doi:10.1017/aju.2021.
52
SYMPOSIUM ON UNDOING DISCRIMINATORY BORDERS
DIGITAL RACIAL BORDERS
E. Tendayi Achiume*
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 orien-
tation, 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.1 Second, I reflect on the increasing prev-
alence of digital technologies in border regimes and their enforcement, with an emphasis on their racial implica-
tions, drawing from my recent report to the UN General Assembly on racial discrimination in digital border
enforcement.2 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.
Racial Borders
Historians of migration from the late nineteenth century onwards provide a genealogy of contemporary inter-
national border and migration governance that is instructive for scholars concerned with border discrimination.3
The discriminatory function of borders, at least (but by no means only) with respect to race, is one that was his-
torically intended. To be clear, by “race” I mean the colonial social construction according to which morphology
and ancestry have been deployed to order human beings hierarchically in categories such as Black, White, and so
on.4 From the evolution of the prevailing doctrine of the sovereign right to exclude, to passport nationality as a
determinant of international mobility and migration, contemporary borders’ building blocks have their origins in
careful, transnational strategies rooted in European colonial empire. These strategies sought to govern the mobility
* Professor of Law, UCLA School of Law, Los Angeles, California, United States; UN Special Rapporteur on Contemporary Forms of Racism, Racial
Discrimination, Xenophobia and Related Intolerance.
1
E. Tendayi Achiume, Racial Borders, GEO. L.J. (forthcoming 2022).
2
Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (E.
Tendayi Achiume), UN Doc. A/75/590 (Nov. 10, 2020).
3
See, e.g., MARILYN LAKE & HENRY REYNOLDS, DRAWING THE GLOBAL COLOUR LINE: WHITE MEN’S COUNTRIES AND THE INTERNATIONAL
CHALLENGE OF RACIAL EQUALITY (2008); RADHIKA MONGIA, INDIAN MIGRATION AND EMPIRE: A COLONIAL GENEALOGY OF THE MODERN
STATE (2018).
4
See IAN HANEY-LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (2006); Aníbal Quijano, Coloniality of Power, Eurocentrism, and
Latin America, 1 NEPANTLA: VIEWS FROM S. 533, 535 (Michael Ennis trans., 2000).
© E. Tendayi Achiume 2021. Published by Cambridge University Press on behalf of The American Society of International Law. This 333
is an Open Access article, distributed under the terms of the Creative Commons Attribution licence ([Link]
licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is
properly cited.
[Link] Published online by Cambridge University Press
334 AJIL UNBOUND Vol. 115
of non-Whites for the purpose of colonial exploitation and edification. Neocolonial critiques of international law
generally stress the persistence of colonial regimes of subordination even after the period of formal decolonization
of Africa and Asia. Where borders are concerned, a significant dimension of their neocoloniality (that is, their
reproduction of colonial-era power relations) is their facilitation of racialized inclusion and exclusion.
For example, through elaborate visa regimes, countries in the First World or Global North immobilize citizens
of the Third World or Global South, implementing global and regional regimes of de facto racial segregation.5
With virtually no legal pathways to migration or safe passage to access the European Union, African migrants
and refugees, alongside Syrians, Afghans, and others, face the deadly border regime of the Union, or what
Nicholas De Genova has aptly described as “Europe’s racial borders.”6 The borders of the United States—a coun-
try that is at once a settler colonial project and imperial hegemon—similarly exclude and include on a racial basis, as
U.S. immigration and critical race scholars have widely detailed.7 In Asia, racialized and religious exclusion of
Rohingya from Myanmar and neighboring countries and the entrenchment of Hindu nationalist commitments
in citizenship and immigration policy illustrate the potency of borders as discriminatory technology.8
In contemporary public, political, and even international legal discourse, there is a tendency to treat international
borders as race neutral unless these borders are overlaid with explicitly racist or xenophobic policies such as those
championed by the administration of former U.S. President Donald Trump, Hungarian President Viktor Orbàn,
or other far right political projects more aptly fitting the description of illiberal. Yet whether through national origin
or nationality restrictions that can and do operate as proxies for race, or through racial profiling and other mech-
anisms that enact racialized immigration enforcement, the contemporary system of racial borders operates on
ostensibly liberal terms.9 Contributions to this symposium join a growing body of recent international legal schol-
arship that examines racial discrimination in the ordinary course of border control in liberal democracies, discrim-
ination that is often permitted in law.
