Can brain drain justify immigration restrictions?

Ethics

Volumn 123, Issue 3, 2013, Pages 427-455

  Oberman, Kieran ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84878505295     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/669567     Document Type: Article

References (124)

1. Joseph H. Carens, "Migration and Morality: A Liberal Egalitarian Perspective," in Free Movement: Ethical Issues in the Transnational Migration of People and of Money, ed. Brian Barry and Robert E. Goodin (University Park: Pennsylvania State University Press, 1992, 25-47;
2. Phillip Cole, Philosophies of Exclusion (Edinburgh: Edinburgh University Press, 2000
3. Ann Dummett, "The Transnational Migration of People Seen fromwithin a Natural Law Tradition," in Free Movement: Ethical Issues in the Transnational Migration of People and of Money, ed. Brian Barry
4. Robert E. Goodin (University Park: Pennsylvania State University Press, 1992), 169-180
5. Darrel Moellendorf, Cosmopolitan Justice (Boulder, CO: Westview, 2002.
6. Hillel Steiner, "Hard Borders, Compensation, and Classical Liberalism," in Boundaries, Autonomy and Justice: Diverse Ethical Views, ed. David Miller and Sohail H. Hashimi (Princeton, NJ: Princeton University Press, 2001), 79-88.
7. There are a multitude of justifications that have been offered for immigration restrictions, including arguments from national self-determination, state sovereignty, freedom of association, cultural diversity, and social justice. For these alternative justifications for immigration restrictions
8. John Isbister, "A Liberal Argument for Border Controls: Reply to Carens," International Migration Review 34 (2000): 629-35
9. David Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007
10. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999
11. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983
12. Christopher H. Wellman, "Immigration and Freedom of Association," Ethics. 119, 2008) 109-141
13. Frederick G. Whelan, "Citizenship and Freedom of Movement: An Open Admission Policy?" in Open Borders? Closed Societies? ed. Mark Gibney (New York: Greenwood, 1988, 3-39.
14. Note that whether or not one finds these other justifications compelling, the question of whether immigration restrictions can be justified on brain drain grounds remains of interest, not least because it is an argument that open border advocates, given their own commitments, should find particularly troubling. This is a point I develop below.
15. Here I define 'brain drain' narrowly. The term can also be used more broadly to mean the migration of skilled workers from any state to any other state, whether rich or poor. My use of the narrower definition reflects the focus of this article.
16. Devesh Kapur and John McHale, "Should a Cosmopolitan Worry about the 'Brain Drain'?" Ethics and International Affairs. 20, 2006: 305-320+306-307.
17. Joseph J. Schatz, "Zambia's Health Worker Crisis," Lancet. 371, 2008. 638-639.
18. Joint UN Program on HIV/AIDS, 2006 Report on the Global Aids Epidemic (New York: United Nations), 487.
19. This article will not intervene in the important empirical debate over the extent to which brain drain is deleterious. Articles that highlight the possibility of beneficial brain drain include Michael Beine, Frederic Docquier
20. Hillel Rapoport, "Brain Drain and Economic Growth: Theory and Evidence," Journal of Development Economics. 64, 2001. 275-289;
21. Oded Stark, "Rethinking the Brain Drain," World Development. 32, 2004. 15-22.
22. Others find this revisionary literature unconvincing.
23. Riccardo Faini, "The Brain Drain: An Unmitigated Blessing?" (Development Studies Working Paper no. 173, Centro Studi Luca d'Agliano, 2003).
24. This article stays clear of this empirical debate to focus instead on the normative question of whether, in those cases in which brain drain is deleterious, it can justify immigration restrictions. The only assumption the article therefore makes is that there are at least some cases where brain drain does impose severe costs on sending states. The medical brain drain from Zambia and other sub-Saharan African countries seems to be such a case.
