Re-Thinking Mobility Under Duress

John Torpey (Professor of Sociology and History, City University of New York, Graduate Center)

Even the most casual observer of international affairs might reasonably think that the system for allocating people to countries – the institution of citizenship – is in disarray and prone to producing the worst possible outcomes. The Mediterranean and the southern US border both provide ongoing examples of human tragedy arising from the norm that each person in the world has one and only one true home, the place where they belong and from which long-term departure is anomalous. This norm emerged from the period following the First World War, when the European land empires collapsed and a great re-sorting of populations, borders, and international law ensued. A good deal of this re-sorting had to do with avoiding confusion about male citizens’ military obligations; if push came to bloody shove, countries and soldiers had to know where their loyalties lay.

All that changed with the advent of nuclear weapons and with the shift from interstate to civil wars in the post-WWII period. The norm of unique citizenships began to wane and citizenship itself, understood as a bundle of rights, began to thin as welfare states came under attack by neoliberalism. Before too long, citizenship was no longer a sacred possession but a commodity for sale to the highest bidders, while the world’s more impoverished were immobilised by their low ‘quality of nationality.’ Over time, the Refugee Convention of 1951 seemed increasingly obsolete in regard to those who wanted to move not because of state persecution per se, but because of economic distress, environmental danger, or various kinds of violence. It has been widely noted that more than 60 million people have been displaced by conflict in recent years, the highest number since World War II.  Meanwhile, globalisation has undermined the economic prospects of many low-wage workers in the wealthier parts of the world who have come to be seen as “essential” yet, at the same time, “vulnerable” – a pattern especially obvious during the coronavirus pandemic.

Special mobility passports as light citizenship

How, under these changed circumstances, do we protect the disadvantaged and endangered who believe they need to flee their countries of origin in order to survive? These are questions of the utmost seriousness and consequence, and I applaud Jelena Dzankic and Rainer Bauböck for raising them. In their kickoff text for this forum, they offer several proposals to address these questions. The proposals range from the most obvious and venerable – open borders – to expedited access to citizenship and regional free mobility agreements, and, finally, to their own preferred choice, a ‘special mobility passport.’ Dzankic and Bauböck see such documents not as innovations but as a revival of such experiments as the famous “Nansen passports” that helped Russians and Armenians find their footing in the chaotic aftermath of the Bolshevik revolution and the Russian Civil War.

In his commentary, Diego Acosta opts for the regional free mobility agreements that proliferate in Latin America, and these do indeed seem appealing – as long as one lives in a region sympathetic to such agreements. Unfortunately, however, if one is in the immigrant-rich Persian Gulf, for example, the prospects of such agreements seem rather limited. The Gulf states show little interest in the sort of arrangements that may be perfectly congenial to more liberal states.

As for Dzankic and Bauböck’s preference, the special mobility passport, it would provide a number of vulnerable populations opportunities for cross-border movement without the political rights of citizenship. Their proposal, which builds on Aleinikoff and Zamore’s notion of ‘necessary flight,’ entails a status that is ‘temporary, renewable, and subject to conditions of vulnerability and necessity.’ It thus shares the ‘citizenship light’ idea recently proposed by economist Branko Milanovic as a way of facilitating the movement of workers desired by the world’s wealthier countries without provoking the political opposition that often ensues from more expansive immigration policies.

Nativist backlash against temporary migrants who become permanent

The difficulty with these proposals, it seems to me, goes back to the Swiss novelist Max Frisch’s well-known observation that ‘we wanted workers, but got people.’ That is, while the European guest worker programs of the 1950s and 1960s that were intended to make up for the labor shortages of the time were supposed to be temporary stopgaps, those who came ended up making lives for themselves and becoming permanent residents (or denizens, i.e., long-term residents without citizenship). While defining the universe of potential beneficiaries of this sort of policy in terms of necessity and vulnerability, Dzankic and Bauböck recognise that the same gradual shift from temporary to permanent residency is entirely imaginable: ‘Settlement rights or citizenship would still have to be recognised in case an individual’s life course leads to multiannual residence (e.g., for environmental refugees)….’ As skeptics have noted of these kinds of arrangements in the past, ‘nothing is more permanent than temporary status.’

Dzankic and Bauböck propose to use “necessity” as the defining criterion for determining eligibility for a ‘special mobility passport.’ But since the criterion of necessity is inherently slippery, and their understanding of the term fairly broad, a great deal of vetting will be necessary in order to determine who is eligible for one of these passports.

In all events, the way in which “necessity” is determined is likely to be the key element of the political acceptability of these proposals. This problem remains the crucial aspect of proposals to broaden the category of those who have a claim to “necessary” mobility. Again and again in recent politics, we have seen claims to “necessary mobility” as stimulating backlash on the part of the populations of receiving countries. While the German chancellor Angela Merkel generously opined in 2015 in response to the arrival of a million predominantly Middle Eastern and Afghan refugees that ‘we can handle that‘ (‘wir schaffen das’), not everyone is so magnanimous or immune to the labour market competition that such an influx brings with it. The election of Donald Trump in the United States and the transformation of the Alternative for Germany (AfD) from an anti-Brussels into an anti-immigrant and neo-fascist party had everything to do with immigration and the sense among supporters of these forces that they were being transformed into ‘strangers in their own land.’

