President-elect Biden cannot simply unravel the Trump administration’s assault on the human rights of migrants by restoring the im/migration system that was in place on Jan. 19, 2017 – but must instead immediately improve on the status quo and think regionally.
Thousands of new migrants will continue to flee violence and vulnerability, including parallel waves of climate- and pandemic-induced economic degradation (compounded by Hurricanes Eta and Iota), in Central America. Venezuela remains the largest source of refugees in the region, with no end of mass displacement in sight. Indeed, the Americas has long been a region of migration: Last year, almost 20 percent of the world’s migrants lived in the United States (51 million) while nearly three-quarters of the approximately 40 million émigrés born in Latin America or the Caribbean lived in another country in that sub-region.
Modeling of the intersection of global climate change and migration recently projected that as many as 30 million migrants will head toward the southern U.S. border over the course of the next 30 years. Simply put, the coming four years must be an inflection point for migration policy in the Western Hemisphere and not just in the domestic policy of the United States. The blueprint for the future – and one which the new administration should champion in making immigration a cross-cutting, domestic and regional policy priority – must reflect an affirmation of a basic bill of rights for all migrants.
Governments in our region, unlike Europe’s Schengen or West Africa’s ECOWAS, will not agree to free movement zone that includes all States (outside of MERCOSUR, which does give a right of residence to citizens of members of the South American bloc) any time soon. Ensuring enforcement of the baseline of rights protections that governments have already agreed to provide to all migrants – consistently, and across all countries in the region – is the key to solving the five biggest migration policy challenges now and in the years to come:
- Prescribing when migrants must be allowed to enter, including to secure asylum;
- Ensuring individual protections in migrant status determinations and detention;
- Providing basic rights to all migrant workers;
- Safeguarding the unity of migrant families and the rights of child migrants; and,
- Guaranteeing dignity to migrants upon return, including cross-border justice.
The United States has attacked basic rights in each of these areas for four long years (one keen observer likened the state of the domestic immigration system to the wreckage left in the wake of a tornado). But this actually creates a unique opportunity for new U.S. leadership to employ a rights framework both to remedy abuses and lock in collaboration on building a new migration policy architecture for the Americas, and, in particular, the migration corridor stretching north from Central America. Using rights as the foundation for this architecture will help make it resilient to future shocks.
Regional Leadership on Migrants’ Rights
Existing human rights commitments do not specify, for example, how many tourist visas a country must issue from one year to the next, nor how quickly settled migrants (permanent residents) must gain access to citizenship. These areas are appropriately the realm of sovereign discretion. Implementing a rights-based migration policy for the Americas, however, will create a framework that allows policy elasticity on such issues while guaranteeing existing rights – and even accommodating new ones. Tinkering with the status quo (or reverting to an earlier one) without ensuring a rights baseline, on the other hand, will surely lead to failure, in part because the regional migration system will be too brittle to adapt either to the challenges of today or to those on the horizon.
Fortunately, the leading human rights institution in the region has already done the heavy lifting. One year ago, on Dec. 7, 2019, the Inter-American Commission on Human Rights, the human rights organ of the Organization for American States, unanimously adopted the Inter-American Principles on the Human Rights of all Migrants, Refugees, Stateless Persons and Victims of Human Trafficking. (The Inter-American Principles were adopted following a multi-year partnership I led on behalf of the International Migrants Bill of Rights Initiative.) The Inter-American Principles set out, in 80 detailed provisions, all of the rights of migrants, including refugees, regardless of the cause of their movement across an international border. They are arguably the most comprehensive ever to be adopted by an international body.
The Inter-American Principles are a ready tool that States in the region – with the leadership of a Biden-Harris administration, newly sensitive to human rights and to restoring the U.S. reputation as a rights protector, not a pariah – could use to map out how a multilateral architecture for migration in the Americas addresses the biggest policy challenges while safeguarding the rights of all migrants. This should prioritize action in five key areas:
Rights to Enter, to Remain and to Asylum
There is no universal right to migrate under existing international law. But States have long imposed on themselves limitations on the power to exclude – even if you might not guess it from the nationalist, xenophobic rhetoric and thinking that have found champions in the White House in recent years. A regional migration policy affirming a bill of rights for migrants as its backbone could strengthen consensus about the scope of the right to seek and enjoy asylum, broadly defined. Migrants and refugees, for example, must have access to territory to ensure application of treaty and customary international law guarantees to their claims. Among those are rights under refugee and human rights law is to protection against return to persecution or to torture; many countries in the region also recognize flight from conflict as a ground for humanitarian protection.
Practically, this will mean supporting the creation and/or resourcing of national institutions across the region that can robustly and fairly process individual humanitarian claims, including of refugees seeking asylum, but also those protected under other areas of international law, such as human rights law. It will be impossible for a regional policy architecture on migration to be effective in the long term if it does not first recognize the centrality of the right to seek and enjoy asylum – including so that it might flex as that institution evolves to adapt to global climate change.