25. The idea of using immigration restrictions to address brain drain is implicit in proposals made by Kapur and McHale in "Should a Cosmopolitan Worry about the 'Brain Drain'?" Their approach is considered below. The idea is entertained, if not endorsed, by Gillian Brock, Global Justice: A Cosmopolitan Account Oxford: Oxford University Press, 2009), 198-212
26. Lea Ypi, "Justice in Migration: A Closed Borders Utopia?" Journal of Political Philosophy 16 (2008): 391-418.
27. It is rejected by Carens, in "Migration and Morality," 32-34;
28. Fernando R. Tesón, "Brain Drain," San Diego Law Review 45 (2008): 899-932.
29. This is not a view I share. See n. 61 below.
30. Article 13 (2) of the Universal Declaration of Human Rights (UDHR. 1948)
31. Article 12 (4) of the International Covenant on Civil and Political Rights (ICCPR; 1966).
32. For a history of the use of emigration restrictions
33. Alan Dowty, Closed Borders: The Contemporary Assault on Freedom of Movement (New Haven, CT: Yale University Press, 1987.
34. Kapur and McHale, "Should a Cosmopolitan Worry about 'Brain Drain'?", 313.
35. Kapur and McHale, "Should a Cosmopolitan Worry about 'Brain Drain'?", 317.
36. Kapur and McHale, "Should a Cosmopolitan Worry about 'Brain Drain'?", 317-319. Secs. III and IV.
37. When Carens describes the brain drain argument for immigration restrictions as among "the sorts of arguments that have given utilitarianism a bad name," I think he is referring to an argument involving a simple trade-off of freedom of movement for poverty reduction (Carens, "Migration and Morality," 33). Carens goes on to reject counter-braindrain restrictions except in cases in which skilled workers have an obligation to repay the costs of their training. Carens is right to reject an argument for restrictions based on a simple trade-off of freedom of movement for poverty reduction, but, as I shall show, a more sophisticated argument for excluding skilled workers (even when they have no training costs to repay) can be developed.
38. Immigration restrictionns do not then include measures, such as an affordable emigrant tax, which simply make migration less rewarding. While I shall return to the emigrant tax idea in Sec. III, the question of when precisely such disincentives can and cannot be justified falls beyond the scope of this article. Also beyond the scope of this article is the question of whether and when rich states may actively recruit skilled workers overseas. The issue of active recruitment has generated concern among civil society organizations, which have, in turn, placed pressure on governments to sign voluntary codes of conduct, such as the World Health Organization, Global Code of Practice on the International Recruitment of Health Personnel (Geneva: World Health Organization, 2010).
39. There is an interesting analogy to be drawn between coercing people who have no duty to comply and two other (normally) wrongful activities: punishing the innocent and targeting noncombatants in war. In all three cases the victims, lacking a certain characteristic, do not seem liable to the treatment they receive. There is, no doubt, much more to be said here in support of the no-coercion-without-a-moral-duty rule, but pursuing this issue further here would take us too far off topic.
40. Contrast this with Robert Nozick's suggestion that to coerce people to labor for the benefit of others necessarily involves treating those people merely as a means (Anarchy, State and Utopia 1/2New York: Basic Books, 1974, 30-33).
41. Someone may suggest that as long as states pass laws to enforce counter-brain-drain immigration restrictions, skilled workers have a duty to comply. They have a duty to comply simply because they have a duty to obey the law. On this view, no duty, independent of law, need be identified. The problem with this objection is that it is unclear why foreigners should be thought to have a duty to obey immigration law unless they have an independent duty to do so. Traditional arguments for the duty to obey the law (consent, fair play, democracy, etc.) run into significant problems even in the case of citizens, the case for which they are tailored. These arguments are even more unlikely to succeed in binding foreigners, since foreigners ordinarily lack the sorts of ties (membership, receipt of benefits, enfranchisement) upon which these arguments rely.
42. Sometimes "A has the legitimacy to do X" is used to mean nothing more than "A is justified in doing X." This is not what "legitimacy" means here. Here, the concept is invoked to ensure that, in answering a question about justification, we do not focus solely on the act but also upon the agent that would perform the act. Here, the question "Does A have the legitimacy to do X?" means something like "Given relevant facts about A, does A qualify as an agent with the standing to do X?"
43. I present the arguments for each of these last two conditions in Secs. IV and V.
44. As the qualification suggests, I do not think skilled workers have an obligation to repay the costs of the basic education they received during childhood. Here I follow Carens, who argues: "Everyone is entitled to basic education, and children cannot enter into binding contracts. Whatever investments a society makes in its young, it cannot rightly require direct payment" (Carens, "Migration and Morality," 33).
