While the world is in the grip of a pandemic, the European Border and Coast Guard Agency, Frontex, has been accused of employing dangerous pushback methods on migrant boats crossing the Aegean Sea, reports the Guardian on the 24^th October 2020. Ali, 22, from Syria, was trying to reach Lesbos that day. He remembers that Frontex "kept telling us to go back to Turkey" while deliberately making waves with their rescue boat forcing the migrant's vessel to return. "Water was leaking into the boat, we were trying to empty it back out", Ali told the Guardian. Migration to the European Union continues, tacitly, without us watching. The atrocities committed in the Mediterranean Sea, on and behind the European borders, repeat themselves day by day.

I want to make the case that if states or state-like institutions like the European Union exercise a right to exclude migrants on the grounds of claiming legitimate sovereignty over a territory, then this claim requires the supersession of the past wrongs committed by violent state-formation. If such legitimate sovereignty over a territory can be granted on the grounds of a supersession of past injustices, then migrants too can supersede unavoidable wrongdoings, such as unlawfully transgressing state boundaries in search for asylum. If, however, past wrongs cannot be superseded, then states or state-like institutions never had a right to exclude migrants and refugees from entering their territory in the first place.

This will leave us with a dilemma: Either past wrongdoings do not matter when it comes to both migrant rights to enter state territory and a state's right to exclude those migrants––so that migrants have a pro tanto right to enter state territory and states simultaneously have a pro tanto right to exclude those migrants––, or wrongdoings matter, supersession is a flawed concept, and states were never legitimate in exercising a right to exclude to begin with. The toy example below will make this clearer.

The players of Animal Crossing start the game by purchasing a deserted island from a Tanuki, a Japanese racoon dog. The aim of the game is for the player to settle on this island. Other players can be invited on the island, but they may not enter without permission. We can think of this island as a state-like institution.

The actual formation of modern states doesn't resemble the peaceful and contractual transmission of land suggested in Animal Crossing. If Animal Crossing were to follow the processes of actual state-formation, the game would rather look like this: First, the island is taken without permission or purchase. Second, the Tanuki is being expropriated and enslaved. Then, a capitalist market emerges which makes life on other islands increasingly intolerable. When waves of migration begin to hit the shores of the island, the player exercises her right to exclude. But where did this right to exclude come from in the first place? After all, wasn't the island taken without the Tanuki's permission? Can any claim of sovereignty over the island be legitimate on the grounds of expropriation? Can legitimate sovereignty over a territory be grounded in what is clearly a moral wrong?

What makes this a contentious issue is the fact that the player who expropriated the Tanuki is not the same as the one who later claims a right to exclude. By analogy, while our ancestors are directly responsible for the harms of colonialisation, it is us who profit from those harms, and it is the present opponent to migration who exercises a right to exclude on those grounds. If those who oppose migration were asked to justify this right, what they'd usually do is resort to the fact that they inherited the sovereignty over a certain territory from their ancestors. But what if our ancestors were never the legitimate sovereigns over that territory to begin with, perhaps because our ancestors illegitimately appropriated the land? The anti-migration case would be void. But how else could the migration-opponent still make her case against migration?

When prompted to justify the right to exclude, the opponent to migration may want to adhere to the idea of supersession. The philosopher Jeremy Waldron argues that the changes that have taken place in colonialised states are, more often than not, those sorts of changes that lead to a supersession of past wrongs and transfer legitimate sovereignty and a right to exclude to the colonisers and their decedents. In a nutshell, supersession theory says that past wrongs can under certain circumstances be superseded and turned into rights. Contenders for those superseding circumstances are numerous, and controversial: Having dwelled on a piece of land for a significant amount of time may be one, the absence of contestation to this settlement may be another.

If supersession is a valid way of escaping entanglements with past injustices, then supersession must also be open to migrants. By illegitimately transgressing borders, which is often the only way to exercise one’s right to asylum, refugees will inevitably break existing jurisdiction, but these wrongdoings may under certain circumstances be superseded––simply by staying inside a certain territory for a long enough period of time, perhaps. Germany, for instance, has an eight year minimum residency requirement prior to the naturalisation of non-citizens.

We are, however, in a dilemma situation if both migrants can supersede any inevitable perpetrations of territorial laws while states can simultaneously have their right to exclude migrants, provided they too can supersede their past wrongdoings. If supersession works, it works in both ways: migrants have a right to enter, and states have the opposing right to exclude. There is thus a discussion to be had about whether and under what circumstances one of those rights can override the other.

But what if supersession is a flawed and deceptive concept? If supersession is a flawed and deceptive concept, then states never had a right to exclude migrants, for they never had a claim to legitimate sovereignty over any territory to begin with. Transgressing borders couldn't be a crime.

While my analogy with Animal Crossing may sound cute, those matters are serious and affect the livelihood of migrants all around the world, not only on the boarder of the European Union. These are fundamental ethical questions which need to be addressed, not only in academic research but in public discourse. Recognising that the state-formation of many Western states has been a violent and harmful process can be the first step towards shedding any unfounded beliefs in a right to exclude and one step towards a more welcoming society. Frontex has to be hold responsible not only for their abhorrent pushback methods, but even prior to that, for exercising a right to exclude which is likely to be unfounded or else easy to override.

Adrian Kreutz is an incoming DPhil candidate in Politics at St Antony’s College, University of Oxford. His doctoral research pertains questions of legitimacy and authority in a socialist state. His first monograph, entitled "Socialism, today?“, has recently been published in German. 

He tweets at @adrian_kreutz.