1. Is there a good case for states having a strong presumptive right to “freedom of association”,
including the right to control immigration over territorial boundaries?
In this paper I will discuss the issue of whether states can utilize the “freedom of
association” right to justify controlling immigration. I believe that there should be a weighing of
contesting rights and circumstances before a state can justify closing its borders to individuals.
States do not have the right to use the right unconditionally. At the end I will discuss a
mechanism which will help readers evaluate when a state can exercise that right on a case by
case basis. I will begin by examining what the right means, Wellman’s strong argument for the
states to protect that right, scholars’ response to him and the balancing of rights mechanism.
The freedom of association is both an individual and a collective right. Individuals can
choose who they associate with and with who they do not. The same applies to groups.
According to Stuart White the freedom of association is a basic freedom vital to a genuinely
free society.1 With this also comes the right to exclude groups or individuals. The right to freely
associate with whomever you want is important. You can use this right to shape and display
your identity. Whether that be association with people whom you share a certain belief with, or
when forming a peaceful protest with others, etc. Therefore this freedom of association is
important for a country to use in the global sphere to promote its identity and to protect its
sovereignty. However, the right to limit immigration by justifying it with the freedom to
disassociate clashes with other rights.
Christopher Wellman reaches the conclusion that every legitimate state has the
absolute right to control immigration, even in the case of refugees. His argument is grounded
on that notion that this right is based on self-determination. This is a most vital right. The right
to do what one wishes unless it inhibits society in some way. As he states “we should be
allowed to choose freely when our behavior is not harmful to others”.2 He uses the simple
example of marriage. Saying that just as we have a right to marry someone, we also have the
right to divorce them. I do not find this argument that compelling because when you decide to
1 White, Stuart. "Freedom of Association and the Right to Exclude." The Journal of Political Philosophy 5.4 (1997):
373-91.Wiley. Web. 8 Apr. 2016.
2 Wellman,Christopher Heath. "Immigration and Freedom of Association*."Ethics 119.1 (2008):109-41. University
of Chicago. Web. 23 Mar. 2016.

2. not marry someone you are not making them worse off. In the case of a desperate asylum
seeker, you are making them worse off if you decide to not take them in as their vulnerability
will only increase. By refugee I refer to someone whose basic needs are unprotected in their
country and they face persecution by their country, with their only recourse being, to leave.3
This highlights how imminent their relocation is. For the sake of immigrants I would say it can
depend on whether they have a good enough case to justify immigrating to a new country. I
would like to warn the reader that becoming an immigrant is not a pleasant matter to be taken
lightly. Sarah Fine wishes to point out that emigration comes with costs. Families and friends
are usually left behind and the individual moves into an unfamiliar environment.4 Wellman
might be hasty with excluding them before understanding the situation of someone who is
willing to take these costs.
An egalitarian would question Wellman stating that it is luck that determines which
country we are born in, therefore why should territorial boundaries hold us back when we
could have better prospects somewhere else? Wellman still protects the right of countries to
disassociate by placing a big burden on wealthy states to help out countries lacking in social
justice who produce refugees by “exporting justice”. Meaning that a country is justified for not
allowing refugees in as long as they invade the other country or send aid abroad. But, if I may
point out to the international community’s botched attempts to stop the current Syrian War as
an answer to Wellman’s plan to just “send help”. Sometimes taking refugees in is the only way
to safe-guard them. Therefore I believe that the freedom of association for countries cannot be
wielded above the needs of refugees. Every individual is born with rights which should be
protected by the state they live in. If that country refuses to oblige that simple requirement
then the international community needs to step in and if necessary override the right of a
country to disassociate.
Another argument against Wellman could be the libertarian one which says that a state
should not be able to impose on its citizens mandates that can infringe on their liberty.
3 Shacknove, Andrew. "Who Is a Refugee." Ethics 95 (1985): 274-84.The University of Chicago. Web. 20 Mar.2016.
4 Fine, Sarah."Freedom of Association Is Notthe Answer*." Ethics 120.2 (2010): 338-56.University of Chicago.
Web. 19 Mar. 2016.

3. Meaning that if a crop owner wanted workers from Mexico as cheap labor he cannot be
stopped from bringing them. This would negate the need for a state to claimfreedom of
association, because the citizens unilaterally could pick what they wanted. Wellman responds
to this argument by saying that this kind of immigration will have significant costs if the workers
are to be given the same rights in that country. I urge us to take a closer look at this argument.
According to the Stanford Encyclopedia allowing unskilled immigrants can help boost the
economy.5 Firms will have cheap labor and a larger consumer population. The immigrant’s
culture will definitely make an impact on the country of residence, but then again we are
becoming such a globalized society where this problem is becoming less compelling.
The biggest argument a state produces when challenged for their right of association is
that they will not be able to afford to give social benefits to everyone. I argue that benefits do
not need to be given to immigrants, not even refugees from the very beginning. Eric Cavallero
raises the question whether a country has the right to control the rights given to immigrants or
the right to reside on the territory. Immigrants and refugees just want to be on that country’s
territory.6 The immigrants want to work in the economy and the refugees to be on safe ground.
A country does have a compelling argument to disassociate outsiders from a social program
their government has created. On the other hand to disassociate outsiders from a piece of land
they happen to occupy does not sound that persuasive. To think of it in simpler terms, a yoga
group can choose to disassociate people from their practice at a public park, but they cannot
prohibit passer-bys from walking in the park. A country may refuse to give out social benefits to
new refugees but they cannot disassociate themfrom their territory. Restrictions on a case by
case basis for the immigrant example may apply.
The issue most scholars have with Wellman is that he is absolute in his conviction that
states do have the right to use the “freedom of association” to exclude others with no
exceptions. Michael Blake believes that in some cases individuals have the right to be allowed
5 "Immigration." Stanford Encyclopedia of Philosophy.Stanford University,10 May 2010.Web. 23 Mar.2016.
<http%3A%2F%2Fplato.stanford.edu%2Fentries%2Fimmigration%2F%23PreCul>.
6 Cavallero,Eric."Association and Asylum." Philos Stud Philosophical Studies169.1 (2012): 133-41.Springer. Web.
25 Mar.2016.