45. This is the approach taken by Liam B. Murphy in Moral Demands in Nonideal Theory (Oxford: Oxford University Press, 2000).
46. Miller, National Responsibility and Global Justice, 163-200;
47. Rawls, The Law of Peoples, 105-200.
48. For the distinction between general and special duties
49. Robert E. Goodin, "What Is So Special about Our Fellow Countrymen?" Ethics 98 (1988): 663-686.
50. I am assuming that the general duty to provide assistance to the global poor demands that each make an equal level of sacrifice, rather than contribution. Since some are better off than others, an equal level of sacrifice will demand an unequal level of contribution.
51. Andrew Mason, "Special Obligations to Compatriots," Ethics 107 (1997): 427-447;
52. David Miller, "Reasonable Partiality towards Compatriots," Ethical Theory and Moral Practice 8 (2005): 63-81.
53. Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford University Press, 2001), 97-110.
54. Paul Gomberg, "Patriotism Is Like Racism," Ethics 101 (1990): 144-50.
55. Harry Brighouse and Adam Swift, "Legitimate Partiality, Parents and Patriots," in Arguing about Justice: Essays for Philippe Van Parijs, ed. AxelGosseries and Yannick Vanderborght (Louvain: Presses Universitaires de Louvain, 2011), 115-123, esp. 118-119
56. Christopher Heath Wellman, "Friends, Compatriots, and Special Political Obligations," Political Theory 29 (2001): 217-236, esp. 221-224.
57. Anne Raustøl, "Should I Stay or Go? Brain Drain and Moral Duties," in The International Migration of Health Workers: Ethics, Rights and Justice, ed. Rebecca S. Shah (Basingstoke: Palgrave Macmillan, 2010), 175-188, esp. 178-179.
58. Support for the idea of secondary duties of assistance can be found in Goodin, "What Is So Special?" 686 n. 61
59. Peter Unger, Living High and Letting Die: Our Illusion of Innocence (Oxford: Oxford University Press, 1996), 39-40.
60. Liam Murphy argues against it in Murphy, Moral Demands.
61. G. A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), 61-62
62. Thomas Nagel, Equality and Partiality (New York: Oxford University Press, 1991), 169-180
63. Samuel Scheffler, The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions (Oxford: Clarendon, 1982).
64. Mihir A. Desai, Devesh Kapur, and John McHale, "Sharing the Spoils: Taxing International Human Capital Flows," International Tax and Public Finance 11 (2004): 663-693, esp. 678-682.
65. Jagdish N. Bhagwati and Martin Partington, Taxing the Brain Drain: A Proposal (Amsterdam: North Holland, 1976)
66. Desai, Kapur, and McHale, "Sharing the Spoils," 190-195.
67. An emigrant tax might need to be accompanied by a tax on expatriation to prevent skilled workers from simply changing their citizenship to avoid taxation. Would an expatriation tax be morally wrong? Only if one thought that the duties skilled workers owe their poor compatriots are based (a) only on special duties that (b) expire at the moment a skilled worker chooses to switch their citizenship. Cosmopolitans (among others) are likely to reject (a), nationalists to reject (b).
68. Tikki Pang, Mary Ann Lansang, and Andy Haines, "Brain Drain and Health Professionals," British Medical Journal 324 (2002): 499-500, 499.
69. David Lusalle, "Why Do Zambian Health Workers Migrate Abroad? The Brain Drain of Zambian Health Workers," Bulletin of Medicus Mundi Switzerland 104 (2007): 19-21, 20.
70. Abel Chikanda, "Skilled Health Professionals' Migration and Its Impact on Health Delivery in Zimbabwe," Journal of Ethnic and Migration Studies 32 (2006): 667-680, 674.
71. Note that these examples of skilled workers living in severe hardship come from exactly the same sector and region that seems to offer the clearest example of deleterious brain drain: medical brain drain from sub-Saharan Africa.
72. John Connell, Migration and Globalisation of Health Care: The Health Worker Exodus? (Cheltenham: Elgar, 2010), 100.
73. John Connell, Migration and Globalisation of Health Care: The Health Worker Exodus? (Cheltenham: Elgar, 2010), 107-9.
