Start by protecting rights, not borders

Jacqueline Bhabha

8 Few areas of public policy are so active and yet so ineffectual as the efforts to curb undocumented migration. As domestic and international initiatives have proliferated—conferences, reports, commissions, legislation—the phenomenon has only escalated. An estimated 500,000 undocumented migrants enter the European Union each year, and comparable numbers have been entering the United States since 1990. Although reliable statistical information is elusive, by all accounts the numbers are growing as opportunities for legal migration steadily decrease.

Yet it is the unregulated nature of illegal migration more than its scale that fuels official concern. This seemingly ungovernable phenomenon undermines states’ ability to demonstrate to their increasingly anxious electorates that they can control their borders, defend national security, and protect jobs.

Most often these fears translate into a growing selective restrictionism in border control—including pervasive visa requirements, carrier sanctions, sniffer dogs, retinal and other biometric scanning, detention of irregular migrants, stringent pre-departure checks at airports, and computerized data storage and analysis on an unprecedented scale. Guards on the border between the United States and Mexico are now equipped with infrared night-vision goggles. This is an extraordinary display of military measures not used against any other section of the domestic population.

Since September 11, these measures have only grown tighter. So-called counterterrorist policies enacted in the wake of the tragedy bear particularly heavily on immigrants. Prolonged detentions, secret deportations, monitoring, registration requirements, enhanced border-security measures, and restrictions on the entry of refugees, visitors, and immigrants have heightened the exclusionary climate and strengthened xenophobia in many destination countries.

At the same time, however, deep economic pressures have spurred calls for more-porous borders and more-welcoming policies; for example, the pre–September 11 immigration proposal negotiated between American President George W. Bush and Mexican President Vicente Fox is slowly being brought back into discussion. Often, the same politicians who declare their commitments to defending their nations and their economies with rigorous border controls also portray migrant workers as paragons of virtue—undemanding, dependable, family-minded, and economically vital, both because of the labor they contribute and because of the money they send back to their countries of origin. Such portrayals are accompanied by proposals for amnesty, regularization of immigration status, and “migration management”—including both a regularization of the status of current irregular migrants and easier legal entry for unskilled labor to better satisfy economic needs. Even President Bush recently remarked, “We want our border-patrol agents chasing crooks and thieves and drug runners and terrorists, not good-hearted people who are coming here to work.”

Developed economies can absorb large numbers of irregular workers in so-called 3D jobs—dangerous, dirty, difficult—particularly as many of the enterprises that employ them directly are run, if not owned, by earlier migrants who have made good. Conditions of such 3D employment range from poor to excruciating: in the words of a Chinese leather-workshop worker in Tuscany, “We work like oxen, eat like pigs, and sleep in hens’ cages.” Continuing pressures to reduce costs fuel the interest in cheap labor, and in sustaining the black, gray, or informal markets that supply labor for mainstream companies, including such household names as Dole, McDonald’s, and the Gap.

With borders closing but the demand for workers growing, hundreds of thousands, perhaps millions, of unskilled workers are resorting to the use of smugglers to get them from one country to another.

As with traditional businesses, in the human-smuggling industry demand and risk affect price. By increasing both, effective immigration controls have driven up the price of smuggling. According to one study, the price that smugglers (locally called “snakeheads”) charge to bring migrants from China’s Fujian province into the United States has more than doubled, from $28,000 in the early 1990s to about $60,000 in 2001. Similarly, since September 11 and the resulting tightening of American border controls, the price Mexican migrants pay to “coyotes” to take them across the border into Arizona has reportedly tripled to more than $1,500. As a result, commercial migration assistance to secure undocumented or irregular entry generates as much as $10 billion a year worldwide. Here we have a complex business, directly fuelled by the contradictory pressures now driving immigration policy, that yields substantial and escalating material rewards.

In the deadly game of smuggling, impoverished workers put their lives on the line and transform themselves from citizens, workers, husbands and wives, sons and daughters into nameless “illegal aliens” (even before they migrate) in return for the prospect of a better life across the border. The gamble is rational—according to one analysis, a worker can on average expect to increase his lifetime earnings by $300,000: “Not many things you do in your life have such an effect,” wrote one commentator. Rational, but risky: as the smuggling industry has grown, so have the reports of dehydration in the desert, suffocation in cargo crates, dismemberment at border posts, drowning at sea, freezing in airplane undercarriages, rape and sexual abuse in transit “safe houses,” and the more mundane deprivations of hunger, cold, thirst, fear, and isolation.

