Special Passports for Vulnerable Groups: Any Better than Existing Legal Instruments?
Caroline Nalule (Oxford University)
Jelena Džankić and Rainer Bauböck’s kick-off article on how states should go about facilitating mobility for vulnerable groups has sparked off an engaging and constructive conversation. Džankić and Bauböck propose special passports for those for whom mobility is a necessity, singling out specifically climate-displaced migrants and temporary labour migrants, groups that are largely neglected under protective international frameworks. A number of contributors have eloquently discussed various aspects of the proposal, but I wish to focus mainly on its practicalities in the context of the current norms and state practices.
Where does the vulnerability of the special groups lie?
Džankić and Bauböck single out climate-displaced migrants and temporary labour migrants as vulnerable groups for whom ‘mobility is not a luxury but a necessity’. However, with regard to the latter group, their vulnerability may not be so much a factor of denial of mobility or admission into any particular state but rather the inadequate rights-protections in their host state that render them particularly vulnerable. As Soysal points out, and also Džankić and Bauböck illustrate in their examples of the vulnerabilities of labour migrants, what they need most is stronger rights guarantees in the host state. This is not a completely unregulated area as it is what the International Labour Organisation has been pushing virtually since its establishment. Two of its Conventions (No. 97 and No. 143) are specifically on labour migrants. The only problem is that they have been ratified by only a small number of ILO Member States. The United Nations complementary Convention on the Rights of Migrant Workers and Members of their Families has suffered a similar setback. Yet these instruments provide the framework that would ensure that migrant workers are protected from many of those situations that render them particularly vulnerable.
Nevertheless, as Ottonelli and Torresi demonstrate, migrant workers still face mobility challenges when they cannot freely move between their countries of origin and the host countries due to visa or other migration-related formalities and restrictions. The Global Compact for Safe, Orderly and Regular Migration (GCM), despite some scepticism around some of its objectives and its potential impact (Martin and Ruhs, 2019; Cholewinski, 2020), recognises the importance of states’ ‘ratification, accession and implementation of relevant international instruments related to international labour migration, labour rights, decent work and forced labour’. In other words, a significant part of the solution of addressing the vulnerabilities of temporary labour migrants lies in the rights guarantees accorded by states. Possession of a special passport may not necessarily be the most appropriate solution to their particular vulnerabilities, but they definitely would benefit from more flexible migration regimes through say, the abolition of visa requirements, as Piccoli suggests. Alternatively, they could be granted multiple entry visas in a scenario akin to free movement of workers regimes within regional communities (see Acosta).
This brings me to the second category identified as potential beneficiaries of special passports, climate-displaced migrants. Admission into a country other than their own would be particularly challenging in an emergency situation unless they enjoy special admission preferences in the country of destination. Yet there also seems to be an underlying assumption regarding the mobility needs of those affected by climate or environmental disasters, namely that they will want to or need to move far away from their homes rather than stay close. As McAdam notes, climate or environment-induced movement, ‘is likely to be predominantly within countries, not across international borders, and temporary in nature’ and even where it occurs ‘most cross- border displacement will occur within regions, rather than from the global south to the global north’ (McAdam, 2012: 193). The fact of internal displacement is borne out by the statistics which estimate internally displaced persons (IDPs) as constituting about 58.3% of all the world’s displaced population (UNHCR 2021). The higher proportion of IDPs could conversely raise the threshold of ‘necessity’ or undermine the claim for special passports for similarly-affected persons who seek relocation to another country.
Determining ‘necessity’
Clearly, not everyone who is displaced by climate change or an environmental disaster will be granted admission in another state in the same way that not all persons seeking refugee status on various grounds, including those listed in the Geneva Refugee Convention, get recognised as refugees in a state of asylum (Hamlin, 2014, Costello et al, 2020: 4-6). Even with conflict-induced migration there have been pushbacks by states where there is a legal obligation for them to examine claims. As Sardelić shows the EU member states failed to invoke the provisions of the Temporary Protection Directive for Syrian refugees when its conditions clearly applied. It is to be expected therefore that even though states are slowly awakening to the plight of climate-displaced persons (Acosta), the process of whom to admit and assist on the territory will continue to be highly selective. How is the criteria for necessity then to be determined?
