a great many refugees, as I will
explain later, in the current European crisis.
It is interesting here to draw attention to two central documents of the United
Nation’s Office of Drugs and Crime. In their Toolkit to Combat Smuggling of
Migrants, the UNODC (2010b: 29) takes great pains to point out that the
Smuggling Protocol10 ‘‘does not intend to criminalize migration as such.’’
The Protocol, the UNODC explains, does not aim to criminalize ‘‘person and
entities, such as family members and non-governmental or religious groups,
who facilitate the illegal entry of migrants for non-profit reasons’’ (UNODC,
2010b: 29). What kind of human smuggling does the Protocol then aim to criminalize? According to the UNODC’s (2010b: 29) Toolkit, ‘‘the criminalization
of smuggling of migrants and related conduct covers only those who profit
from smuggling of migrants through financial or other material gain.’’ However,
this raises the question of what, if anything, is wrong with commercial human
smuggling.
Case 3: Anna illegally ferries Bert from island A to island B for a fair fee
Let us then consider the next case. It is similar to the second case, but for one
difference: the commercial aspect, which is another feature that we commonly
associate with human smuggling. Remember that in our example, Anna is not
particularly rich, but an average earner who happens to have a boat suitable for
ferrying refugees. Further, remember that Bert has some amount of money. The
question is now whether our moral judgment of the smuggling case changes if we
inject money into the equation. Since our judgment surely depends in part on the
amount of money Anna charges, I want to distinguish the case in which she takes a
fair fee from the case in which she charges an exploitatively high price. Let’s take
on first the case in which Anna charges a fair fee. This raises the question of what
we mean by a fair fee. As is generally acknowledged, the question of what a fair
price amounts to is a difficult one. For the purpose of this argument, we can assume
that Anna charges a fee that both parties judge as fair and that an impartial spectator would judge as reasonable.
Now, does her taking a fair fee for her services somehow transform her action
into a morally blameworthy one? To put it differently, is it the commodification of
assisting Bert that makes Anna’s act blameworthy? There are a few things to consider here: in ferrying Bert from A to B, Anna incurs considerable costs. She might
need to pay back a loan for her boat; she might also have to provide food for
herself and Bert during the passage. Furthermore, she needs to account for the
natural wear and tear of her boat. Then there are the opportunity costs she accrues
by ferrying Bert across the sea instead of working a full-time job. Keeping in mind
that Bert possesses the required funds, there seems to be nothing wrong with Anna
charging Bert a fair fee.
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There is also a related case to consider that is important for our
discussion. In many circumstances, there are actually a lot of people who wish to
be ferried to B. Given that Anna wants to help as many desperately poor people
as possible, it would even be irrational for her to ferry Bert for free. In a situation where many people are in need of her services, Anna needs to make sure
that her boat is in a condition to make a safe passage. Furthermore, she needs
to make enough money to take care of her own needs and those of her
dependents. Indeed, it would be prudent for her to build savings in case she
needs to pay for repairs. In this scenario, even though Anna charges a fair fee,
some might deem her actions not only morally permissible but even praiseworthy,
considering that dealing with sanctuary-seekers will inevitably be more dangerous
than a normal job.
Case 4: Anna illegally ferries Bert from island A to island B
for a very high price
So far, I have only looked at cases which—at least, after some initial reflection—
seem relatively uncontroversial. Next, I want to look at a case that is more difficult
to evaluate but might be closer to what we associate with commercial human
smuggling.
Let us assume that Anna offers to ferry Bert to B for a very high price, even an
exorbitantly high price. Would there be anything morally wrong with that?
The answer seems to be: not necessarily. Many goods and services are very
costly because the input factors to create a specific good X or service Y are themselves very expensive. A ferry service seems to be one of these things, since offering
a ferry service might include buying a boat, paying maintenance fees, paying salaries for the crew, and so on. Charging a high price for a service, thus, does not
necessarily constitute a moral wrong.
What we are concerned with are thus not high prices per se, but unfairly high
prices. To put it differently, in this section, we are interested in how our moral
judgment of Anna’s behavior changes if she charges exploitatively high prices.