These images—and the shocking reintroduction of slavery at the heart of western economies—occasionally engender moral indignation. But as a matter of settled policy, the United States and other developed countries continue to treat irregular immigration principally as a law enforcement problem: they focus on the effects of unregulated migration on the state and aim to limit potential injuries to the state through harsh border control, thus driving up the dangers and the costs of human smuggling. This approach obscures the underlying labor and human-rights issues. It is one of the great outrages of contemporary western society that so many key service and manufacturing workers are “illegal,” denied formal identity and meaningful status in the societies they help to build and maintain, despite the promise made in the Universal Declaration of Human Rights, over 50 years ago, that “everyone has the right to recognition everywhere as a person before the law.”

Even for governments, such anti-immigrant policies have not really worked. While exclusion is electorally popular and the availability of cheap, vulnerable workers useful, policies that result in large-scale and highly visible irregular entry, and in serious human-rights violations—deaths, drownings, enslavement, gross exploitation—are not. States need to show that they are in control of their borders but also that human life, whosever life it may be, is of concern. A new strategy is needed, and human-rights principles, which address the utter powerlessness of the useful migrant, must be an essential part of it.

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Recognizing the inadequacy—even futility—of many of the domestic border-control measures in the face of organized immigration, states have recently embarked on an ambitious international program. The result has been a new UN convention, a new set of international forums, and new interventionist options.

In 1993, the General Assembly of the UN passed a resolution calling for international cooperation to address the problem of human smuggling, but despite repeated pleas from human-rights bodies nothing came to fruition. As the issue increasingly became regarded as a major international law-enforcement problem, though, political will moved policy forward.

On December 12, 2000, an international Convention on Transnational Organized Crime was opened for signature at a high-level conference of states in Palermo, Sicily. (The choice of location was not accidental: this was the notorious birthplace of the mafia.) The convention included two protocols (the so-called Palermo Protocols): the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol); and the Protocol against the Smuggling of Migrants by Land, Sea, and Air (the Smuggling Protocol). A third, the Protocol on the Illicit Manufacturing of and Trafficking in Firearms, was finalized three months later. The negotiations were concluded in record time, and the convention and the two migration protocols are already in force. (The United States has signed both the convention and the protocols but has not ratified any of them to date.)

The convention itself was conceived as a far-reaching measure to promote international cooperation in tackling a broad spectrum of cross-border criminal activities, including money laundering, corruption, and illicit trafficking in cultural treasures and endangered flora and fauna, as well as the links between these forms of “ordinary” transnational crime and cross-border terrorist activity. While the convention’s focus is the enforcement of laws against transnational smuggling, it does acknowledge a human-rights aspect to the problem and is therefore a good place to start in rethinking immigration policy.

The Palermo Protocols are framed around a dichotomy of coerced and consensual illegal migration, and a corresponding moral dichotomy of innocence and guilt. These parallel dichotomies govern contemporary public policy, dividing it into two parts, one addressing the needs of the unwilling victims of criminal trafficking and the other stemming the flow of those who apparently choose to be smuggled. Having chosen to migrate illegally, smuggled illegals are considered less deserving of protection.

The convention’s definition of trafficking is complex, but it makes clear that an element of coercion is necessary. A “trafficked” adult is one who is transported through abduction, fraud, deception, or other means “for the purpose of exploitation” (e.g., to force into prostitution or slavery). Transporting a child for the purpose of exploitation would automatically constitute coercion, and thus trafficking, no matter the means.

Input from the human-rights and feminist lobbies shaped an expansive definition of coercion. It includes not simply brute physical force or even psychological coercion but also “the abuse of a position of vulnerability.” This could in theory encompass a broad range of situations, including poverty, hunger, illness, lack of education, and displacement. The “exploitation” mentioned in the trafficking definition is not precisely defined, but examples of exploitation are given: they include the prostitution of others—pimping—and “practices similar to slavery,” such as indentured labor, bonded labor, and child labor. The protocol is agnostic on whether prostitution itself constitutes exploitation, reflecting the deeply polarized views in member states of the international community on the topic; it does not require the cross-border transport of the trafficked person, provided the offense is “transnational in nature” (e.g., planning has occurred in a different state); and it does not require that the benefit be strictly monetary—labor, sex, and service in kind all qualify.

