The World Bank's 2023 world development report: A missed opportunity to recognize that all migrants have rights

The 2023 World Development Report (WDR, 2023), Migrants, Refugees, and Societies, is a vast resource—intended by its author as a ‘message of hope’ (World Bank, 2023: 15)—for policymakers responding to human migration across international borders and seeking to understand that ‘well-managed’ migration can be a ‘powerful force for prosperity’ (Ibid). The World Bank's focus on this topic is welcome. A greater focus on human rights would have enhanced its message. While the report makes general reference to international human rights law and its application to protect migrants' rights, as well as to those protections due to migrants under international refugee law, the WDR 2023's treatment of rights overall is muddled and surprisingly limited. Most concerning, the report does not clearly take the view that all migrants have a set of basic human rights. It does argue, however, that migration contributes most to prosperity when migrants are given basic rights and social protections within host states. This is an important message for policymakers but begs the question of how widely these and other rights and protections are enforced, and thus how politically complex it might be to put this view into practice. As set out below, the short shrift given to international law also cloud's the report's effort to develop novel categorizations of migrants. In addition, new findings from the Migrant Rights Database (MRD),1 hosted at Cornell University with the support of its Migrations Initiative, help contextualize the WDR 2023's findings and recommendations as they intersect with human rights law (Migrant Rights Initiative, 2023). MRD data show that while it is now possible to evaluate the rights protections of migrants in national law across countries, regardless of their legal status, states are only doing a middling job protecting labour, health and education rights, the social protections on which the WDR 2023 focuses on in some detail. These data thus reinforce the WDR 2023s emphasis on the importance of securing such rights and social protections in order to ensure the prosperity gains from migration can be more broadly enjoyed. The WDR 2023 affirms that entry and asylum policies ‘must be grounded in the central tenets of international human rights law and recognize the inherent dignity of all migrants’ (World Bank, 2023: 251). This could mean that states should take heed of a duty to safeguard a set of rights for all migrants. Yet, in almost the same breath, the WDR 2023 argues that international law distinguishes between ‘refugees’, who are ‘entitled to international protection and its associated rights’, and all ‘other migrants’ who are ‘not entitled to any particular rights or status’ (World Bank, 2023: 252). Similarly, the report elsewhere explains the principle of non-refoulement as one preventing return to persecution as a matter of refugee law (World Bank, 2023: 38, 206) but fails to offer any discussion of the correlated protections under international human rights law prohibiting return to torture or the emergent jurisprudence regarding the prohibition of return to deprivation of fundamental human rights (though the definition of non-refoulement provided in the glossary does nod at this reality) (World Bank, 2023: xxv). This is an unfortunate gap. Clarity and detail about the rights due to all migrants would have been welcome. Against the background of this muddled framing of states' duties to protect the rights of people moving across borders, the WDR 2023 proposes a novel category not derived from international law: the ‘distressed migrant’, who moves ‘under distressed circumstances’ and ‘does not meet the applicable criteria for refugee status’ (World Bank, 2023: xxv). This framing and the WDR 2023's proposed ‘match and motive matrix’ to make sense of migration could risk diminishing rights protections for all migrants. The goal in coining this new term may be to distinguish only between migrants who are distressed but do not have a right to formal refugee status, as a matter of the 1951 UN Refugee Convention, and those who do. But the report's treatment of the law instead wrongly suggests that states do not have duties with regard to distressed migrants. The report's treatment of African and American law expanding the definition of refugee (World Bank, 2023: 253) is similarly in tension with the report's matrix, given those regions' recognition as refugees those migrants who flee disturbances of public order and/or conflict. Indeed, the African Commission on Human and Peoples' Rights has just recognized that relevant regional human rights and refugee law apply to protect both climate migrants and climate refugees in appropriate circumstances (Dirar et al., 2024). While it is arguably a useful contribution to focus states' attention on a vulnerable group of migrants, often irregular, who are not also refugees, doing so without any clear emphasis on the fact that these migrants also have fundamental rights under international law risks reifying a view among states that general international human rights law does not apply to distressed migrants. There are, of course, a number of relevant rights protections beyond the report's one sentence on human rights law's prohibition on discrimination (World Bank, 2023: 197) and limited attention to global standards in the areas of workers' rights (see below). These range, for example, from the rights to life to liberty and security of person and to be free from torture and cruel inhumane or degrading treatment or punishment to rights to due process and against arbitrary or collective expulsion—all of which regulate state action in the context of admission and expulsion of migrants (Cohen et al., 2013; Kysel, 2016). The rights also include rights to work, to be free from slavery, to health and to education (to name just a few)—all of which protect both regular and irregular migrants once they are within a host state's jurisdiction (Ibid). The MRD, launched by Cornell's Migrant Rights Initiative, provides a new empirical tool for evaluating how states protect a basic set of migrant rights (Migrant Rights Initiative 2023). The MRD is the first global data source benchmarking the extent to which states fulfil international obligations in national law and how they implement these protections. (The research design focuses on national law and therefore does not credit as compliant those countries in which a right is guaranteed only at the sub-national level or only by virtual of signing on to an international agreement.) The database applies a novel instrument that permits the objective, cross-national accounting of the laws protecting migrants' rights enshrined in national legal frameworks (Gest et al., 2019, 2024). These data are based on a set of more than 60 indicators of rights protections across 17 areas of rights protections in 45 countries accounting for 75% of the world's migrants, measured in both 2020 and 2023. Because of the breath of their coverage, these data create a new opportunity to reframe the WDR 2023's category of distressed migrant. Given that many states protect some but not all basic rights of migrants in national law, the data also offer a recontextualization of the WDR 2023's suggestion that there is a trade-off between rights and migration (e.g., World Bank, 2023: 297). Indeed, particularly once adjusted for implementation, the findings of the Migrant Rights Database suggest this trade-off is weak (Gest et al., 2024). From its start, the WDR 2023 helpfully emphasizes that the ‘benefits of migration are larger when migrants have a legal status and formal rights’ (World Bank, 2023: 9). The WDR 2023 focuses on only three areas of rights in a few pages in its fourth chapter, Migrants: Prospering—and even more so with rights. These rights, according to the WDR 2023, include ‘formal employment rights in line with international labour standards’, among them several indicia of decent work and fair recruitment (World Bank, 2023: 99). The WDR 2023 also emphasizes that ensuring child migrants have access to education promotes intergenerational economic mobility and that without access to health care, migrant health deteriorates over time (World Bank, 2023: 103–104). The WDR 2023 omits clear recognition that these key social protections engage international human rights law (implying that these potential rights can be extended to non-citizens within the discretion of host states—not as a matter of legal obligation). Yet, the thrust of the WDR 2023 is clear and very important: the weight of the evidence shows that ensuring legal status and lawful stay and access to basic social and economic rights is a key factor in harnessing the power of migration to unlock economic development. Fortunately, the MRD now measures the three areas of rights protections (qua rights protections) on which the WDR 2023 focuses in myriad states. On these three dimensions—labour, education and health rights—states hosting most migrants have a mixed record, protecting just over half of labour rights and less than half of education and health rights. This suggests that the WDR 2023's message that the importance of providing these key rights protections is supported by the weight of the empirical evidence is particularly important and could contribute to convincing more migrant-hosting states to do better. It also suggests that the WDR should have included treatment of other areas of rights protections. Every migrant has the right to be free from slavery, servitude or forced or compulsory labour as well as the right to work and to just and favourable conditions of work. These are protected by widely-ratified treaties. The MRD therefore evaluates national protection of rights related to provisions for equal pay, employment conditions, free choice of employment and access to unions, pensions, benefits and redress in case of disputes. On labour rights, no country received a perfect score (Figure 1). Thirty-four of the 45 states in the study provided at least 50% of the aspects of the rights protections measured. Ecuador, Chile and Peru were top scorers; Singapore, Bangladesh and India protected labour rights the least. Migrants have a right to education. This right is stated in several international treaties as well as in regional law. It is also a focus of the UN's Sustainable Development Goals. The MRD assesses one important aspect of education recognized as an area of progressive development in international law—access or denial of access—to adult education institutions as well as the right of children to access free primary education. On education, while a few countries scored well, many scored poorly (Figure 2). Six countries fully protected the aspects of the rights protections measured: Nigeria, Kenya, Israel, France, Brazil and Argentina. Another 10 failed to protect any aspect of the right: Australia, Canada, Ireland, Saudi Arabia, Singapore, United Arab Emirates, India, Jordan, Korea and Türkiye. Under human rights law, every migrant has the right to enjoy the highest attainable standard of physical and mental health, including access to preventive, curative and palliative health services, and the right to an adequate standard of living and to the underlying determinants of health, such as housing. The MRD measures migrants' access to health care services (which is even more important in the era of the novel coronavirus pandemic) and public housing programs on an equal basis with citizens. On health rights, a small number of countries stand out as minimally compliant, whereas others have room to improve (Figure 3). Only four countries fully protected the aspects of the rights protections measured: Mexico, Kenya, Switzerland and Brazil. On the other hand, the United Arab Emirates, Canada, Israel and Lebanon provided no protection. These data contrast with other areas of rights—such as rights related to freedom of thought, conscience religion or belief or rights to legal personhood—measured by the MRD, where close to 90% of the aspects of the rights protections measured were protected across all states studied. The data previewed here raise important questions about the work ahead to secure the recommendations in the WDR 2023. Further efforts should include a much more robust treatment of international law. In addition, the World Bank should abandon the concept of distressed migrants or at least clarify that distressed migrants are rights-bearers on account of their basic dignity as humans and that states have a range of international law obligations that apply to protect migrants who are distressed, regardless of whether they are also refugees under international and/or regional law. As the MRD shows and the WDR 2023 might have highlighted more clearly, many states already fully protect some basic migrant rights in their national law for all migrants (including those who are distressed). If all people benefit most from migration when migrants' rights—particularly economic, social and cultural rights—are protected, as the WDR 2023 argues, states hosting the majority of the world's migrants may have a long way to go to fully recognize the report's vision of increased prosperity through human mobility. Overall, when put in the context of international human rights law, the WDR 2023 should be seen to deliver the hopeful message that greater protections of fundamental rights are an important part of the puzzle at the intersection of development and international migration. NA.

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