4. into a state even though the citizens do not want to. He says that the right is not a simple trump
card like a simple deontic view might argue, but rather a right that exists among others, such as
the right to free speech, antidiscrimination, etc which need to be weighed against others before
being applied.7 He says that countries when assessing their ability to use freedom of association
to control immigration should think like the US Supreme Court. When they look at a case they
weigh the competing rights before making a decision for either side. In the case of the Jaycees
who tried to use the freedom of association to exclude women from their organization. This
conflicted with sexual discrimination outlined in the Human Rights Act but, the Jaycees were
using the right of free expression to justify it.8 The Court weighed the rights, determined that
the Jaycee organization did not rely on the freedom of expression to carry out its mission and
therefore the freedom to antidiscrimination won. They were not allowed to use the freedom of
association because it did not hold up. The same thing goes for all segregation laws in America.
The owners were using the freedom to disassociate from black individuals, but the Court
determined that the right was causing more harm than it was preventing so it was overridden
and the segregation laws were abolished.
Just like this a country or international entity should determine if the freedom of
association can be overridden or sustained when looking at each individual immigrant
application. Will accepting them into a country significantly change their freedom of
expression? Probably not. This does not mean that every immigrant application should be
accepted, because the state can procure some good arguments and use a quota systemto
control the flow, but they cannot just use the freedom of association to justify every denial. On
the case for asylum the state will have to come up with a substantial argument against the right
of asylum and human rights when using the complex deontic model. More harm will come to
them by excluding them from someone’s territory, therefore a compelling rights based
argument against that must be employed, because simply resting on the freedom of association
is not enough. Just as the US Supreme Court founded in the Jaycee case. In the end most of us
7 Blake, Michael."Immigration,Association,and Antidiscrimination*." Ethics122.4 (2012): 748-62.University of
Chicago. Web. 26 Mar. 2016.
8 Roberts v. US Jaycees. 609 83. United States Supreme Court. 3 July 1984.Justia- US Supreme Court. Justia,n.d.
Web. 26 Mar. 2016. <https://supreme.justia.com/cases/federal/us/468/609/case.html>.

5. value both rights against discrimination and the freedom of association. We wouldn’t want one
or the other to win out at every argument without hearing both sides and weighing the
outcomes.
I do not deny that the freedom of association is important for a state to yield. Also many
of Wellman’s arguments are compelling, but after having looked at an egalitarian and
libertarian response as well as the true facts that associating with immigrants and refugees is
not detrimental for the country, his arguments lose some momentum. When assessing whether
a country should be allowed to limit immigration or not I offered two remarks. One, being
Blake’s rights weighing mechanism in which a country has to weigh their claimover the
petitioner’s. For the case of immigrants the state has the opportunity to procure an argument
against accepting them, but in the case for refugees the state will fall short of a right strong
enough to override theirs. Secondly, I offered the option to exclude individuals from the social
benefits of a country vs the state’s territory as a middle ground solution. By looking at all the
different aspects of the freedom of association, my conclusion is that a country does have the
ability to use that right but after passing through the rights weighing mechanism.
Words: 1925

6. Bibliography
Blake,Michael."Immigration,Association,andAntidiscrimination*." Ethics122.4 (2012): 748-
62. Universityof Chicago.Web.26 Mar. 2016.
Cavallero,Eric."AssociationandAsylum." Philos Stud PhilosophicalStudies169.1(2012): 133-
41. Springer.Web.25 Mar. 2016.
Fine,Sarah."Freedomof AssociationIsNotthe Answer*." Ethics120.2 (2010): 338-56. University of
Chicago.Web.19 Mar. 2016.
"Immigration."Stanford Encyclopedia of Philosophy.StanfordUniversity,10May 2010. Web.23 Mar.
2016. <http%3A%2F%2Fplato.stanford.edu%2Fentries%2Fimmigration%2F%23PreCul>.
Robertsv.US Jaycees.609 83. UnitedStatesSupreme Court.3 July1984.Justia- USSupremeCourt.
Justia,n.d.Web.26 Mar. 2016. <https://supreme.justia.com/cases/federal/us/468/609/case.html>.
Shacknove,Andrew."WhoIsaRefugee." Ethics95 (1985): 274-84. The University of Chicago.Web.20
Mar. 2016.
Wellman,ChristopherHeath."ImmigrationandFreedomof Association*."Ethics119.1 (2008): 109-
41. Universityof Chicago.Web.23 Mar. 2016.
White,Stuart."Freedomof Associationandthe Rightto Exclude." TheJournalof Political Philosophy 5.4
(1997): 373-91. Wiley. Web.8 Apr.2016.