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Border-crossing rights follow-up


To follow up on a request from a commenter:

I posted a request for any information about historical or contemporary border-crossing rights specifically granted to subsets of the larger population, along the lines of Native Americans in the Jay Treaty and the Sami people via the “Lapp Codicil” of 1751. There were some useful examples in comments for which I am grateful; I’m especially thankful for dexitroboper directing me to the Torres Strait Treaty between Australia and PNG, and LFC directing my gaze to the Pyrenees, where I found Llivia.

Background: I’ve taken an interest recently in the political theory/philosophical literature on migration/immigation, borders, and democratic theory. Temperamentally and ideologically, I’m pretty sympathetic to Joe Carens’ famous argument that most prominent strains of liberalism tend to support an open borders position, and for good reason, but the focus of what I’ve written on the subject so far  has focused on the better normative/philosophical arguments for restrictive immigration policies: examining of their scope, the exceptions they must allow, and their viability. Two of the three papers I’ve written in this vein are still in “not fit for public consumption” drafts, but the third I’m posting as a working paper; here it is.

A prominent line of communitarian/nationalist thinking on the immigration question can described via analogy: private property:property owner::territory:national community. (Theorists who adhere to some version of this line of thinking include David Miller, Cara Nine, and Tamar Meisels). Obviously, different kinds of ownership rights entail different kinds of exclusion rights, and the scope of proper exclusions from private property will surely be different in many ways from the scope of territorial exclusion. That’s where I come in; I’m not sure I’m persuaded by the argument, but the analogy captures something about the territorial status of peoples and the land they transform and occupy. And yet: those who rely on this analogy use it almost exclusively for the justification of exclusion. I argue here that any such argument must admit to a category of exceptions to the right to exclude: those groups with a longstanding history of frequent border crossings that are now culturally, politically, socially or economically embedded in their collective group identity. The property law lessons referred to in the  title draw from easement law; I argue there is a history border crossing easements, although they’ve never been identified as such, and there’s a compelling normative case to expand them in cases of longstanding patterns of labor migration (I consider two here: Mexico-US and Lesotho-South Africa).

This is the version I’ll be presenting at APSA later this month; any feedback would be appreciated. I’m also considering a follow-up piece that focuses more on empirical cases of border-crossing easements beyond the US and what we can learn from them, so if you missed or didn’t comment on the original post and have more examples of existing or historical border crossing easement-like arrangements, I’d be most appreciative.

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