Before I grapple with this problem, I want to pause here for a moment to highlight
that it is not clear whether the high prices for human smuggling are brought
about because of the fact that human smugglers pocket huge profit margins or
are best explained by the average costs of organizing human smuggling. Pocketing
huge profit margins is usually only possible over a longer stretch of time, in case
one can achieve a monopoly or some sort of cartel. At the same time, the evidence
does not support the case that human smugglers can secure any kind of monopoly.
Reitano and Tinti (2015: 25), for instance, write that ‘‘due to modern communication technology and the proliferation of social media, there is near constant
communication among migrants at source and in transit, with common messaging
boards and apps providing the average price along key legs of the journey.’’
Baumgärtner et al. (2015) report that ‘‘[s]mugglers don’t just look for potential
customers on the streets, but also hang out in social networks and operate
Facebook pages with names like ‘Smuggle to Europe’ and ‘As an Illegal to
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Sweden.’’’ Birnbaum (2015) confirms:
On social networks and in person, migrants can pick from a menu of services, ranging
from a slippery seat on a rubber dinghy to Greece all the way to a chartered business
jet straight to the refugee haven of Sweden.
Given these empirical accounts, it seems dubious that human smugglers are able to
secure a monopoly and thus charge monopoly prices. It seems more likely that the
high prices in the human smuggling market just reflect the high risks and costs
involved in human smuggling.
Nevertheless, let us inquire whether commercial human smuggling would be
morally wrong if it necessarily involved unfairly high prices. As I stated above, it
is notoriously hard to conceptualize the meaning of a fair price or for that matter
what an unfair price is. Since my general argument does not rely on a specific
account of fair prices, I will leave it to the reader to insert her favorite account
of fair prices.
How should we then morally judge Anna in the case that she takes unfair
monetary advantage of Bert by fully exploiting her bargaining power? Let us
assess such a case. In the case we are discussing, it is undeniable that
even though Bert needs to pay an unfair price, he nevertheless gains from the
transaction between him and Anna. Since Anna also gains considerably, the transaction between both continues to be a win-win situation. Both are better off
because of the transaction. Nevertheless, one might believe that Anna unduly
gains by pocketing a huge profit margin, something that I submit we usually associate with commercial human smuggling. Perhaps, one might want to argue that
the real moral problem is that she gains considerably more from the transaction
than Bert. However, this claim seems to be patently wrong, because it is evident
that Bert, whose life is in danger, actually gains much more from the transaction
than Anna.
Another, perhaps more serious charge might be that it is morally impermissible
to gain extraordinarily high profit margins through bargains with vulnerable persons, such as refugees. The question then becomes whether pocketing huge profit
margins is what makes commercial human smuggling morally blameworthy.
Usually, we do not think that private persons have a duty to help refugees in
need. To be more specific, we usually do not think that in cases like the European
refugee crisis, individuals have an obligation to rent a ship or any other vehicle to
help refugees to escape their dire situation. If this is true, Anna seems to have no
obligation to ferry Bert to B. This means that if Anna decides to spend her weekends on her ship sipping Bacardi in the Mediterranean Sea, she prima facie would
do nothing wrong.
If no interaction with Bert is morally permissible, then intuitively an interaction with Bert to which he agrees and that makes him better off, without
making anyone else worse off, seems to be morally permissible as well. In the
literature, this argumentative move is known as Wertheimer’s (1999) nonworseness claim.11 Applied to the case at hand, the nonworseness claim says that it
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cannot be morally worse for Anna to ferry Bert to A for a very high price than
not to interact with him at all, given that (1) the exchange is better for Bert, (2)
Bert has consented to the exchange, and (3) the exchange has no serious negative
effects on others.
If human smugglers in general have no obligation to help refugees, then this
means that it is morally permissible for them not to help the destitute and persecuted. However, given that their interaction with the destitute is better for the
latter, the destitute agree to the high fees and nobody else is seriously affected by
the interaction, taking huge fees cannot be morally worse than (no interaction).
From this line of argument it straightforwardly follows that taking high fees is
morally permissible as well.
Even though this result might be hard to swallow for some, there is also
something intuitive to this result. While most of the individuals in Anna’s
economic situation do nothing to enhance the lot of the destitute and persecuted, the services that Anna provides do enhance the lot of the destitute and
persecuted.