Torpey rightly argues that ‘the criterion of necessity is inherently slippery’, and that ‘the way in which “necessity” is determined is likely to be the key element of the political acceptability of these proposals’. With climate-displaced migrants, states are more likely to shirk any responsibility for admission by invoking the internal flight/relocation alternative option that has occasionally been applied to deny refugee status (Eaton, 2012, Kelley, 2002). Therefore, the criteria for necessity will probably be narrowed down to those for whom internal relocation is not an available option, particularly where the origin state ‘is unwilling to provide adequate protection for populations’ (UNHCR, 2020). Whereas the climate disaster may be the immediate onset for the flight, a person’s need to relocate to another state may intersect with other factors for which one would be eligible for international protection under the 1951 Refugee Convention or respective regional conventions (UNHCR, 2020).
The adoption of the Global Migration and Refugee Compacts in 2018 as political commitments rather than binding legal obligations strongly suggests that states are more open to working within existing frameworks than taking on new legal obligations with respect to migration. It is therefore likely that they would interpret ‘necessity’ with regard to climate-induced migration within the parameters of their already existing obligations. In that case, it may not matter greatly whether or not the person to be admitted holds a special passport.
Special passport practicalities and bureaucratisation
As Džankić and Bauböck admit, the question of who will issue the passports is a thorny one and also one for which no proposals are proffered. Would it be the country of origin? If it were the country of origin, then why would its ordinary passport for its citizens not equally work? Would creating a two-passport system, that is a special passport and the ordinary passport, not create an extra resource burden on the state? Or would it be the country of destination? In this case the country may have to engage in a selection process, not unlike the current highly bureaucratised refugee status determination procedures in order to determine to whom to issue such a special passport. In that event, why not just continue with the current practice of humanitarian visas for persons that would be eligible for the special passports? Would it be an international organisation, as was the case with the Nansen passports? Would states be willing to relinquish part of their sovereignty to an international institution as they once did during Nansen’s time? The Global Compacts do not at all indicate any step in this direction at any level, rather they propose to work through existing refugee and migration regimes. The current resettlement practices that are based on select vulnerability criteria and that largely fail to take into account individual autonomy (Welfens, 2021) could provide an apt analogy of how states may select those they will admit on their territory even with the mediation of an international organisation. Thus, rather than issue special passports, states would still issue visas for those they wish to resettle and would probably continue to do so for vulnerable persons. The ongoing crisis in Afghanistan is a clear example.
Which way then?
I principally agree that persons in particularly vulnerable situations who need to migrate need to have pathways created for them to facilitate their mobility. Special passports would, in my view, create an additional set of obligations and bureaucratic processes that states may not be willing to take on. That said, they may still be an option for persons, who, due to the inability or unwillingness of their state, cannot obtain or do not possess a valid passport.
The current migration regime, disparate as it may be, contains some solutions that can be harnessed for the benefit of those vulnerable persons or groups of persons that are compelled to emigrate. On that basis, I strongly support Acosta’s conclusion that ‘the opening of further and wider migration paths to those who are in need of movement because of environmental or socio-economic needs is a crucial endeavour that can be better advanced, at least initially, at the regional level by further deepening and improving the legal provisions and the implementation of existing instruments’. The OAU Refugee Convention and the Cartagena Declaration on Refugees contain expansive refugee definitions that can be liberally interpreted to cater for climate-displaced persons (UNHCR, 2020; Wood, 2021). Besides the Refugee Convention, the African Union has adopted a Convention on Internally Displaced Persons that can serve as a template for a regional approach for persons that are externally displaced. This is in addition to some region-specific approaches that have more elaborate frameworks on displacement, particularly the International Conference for the Great Lakes Region. Similarly the EU Temporary Protection Directive could be extended to persons displaced by climate change.
Beyond the region-specific approaches to displaced persons, the regional free movement regimes that are in place within the various regional economic communities in Africa can greatly facilitate mobility of persons from one country to another. These free movement regimes are one step towards the creation of a visa-free migration regime that Piccoli recommends.
To conclude, while special passports may be the best option for what I think would be a considerably small group of persons, there are available pathways within the current international and regional regimes that can be adapted to provide the protection the vulnerable people would need. The implementation is what seems to be the biggest problem. States need to be constantly urged to fulfil their obligations and commitments under the various legal regimes they are subject to, be it with respect to human rights, labour migration, refugees, displaced persons, or regional free movement of persons regimes.