CLAP: Migrant rights & investor responses to lobbying by the Border Industrial Complex

Blog & Articles, Corporate political capture

2021 might be the year that investors wake up to the ‘S’ in ESG and engage on migrant rights, but it has been a long time coming [1]. Back in 2013, when the UN held a High-Level Dialogue on Migration [2], the world was in shock when a single boat capsized off the coast of Italy claiming the lives of over 400 migrants, many of them young children. The Pope even issued a moral call for response to the migration crisis [3]. World leaders, including the UN General Secretary vowed this would ‘never again’ happen, taking it as a turning point for new policy measures to save lives and respect the rights of movement of all people. Today irregular migrants and refugee and asylum seekers are detained indefinitely and die in large numbers. Increasingly, the business of monitoring, detaining and transporting migrants is done by private companies in which institutional investors hold large stakes. 

The latest discussion note from the Corporate Lobbying Alignment Project (CLAP) looks at how investors can engage with companies in the Border Industrial Complex to address the pervasive influence of lobbying in setting public policies that undermine human rights, and to reframe narratives around global migration and engage with key players to ensure more systematic respect for migrant rights. Even though Covid-19 fiscal and monetary policy stimulus has returned financial markets to rude health, corporate lobbying, migrant rights and the global expansion of human mobility, three important macro themes, overlap to create significant risks, and engagement opportunities, for investors. 

New opportunities for investor action in 2021

Our new discussion flags the opportunity for investors to take a more consistent approach to human rights risks and associated corporate lobbying by Border Industrial Complex (BIC) companies in 2021. The BIC includes companies from the private prisons industry, tech and surveillance giants like recently IPO’d Palantir, and the world’s largest military and defence companies who feed the criminalisation of migration and border hardening policy narrative. Investors who are concerned about migrant rights and associated ESG risks in BIC companies can:

  • Indicate their public support for the Global Compact for Safe, Orderly and Regular Migration [4];
  • Bring shareholder resolutions requesting companies disclose their approach to migrant rights; and 
  • Divest from the worst private prison operators. 

The discussion note expands on this list of ways investors can take action across the industry. 

Forceful stewardship and public policy engagement to protect migrant rights in the era of authoritarian populism

Since the 1990s, detention has become the method of choice to manage migrant populations in Europe and beyond. Australia was the first G20 country to begin the detention of migrants in offshore, third countries, in breach of international legal norms [5]. The only reason for this new detention paradigm is failure to comply with immigration or residency rules. In reality, the majority of people with asylum or refugee claims who enter the territory of Australia, the EU, the United States or Canada do so legally, as under international law individuals seeking protection are entitled to cross borders without valid travel papers [6]. In spite of these realities, the detention and monitoring of migrants is a big business, with border security a growing marketplace for global investors. Indeed, over the next decade, the US Department of Homeland Security (DHS) is expected to spend US$21.6 billion on the construction of the US-Mexico border wall [7]. 

Re-framing narratives and challenging systematic abuse of migrants

In the case of migrant rights and the right to privacy, BIC companies and their trade associations have amplified a security and defense focused narrative and choose to suppress discussion of a ‘human rights-based’ approach. A human rights based approach to migration is one that ensures that legislation and other migration governance measures and border control practices are consistent with international human rights law [8].  Narrative shaping practices by BIC companies and their lobbyists easily deflect regulatory scrutiny around the application of human rights law to BIC companies in their operations. Migrant deaths in custody and systematic allegations of sexual abuse in migrant detention facilities largely go unpunished [9]. Investors could support a public re-framing of these narratives that aligns with international human rights law and refugee law. One example of this reframing is work by the investor-led Refugee Investment Network [10].

‘Zero Tolerance’ policy drives expansion in border surveillance & private prisons

The detention, surveillance and abuse of migrants around the world is likely to continue to expand until investors in BIC companies stand up and address the undermining of migrant rights. The United States and Australia provide a model for the criminalisation of migration that drives the expansion of business for BIC companies, and investors can address this head on. In the US, the number of people in immigration detention has increased under every presidential administration for more than 25 years [11], and this trend has continued under the Trump administration. In April 2018, the Trump administration issued a “zero tolerance” policy that directed US attorney’s offices on the border to prosecute as many cases of illegal entry and reentry as possible. Then Attorney General Jeff Sessions said the goal was to reach a 100 percent prosecution rate [12]. Investors at the time did not comment on this policy approach, in spite of their heavy involvement in many other public policy areas from tax policy to defense.

Fig. 1 US migrant detention numbers will continue to rise without a strong investor counter narrative to support the rights of migrants and demand accountability for corporate misconduct by BIC companies. 

In 2021, investors and their largest trade associations like the UN-PRI and the ICGN can work to re-focus attention on respect for migrant rights and the international law principles which all companies are expected to follow, regardless of their activities. This could start by addressing BIC company lobbying and trade association influence over migration policy in key markets. 

[1] ‘COVID-19 & Immigration Detention: What Can Governments and Other Stakeholders Do?:’  https://migrationnetwork.un.org/sites/default/files/docs/un_network_on_migration_wg_atd_policy_brief_covid-19_and_immigration_detention_0.pdf; ‘‘No one is looking at us anymore’: Migrant Detention and Covid-19 in Italy’ (20.11.2020):  https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/11/no-one-looking-us  

[2] https://www.ilo.org/global/topics/labour-migration/news-statements/WCMS_222910/lang–en/index.htm 

[3] ‘Pope attacks ‘globalisation of indifference’ in Lampedusa visit’ (08.07.2013):  https://www.theguardian.com/world/2013/jul/08/pope-globalisation-of-indifference-lampedusa 

[4] ‘From promise to action: the Global Compact for Safe, Orderly and Regular Migration:’ (02.12.2020): https://in.one.un.org/un-press-release/from-promise-to-action-the-global-compact-for-safe-orderly-and-regular-migration/  

[5] ‘Australia’s offshore detention is unlawful, says international criminal court prosecutor’ (15.02.2020):  https://www.theguardian.com/australia-news/2020/feb/15/australias-offshore-detention-is-unlawful-says-international-criminal-court-prosecutor 

[6] Geneva Convention of 28 July 1951, Article 31 paragraph 1: https://www.refworld.org/pdfid/59ad55c24.pdf 

[7] https://www.researchandmarkets.com/reports/5008818/the-global-maritime-and-border-security-market

[8] https://www.ohchr.org/Documents/Issues/Migration/GlobalCompactMigration/OpenLetterGlobalCompactMigration.pdf 

[9] ‘Op-Ed: Why abuse and neglect of immigrants proliferate in ICE detention (01.10.2020):  https://www.latimes.com/opinion/story/2020-10-01/immigrants-detention-ice-abuse-hysterectomies; ‘Migrating children and women, suffer ‘sexual violence, exploitation, abuse and detention’ – UN agency’ (28.02.2017):   https://refugeesmigrants.un.org/migrating-children-and-women-suffer-‘sexual-violence-exploitation-abuse-and-detention’-–-un-agency 

[10] https://refugeeinvestments.org/resources/refugee-lens/

[11] https://www.themarshallproject.org/2019/02/12/how-trump-inherited-his-expanding-detention-system 

[12] ‘Immigrant Detention Conditions Were Atrocious Under Obama. Here’s Why They’re So Much Worse Under Trump.’ (25.06.2019):  https://slate.com/news-and-politics/2019/06/trump-child-immigrant-detention-no-toothpaste-obama.html 

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