It is the core and intended function of borders to discriminate. Descriptively, their purpose is to differentiate or distinguish among different categories of persons, sorting those who may enter and belong from those who may not. But it is also a core function of modern borders to discriminate in the normatively prejudicial sense—they allocate fundamental human rights differentially on the basis of race, gender, class, national origin, sexual orientation, and disability status, among others. In this essay, I briefly sketch what I have described elsewhere as the contemporary system of racial borders: border regimes that variously allocate and curtail mobility and migration on a racial basis, largely relying upon facially race neutral mechanisms. Second, I reflect on the increasing prevalence of digital technologies in border regimes and their enforcement, with an emphasis on their racial implications, drawing from my recent report to the UN General Assembly on racial discrimination in digital border enforcement. The contribution of this essay is thus to reflect on the co-constituting and mutually reinforcing effects of racial borders and digital borders, which require specific attention together as digital racial borders.

This essay examines the interpretation of the core international treaty dedicated to the elimination of racial discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and in particular how the prohibition on race discrimination applies to the treatment of migrants. This essay is timely, as CERD has travelled from the margins of human rights law to the center of the hottest interstate lawfare. At the time of writing, the first ever interstate dispute before any UN treaty body is before the CERD Committee, and CERD has been invoked in several interstate cases before the International Court of Justice (ICJ). Unfortunately, this crucible of adjudication has not marked an increase in principled interpretation. This essay critiques the recent admissibility ruling of the ICJ in Qatar v. U.A.E. for its marginalization of the prohibition of race discrimination, in particular the failure meaningfully to consider how nationality discrimination may constitute prohibited race discrimination.

Managing global migration is one of the most pressing issues of our time. Traditionally, international law has not generally regulated immigration and citizenship law; it defers to state authority in setting up rules and procedures for entry into the territory and citizenry. The lack of clear regulation—and a commonly accepted methodology on how to evaluate discriminatory borders—creates acute problems in terms of protecting human rights, promoting state interests, and setting up international cooperation. Against this background, this essay offers a legal framework to examine when borders are discriminatory. It includes a three-step process that examines the goals, criteria, and means of immigration and citizenship selection. With almost 300 million international immigrants worldwide living outside their country of origin in 2020, developing such a framework has become an urgent need.

Migration control does not end at the border. Rather, controlling migration (and migrants) continues inside host countries as migration status is used to stratify benefits and limit rights across social, economic, cultural, and political life. This differentiation typically has exclusionary effects and aggravates structural disadvantages that migrants face. This essay argues that we should use anti-discrimination law to address such practices of differentiation and remedy their detrimental effects. While non-discrimination clauses in international human rights treaties provide a powerful resource to this end, they are currently often interpreted in a restrictive manner. “Differentiation within” includes a variety of measures such as restrictions on migration status that limit the right to work, restrictions on political participation, restrictions on freedom of movement based on migration status, and requirements of cultural adaptation.

It is possible to identify gendered disadvantage at almost every point in a migrant woman's journey, physical and legal, from country of origin to country of destination, from admission to naturalization. Rules which explicitly distribute migration opportunities differently on the grounds of sex/gender, such as prohibitions on certain women's emigration, may produce such disadvantage. Women may also, however, be disadvantaged by facially gender-neutral rules. Examples of indirectly disadvantageous provisions include those which classify certain forms of labor as either “low-” or “high-” skilled, using this categorization to distribute migration opportunities differentially. Such rules may disproportionately affect the mostly female workers whose labor in certain fields is considered “low-skilled” in comparison to that undertaken by their predominantly male, “high-skilled” counterparts. Scholars have identified the diverse ways in which states’ immigration and nationality laws continue to involve gendered and racialized exclusion, subordination, and violence. Migration control practices, including those concerned with deterrence, detention, and deportation, have also been impugned on these bases. This essay draws on this literature to examine whether rules that produce gendered disadvantage are open to challenge under the international legal regime charged with eradicating discrimination against women, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).

International human rights law recognizes a general right to non-discrimination. This right has proved to have plenty of legal “bite.” It is regularly invoked at both international and national levels to challenge state action which discriminates against vulnerable groups on “suspect grounds,” such as race, gender, and disability. Such legal challenges periodically succeed in generating significant law reform and sometimes even social change. However, this (relative) success has not been replicated when it comes to migration control. Non-discrimination challenges to state immigration restrictions have rarely been successful, even though human rights experts, NGOs, and other critics repeatedly express concern about the discriminatory impact of such restrictions. Furthermore, the state of human rights law remains radically underdeveloped in this area: the normative content of international non-discrimination norms, as they apply to migration control, is still lacking substance. This essay seeks to analyze why the cutting edge of the right to non-discrimination becomes blunted at the border, and generally lacks impact when invoked to challenge state migration controls.