There are at least two counterarguments to this line of reasoning. First, we
might question the first premise. We might think that despite the general sentiment
in Europe, everyone in Anna’s economic position actually has a duty to rent a ship
and ferry Bert to A for a reasonable compensation. If there is such an obligation,
then indeed Anna (and commercial human smugglers who demand exploitatively
high fees) would be actually blameworthy. But if such an obligation existed, the
moral condemnation of the public should be—this at least seems to follow from the
argument—shifted towards the people that are in the same economic position as
Anna but who do nothing. Given that Anna is neither rich nor poor, this means
that the public outrage should be not so much directed against Anna, but against
the overwhelming majority of the middle classes that usually remain inactive in
situations like the one in question.12
One might also ask whether the interaction with Bert does not somehow confer a
special obligation upon Anna. Consider a parallel case in which Anna owns an
oasis in the desert and Bert, who is close to dying of dehydration, has just arrived at
her sanctuary.13 In this case, we might think that Anna has a special obligation
toward Bert, because she is the only one who can help him. In this case, we might
judge that by being the only one who could save Bert, Anna has obtained a particular set of new obligations to Bert. Within this set of obligations, for instance,
might be the particular obligation to not charge unfair prices. But however we
might want to judge the desert scenario, it is important to note that it is different
from the smuggling case in one crucial aspect. While it can be reasonably argued in
the desert case that Anna has a special obligation toward Bert, this cannot be
argued in the smuggling case. In the smuggling case, by default, Anna has no
more obligation to help Bert than anybody else. I take it that this is also the
case for the real world. It seems implausible to hold that—except in particular
cases—human smugglers have greater obligations to support the desperately
poor than any international organizations like the EU or other private parties
that are, in economic terms, similarly situated.
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Case 5: Anna illegally ferries Bert from island A to island B, charges exploitative prices, and cannot provide safe passage
‘‘Migrant Smuggling – it’s a crime’’ is one of the headlines of a recent article by the
United Nations Information Service Vienna (2015). This headline is just part of the
more general efforts of the United Nations to crack down on human smuggling and
vilify human smugglers. One of the central reasons to justify the crackdown on
migrant smuggling by the UN is the undeniable fact that the practice of human
smuggling is accompanied by the death of thousands of migrants and refugees. The
UN, as well as much of the media and national governments, hold human smugglers responsible for their deaths. Yury Fedotov, Executive Director of the
UNODC, writes: ‘‘There is seemingly no end to tragic reports of migrants losing
their lives on desperate voyages to safer havens. These perilous journeys undertaken by hundreds of thousands of women, men and children are mostly facilitated
by criminal smuggling rings’’ (United Nations Information Service Vienna, 2015,
emphasis added).
I take it that we usually conceive of human smuggling as a practice that exposes
the smuggled to grave risks. Strictly speaking, exposing the smuggled to grave risks
is not inherent to the practice of human smuggling. For instance, there are many
cases in which human smuggling is done by issuing fraudulent documents that
allow a refugee to obtain a visa for a wealthy country, which in turn allow them
to just take a regular flight to that country. Having arrived at his destination, the
refugee then can seek asylum. Although this is true, I will nevertheless, for the sake
of argument, assume that human smuggling in general exposes the smuggled to
grave dangers, such as a risk to life. The question then becomes whether the risk to
life can justify a general moral condemnation of human smuggling. To answer this
question, we might ask whether we morally condemn people in general who put the
life of third parties at risk. The answer here, I submit, is straightforward again.
Granted, we morally condemn violent goons who go around and beat people up.
We also morally blame people for speeding, since they put not only their own lives
at risk, but also the lives of third parties. In some countries, even smokers are
blamed for harming others. At the same time, we do not condemn a surgeon for
treating medical conditions, even though a particular treatment might involve clear
risks to life. Furthermore, we do not blame pilots, even though air travel comes
with certain risks to life. In general, we condemn only actors who put our lives at
risk if they do so without our consent. Consider again the case of a medical procedure that puts the life of the patient in danger. In general, we think that as long as
the patient has made a deliberate choice, it is morally permissible for the doctor to
conduct the medical procedure. We even think this is permissible if the treatment is
not strictly necessary for the patient for medical reasons. For instance, people quite
regularly undergo cosmetic surgery under general anesthetic, even though neither
the surgical procedure nor the anesthetics are without risk.
