Ian M. Kysel
Visiting Assistant Clinical Professor of Law, Cornell University
Director, International Migrants Bill of Rights Initiative
The UN Migration Network recently hosted a webinar to discuss a major new Policy Brief issued in June by the UN Secretary-General, entitled COVID-19 and People on the Move. The Brief itself is a must-read for those with an interest in human mobility. The webinar – featuring remarks by key leadership at IOM, DESA, UNHCR, UNICEF, UNDP and ILO; interventions from representatives of Nigeria, France, Kazakhstan and Zimbabwe; as well as discussant comments from the Migration Policy Institute – identified some of the impediments and prerequisites to meeting the Secretary-General’s provocative challenge that the global community treat the SARSCoV-2 pandemic as an opportunity to reimagine human mobility for the benefit of all (the recording is available here). Ultimately, this will only be possible through multilateral cooperation – with concerted action by States – to both facilitate human mobility and protect the human rights of all migrants.
Much of the discussion in the webinar emphasized what the Secretary-General, in the Policy Brief, proposed as the four basic tenets to advancing safe and inclusive human mobility during and in the aftermath of the pandemic:
- Exclusion is costly in the long-run whereas inclusion pays off for everyone,
- Responding to the pandemic and protecting human rights of people on the move are not mutually exclusive,
- No-one will be safe until everyone is safe, and,
- People on the move are part of the solution.
These are indeed key themes, and the webinar helped emphasize just how dire is the present moment, the background against which the path to building back better on human mobility will appear in sharp relief. This is true even if States take an active role in the building – and comply with existing rights guarantees.
IOM Director-General and Coordinator of the UN Network on Migration, António Vitorino, emphasized at the outset of the webinar that the pandemic represents a protection crisis for migrants, putting their dignity and fundamental rights at risk. UNHCR Assistant High Commissioner for Protection, Gillian Triggs, added that a majority of U.N. member-States have closed their borders, either wholly or partially, in response to the pandemic, with close to a majority of member-States limiting access to asylum. As UNHCR Assistant High Commissioner Triggs noted, we are now approaching the 70th anniversary of the 1951 Convention Relating to the Status of Refugees during the first systemic challenge to the right to seek and enjoy asylum.
But what of the future? Migration Policy Institute Research Director Meghan Benton provided a vital intervention, as discussant on the webinar, describing four potential scenarios for restarting mobility:
- first, gradual reopening with a deepened commitment to managed mobility alongside a robust public health infrastructure (while it is not yet clear what it means to “health-proof” borders, it is clear that it will take a significant expenditure of resources and likely require making health status a core part of the mobility regime);
- second, a slow resumption of mobility among pairs of States or regional blocs, with countries matched by level of transmission (carrying great risk for spikes in “COVID chauvinism,” given the asymmetric and non-linear nature of ad hoc reopening and a potential for tit-for-tat reassertion of restrictions);
- third, a chaotic “state of nature” with no coordination on human mobility (and likely further restrictions than imposed to date and even more States reneging on more key legal commitments);
- and, finally, fourth, the “solidarity pandemic,” where the realization of the key role migrants play and a renewed focus on the importance of universal access to the social safety net grounds an expansion of pathways to admission and stay.
Perhaps the greatest challenge, as Benton noted, is that responsibility-sharing, solidarity and inclusion all depend on trust in movement and mobility itself. It seems certain that, without deep investment by States in cooperation on migration – at a time when State commitment to multilateralism is at a historical low – all four scenarios, or aspects of each, will play out around the globe, simultaneously. I suspect the best we might hope for is a plurality of member-States coordinating on some kind of a hybrid, managed solidarity pandemic.
Regardless of what happens in the next few months, however, important drivers of migration – economic dislocation (especially as remittances plummet), climate change, and the need to reunite with family – will only increase after the pandemic subsides. Whatever populist nationalists (or “COVID chauvinists”) might say now or soon, preventing conflict and promoting development and global health (not to mention responding to climate change) all require – in our already interconnected world – coordination to facilitate human mobility.
There are also other incentives, too: Mass displacement is a consequence of war (itself a focus of calls for more, and better, multilateralism) and can also lead to the spread of conflict. At the same time, research shows that migration can significantly contribute to positive development outcomes; well-managed migration policies are a key target for the UN’s 2030 Agenda for Sustainable Development.
In a world trying to avoid escalating further waves of coronavirus infections, officials simply cannot afford to ignore migration, migrants or their basic rights. Perhaps the most significant insight the pandemic has underscored to the broader publics, then, is that global public health requires migrants’ access to services and medical care – and, eventually, to vaccination. Indeed, migrants’ rights also require that States ensure migrants’ access to services and medical care – and to vaccination. As the Secretary-General so crisply puts it in the Policy Brief: No-one will be safe until everyone is safe. Fortunately, this was a theme echoed throughout the webinar.
The rights of migrants are, of course, protected by a patchwork of treaties which enshrine key rights for all migrants (I and others have called this, in our scholarship, the international migrants’ bill of rights). But governments have long failed to cooperate on migration and apply these rights to migrants in practice.