Moreover, to the extent that would-be “refugees” (technically, asylum seekers) are perceived in reality to be “economic migrants” who are competitors for the jobs of locals, their arrival is unlikely to be greeted with enthusiasm. We must also remember that democratic political communities have every right to adopt the policies they wish in regard to whom they let in, for how long, under what conditions, and why.

Behind the veil of ignorance we are all necessary fleers

All that said, we must bear in mind that we might all, at some point, under some circumstances, find ourselves in the position of needing help that we can only get by leaving the place where we currently reside. Whether due to lack of economic opportunities, environmentally-caused erosion of living conditions, political oppression, or other circumstances, we may find ourselves forced to seek refuge in another country. Yet under the terms of the 1951 Convention – or indeed under any circumstances – other communities are only under an obligation not to return someone on their territory to another territory where they face a threat to their life or freedom (the principle of non-refoulement); there is no obligation either to admit such persons or to grant them permanent status.

But the language of the 1951 Convention no longer seems adequate to the conditions of today’s world. We need to find new terms under which to help ensure that those who really need help can actually get it. When the drowning are desperately climbing aboard a lifeboat, it is too much to hope for an optimal solution – one that improves everyone’s situation without worsening anyone’s. We are here in a Rawlsian situation, trying to design arrangements in which the least advantaged have a better outcome than they otherwise would, from behind the ‘veil of ignorance’ as to who is in these circumstances. Such criteria should shape the evaluation of the “necessity” of flight and the corresponding obligation to take in “necessary fleers.” But in order to obtain the necessary “buy-in” from all potential recipients of fleers, we must all imagine that we, too, might one day be in the situation of having to flee.  After all, ‘there but for the grace of God go I.’

One difficulty in thinking about these arrangements will be the fact that most of those who experience the “necessity of flight” are in the poorer and less democratic parts of the world, as is in fact now the case. If these persons cannot be helped in situ, it’s also not obvious that they must be granted the opportunity to go to the destination of their choice. First-country-of-asylum rules are reasonable if the goal is to protect people from calamity rather than to give them the best possible outcome they might hope for. We also have to keep in mind that one of the responses to the necessity of flight must be to provide assistance to the countries in which these fleers find themselves in the medium-term hope that the necessity of flight will diminish.

As noted previously, all of this is going to require a great deal of “vetting” of the individuals seeking refuge and the countries from which they came. But this is not a novel development. After years of having immigration officers determine the validity of asylum claims in the US, the Immigration and Naturalization Service was compelled by a lawsuit in the late 1980s to create a dedicated corps of asylum officers who specialised in evaluating asylum claims. Such personnel will need to be trained in countries around the world. Funding for both asylum officers and for those fleeing should be subsidised by the world’s wealthy countries through an independent UN agency, possibly UNHCR or the IOM.

What counts as necessity?

But the real challenge with regard to “special mobility rights” will be reaching international agreement on the criteria demonstrating the “necessity” of flight. What criteria of “necessity” might find international acceptance among sovereign states? The following groups might plausibly be said to face the “necessity of flight”:

1. building on the language of the 1951 Refugee Convention, those facing a credible fear of persecution on the basis of a variety of sociological characteristics and, of course, for their political views;
2. following the Cartagena Declaration, those ‘who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order’;
3. those whose habitations routinely face inundation and destruction despite meeting whatever regulations their countries impose for construction of safe dwellings, or those who lack the wherewithal to afford such construction despite repeated inundation or destruction;
4. those who have been unemployed for three years when the official unemployment rate in their region of the country has averaged over 10% for, say, the preceding 5 years.

Criteria #1 and #2 build on familiar and widely accepted international agreements that seek to assure some sort of refuge to those who urgently need it. Criterion #3 seeks to address the problem of “climate migrants,” which many believe is a growing category of migrant in certain areas of the globe. Meanwhile, criterion #4 addresses the problems facing those with a lack of economic opportunities; we might call them “desperation migrants.” A provision such as this might, in the optimistic scenario, help pressure the country in question to invest greater resources in the relevant region, promoting economic development there and encouraging outside donors, where relevant, to feel confident that such development is being supported. Migrants of this sort may be less inclined to leave if economic prospects in their regions improve.

The challenges regarding migration and asylum today are in some ways similar but in other ways different from those that faced the world in the aftermath of World War II. The “necessary flight” proposal presents important opportunities for moving beyond the inadequacies of the post-war arrangements. Although there are serious difficulties that will have to be addressed for such a proposal to be successful, it deserves careful thought and consideration.