From Rights to Risk: Labour Migration and the Securitization of Justice

Guest post by Lisa Simeone and Nicola Piper. Lisa has been recently awarded a PhD from the University of Chicago for her thesis, entitled Making Do in the Promised Land: Ethics of Ambivalence Among Chicago’s New Africans, which considers the socio-legal, economic, and political dimensions of migration between francophone Africa and the United States. She has been an educator, organizer, and policy specialist in the field of migration, and continues to play an advisory role with civil society organizations advocating at multiple levels of governance.  Nicola is a professor of international migration, currently based at Queen Mary University’s School of Law, whose project “Unpacking Global Governance of Labour Migration” has been funded by the British Academy. She has done research for various UN organizations including the ILO, UN Women and the IOM.

This is the fifth post from our new themed series focusing on selected chapters from the newly published Handbook of Migration and Global Justice, edited by Leanne Weber and Claudia Tazreiter and published by Edward Elgar. The editors’ complete introduction to the handbook is available as an open access download here.

As the Covid pandemic swept the globe in 2019, the borders closed. ‘This is the most aggressive and comprehensive effort to confront a foreign virus in modern history,’ US President Donald Trump announced from the Oval Office, approaching a global health emergency as though it were a national security crisis. This response was not surprising from politicians who exploited xenophobia as a partisan strategy. Yet even governments that welcomed migrant workers abruptly adopted policies and practices that targeted non-citizens as a public health risk. Historians point out that this is nothing new. Since the nineteenth century, the politics of migration have fluctuated between associating foreigners with disease, on the one hand, and promoting the utility of their labour, on the other. Modern techniques of governance such as census-taking, public health screenings and passports were developed in response to human mobility, and have long served to restrict labor supply during periods of economic contraction. Human rights laws are intended to protect human beings from such commodification. Advocates have found, however, that recent developments in the global justice regime have enabled states to evade this normative framework while professing a commitment to rights.

In our contribution to the Handbook on Migration and Global Justice, we argue that the financialization of global capitalism has been a driver in both the militarization of border enforcement and what we call the “securitization of justice”: the pragmatic translation of human rights principles into “soft law” agreements. The discriminatory treatment of non-citizens during the pandemic vividly illustrated this trend. The exclusion of migrants and asylum seekers from support during quarantine was irrational public health policy, not to mention a violation of human rights law and a suspension of humanitarian obligations. Adopted by the United Nations (UN) in 2015, the Sustainable Development Goals envision a global justice regime encompassing the interconnections of economic equity, health and environment within ‘a plan of action for people, planet and prosperity’. That this aspiration included non-citizens was articulated in the New York Declaration for Refugees and Immigrants, adopted the following year. The assertion of state sovereignty during the pandemic appears to be a disavowal of these commitments. However, it was consistent with the informal governance model that has come to characterize inter-state negotiations in the field of migrant rights.

The Global Compact for Migration (GCM), adopted by the United Nations General Assembly in 2018, exemplifies a ‘whole of society approach’ that attempts to reconcile competing interests without recourse to a binding treaty. This ‘minilateralism’ originated in the arena of international finance, where quasi-informal ‘soft law’ permits adjustments under ever-changing conditions. The GCM negotiations included extensive input by trade unions and civil society, a category that included not only advocacy organizations but also the migration industry. Although the end product included robust rights language, states did not actually exceed their already-existing commitments. It was therefore consistent with the logic of voluntary “compact” that they should participate in a spectacle of national security during a global crisis.

Migration policy is generally understood in terms of a conflict between the interests of the state and the migrant. The state seeking to control its borders is asserting a right to political security. The person seeking opportunity abroad, on the other hand, is asserting a right to human security that is not available in their country of origin. Thus, the political security of the state implies the human insecurity of the migrant, whereas the human security of the migrant implies the political insecurity of the state. Under globalization, a third form of security has come to dominate both the public decisions of the state and the private necessity of the individual. Global financial capital reproduces itself by securitizing assets; that is, by converting the market value of present wealth into instruments that protect it from future volatility. Financial securities ensure that material assets such as real estate, natural resources and machinery can be liquidated into cash, even when they cannot be sold on the market. This guarantee of liquidity has been a crucial mechanism for the global expansion of supply chains, both by providing collateral for credit and by encouraging speculative investments. In recent decades, the proliferation of financial capital has come to dwarf material assets, undermining the stability of the global economy. Ironically, because speculation generates capital from volatility, the resulting human and political insecurity only reinforces the importance of financial markets.

Contextualized in this way, the impasse of migrant rights is not only a problem of political will, but also a structural contradiction that becomes apparent as governments prioritize the cultivation and protection of financial markets. Governance processes must address the demands for human, national and financial security under conditions of intensifying economic, political and environmental crisis. The incompatibility of these demands generates political tension that is associated in popular media with disease, mass migration, crime and financial crisis. The fear of contagion motivates conflicting strategies that may exacerbate the problems they ostensibly address. Because the state, the migrant and the investor seek different forms of security, their interests cannot be balanced through compromise, however well intentioned. Nevertheless, in recent years the financial logic of risk management has provided a common conceptual foundation for evaluating disparate security claims. Information technologies allow economic and political actors to continually adjust their positions within an uncertain landscape by assessing the potential impact of their decisions. Measuring expectations for the future rather than analysing the lessons from the past, risk management techniques shape that landscape by inflecting perceptions of risk.

Migrants are potent figurations of the preference for liquidity over profit. Migrant labour circulates through global supply chains like currency, fluctuating in value to employers and the state. Likewise, global governance processes, whatever their concerns with human security, generate data and negotiate biopolitical classifications that exclude or include migrant workers based on shifting perceptions of risk. If the logic of financial markets has subverted the aspirations of the post-war justice regime, it also contains the possibility of its own subversion. Before the planetary problems of climate change, infectious disease and financialization, the question of security finally becomes a global one. Rather than asking whether states can risk protecting the rights of migrants, we suggest that they can no longer afford not to. In a financialized world, human rights are no longer a future aspiration; they are also an investment that must manage the risk of chaos in the present. As migrants are made visible by common crisis, perhaps it’s time to finally take the risk of rights.

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How to cite this blog post (Harvard style) 

Simeone, L. and Piper, N. (2021). From Rights to Risk: Labour Migration and the Securitization of Justice. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/12/rights-risk [date]