The decision by Bert for or against being smuggled, on the other hand, should
not be compared to the decision for or against cosmetic surgery. His decision might
be best compared with the decision of a seriously ill patient. Let us assume that Bert
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would be diagnosed with a disease that is fatal in one in four cases. Bert could
undergo surgery, but surgery is also not without risks, and it might be fatal in one
in 10 cases. Given that the risk of dying because of the procedure is lower than that
of the illness, we would deem Bert rational to undertake the risk. The same, I take
it, holds true for human smuggling. Bert should be at liberty to decide whether he
takes the risk to rely on a smuggler or not. That human smuggling, like medical
treatment, involves certain risks does not speak against the practice. For the desperately poor and persecuted, it is often rational to take the risks involved in
human smuggling.
Of course, if human smugglers rely on deception and downplay the risks of
human smuggling, then it would make their practice highly immoral. The same
is obviously true for the medical doctor who downplays the dangers of a certain
procedure. A necessary condition for being able to deceive is in general asymmetric
information. If both parties to an agreement have the same amount of knowledge,
there is not much room for deception. While it might certainly be true that human
smugglers sometimes deceive their customers, it is unreasonable to believe that
deception is inherent to the practice of commercial human smuggling. First, refugees in many instances are organizing the smuggling themselves (Baumgärtner
et al., 2015). Second, as we have pointed out already, many refugees are themselves
or via third parties connected to the internet. For example, Reitano and Tinti
(2015: 25) quote a refugee who reports about his journey: ‘‘I was following
Facebook pages which were created by Syrians to give advice for a safer journey
to Europe, and I contacted many people who were posting about their experience
in crossing to Europe.’’ It is thus safe to assume that refugees are reasonably wellinformed about the particular dangers that attach to human smuggling.
We are now in a position to answer our question. In the last few pages, I have
discussed four important features of human smuggling: the commodification
aspect, the practice of smuggling someone illegally in a country, the practice of
charging exploitative prices, and the fact that human smuggling in some cases
endangers the life of the smuggled. If our analysis is correct, then none of the
four features makes human smuggling inherently wrong.
Human smuggling during the European refugee crisis
If our analysis so far is correct, we might want to inquire whether commercial
human smuggling is contingently wrong. If we could show that for contingent
reasons, the actions of human smugglers in the wake of the refugee crisis were
by and large morally blameworthy, we could justify the blanket condemnation of
commercial human smuggling. What kind of contingent reasons would justify a
blanket condemnation? There are a few contenders, but for reasons of space, I can
only discuss one especially promising candidate here.
The argument that I have in mind maintains that nation-states have the moral
right to close their borders at will and therefore have a right to decide who is and is
not permitted to cross their borders. If we assume that a right to exclude is justified
and human smugglers by and large help people to enter into states against the
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expressed will of these states, then indeed, a blanket condemnation of human
smuggling would seem to be called for. This line of argument raises the question
of whether a blanket condemnation of commercial human smuggling in the
European case could be justified by a recourse to the nation-state’s alleged right
to political self-determination. I want to argue in this section that this line of
defense—in the European case—is untenable.
In the current discourse, Michael Walzer, Christoph Wellmann, and David
Miller are the three main defenders of the nation-state’s right to political selfdetermination. Even though their arguments for the right to self-determination
differ, they all contend that a nation-state’s right to open and close its borders to
immigrants at will can be grounded in the right to political self-determination.
However, Walzer, Wellmann, and Miller are also in agreement that wealthy
nations, such as the member states of the European Union, have an obligation
toward the persecuted and desperately poor. For instance, Miller (2015: 395)
writes: ‘‘we must assume that all agents, individual or collective, share in a responsibility to protect the human rights of vulnerable individuals.’’ He continues: ‘‘The
responsibility obtains regardless of national or other boundaries, which is why it
can form the basis of a justice claim made by a refugee against a state that is not her
own.’’ Wellman (2008: 129) has a similar position and maintains that:
affluent societies have a duty to help [. . .] just as global poverty requires wealthy states
to either export aid or import unfortunate people, the presence of those desperately
seeking political asylum renders those of us in just political communities duty bound
either to grant asylum or to ensure that these refugees no longer need fear their
domestic regimes.