Digital Racial Borders
Within the UN human rights system there has been growing recognition of how centrally digital technologies
mediate enjoyment of fundamental rights as states and private corporations rely upon these technologies to deliver
essential goods and services.10 Border and immigration enforcement, too, has been subject to rapid digitization, a
phenomenon that has only escalated in response to the COVID-19 pandemic. Our age is unquestionably the age
of the rise of what other scholars have termed “digital borders”11—borders whose infrastructure increasingly
relies upon machine learning, big data, automated algorithmic decision-making systems, predictive analytics,
5
See Sherally Munshi, Race, Geography, and Mobility, 30 GEO. IMMIGR. L.J. 245, 266 (2016), which gives an illuminating example of the
implementation of a colonial imperative to tether non-Whites to geographic territories, which ultimately ensured racial exclusion could
be achieved through geographic categories.
6
Nicholas De Genova, Europe’s Racial Borders, MONITOR RACISM (Jan. 2018).
7
See, e.g., NATSU TAYLOR SAITO, SETTLER COLONIAL RACISM, AND LAW: WHY STRUCTURAL RACISM PERSISTS ch. 7 (2020).
8
See Michelle Foster & Timnah Baker, Racial Discrimination in Nationality Laws: A Doctrinal Blind-Spot of International Law?, 11
COLUM. J. RACE & L. 83, 86, 96 (2021)
9
See Achiume, supra note 1.
10
See, e.g., Report of the Special Rapporteur on Extreme Poverty and Human Rights (Philip Alston), UN Doc. A/74/493, at 2 (Oct. 11,
2019); Report of the Special Rapporteur on Promotion and Protection of the Right to Freedom of Opinion and Expression (David Kaye),
UN Doc. A/73/348, paras. 36–38 (Aug. 29, 2018); Report of the Special Rapporteur on Contemporary Forms of Racism, Racial
Discrimination, Xenophobia and Related Intolerance (E. Tendayi Achiume), UN Doc. A/HRC/44/57 (Jun. 18, 2020).
11
See, e.g., Dennis Broeders, The New Digital Borders of Europe: EU Databases and the Surveillance of Irregular Migrants, 22 INT’L SOC. 71 (2007).
[Link] Published online by Cambridge University Press
2021 DIGITAL RACIAL BORDERS 335
and related digital technologies. These technologies form part of identification documents and systems, facial rec-
ognition systems, ground sensors, aerial video surveillance drones, biometric databases, and in some places, even
part of visa and asylum decision-making processes.
In November 2020, I submitted a report to the UN General Assembly on racial and xenophobic discrimination
in digital border and immigration enforcement.12 In it, I highlighted reports from around the world illustrating
direct, indirect, structural, and institutionalized forms of racial and xenophobic discrimination through digital bor-
ders.13 Some of this discrimination occurs as digital technologies are mobilized explicitly in the service of racist and
xenophobic ideologies. Social media platforms such as Facebook, Twitter, and WhatsApp, for example, have
become staple avenues for advocating violence against refugees and migrants. In some cases, users include pho-
tographs and other identifying information in order effectively to mobilize real-word targeting of migrants and
refugees. Discrimination also occurs through official border policy, such as the use of biometric databases in the
racial profiling of Roma in Europe, or through migrant, refugee, and stateless person exclusion from digital iden-
tification systems which are prerequisites for access to basic services in places such as India and Kenya.
In Europe, language recognition software used in refugee status determination processes has been shown to be
more error-prone for applicants from the Maghreb, raising concerns that such applicants may be at greater risk of
having their claims rejected for lack of credibility on what are ultimately discriminatory bases. Also in Europe, there
are examples of invasive data extraction from personal devices—a practice that is impermissible against citizens—
targeting only asylum seekers, who then are subject to status hearings in which extracted data is weaponized to
undercut their asylum claims. Although “asylum seeker” is not on its face or de jure a racial category, the contem-
porary configuration of European border and migration regimes means that it is a de facto racialized category,
comprised largely of non-White persons, including nationals of Muslim majority countries.