The definition of “smuggling of migrants” in the Smuggling Protocol is much simpler: “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.” The essential point is that smuggling, in contrast with trafficking, involves a consensual transaction that benefits both parties: the smuggled person is helped to cross the border, and the smuggler profits from it.

The two protocols share several features. Both require the states bound by the convention (“states parties”) to criminalize the relevant conduct of traffickers or smugglers. Both stipulate that the migrants themselves should not be subject to criminal prosecution because of their illegal entry. Both also require states parties to address concretely the root causes of trafficking and smuggling, to “alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.” Neither protocol explicitly requires states to implement any particular immigration measures, to regularize or expand lawful access to their territory.

But the two protocols differ in key respects. The Trafficking Protocol addresses the needs of trafficked persons in some detail and provides for a broad range of protective measures. Though the requirements are couched in optional language, they establish a useful framework for human-rights interventions. Article 6(3) in particular reflects the extensive contributions of human-rights organizations, encouraging states to consider “implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons,” including cooperation with NGOs and the provision of housing, counseling, medical care, psychological care, employment, and training. It even urges states to adopt legislation to enable trafficking victims to remain in their countries “temporarily, or permanently, in appropriate cases.” If enacted and enforced, these measures would constitute significant benefits.

The Smuggling Protocol, in contrast, refers only briefly to the protection of smuggled persons. The preamble acknowledges the need to provide migrants with humane treatment and “full protection of their rights” and expresses concern that “the smuggling of migrants can endanger the lives or security of the migrants involved.” It also prohibits the criminalization of migrants. Thus, the protocol articulates an international commitment to a basic level of protection, a significant accomplishment given the pervasive use of de-facto punitive measures.

But the measures stipulated in the protocol itself do not in fact amount to anything approaching “full protection” of migrants’ rights. States are merely required to “ensure the safety and humane treatment of the persons on board” vessels that are searched and to implement their pre-existing non-derogable obligations under international law, to protect their right to life and their right not to be subjected to torture or cruel, inhuman, or degrading treatment. States are also required to “take appropriate measures to afford migrants appropriate protection” (emphasis added) against violence from smugglers—a heavily qualified requirement that undercuts the more robust protections afforded by the recently ratified Convention on the Rights of Migrant Workers and their Families. At the same time, the protocol explicitly endorses the possibility that states can detain smuggled migrants provided they have consular access, and it requires states to return and accept smuggled migrants into their home countries expeditiously.

The rights and protections guaranteed in the protocols for smuggled migrants are below the minimum required by international law. Yet even these have not so far been secured, as the weekly chronicles of hardships and tragedies attest.

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Whether a person is classified as a smuggled or trafficked migrant therefore has serious repercussions for her access to human-rights protections. Smuggled persons are regularly detained and sent back home without due-process protections, whereas trafficked persons may be eligible for welfare benefits and other forms of state assistance. The problem with this division is that it is artificial, false: neither consent nor coercion is a discrete or permanent act. In practice, most transported undocumented migrants consent in some way to an initial proposition to travel but en route, or on arrival in the destination country, encounter changed circumstances that are in some way coercive. To be sure, there are some “pure” cases—children kidnapped without their parents’ consent; migrant workers defrauded from the outset; or, at the other end of the spectrum, completely transparent cross-border transportation agreements with an agreed-upon fee, no exploitation, and no ongoing relationship between the transporter and the transported. But—for several reasons—most cases fall in between the extremes.

First, consent and coercion are complex categories, and distinguishing between the two is difficult. Consent to a given act or situation does not preclude withdrawal of consent at a later stage, under different circumstances. And what is consent? Does someone with a gun to her head consent to hand over her money? What about someone who thinks that a gun is likely to be pointed at her head? Translated into the migration context, do persecution, destitution, or heartache from prolonged family separation represent threatening forces akin to guns? Do refugees, living in fear for their lives, choose to avail themselves of the services of others to get false travel documents, cross unguarded borders, or create fictitious identities?

