Blog post written by Elif Mendos Kuşkonmaz (Queen Mary University of London / University of Portsmouth) and forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration.
Article 2, International Covenant on Civil and Political Rights 1966: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Objective 11 calls for collaboration amongst states on border management that facilitates border crossing and enhances security of States, communities, and migrants. In furtherance of that border management policy, it commits to respecting states’ national sovereignty and their obligations under international law, the rule of law, human rights of all migrants irrespective of their status, and the principle of non-discrimination. It also promotes gender-responsive and child-sensitive actions in the field. It further proposes specific actions within this overall framework. In this context it accepts affirmative action to assist migrants in situations of vulnerability at or near international borders, to protect children at international borders, and to reunite families. It also mentions the use of information technology, pre-screening of people seeking entry, and imposing pre-screening liability on air carriers as actions to be implemented in ensuring efficient border crossings. Other actions include streamlining of border screening procedures in light of human rights standards, engaging cooperation amongst states on technical assistance particularly in emergency situations such as search and rescue, reviewing states’ laws on irregular entry or stay in light of their obligations under international law, and promoting state cooperation on border management that takes into account the best practices as referred in OHCHR Recommended Principles and Guidelines on Human Rights at International Borders.
Throughout the negotiation process, there have been significant changes in the text that might be of great importance in addressing whether the UN Global Compact can deliver the objective it seems to promise. First of all, when the text was revised for the version of 5 March 2018, it included a reference to ‘national sovereignty’ as a basis upon which commitments to border management collaborations should be fashioned. This change undermined the earlier analysis on the Zero Draft (of 5 February 2018) that the UN Global Compact could promote the position that border controls are an interstate matter, rather than exercise of state sovereignty. In this context, despite its continuous reference to facilitating cooperation amongst states on border management, the Objective might increase tensions on this matter between neighbouring states as well as other states further afield that will be impacted by such possible tensions. Also, because it maintains the idea of looking at the border through the lens of national sovereignty, it renders the protection of human rights standards in the context of border controls toothless. The key reason for this insight is that states can refer to their national security interest (the extent of which depends on states’ exercise of national sovereignty) in order to justify limitations on human rights. For example, the fight against terrorism is often put forward by states to justify the practice of collecting a wide spectrum of information about migrants retained for periods lengthier than necessary for identifying who crosses borders. For example, states participating in the Schengen Agreement have access to large-scale databases (Visa Information System on visa application, Schengen Information System II on immigration purposes, and EURODAC on asylum) that maintain a wide array of personal information (including sensitive data such as biometrics) and are used for law enforcement purposes.
The second change concerns the context within which irregular migration is placed in the Objective. All versions of the Objective maintain a reference to the term ‘security’ and its 28 May 2018 version mentions prevention of irregular migration as an action in furtherance of ensuring security. In other words, it takes a security-oriented approach when addressing irregular migrants. However, regular/irregular migration relates to distinct areas other than security. Prevention of the irregular movement of persons relates to state’s border control action in checking who is entering its territory and their documentation. Thus, this should be governed by administrative law. Regular or irregular status of migrants, on the other hand, applies once the person crosses the border and on the basis of the laws of the state he or she is in. Thus, this status is governed by national immigration laws. In this context, the security framing of regular/irregular migration as in the Objective intertwines separate areas of border control, migration regulation, and law enforcement. Policies adopted in this frame gain visibility through the walls, barbed wires, and increased technological surveillance at border crossings. Those actions undermine safe mobility because establishing harder borders forces people to take more clandestine and hazardous paths to reach the destination state. Also, harder border practices not only aggravate unsafe and irregular border crossings, but also make migrants with irregular status more vulnerable once they are in a country. Having violated immigration laws, they might not report to police sexual abuse or racism that they encountered for fear of deportation – a consequence of which would deprive them the right of access to courts. This then weakens the Objective’s proposition to commit to protecting human rights of all migrants, regardless of their status in implementing border management policies.