It is thus worthwhile to point out that proponents on both sides of what is sometimes dubbed the open-versus-closed borders debate are in broad agreement that
wealthy nations have an obligation toward ensuring that the right of the desperately poor and persecuted to a minimally good life gets honored. Call this the
minimal consensus view (cf. Oberman, 2015: 241).
Although wealthy nation-states have an obligation toward securing a minimally
good life for the desperately poor and persecuted, it is generally believed that they
have different obligations to the desperately poor and to the persecuted. The reason
for this is mainly that it is generally believed that the desperately poor and persecuted have different needs. The central criterion, as Cherem (2016: 191) notes, that
distinguishes refugees from other kind of people in desperation is their peculiar
kind of need. The need of refugees occurs mainly because ‘‘their country of origin
has effectively repudiated their membership and the protection it affords’’ by persecuting them (Cherem, 2016: 192). Refugees are then first and foremost in need of
sanctuary and, in case of enduring persecution, new membership. This need can be
differentiated from the need of the global poor, who are first and foremost in need
of a bundle of basic goods that allows them to live a minimally dignified life. As
many philosophers have pointed out, the need of the global poor and refugees has
to be met through different sets of actions. While refugees can only be helped by
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granting them sanctuary (and, if the persecution endures, membership), the needs
of the global poor might also be addressed by exporting wealth.
This standard distinction between refugees who are in need of safety and the
global poor who are in need of basic goods, however, is more problematical than it
at first seems. To highlight this, I first want to remind the reader of the standard
UN definition of who counts as a refugee and who does not. According to Article 1
of the 1951 Convention relating to the Status of Refugees, a person counts as a
refugee:
who owing to a 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. (1951 Convention and
1967 Protocol Relating to the Status of Refugees).
What is striking about this definition is that people who flee a country because of
war, hunger, or natural catastrophes are not refugees, according to the 1951
Convention. This is important because it highlights that within the set of the
people whose minimal needs are not being met is a subset of people that is not
persecuted in the strict sense, but whose right to a minimally good life nevertheless
could only be secured by granting them sanctuary. Paradigmatically, people living
in or fleeing from war zones fall under this category. Moreover, people living
in countries where the government effectively prevents foreign help to its people
(or a subset of its people) also fall under this category. Let me call this group of
people the destitute, for lack of a better term. The destitute share with refugees that
they cannot be helped by wealth redistribution (or simply dropping supplies), but
they are different from refugees in the sense that although their life is threatened in
their home country, the reason that their life is threatened has nothing to do with
their race, religion, or political opinion. If this is true, then wealthy nation-states
have a weighty obligation toward securing sanctuary not only for refugees but also
for the destitute. Similarly, not only refugees but also the destitute have a strong
right to sanctuary.14
In practice, a necessary condition for getting a refugee status is to apply for such
a status with a certain country. The only way for the destitute and persecuted to
apply for sanctuary in the European Union, however, is at certain offices within the
European Union. To put it differently, there is almost no way for people who have
a legitimate claim to sanctuary to apply for asylum from outside the European
Union. As Morrison and Crosland (2001: 27–28) explain:
There is no such thing as a ‘‘refugee visa’’ to gain entry into the European Union
explicitly for the purpose of claiming asylum. Although occasional ‘‘diplomatic protection’’ is offered by specific national embassies abroad, the only regular channels for
refugee migration are those requiring a ‘‘tourist’’, ‘‘business’’, ‘‘student’’ or some other
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13
category of visa. If any applicant is suspected of being a potential asylum-seeker then
they will almost always be declined any type of entry clearance.
This means that the current visa regime ‘‘denies most refugees the opportunity for
legal migration.’’15 During the European refugee crisis, refugees and the destitute
were systematically prevented by the European Union from applying for asylum
and thus exercising their rights. In fact, refugees and the destitute were put in a
position where they had to break European law (that is, to enter the European
Union illegally) in order to claim their right to asylum. Judged against the minimal
consensus view, it seems that the destitute and persecuted were justified in illegally
entering the European Union.