Perhaps less intuitively, discrimination and exclusion are also the product of the logics of bureaucratic and
humanitarian efficiency. UN humanitarian, migration, and refugee agencies are among the actors at the center
of the expansion and consolidation of digital borders. By the end of 2018, the UN Refugee Agency alone reported
the capture and storage of biometric identity for over 7.1 million refugees.14 The International Organization for
Migration reports it is using mobile phone records, geotagging, and social media activity analysis15 to monitor and
track populations on the move with the ostensible aim of better predicting their needs. In this context, researchers
have warned of the rise of “surveillance humanitarianism,” which refers to increased reliance by humanitarian
organizations on digital technologies in their bureaucratic administration, including service provision, with the
perverse consequence of excluding refugees and asylum seekers from basic necessities, including access to
food.16 Mark Latonero’s research, for instance, highlights testimonies of east African refugees in Europe who
recounted the way that minor discrepancies in digital identity databases could have profound human rights con-
sequences: “A misspelled name, for example, can be used as a threat to separate a child from her parents or reject
an asylum application.”17 Mirca Madianou uses the term “technocolonialism” to refer to the “constitutive role that
data and digital innovation play in entrenching inequalities between refugees and humanitarian agencies and,
12
Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance
(E. Tendayi Achiume), supra note 2.
13
The examples that follow are all drawn from my UN Report, and are based on submissions from groups and individuals that
responded to a call for illustrative examples of racially discriminatory use of digital technologies in border and immigration enforcement.
14
Data of Millions of Refugees Now Securely Hosted in PRIMES, UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES: BLOG (Jan. 28, 2019).
15
Big Data, Migration and Human Mobility, MIGRATION DATA PORTAL (last updated May 5, 2021).
16
See, e.g., Mark Latonero, Opinion, Stop Surveillance Humanitarianism, N.Y. TIMES (Jul. 11, 2019).
17
Id.
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336 AJIL UNBOUND Vol. 115
ultimately, inequalities in the global context,” driven in part by corporate profit motives and governments’ abdi-
cation of human rights responsibilities.18
Digital borders have the effect of enhancing the racialized operation of borders by bringing greater precision to
and expanding the reach of racial borders. For example, a recent investigation provided damning evidence of the
complicity of the European Border and Coast Guard Agency, Frontex, in the violent and often fatal “pushbacks”
in the Mediterranean.19 And the precision and scale of these deadly enforcement actions are arguably aided by
border digitization, including enhanced surveillance capabilities. The European Border Surveillance System
uses big data to predict, monitor, and control movement across EU borders.20 And signs point to only further
digitization and experimentation with technologies such as affect recognition in ways especially dangerous for non-
citizens.21
In addition, digital borders reinforce the racially discriminatory nature of existing border regimes by further
masking their racially discriminatory nature in the cloak of presumed neutrality that attaches so strongly to tech-
nology in the popular and policy imaginary. In the United States, liberal backlash mobilized in opposition against
the Trump Administration’s border wall has largely been absent in the face of President Biden’s commitment to
replace the physical wall with “smart” border technology. As movement-based migrants’ rights organizations have
argued, however, so-called smart border surveillance technologies reproduce the very same racialized forms of
exclusion that motivated Trump’s physical border wall.22 Although border digitization may bear the veneer of a
more humane approach to traditional border technology, a study of the southern border found that the introduc-
tion of “smart” borders resulted in a more than doubling of border deaths.23 Those dying are almost exclusively
Black and Brown migrants and refugees.
In the popular and even policy imaginary, digital technological products such as facial recognition are presumed
to be free from human bias. Yet noting the ascendance of facial recognition software in the automation of borders,
a recent report, warns that “[e]ven top performing algorithms will erroneously recognize images labelled ‘Black
women’ 20 times more frequently than images labelled ‘white men,’” with the effect that “[w]hen applied at scale,
implementing facial recognition across all travellers systematizes racial biases inherent in the technology.”24 The
stakes here are high. As facial recognition grows to play myriad roles in border enforcement, including identity
confirmation, the consequences of misrecognition could range from enhanced surveillance and stigmatization to
deportation and refoulement, all of which will occur on racial and gendered bases as a result of the underlying
technology.25
18
Mirca Madianou, Technocolonialism: Digital Innovation and Data Practices in the Humanitarian Response to Refugee Crises, SOC. MEDIA & SOC’Y 4
(Jul.-Sept. 2019).