74. Debbie Palmer, "Tackling Malawi's Human Resources Crisis," Reproductive Health Matters 14 (2006): 27-39, 31.
75. International Council of Nurses, Position Statement: Occupational Health and Safety for Nurses (Geneva: ICN, 2006), 3.
76. Ministry of Planning and Economic Affairs, National Human Development Report, 2006 (Monrovia: Government of Liberia, 2006), 45.
77. Phillip Cole, "Towards a Symmetrical World: Migration and International Law," Ethics and Economics 4 (2006): 1-7
78. Judith Bueno de Mesquita and Matt Gordon, The International Migration of Health Workers: A Human Rights Analysis (London: Medact, 2005).
79. The argument I make here will be necessarily brief. I have, however, made the argument at length elsewhere.
80. Kieran Oberman, "Immigration as a Human Right" (unpublished manuscript," 2012; available at SSRN: http://ssrn.com/abstract52164939),
81. "Immigration and Freedom of Movement" (DPhil diss., University of Oxford, 2009). For related literature, see n. 1.
82. Articles 13 (1), 18, 19, 20, and 23 (1) of the UDHR and articles 12 (1), 22 (1), 18, and 19 (2) of the ICCPR.
83. Compare this to Miller's claim that basic liberties entitle people to no more than an "adequate" range of options: "a reasonable choice of occupation, religion, cultural activities, marriage partners and so forth" (Miller, National Responsibility, 207). The above-mentioned examples indicate how radically out of step Miller's view is with the conventional conception of basic liberties. Of course, it is theoretically possible that convention has got it wrong here; that, in fact, restrictions upon particular religions, associations, or books are compatible with respect for basic liberties. For reasons I present elsewhere, I think we should stand by the conventional view.
84. Oberman, "Immigration as a Human Right."
85. Human Rights Committee, General Comment No. 27: Freedom of Movement (Article 12), para. 1.
86. Human Rights Committee, General Comment No. 15: The Position of Aliens under the Covenant.
87. Miller identifies the latter point but misses the former when he claims that private property falls outside of the ambit of a right to free movement (Miller, National Responsibility, 206). As long as we have permission to enter an area of private property, such as our home, school, church, or office, our right to free movement entitles us to do so. Were things otherwise, it is doubtful that the right to free movement could even protect our ability to access an "adequate" range of options, as so many options are situated on private land. It is true that private property makes the exercise of free movement conditional upon the consent of property owners, but, as indicated, conditionality of this sort is a feature of most basic liberties, reflecting, not the unimportance of options that lie beyond an "adequate" range but the importance attached to property rights and individual consent. A conditional right is a genuine right, no less real or important for being conditional; this is a point that Miller himself ably makes elsewhere (ibid., 209)
88. James Griffin, On Human Rights (Oxford: Oxford University Press, 2008),
89. I shall leave aside the question of what precisely makes a cost grave enough to justify the restriction of a basic liberty, although at least two factors seem relevant: (i) the extent of the cost that individuals experience and (ii) the number of individuals that experience the cost. For more on the issue of when basic liberties and, relatedly, human rights can be justifiably restricted,
90. Griffin, On Human Rights, 57-82;
91. Rawls, A Theory of Justice, 474-480;
92. Jeremy Waldron, "Rights in Conflict," Ethics 99 (1989): 503-519.
93. Article 29 (2) of the UDHR and articles 12 (3), 18 (3), 19 (3), and 22 (2) of the ICCPR. The UN Human Rights Committee has provided further guidance on justified curtailment of free movement and free emigration in its General Comment No. 27.
94. Christopher Wellman has suggested that we regard states as large-scale analogs of those domestic associations, such as marriages, churches, and clubs, which have the power to choose their membership. But while there are good reasons, to do with intimacy and conscience, for some domestic associations to enjoy this power, these reasons do not extend to states. If there is any kind of domestic association that best resembles states, it is regional areas such as federal states, provinces, and cantons, and yet crucially these do not have the power to exclude outsiders. For the argument that freedom of association can ground a right to exclude
95. Wellman, "Immigration and Freedom of Association," 109-141.
96. Sarah Fine, "Freedom of Association Is Not the Answer,
97. Ethics 120 (2010): 338-356
98. Miller, National Responsibility, 210.
99. Steiner, "Hard Borders," 79-80.
100. In other words, global poverty can be thought of as an emergency situation, much like a breakdown in social order or the spread of an epidemic.