Maria is a destitute 28-year-old Albanian woman with six young children. An Italian agent offers to provide effective plumbing and a weatherproof roof for her derelict house in return for a year’s agricultural labor in central Italy. Does her agreement signal consent because of “undue influence”? Wu Chang, a Fujianese peasant, agrees to pay $50,000 to a reputable local “snakehead,” or smuggler, for transport from his village in southeastern China to Chinatown in New York. A deposit of $1,000, borrowed from relatives and money lenders, is handed over before the trip; the balance is payable in installments from working in slavery-like conditions in Chinatown for at least ten years. If Wu Chang defaults, onerous interest payments become due; if he defaults further, threats are made (and eventually executed) against family members back home. His initial consent to the contractual terms does not alter the fact that this is a coercive relationship, a form of modern slavery. Or consider Sonia, a Moldovan sex worker, who accepts a contract in Tel Aviv to work as a hostess and bar dancer. On arriving in Israel, she discovers that the terms of her employment turn out to be quite different from those promised: her passport is kept, her accommodation is atrocious, her pay is withheld, her employers are brutal, and she is forced to work as a prostitute to “repay” her travel and visa expenses. Have Wu Chang and Sonia been smuggled or trafficked?

How should we characterize the exploitation that benefits both parties, a common aspect of irregular migration? The transporter profits; the transported chooses slavery-like circumstances over the destitution of home so she can save up for a roof, for medical expenses, for an education. Should one ever be able to consent to exploitation?

From a human-rights perspective, these questions are not merely philosophical but profoundly practical, and concern the fates of millions of people. Should one have to prove deceit, force, or fraud at the outset of one’s journey to qualify for basic protections against slavery or extortion?

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As long as law enforcement rather than human rights drives policy, concerns about border control will trump the freedom and well-being of migrants. Current U.S. policy illustrates this point. Echoing the protocols, migrants who have been “trafficked” into the United States, unlike those who are merely “smuggled” in, are treated more sympathetically by the law; but this policy has done little either to slow trafficking or to protect its victims.

The amended Trafficking Victims Protection Act of 2000 enables “victims of severe forms of trafficking” to claim a temporary residence permit (“T visa”) for themselves and their family, to qualify for the same services and welfare benefits as official refugees despite their lack of regular immigration status, to receive employment authorization on a case-by-case basis, and in some cases to be granted permanent residence. While in federal custody (i.e., when their cases first come to light) they are eligible for medical care and special facilities. Moreover, they are protected against recapture and reprisals against their family.

These appear to be generous provisions. But in practice they have failed to deliver significant protections to trafficking victims. Why? First, trafficking victims are only eligible for the benefits if they are willing to assist “in every reasonable way” in the investigation and prosecution of traffickers. Few are willing to take this risk, despite the availability of witness-protection programs. Traffickers, powerful members of migrant communities, can inflict harsh punishment on victims and their families who collaborate with the authorities. Second, protections are only available to victims of “good moral character,” a difficult requirement for many, including those with previous histories of prostitution. The legislation openly excludes protections for sex workers or others who may have consented to the initial journey but who are some of the most vulnerable and abused trafficking victims.

Given the restrictions of the legislation, it should come as no surprise that it has not been particularly effective. Despite the 5,000-per-year cap on T visas that has been in effect since 2002, only 584 had been issued as of July 2004, a derisory result given the acknowledged scale of the problem.

The regulations are law-enforcement failures as well as human-rights failures. As of April 2004, the Department of Justice had 153 trafficking cases open; between 2001 and 2003, only 78 convictions had been secured, a fraction of the cases in which T visas were issued, let alone of known cases of trafficking.

Migrants smuggled into the United States who cannot prove that they were coerced into migration have received far less sympathetic attention in Congress. They are commonly objects of benign neglect until the migrant is near death, at which point expensive efforts will be made to revive him. It is a minimal concession to our common humanity.