With this information in mind, the role of the human smugglers during the
European refugee crisis appears in a different light to that which media coverage
has cast it in. If what I have said is broadly correct, then the human smuggling
efforts that helped the destitute and persecuted can hardly be morally blamed for
helping these people to enter the Europe Union illegally. On the contrary, the
blameworthy party—as it appears even from the viewpoint of Wellmann and
Miller—was the European Union in their attempt to prevent the destitute and
persecuted from exercising their right to apply and seek asylum.
One could of course, as a last-ditch effort, try to justify the moral outrage
against human smugglers during the European refuge crisis by noting that
they did not only help the persecuted and destitute to illegally enter Europe, but
they also helped economic migrants who have no such right to asylum. This is
certainly true. However, the majority of people who applied for asylum in the EU
were actually from war-torn countries such as Syria, Afghanistan, and Iraq (BBC,
2016). This means that at least the persons who applied for asylum during the crisis
fall under the category of people—the persecuted and the destitute—who have a
strong right to asylum. It is thus reasonable to assume that human smugglers
during the crisis smuggled predominantly people who had a moral right to
asylum. Moreover, the goal of this section was not to show that all human smugglers were without blame and fully justified in their actions—this would have been a
futile task—but only that the wholesale moral public condemnation of human
smuggling that took place during the crisis cannot be justified.
Some policy implication
Where do we stand? In this article, I have defended two claims. First, I argued that
there is nothing inherently wrong with commercial human smuggling. Second,
I made the argument that with respect to the European refugee crisis, there is no
moral basis for a sweeping condemnation of commercial human smuggling.
Nevertheless, the horrors that came in the wake of commercial human smuggling are undeniable. In the last part of this article, I want to argue that by respecting the right to apply for sanctuary, the European Union could end the practice of
morally permissible commercial human smuggling. Stopping morally permissible
commercial human smuggling would a) drastically reduce the practice of
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commercial human smuggling in toto and thus ameliorate the humanitarian catastrophe in the wake of this practice. Furthermore, it would b) legitimize the practice
of the EU to fight commercial human smuggling.
As I have established in the last section, there is a wide consensus that the
destitute and persecuted have a right to apply for sanctuary. For contingent
reasons, though, the only way to apply for sanctuary is within the European
Union. In this situation, commercial human smugglers are actually helping the
destitute and persecuted to secure their pro tanto right to apply for sanctuary. If
this analysis is more or less correct, then much of what the European Union has
been doing to prevent the destitute and persecuted from arriving at the shores of
the European Union constitutes a moral wrong. While the European Union,
based on the minimal consensus view, might not have the moral obligation to
protect the rights of the destitute, they nevertheless have an obligation to respect
those rights. Preventing the destitute by force from exercising their right to apply
for sanctuary is thus a clear rights violation. Furthermore, by conducting a war
on morally permissible and morally impermissible commercial human smuggling, the European Union is essentially driving the prices up for the destitute
and persecuted to exercise their right to apply for sanctuary. The surging price
for commercial human smuggling has two morally relevant outcomes. First, it
harms the destitute by essentially raising the prices for human smuggling. This is,
of course, a great problem for the destitute which are usually not well-off to
begin with. Second, a surge in prices has the effect that many of the destitute and
persecuted need to economize on safety if they want to exercise their right. While
Bert might have been able to purchase a safe passage to B before the surge in
prices, he afterwards might only be able to pay for a less safe vehicle. By actively
preventing the destitute and persecuted from exercising their rights, the
European Union adds great financial and personal peril for the already destitute
and persecuted.
