Deadly Crossings: A Case for Humane Border Management

Should people pay with their lives to cross a border? In the past week various news agencieshave reported the death of 11 immigrants who drowned at the Spanish coastline after border police fired rubber bullets in an attempt to deter 200 migrants who tried to cross the frontier between Morocco and Spain.

In November 2013, Spanish authorities restored razor wires on top of the high-tech fencing systems around Melilla in response to an increase in migrants attempting to surmount the fence. The coils of barbed fence were removed in 2007 after they inflicted serious injuries on those who dared to climb over. Attempts by immigrants to climb over the United States–Mexico border wall have resulted in hundreds of severe injuries since the erection of the barrier. According to reports, US border Patrol Agents have killed more than 42 people who crossed the border illegally. In the past decades, beside the cited examples, several developed countries have undertaken stringent measures to control the entry of immigrants into their territory.

It can be argued that state sovereignty and border control measures go hand in hand. All sovereign states have enacted legislation in one form or the other regulating border entry. These legislative measures usually contain authorization for immigration and other law enforcement authorities to execute the concerned provisions through visa controls, sophisticated surveillance – nowadays with the help of drones, physical barriers, and so on. It is justified for a nation to protect its borders as part of its national security measures – especially in the wake of international terrorism and transnational crimes.

The question which however arises is how far a nation can go in its endeavor to protect its borders. Are the human costs of external border control measures justifiable collateral damage? Do destination countries for − perhaps to-be-irregular – migrants not have any legal or ethical responsibility to resort to humane border control measures? Knowing very well that illegal cross-border movement is impossible to stop, as desperation for a better future is the biggest motivation for these individuals, can states which use precarious border measures be held responsible for deaths and injuries caused to individuals? How can be right to life and freedom from bodily harm be enforced in border management?

International law imposes human rights obligations on states to protect persons within their territories. External border control measures are meant to keep people outside the territorial limits. There are obligations for states under international law, for example the United Nations Convention on the Law of the Sea protects endangered human lives at sea. However, the monitoring of this duty is a challenge.

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Regarding border measures on land perhaps the extraterritorial scope of application of human rights obligation can be used as the source of obligation for states to reduce or refrain from border violence. The International Law Commission affirmed in its 27th session that ‘the acts or omissions of organs of the State are attributable to the State as a possible source of responsibility regardless of whether they have been perpetrated in national or in foreign territory’. Could this be applied to fatal border security measures? The literature is unclear on this point.

Some scholars have argued that an international agreement on the right to mobility is needed. In a perfect world, this should indeed be the case. However, with governments stressing sovereignty and citizens becoming increasingly intolerant of outside ‘intrusion,’ the recognition of a human right to mobility remains a utopian ideal. The author, however, pleads for a change in perspective, involving the realization by policy makers that migration is a natural part of human behavior; what calls for human-rights based migration policies.

The right to emigrate is acknowledged by several international human rights instruments, for example Art. 13(2) Universal Declaration of Human Rights, Art. 12.2 International Covenant on Civil and Political Right and Art. 8 International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families. There is therefore a human right to leave one’s country of residence when a person is dissatisfied with his/her living conditions or for other reasons.

However, there is no recognition of the right to immigrate since this interferes with the sovereignty of destination states. Perhaps here lies the first obstacle. One can argue that the right to emigrate becomes virtually worthless considering there is no parallel right to immigrate – except in cases of states obligation with regard to asylumseekers and thenon-refoulement principle. Internationally lots of agreements have been made with regard to promoting cross-border movement of goods, services and capital.

Nonetheless, there is a sparsity in pro human mobility regulation. Recognizing the importance of free movement of persons for individual and regional economic development, the European Union has adopted this as one of its core fundamental principles, see Art. 45 Treaty on the Functioning of the European Union. Tackling mobility through a rights-based lens on a global level might encourage destination states to adopt human rights-based migration policies contrary to the security based approaches.

In conclusion, even though migrants themselves have a responsibility not to risk their lives in the process to migration, the author believes that destination states have an ethical and, to a certain extent, legal obligation to not resort to border management which poses obvious physical danger to (illegal) border crossers. A state cannot claim to adhere to principles of rule of law and respect for human rights when its border policies disregard the fundamental right to life and dignity of persons –even those not (yet) on its territory.

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