The newly established international framework is, then, clearly deficient. But for anyone who cares about the lives of migrants and the daily risks they face, its provision of limited protections presents difficult choices. Can one argue that despite the limitations of the protocols, they are useful to the extent that they recognize the need to protect at least one category of irregular migrants, and open the door to extending protections in the future? Should one accept the inevitability of border control forming the core of any international policy and explore the compatibility between law enforcement and rights protection—prosecuting traffickers as a first step toward reducing gross exploitation?

Law enforcement and rights protection are not, after all, mutually exclusive; focusing on the punishment of torturers, kidnappers, or extortionists can go hand in hand with increasing the resources to protect those who have been tortured, kidnapped, or extorted. But the two approaches may also work against each other. Securing a human-trafficking conviction may further jeopardize the safety of precariously situated witnesses; the relaxation of anti-smuggling measures may in the end do more to protect irregular migrants’ rights.

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With contradictory goals and morally inconsistent protections, government policy, both domestic and international, has been essentially self-defeating, much more about protecting states than protecting humans. The criminalization of human smuggling has simply raised the stakes of border crossing. Instead of reducing the pressure and incentives for migrants to seek illegal assistance, the evolving policy framework has exacerbated both, resulting in greater costs, greater indebtedness, and greater exploitation.

What is the way out? How can domestic apprehensions about wage competition and job export be assuaged so exclusionary impulses do not dominate migration policy and the demand for labor is not met by an irregular and underprotected migrant work force?

The starting point is human rights: what is needed is an integrated policy that deals with human rights not as an add-on to law enforcement but as a critical and autonomous area of state responsibility, akin to the obligations of states to protect the rights of their own citizens. States need to adopt non-discriminatory rights-based policies that recognize the inalienable dignity and fundamental entitlements to basic protections of all persons within their jurisdictions. This is something electorates accept implicitly when shocked by clamorous news stories. But these sentiments fade fast from public attention. Electorates need to acknowledge that the images of starvation, dehydration, enslavement, exploitation, prolonged separation from family, and deprivation of the basic necessities of life that trouble them in discrete episodes are not the exceptional results of otherwise acceptable labor policies. Without a robust enforcement of the principle of non-discrimination—a fundamental tenet of international law for the last half century—irregular migration will continue to proliferate at a high cost to migrants as well as the host societies.

What would such non-discriminatory domestic policies mean? They would include diligent and energetic enforcement of health and safety standards in the workplace; minimum-wage and labor-rights enforcement; access to free primary education; protection from physical or domestic violence; and basic medical and psychological care. They would also protect fundamental rights to free exercise of speech and religion, to freedom of movement within the state, to privacy, to minimum standards of treatment by law-enforcement agents, to competent and linguistically accessible representation in legal proceedings.

As a separate matter, and administered by different officials with appropriate training and expertise, immigration benefits and penalties should be allocated in line with states’ international legal obligations. States need to determine with greater precision how they are going to make their categorical decisions and how these decisions are going to incorporate international law. For example, they need to decide whether a smuggled migrant “consensually” working in slavery-like conditions to pay back his smuggling fee will be categorized as a forced or bonded laborer; they need to decide whether a sex worker who has been subjected to blackmail or physical abuse, or whose working arrangements bear no resemblance to those agreed upon before the border crossing, counts as “trafficked” despite her initial consent to embark on the journey.

The distinction between coercion and consent remains useful in some circumstances. There are clear-cut cases that fall at one or the other end of the spectrum, and they should be treated accordingly. Where the distinction is not clear, however, significant investment of administrative resources will be necessary to ensure that basic human-rights protections are not violated by thoughtless categorizations designed to serve exclusionary agendas and improve deportation statistics.

Wherever the lines are drawn, they must involve the discretion of experienced and skilled professionals. Determining who is coerced and who has consented—whether at the border or in the workplace—requires detailed case histories and considerable background knowledge about states of origin, states of transit, and employment arrangements within particular industries. Once this process has been undertaken—and grass-roots border-patrol agents, immigration officials, NGOs, community associations, newspaper reporters, trade unions, and other labor-rights groups should be involved as consultants—then sensible determinations can be made.