Due Process and Detention
The widespread reliance on blanket and prolonged immigration detention in the Americas, and particularly in the United States and Mexico, is a scourge, as is the inability to individually, promptly and efficiently determine migrants’ status. Yet, States have already agreed to afford migrants basic individual rights that limit their power to detain and which mandate basic procedural fairness in individual decisions about migrants’ status.
Practically, affirming a basic bill of rights for all migrants will require that States, including the United States and Mexico, end reliance on unreasonable, unnecessary, disproportionate, and otherwise arbitrary detention of migrants, including refugees. Liberty, or reasonable alternatives to detention, must be the default. A bill of rights will also mean ensuring that all migrants have prompt access to efficient, individual proceedings, respectful of due process, to consider whether they have a right to admission or stay or any other defense against expulsion (along with the ability to appeal any decision of expulsion to an independent authority and forestall expulsion pending a decision).
A regional policy architecture that does not ensure adequate capacity to efficiently process individual claims (and not just to ensure access to humanitarian protections), and do so without imprisoning migrants on the basis of their status as a migrant, will likewise fail – even if only under the weight of its own inefficiency.
Labor Rights
The economic realities of States across the region could hardly be move varied, all the more in light of growing economic uncertainty. But there is little question that in major countries of destination, the exploitation of migrants in an irregular situation is endemic. The treatment of domestic workers, for example, has only deteriorated during the pandemic, even alongside the acknowledgement of how essential immigrants are to our communities and economy. Simply enforcing existing international commitments – to ensure migrants are free from slavery, servitude or forced or compulsory labor, enjoy the right to work, and to just and favorable conditions of such work as well as to associate and form trade unions, would rectify or preempt so much of that harm.
Practically, this means ensuring these basic rights are not just enshrined in national (and, as appropriate in the United States or other federal systems, state) law – but enforced by authorities that are firewalled from immigration-enforcement processes. Without making sure that workers’ rights are migrants’ rights, and vice-versa, any regional migration architecture will not deliver a structure that can endure, responsive to the demands of economies and human dignity.
Family Unity and Children’s Rights
Given the region’s recent history as one marked by migration – including circular patterns of migration – families and children are often spread cross borders and formal boundaries of citizenship. In one of the darker chapters in the country’s history, the United States, and in particular its Justice Department and Department of Homeland Security, forcibly separated migrant families, tearing infant children from parents’ arms (the current Administration again made headlines recently, unable to find parents of at least 666 children forcibly taken by U.S. government officials years ago). Practically, these abuses should make the United States a pariah when it comes to urging respect for the basic rights of families and children. (President-elect Biden has pledged to create a federal task force to pursue reunification.) It will take assertive action to remedy past abuse and to rebuild U.S. credibility.
Recognizing that migrant families have a fundamental right to protection by the State – and children rights to special measures of protection – means, practically, taking action across the Americas to ensure reunification of migrant family members. It also requires granting derivative immigration status and timely admission, prospectively, and mandating that the best interests of the child are a primary consideration in all immigration proceedings (and never detaining children or families, in light of that principle). Regional governments cannot build a coherent multilateral framework for sustainably addressing migration without affirming that these basic rights will be protected and that borders will not permanently rend families apart.
Return and Reintegration and Cross-Border Justice
Because not every person who seeks to relocate across borders in the coming decades will have the legal right to remain in their State of destination (though of course all people have a fundamental right to leave any country, including their own, and to return to their own country), the needs and reintegration of those lawfully deported and returned are paramount. Basic obligations to treat people with humanity and dignity require that any migrant expelled or deported have access to food, water, sanitation, basic health care, including behavioral health care, shelter, and other basic necessities and to return and reintegrate in conditions of safety and dignity.
Practically, this means ensuring that efforts to build the capacity of regional immigration authorities equally prioritize measures to inform and care for migrants in the process of repatriation. It also requires that States facilitate migrant access to justice after removal, such as to pursue wage theft or workers compensation claims. A migration system that promotes lasting and sustainable solutions to deportees in countries of origin, as part of the policy architecture, will also reflect the reality that States are unlikely to sanction any broad “right to migrate” in the years or decades to come.
There are obviously many more rights principles that must be guaranteed in the context of international migration – according to the treaty and customary international law developed by States. Among those is ensuring that migrants, including refugees, can enjoy the highest attainable standard of health – and that they not be forgotten during a pandemic, including in vaccine distribution efforts. There are also other key migration policy priorities, like cooperation on new and expanded pathways for migration and re-joining multilateral institutions and initiatives, such as recent United Nations Compacts to promote safe, orderly, and regular migration and on refugees. (There are also other key human rights priorities, such as addressing the root causes of conflict and abuse in Central America.) But efforts to build a regional migration system that do not seriously consider human rights obligations in structuring core priorities will fall short. Indeed, an affirmation that migrants are protected by a baseline of rights protections could provide practical solutions to five key policy challenges and serve as the backbone of a new regional migration policy architecture.