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1 Amsterdam L.F. 1 (2008-2009)

handle is hein.journals/amslawf1 and id is 1 raw text is: amsterdamlawforum VU University Amsterdam ETHICAL TERRITORIALITY AND THE RIGHTS OF IMMIGRANTS Linda Bosniak* I want to talk today about normative idea which I have called ethical territoriality. I use the term ethical territoriality to mean the conviction that a person's physical presence within the territory of a state - whether a national or supranational state-should be the basis for extending them important rights and recognition. What I would like to do is examine commitment to ethical territoriality that is often found in liberal legal and political thought (both academic and popular) and raise some questions about it. I will ask why the simple fact of a person's presence in a national state's territory should serve to ground rights and recognition there, and what the implications are of thinking about things in this way. And throughout my remarks, I will be especially concerned to link the ethical territoriality argument to debates about rights of irregular immigrants-people who are within the territory of a state without formal permission. To begin, though, I need to set the stage by setting out what the ethical territoriality argument is, where it comes from, and why it matters. So let us start with following query. Who is it that we understand to be entitled to rights and recognition in a liberal democratic state? Who are the proper subjects of regard and protection? Who are the individuals we treat as basic legal subjects? One conventional answer to this question is that state's citizens are. In fact, this has been the dominant answer in contemporary political theory: citizens of the state are the fundamental subjects of liberal democratic membership-of regard and recognition and claims-making: In the U.S., American citizens; in Europe, European citizens. And this is hardly a controversial position, right? It seems to make intuitive sense that citizens of a state, by virtue of that citizenship, should be the principal subjects of regard and recognition there. In this account, citizenship is the fundamental subject position in a political democracy. On this account, we say citizenship is essential because it is the right to have rights. And yet, this citizenship answer begs some questions of its own. For one thing, from a global perspective, assignment of citizenship status is morally quite arbitrary. How does one obtain citizenship? More often than not, by way of circumstances of birth (having to do with where you are born, or to whom). And access to citizenship status post-natally (via naturalisation) is in most states highly restricted. As a result, there are important questions of moral theory about why it should be legitimate to grant privileged Professor Rutgers School of Law, Camden, United States. Paperprepared for the conference 'Inclusion and Exclusion in Western Immzgration which was held at the VU Universit Amsterdam, September 26, 2008.

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