101. Elizabeth Ashford, "Utilitarianism, Integrity, and Partiality," Journal of Philosophy 97 (2000): 421-439.
102. Rawls, A Theory of Justice, 476.
103. My approach here follows Cohen, Rescuing Justice, 182-195.
104. David Enoch, "A Right to Violate One's Duty," Law and Philosophy 21 (2002): 355-384
105. Jeremy Waldron, "A Right to Do Wrong," Ethics 92 (1981): 21-39.
106. Some argue that there is a moral asymmetry between emigration and immigration that makes restrictions on the latter much easier to justify than on the former. For why this view is mistaken
107. Cole, Philosophies of Exclusion, 43-59.
108. Cohen, Rescuing Justice, 199-200.
109. This would seem to include former UK Prime Minister Gordon Brown.
110. "Brown Admits Failures in Fight against World Poverty," Guardian, January 11, 2005.
111. Let me offer a third example of a case in which an agent seems to lose the legitimacy to enforce justice because of the agent's own failures to fulfill the requirements of justice. It seems impermissible for a rich person who has herself failed to fulfill her own duty of assistance to the global poor to steal from other rich people to give their money to the poor. Whether or not redistributive theft is ever permissible, it is impermissible in this case precisely because of the rich person's refusal to abide by the redistributive principles that she seeks to force upon others.
112. Jarvis Thomson, "Turning the Trolley," Philosophy and Public Affairs 36 (2008): 359-374+365
113. I amassuming here a view of collective responsibility that allows for states, or at least democratic states, to be regarded as agents. Of course states are made up of large numbers of individuals, who disagree about politics and take different political actions. Nevertheless, when political leaders, acting within the roles properly assigned to them, make decisions, one can regard their actions as actions taken by the state. So we may speak, say, of Canada deciding to give so many dollars in aid each year, although, of course, not all Canadians made any such decision. This explains why those in charge of immigration policy cannot sidestep questions of legitimacy by claiming that they share no personal responsibility for other areas of government policy. What policy makers have the legitimacy to do is restricted to what the state has the legitimacy to do. If the state fails to fulfill certain duties and thereby loses the legitimacy to perform certain actions, policy makers cannot direct the state to perform these actions, even though the policy makers themselves may bear no personal responsibility for the state's failures.
114. The view that rich states cannot exclude poor foreigners they have failed to assist is in fact a widely held view among the philosophers engaged in the immigration debate.
115. Kieran Oberman, "Immigration, Global Poverty and the Right to Stay," Political Studies 59 (2011): 253-268. John 8:7.
116. Noam Chomsky, "Imperial Presidency," ZMagazine, December 17, 2004, http://www.zmag.org/znet/viewArticle/7223
117. Edward Said, "AMonumentalHypocrisy:WeMust Raise Our Voices, March in Protest, Now and Again and Again," Counterpunch, February 15, 2003, http://www.counterpunch.org/said02152003.html.
118. Daryl Glaser, "Does Hypocrisy Matter? The Case of US Foreign Policy," Review of International Studies 32 (2006): 251-268
119. The wider question of what (if anything should be done to address hypocrisy in politics is discussed in David Runciman, Political Hypocrisy: The Mask of Power, from Hobbes to Orwell and Beyond (Princeton, NJ: Princeton University Press, 2008)
120. Judith N. Shklar, Ordinary Vices (Cambridge, MA: Belknap, 1984), chap. 2. A closely related argument to the one I have presented can be found.
121. G. A. Cohen, "Casting the First Stone: Who Can, and Who Can't, Condemn the Terrorists?" Royal Institute of Philosophy Supplements 81 (2006): 113-136.
122. Some of the antiwar arguments that refer to hypocrisy seem implausibly strong.
123. Glaser, "Does Hypocrisy Matter?
124. Andrew E. Shacknove, "Who Is a Refugee?" Ethics 95 (1985): 274-284.