Following this scrutiny it will become apparent that some migrants fall within the definition of “trafficked person” and should be granted temporary leave to remain to recover from abuse, pursue prosecutions, trace family members, and decide on future options; that others should be granted permanent residence because they are refugees, or because international law prohibits their return since they would face torture or other mistreatment if removed; and that yet others, because of the length of time spent in the destination country, should be allowed to remain because to remove them would violate their established rights to private life. As litigation before the European Court of Human Rights has made clear, even law-breakers have rights to respect for the fabric of their lives, for the community ties, friends, customs, and obligations they have built up over years of residence. Rights-respecting states must chose proportional, reasonable sanctions to punish violations, but they must not discriminatorily burden non-citizens with double punishments (criminal sanctions and deportation thereafter) unless this is warranted by pressing state needs. Yet others, who do not fall into these categories and who lack other qualifying circumstances, should be refused permission to remain and, once due process has been served, should be deported or removed.

A migration system based on human rights would also benefit from regular audits to monitor and assess its consequences of particular policies. For example, an audit might reveal that delays in family-reunion visas spur the growth of child smuggling; that the militarization of certain parts of borders increases fatalities at other parts; that the exclusion of undocumented populations from welfare benefits is accompanied by a rise in infant mortality and malnutrition. On the positive side, a human-rights audit might show that policies increasing vulnerable populations’ control over their own resources and choices lead to a reduction in abusive migration practices.

Finally, states should think hard about how to shape a safe and realistic managed migration program based on domestic labor needs. Human-rights policies should inform access to residency and citizenship so that workers and their families can regularize their status within a reasonable time period (perhaps ten years) and eventually qualify for citizenship on an equal basis with other non-nationals. Long-term, involuntary marginalization of large sections of a state’s working population is anti-democratic and only serves the interests of those seeking to exploit vulnerable or desperate migrants.

The recently revived 2001 Bush-Fox proposal offering temporary worker status to undocumented migrants in return for a one-time registration fee exemplifies this kind of long-term marginalization. It is separated by a large moral gulf from the rights-based policy proposed here. Not only would it perpetuate the temporary and second-class status of the applicant workers by granting time-limited permission to remain and requiring prompt renewal, but it includes no provision for family members to join the worker. Given its silence on the possibility of naturalization and the right to family life, the scheme seems unlikely to contribute to a reduction in illegal migration unless it is accompanied by increased employer sanctions or significantly improved long-term protection for workers.

A more constructive, rights-based policy needs to make progress in two directions. It needs to look inward to protect all undocumented or irregular workers and their families living within the jurisdiction of the state. But it also needs to look outward, to take stock of circumstances in countries of origin and conditions of transit for irregular migrants, so that the exclusion, expulsion, and deportation policies recognize at least a minimum of rights for all, including irregular migrants with no apparent lawful immigration claim.

States must take into consideration the policies of the states to which irregular migrants would be deported. States are responsible for human-rights violations committed against those they have exported or expelled even once they are outside the borders; they are obligated to preempt reasonably foreseeable harm. Torture, for example, is impermissible in all circumstances, so smuggled persons must not be returned to countries where they will face physical retribution or enslavement for non-payment of smuggling fees, for having left the country, or for having engaged in socially stigmatized work such as sex work. States must also take into account the right to family life when considering deportation or exclusion of some family members. The interests of children in particular require special attention.

States would also be well advised to address the factors underlying human smuggling by adopting a series of complementary strategies to strengthen the group rights of migrant communities, which would likely include expanding legal migration routes and strengthening the hand of would-be migrants against the bargaining power of migration professionals.

Enhancing the resources, the resilience, the independence, and the choices of affected communities, taking steps to increase their access to sources of employment (or self-employment), services, education, and trade, in either the home or destination country, could yield far greater reductions in human smuggling than an increased militarization of borders and criminalization of traffickers. States will need to find creative ways of convincing the xenophobic elements of their electorates that such policies are rational, fiscally sound, and just. Most of all they will need to boldly proclaim that there is no place for such gross human-rights violations in their territories: the lives of Maria, Wu Chang, and Sonia are an indictment of our societies’ double standards and a profound scar on our claims to civility, freedom, and democracy. <

Jacqueline Bhabha is the executive director of the Harvard University Committee on Human Rights Studies and a lecturer at Harvard Law School.

Originally published in the summer 2005 issue of Boston Review