Still, there is a third significant change in the text of the Objective that can be considered as a positive element towards recognition of states’ responsibilities towards respecting human rights of irregular migrants. In this regard, the final version of the text (11 July 2018) included an action to review and revise laws sanctioning migrants with irregular status in light of the principle of proportionality, equality, prohibition against discrimination, due process and states’ other obligations under international law. Indeed, currently, custodial sentences or fines are imposed upon migrants with irregular status and provided that certain conditions are met, they can also be detained in order to ensure their removal. These actions might disproportionately interfere with their right to liberty and security, right of access to courts, human dignity, and economic and social rights such as housing and education. For this reason, it is welcome that the Objective makes reference to revision of policies for irregular entry or stay in light of states’ obligations under international law.
Lastly, the inclusion of the respect to the rights to privacy, personal data protection and the principle of non-discrimination in the implementation of information technology at border controls tilts the scale towards protecting migrants’ human rights. Accordingly, in the Zero Draft, the Objective mentioned the use of information technology and pre-screening of passengers and maintained this action throughout its later versions. Resorting to these technologies raises concerns over human rights, particularly the right to privacy because the growing reliance on those technologies correlates with the establishment of databases that seeks to silence criticisms over collection, retention, and use of a wide array of personal information about individuals (including their sensitive data such as biometric data) en masse. Moreover, advances in information technology make it possible to make assumptions about individuals’ behaviour through collecting and sorting huge amounts of information about them. The Objective’s reference to the implementation of pre-screening of arrivals indeed resonates with this ‘fishing expedition’ scenario. This is because, in practice, states aim at finding those who were not identified as suspects by law enforcement authorities but might pose a ‘security’ threat to the country they seek to enter. In this context, the pre-screening method entails finding correlations between individuals’ travel and behavioural patterns with those patterns that are associated with perpetrators of terrorist or criminal activities. On the basis of this method, an individual might be denied entry irrespective of the fact that no criminal suspicion has fallen upon him or her. It, thus, creates a generalised suspicion about individuals contrary to the presumption of innocence. These concerns are addressed in the revised version of the UN Global Compact in 28 May 2018. In this regard, the Objective states that the use of information technology and pre-screening methods in the context of border control must respect the right to privacy and personal data protection as well as the principle of non-discrimination. In other words, the Objective recognises that states are limited by their obligation to respect those rights when they collect, store, and use personal information of migrants.
At face value, Objective 11 contains a number of references that are welcoming. Overall, it repeatedly mentions the respect to international human rights of all migrants and refers to child-specific and gender-based approaches when facilitating border management. Particularly in relation to protection of children, it recognises affirmative action for taking into account the best interest of the child at international borders and for family reunification.
However, its reference to international human rights should not be overstated, because the way in which securitisation is interwoven into the Objective challenges the Compact’s overall aim of achieving safe, orderly and regular migration. As such it refers to ensuring ‘security’ in border management policies and thus presumes a link between border crossing and safety of states. However, it is an unsound assumption that tighter border controls would lead to more orderly border crossings. On the contrary, people are pushed to embrace life-threatening routes to cross borders if they are not able to pass the barriers imposed by states. In this context, the Objective provides for such barriers – including imposing liability for air carriers to ‘pre-report’ passengers, resorting to pre-screening of passengers and to information technology in border controls.
The current practice on air carrier liabilities supports this insight. Accordingly, states impose obligations on air carriers to check the authenticity of documents of air travel passengers, to refuse boarding of those who cannot provide proper documentation, as well as to co-operate with border control authorities to identify passengers who might pose a security threat. Failure to fulfil those actions lead to sanctions for those carriers and liability for them to cover the costs of passengers’ return. With air carriers serving as the second layer of border control before people even reach the border, those fleeing persecution might resort to unsafe routes and become targets of human smugglers and traffickers as they face the possibility of not being allowed to travel without required documents or visas (either because they were forced to flee without those documents, or because they cannot gather them without endangering their lives, or because those documents are not issued or are not recognised). Also, in practice, air carriers provide little assistance in helping passengers seeking to flee persecution and because the financial burden of allowing them to board outweighs assessing asylum claims, they deny boarding them. This increases the risk of refoulement performed by air carriers on behalf of states.
Overall, the Objective takes one step forward by making repeated references to the respect of human rights standards and adding an explicit reference to the protection of the right to privacy and data protection, but then it takes two steps back by framing border management in the security context. This is an ongoing dilemma of states’ insistence on their sovereignty and security on one hand and their obligations to protect migrants, irrespective of their immigration status on the other. As discussed here, the Objective continues this dilemma.
 S and Marper v the United Kingdom  EHCR 1581.
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