Ian M Kysel
There is a lot of uncertainty about whether and how the COVID-19 pandemic will restructure human mobility globally. In light of calls to ‘health-proof’ migration systems, how can the United Nations Network on Migration limit some of the potential pitfalls of efforts to innovate? By helping States to uphold their human rights obligations.
The initial impact of the pandemic was to bring human mobility to a grinding halt. There has been little visible multilateral action to coordinate the reopening of borders globally (and limited efforts, historically, to ensure rights-respecting border management). However, the UN Secretary-General has called for States to ‘health-proof’ human mobility systems (echoing other such calls) and to use the pandemic as an opportunity to ‘reimagine human mobility for the benefit of all’.
Are there limits on what ‘health-proofing’ might be used to justify?
Even before the current pandemic, States were aggressively moving to expand reliance on digitisation and surveillance tools to streamline mobility and ease its management. This included, for example, in the United States, ‘extensive government monitoring and control over travel and mobility’. Migrants have often borne a disproportionate brunt of government policy innovation, including because of the limited avenues for redress by those outside a given country (and the limited rights of political participation for migrants within it).
In the midst of the pandemic, discussions about migration management, like other areas of policymaking, quickly turned to empowering the policy regimes which regulate human mobility to make distinctions using health data. For instance, how could technology be used to obtain and distribute health data, both pre-departure and post-entry, such as via smartphone applications recording location data in real-time; to facilitate mobility through digital ‘immunity passports’ reflecting this health data; and to operationalise this health data for contact tracing?
Seen through the lens of recent trends, a post-pandemic ‘health-proof’ mobility system risks becoming one in which States gather, store and distribute identity, health and location data about non-citizens before, during and after migration, enabling a real-time digital surveillance and enforcement system with the Sisyphean goal of ensuring that migration poses zero risk to health.
The case for migrant rights as a limiting principle of a ‘health-proofed’ human mobility system
As I and co-authors have argued, States have already committed to what might be called a migrants’ bill of rights. A pragmatic approach that exploits such a baseline could identify key limits which must curb State innovations in the name of ‘health-proofing’ and keep States accountable to existing law.
The most robust existing framework for balancing health and mobility, set out in the World Health Organization (WHO) International Health Regulations, has little to say about the use of digital technologies to facilitate border control, even though it requires States to implement the framework in a manner consistent with States’ human rights obligations. For the most part, the Regulations anticipate the use of paper records; they do permit gathering health information from migrants, along with destination information, but personal data is meant to be shared only in a manner consistent with the purpose of ‘assessing and managing a public health risk’. Early in the pandemic, the WHO called on States applying the Regulations to use digital tools to implement and monitor case finding and contact tracing. Other than that, the Regulations have arguably largely been ignored, and there is a clear opportunity for further practical guidance about how digital technologies could be used to complement them. (The WHO global digital health strategy, for instance, calls for the development of international health data regulations.)
Human rights law, of course, has a lot to say about the subject of rights and mobility in the pandemic. To address the rights gap in the pandemic response, for example, experts recently developed 14 Principles of protection for migrants, refugees, and other displaced persons. These Principles, which I co-authored, have been endorsed by over 1,000 scholars worldwide. They affirm how rights – to non-discrimination, to health, to privacy and to protection, among others – apply to migrants. They also make clear that human rights treaty provisions, which dictate the application of basic guarantees, apply to migrants even in times of crisis, just as they do to citizens.
A comprehensive view of human rights can be a useful way of identifying the range of burdens that new technologies may place on migrants’ rights in the midst of a pandemic. For example, even as digital tools make new forms of health surveillance possible, and as the pandemic speeds up their proliferation, the tools must be applied in a way that safeguards privacy (and that does not unduly limit freedom of speech, freedom of association and information-related rights). When it comes to shifts in mobility systems, officials must not use new digital tools in a way that disproportionately harms certain migrants, ignores scientific evidence, perpetuates racism or xenophobia, or closes borders to people seeking asylum.
Guidance in this area could address what uses of technology and data are presumptively unlawful, and how new uses of technology might implicate intersecting human rights (the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance has recently provided one useful starting point, for example, for evaluating racism and emerging digital technologies). This guidance would elucidate the architecture inside of which a ‘health-proof’ human mobility system must operate.
The role of the UN Network on Migration to ensure transparency and accountability of rights-respecting ‘health-proofing’
There is a clear space for global leadership to define best practices on ‘health-proofing’, and the use of new technologies to achieve that goal, before State excesses have cast the die. The UN Network on Migration could develop and then deploy such best practices, making explicit that human rights law provides the minimum standards. Making a link with a uniform baseline of rights a key part of such guidance would be a substantial innovation (even if not without controversy).
Practically, minimum standards are most useful only to the extent that they are accompanied by transparency and accountability – on which the UN Network on Migration could also take the lead. An initiative to evaluate whether States are responding to the call for a ‘health-proof’ human mobility system and implementing new technologies in a manner consistent with human rights is squarely supported by language in the Global Compact for Safe, Orderly and Regular Migration (GCM). The GCM (for example, in Objectives 4, 14 and 15) recognises the importance of incorporating health needs of migrants into national planning, and also of fostering the adoption of new technologies while safeguarding human rights (eg to privacy). A status report, such as from any new working group created for this task, could be incorporated into the 2022 International Migration Review Forum.
The UN Network on Migration could also help make public key information about compliance with best practices, such as:
- What specific technologies are States implementing to facilitate ‘health-proofing’ for the post-pandemic era?
- How do States justify the public health or scientific bases for the use of any existing or new technology?
- What about the human rights impacts? How do States regulate data collection, retention and use; inform the public about sources and methods thereof; provide an ability to challenge errors; and ensure robust oversight in relation to any new technologies?
- Under what, if any, circumstances can health data be accessed by immigration and/or law enforcement officials?
Members of the UN Network on Migration could also lead the way by implementing expansive self-reporting. For example, one could imagine robust reporting about practices adopted by the International Organization for Migration (IOM) and the UN High Commissioner for Refugees (UNHCR) (as well as by Member States) once refugee resettlement resumes. Data on such benchmarks might be publicly reported on a section of the UN Network on Migration website devoted to assessing global progress on ‘health-proofing’ – and not sparing the laggards (something also consistent with the GCM’s focus on data).
Realistically, new border control technologies are coming, regardless of how human rights or humanitarian actors respond. At the same time, calls for ‘health-proofing’ risk being used by States to justify the use of new technologies of surveillance and control without a clear limiting principle. However, such calls could equally be used to justify an expansion of transparency and accountability about new technologies, and a concerted effort to evaluate whether and when States have proposed or implemented a measure that would run afoul of a baseline of migrants’ rights.
Ian M Kysel (@ianmkysel) is a Visiting Assistant Clinical Professor of Law at Cornell Law School where he directs the International Migrants Bill of Rights Initiative and co-directs the Asylum and Convention against Torture Appellate Clinic.