To address the rights gap in the pandemic response, experts recently developed 14 Principles of protection for migrants, refugees, and other displaced persons. These Principles (which I coauthored) have been endorsed by over 1,000 scholars worldwide. (They were cited in the Secretary-General’s Policy Brief, which noted that rights and protections have not been sufficiently taken into account in the global response to the current pandemic.) The 14 Principles affirm how rights – to non-discrimination, to health, to privacy and to not be returned to harm, among others – apply to migrants. They also make clear that human rights treaty provisions ensuring basic guarantees in times of crisis apply to migrants’ rights, even in this pandemic.
The international baseline must anchor the response to the pandemic and the preparations for the post-pandemic. Rights dictate limits, for example, on immigration enforcement, including returns of migrants, as governments must not enforce their laws in ways that increase the risk of transmission of COVID-19. The communicability of the virus also fundamentally changes the calculus for detention decisions, many of which were already suspect under human rights law. The pandemic response simply cannot expose migrants to serious risks to health and life.
Rights are key, too, as governments consider whether to develop immunity passports and new screenings for arriving travelers. Officials must not use these tools in a way that is disproportionate or ignores scientific evidence, that perpetuates racism or xenophobia, or that closes borders to asylum seekers. (This was a theme emphasized in a recent webinar dialogue between IOM Director-General Vitorino and UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, E. Tendayi Achiume.) There is also an important role for rights as governments weigh how to safeguard privacy when contact tracing, even as digital tools make new forms of health surveillance possible, or how to ensure humanitarian assistance to camps of migrants or refugees (including those queued at border areas). Rights in the pandemic response are all the more important because changes introduced now are likely to endure, a concern underscored by IOM Director-General Vitorino.
While it may be hard to fathom in the immediate term, cooperation among States on the creation of new and expanded safe, orderly, and rights-respecting pathways for migration will prevent the post-pandemic world from becoming one in which mobility is profoundly unequal, dependent on health or economic status, or in which borders are unmanageable, militarized and ‘externalized’. Both would be a boon for smugglers and traffickers and make busy migration corridors even more deadly.
In the Policy Brief, the Secretary-General calls on countries to recognize that responding to the pandemic and protecting the human rights of people on the move are not mutually exclusive, echoing recent guidance by other UN experts. Both require multilateral cooperation. “No country can fight the pandemic or manage migration alone,” the Secretary-General said when releasing the Brief.
What seems clear and urgent, given the scope of future challenges, if underemphasized by both the Policy Brief, is the need for new and coordinated actions by States to actively facilitate safe, orderly and regular migration and affirm the common baseline of rights for all migrants.
Fortunately, as the webinar made clear, some of the key architecture needed to facilitate migration while implementing rights is already in place. Most notably, this includes the two Global Compacts to promote coordination on migration and on refugee protection and the launch of the a Network on Migration to support governments cooperating and meeting their obligations, including on rights. The importance of the Compacts and Network came up on the webinar again and again, including through the interventions of State representatives.
While governments may have been unwilling to formalize rights or mobility commitments in a treaty, the Compact and UN Network should be used by States to create a roadmap for action through to the post-pandemic, with the GCM in particular providing scores of specific, achievable goals. It was particularly welcome, then, that a number of State representatives intervened during the webinar to echo the key tenets of the Secretary-General’s Policy Brief. One delegate, for example, expressed regret that the webinar did not better reflect the coordination that could be achieved through the UN Network. Another delegate called, among other things, for the UN Network to develop further operational guidelines in synch with the Global Compact for Safe, Orderly and Regular Migration.
It has thus been vital that the UN Network has recently issued policy guidance addressing key rights issues during the pandemic, including Policy Briefs on access to services for migrants and the need for a moratorium on immigration detention) as well as statements calling for a suspension of forced returns of migrants and, early in the pandemic, on the need to include migrants in the pandemic response and confront xenophobia, discrimination and violence. Such efforts, unfortunately, will not bear fruit until States invest more deeply in multilateral cooperation to promote human mobility in a manner that reflects a commitment to the protection of human rights. This should be done in and through the UN Network, but requires action – and innovation – by States to both respond to the pandemic and implement the Global Compact for Safe, Orderly and Regular Migration.
In both the short- and long-term, the status quo is and will remain untenably; unilateral or exploitative efforts to restrictively manage migration will be too little, too late. As we plan for life after the pandemic and seek to reimagine human mobility for the benefit of all, governments must both affirm that the rights of all migrants alongside the facilitation of human migration are a vital component of any discussion about our interconnected world.
Ian M. Kysel is a Visiting Assistant Clinical Professor of Law at Cornell Law School in the United States. He co-founded and Directs the International Migrants Bill of Rights Initiative, Co-Directs the Asylum and Convention Against Torture Appellate Clinic and is Core Faculty in the Migration and Human Rights Program. With colleagues, he recently co-authored and co-led the development of 14 Principles of protection for migrants, refugees, and other displaced persons in the time of the COVID-19 pandemic. Some of these arguments appeared recently in an opinion column, Why working together on global migration is vital to pandemic recovery, in The New Humanitarian. He can be reached at email@example.com.