There are several ways in which the European Union could honor the rights of
the destitute and persecuted to apply for sanctuary. I want to briefly discuss two
options here. As (Gibney, 2015: 448) writes, ‘‘[o]ver the last two decades, refugees
seeking protection in northern states have been confronted with a barrage of measures designed to prevent their arrival, including visa controls and carrier sanctions,
and even efforts to interdict them at sea.’’16 The first approach would be to simply
do away with all these measures and allow the destitute and persecuted to freely
travel to Europe, for instance, by plane in order to apply for sanctuary. This could
be done by creating a visa that allows everyone—at their own cost—to travel to
Europe to apply for sanctuary. This approach would instantaneously dry up the
morally permissible variation of commercial human smuggling. The reason is
simple: it is much cheaper and safer for the destitute to rely on regular airlines
and shipping companies to come to Europe than to rely on unprofessional human
smugglers. The only ones who would rely on human smugglers under these conditions are the ones who have good reason to believe that their chances of being
granted sanctuary will be slim. These would be people who, given the process of
checking applications is just, are not eligible for sanctuary. Preventing the
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15
non-destitute and non-persecuted from entering the EU, on the other hand, is
within the moral right of the European Union.
While this approach will predictably dry up the practice of morally permissible
commercial human smuggling, it would nevertheless come at great financial cost,
at least if the European Union decided to provide the necessary accommodation
for the destitute and persecuted while they are awaiting the decision about their
application. At the same time—as was already noticed during the short period of
Angela Merkel’s open-door policy—merely finding enough appropriate living
space for the applicants is a great organizational and financial problem.
However, such an approach is riddled with not only instrumental but also moral
problems, since a regime would unduly privilege the applicants who are—within
the group of the destitute—better off, since the worst-off might not even be able to
afford a plane ticket. As many commentators have noted, the asylum system of the
EU as well as the approach discussed have the serious drawback that they fail to
address the needs of the people who are in need of sanctuary the most. Morrison
and Crosland (2001: 21) explain:
[The current asylum regime] advantages those with the money and the connections
required to engage the services of the smuggler. [. . .] It is the poorest and most marginalised populations around the world that are least likely to be able to pay the price to
enjoy asylum in Europe.
In particular, the current regime makes it very difficult for women and children to
‘‘successfully complete the clandestine journey to European countries’’ (Morrison
and Crosland, 2001: 21).
For reasons of space, I cannot hope to provide and defend a well-worked out
policy solution to the discussed problem. Thus my goal here is merely to identify a
potentially interesting candidate. Reitano and Tinti (2015: 25) point out that
migration experts for some time have emphasized the ‘‘need for safe, legal channels
to address the legitimate protection needs of the Syrian people and other nationalities whose stability, human rights or political freedoms are considered seriously
at risk.’’ To secure the protection needs of the destitute, it would be highly desirable
if key actors in the sphere of international politics provided the destitute with ‘‘the
opportunity to have [their] claims for asylum verified closer to home’’ (Reitano and
Tinti, 2015: 25). Reitano and Tinti (2015: 25) expect that such a regime ‘‘would
immediately reduce demand for smuggling services, though it would not eradicate
them altogether.’’
To verify claims for sanctuary, for instance, the EU could employ the embassies
of its member states. Another option would be to offer online applications
for sanctuary-seekers. As the current refugee crisis has taught us, most of the
people looking for sanctuary in the West are using web services for engaging
and contracting with human smugglers. If that is the case, the destitute and persecuted could—at least prima facie—use their connection to the internet to apply
for sanctuary as well. Allowing the destitute to apply from their home countries or
someplace close to their home countries would have the additional advantage that
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European Journal of Political Theory 0(0)
it would give the worst-off within the group of the destitute and persecuted a better
chance to be considered for sanctuary. Whether such an approach is indeed morally desirable and practically feasible, however, is an open question to be answered
by future research.
Conclusion
Many commentators, such as van Liempt and Sersli (2013), have observed that
in the last 30 years there has been a considerable shift in public discourse toward
criminalization and moral condemnation of commercial human smuggling.
The goal of this article was to analyze whether this all-out moral condemnation
of human smuggling is justified. In the first part, the article discussed whether
there is something inherently wrong with commercial human smuggling. Here, I
focused especially on four features that are common to human smuggling: the
commodification aspect, illegal border crossing, exploitatively high prices, and
the risk to life. The analysis concluded that there is nothing inherently wrong
with commercial human smuggling. Secondly, the article wanted to ascertain
whether a roundabout condemnation of the human smuggling taking place in
the European theater can be grounded in different terms. In particular, I inquired
whether the fact that the commercial human smuggling activities in the
European theater caused millions to cross the border to Europe illegally is a
sufficient reason to condemn the practice. I argued that this is not the case. In the
third part, I discussed some empirical implications of the normative results of the
first two parts. In particular, I argued that by respecting the right to apply for
sanctuary the European Union could end the practice of morally permissible
commercial human smuggling. Stopping morally permissible commercial
human smuggling would a) drastically reduce the practice of commercial
human smuggling in toto and thus ameliorate the humanitarian catastrophe in
the wake of this practice. Furthermore, it would b) legitimize the practice of the
EU to fight commercial human smuggling.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication
of this article.
Notes
1. In its official documents the UN uses ‘‘migrant smuggling’’ instead of human smuggling.
Moreover, it should be noted that in practice the distinction between human smuggling
and trafficking sometimes becomes blurry, for instance if human smugglers seek to
instrumentalize and exploit the illegal status of the destitute once they arrive in their
desired location.
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17
2. Two noteworthy exceptions in political philosophy are Hidalgo (2015) and Mendoza
(2011, 2015).
3. In the global justice literature, however, the question of the moral status of illegal border
crossing has lately received some attention. Theorists in global justice mainly discuss illegal
border crossing against the background of global injustice. Framing the debate in this way
has allowed global justice theorists to conceptualize illegal border crossing as a form of
legitimate resistance (Caney, 2015) or as a specific form of civil disobedience (Cabrera, 2010).
4. For an up-to-date empirical investigation into the industry of commercial human smuggling, compare Tinti and Reitano (2017).
5. While the discussion about border crossing in global justice studies by default is taking
place against the background premise of global injustice, I am interested in the moral
status of human smuggling in principle (first part) and in the context of the European
refugee crisis (second part).
6. I introduce this assumption for reasons of simplicity. We do not want to be concerned
here with the possible wrong that might be caused by Anna illegally crossing the border
of A or B. The reason for that is simply that we usually—or so I assume—do not think
that what makes human smuggling wrong is that the smugglers themselves are illegally
in A or B.
7. I understand murder here as a killing that is non-consensual.
8. Another way to put this is to say that an inherently wrong act is an act that is pro tanto
morally wrong.
9. Compare Hidalgo (2015). In his paper, Hidalgo discusses under which conditions immigrants are permitted to resist immigration restrictions in much more detail than space
permits me to do here.
10. The term Smuggling Protocol is short for the Protocol against the Smuggling
of Migrants by Land, Sea and Air. The Protocol is one of three supplementary protocols to the United Nations Convention against Transnational Organized Crime.
Both the Convention and the Protocol were adopted by the United Nations General
Assembly in 2000.
11. Compare also Zwolinski and Wertheimer (2017).
12. I take it that this would be the conclusion that follows from Snyder’s (2008: 403)
position on exploitation. On his account, we have at least a minimal duty to beneficence
in general.
13. This example is inspired by Meyers (2004: 324–325.)
14. By adopting Council Directive 2004/83/EC in 2004, the European Union has agreed to
extend its protection to every person ‘‘who does not qualify as a refugee but in respect of
whom substantial grounds have been shown for believing that the person concerned,
if returned to his or her country of origin, or in the case of a stateless person, to his or
her country of former habitual residence, would face a real risk of suffering serious
harm’’ (Official Journal of the European Union, 2004: article 2), such as a ‘‘serious and
individual threat to a civilian’s life or person by reasons of indiscriminate violence in
situations of international or internal armed conflict’’ (Official Journal of the European
Union, 2004: article 15).
15. This fact is widely acknowledged, so much so that one might suspect the UN deemed it
necessary to emphasize that the ‘‘right to apply for asylum is upheld regardless of the
means by which the smuggled person gained entry into the destination country’’
(UNODC, 2010a: 14).
16. Rodenhäuser (2014: 223) explains: ‘‘Under carrier sanction legislation, carrier personnel
are obliged to control migrants’ documentation at the point of embarkation, and to
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deny boarding to undocumented migrants. In this respect, private carrier personnel
become a first instance immigration control [. . .].’’
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