19
Nick Waters et. al, Frontex at Fault: European Border Force Complicit in ‘Illegal’ Pushbacks, BELLINGCAT (Oct. 23, 2020). For a discussion of
the danger of the euphemistic use of the term “pushback,” see also Niamh Keady-Tabbal & Itamar Mann, ‘Pushbacks’ as Euphemism, EJIL:
TALK! (Apr. 14, 2021).
20
See, e.g., Btihaj Ajana, Augmented Borders: Big Data and the Ethics of Immigration Control, 13 J. INFO. & COMMC’N & ETHICS IN SOC’Y 58 (2015).
21
See, generally, PETRA MOLNAR, TECHNOLOGICAL TESTING GROUNDS: MIGRATION MANAGEMENT EXPERIMENTS & REFLECTIONS FROM THE
GROUND UP (Sarah Chandler et. al eds., 2020).
22
Just Futures Law Center et al., Statement on the Biden Administration’s U.S. Citizenship Act of 2021 (Feb. 25, 2021).
23
Samuel Norton Chambers et. al, Mortality, Surveillance, and the Tertiary ‘Funnel Effect’ on the U.S.-Mexico Border: A Geospatial Modeling of the
Geography of Deterrence, 36 J. BORDERLANDS STUD. 443 (2021).
24
Tamir Israel, Facial Recognition at a Crossroads: Transformation at Our Borders & Beyond 5 (2020).
25
Id.
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2021 DIGITAL RACIAL BORDERS 337
A rich and growing body of interdisciplinary scholarship seeks to explain, critique and respond to the racially
subordinating effects of digital technologies.26 From a legal perspective, digital technologies’ racially subordinating
effects pose a heightened risk to non-citizens in particular, as a result of the broad executive discretion and
restricted substantive and procedural rights protections they enjoy, even as a matter of international human rights
law. Invoking national security and other concerns related to the ostensible sovereign integrity of states, govern-
ments are able to create legal safe harbors for racially unjust migration and border controls generally,27 thereby
subjecting non-citizens to conduct that would be considered racially discriminatory if it were targeted at citizens. In
the U.S. domestic context, Anil Kalhan has referred to the phenomenon of immigration surveillance, which pairs
digitally boosted surveillance capacities with government evasion of traditional constitutional and related protec-
tions that might otherwise be relied upon to protect non-citizens from human rights violations.28
Conclusion
Digital borders, then, are digital racial borders.29 My UN reports on race and technology have sought to map a
structural and intersectional international human rights-based approach to fighting racial subordination achieved
through technological means.30 This approach includes moving beyond the tendency of human rights approaches
to focus on explicit prejudice in the prohibition of racial discrimination, and instead also targeting facially neutral,
complex structures and systems that de facto exclude and subordinate on a racial basis. Implementation of human
rights protections such as those enshrined in the International Convention on the Elimination of All Forms of
Racial Discrimination, and which I show in my reports have much relevance for digital technologies, is urgent. But
on its own, implementation of human rights law can be nothing more than a project of mitigation rather than
abolition of unjust structures. The forces driving racially discriminatory digital borders are deeply embedded in
society, and include entrenched national security and economic anxieties, and, more broadly, political structures
and economic systems that perpetuate transnational inequalities through border regimes. To be clear, the value of
mitigating the brutality of digital racial borders is far from trivial. Greater constraints on digital corporations, gov-
ernments and multilateral agencies would mean saved lives and improved livelihoods for many migrants, refugees
and stateless persons. But there can be no technological solution to the inequities of digital racial borders, and
26
Examples include scholars who comprise the Center for Critical Race and Digital Studies [Link] and
the UCLA Center for Critical Internet Inquiry [Link]
27
See, e.g., John Reynolds, Emergency and Migration, Race and the Nation, 67 UCLA L. REV. 1768, 1791 (2021) (describing, for example, the
2015 European Commission emergency summit’s instatement of a “hotspot” system that facilitated the rapid designation and deportation
of economic migrants, which coincided with several EU member states’ declarations of migration-related states of emergency, and rein-
forced racialized exclusion “laundered through the prism of nationality”).
28
Anil Kalhan, Immigration Surveillance, 74 MD. L. REV. 1 (2014).
29
Amin Parsa offers a compelling sketch of border technology as racial technology that highlights “the racial organization of [digital
border] technologies in order to capture how bordering is a racial technology that deploys a variety of technological ‘solutions’ or instru-
ments to that end.” Amin Parsa, Submission informing the Report of the Special Rapporteur on Contemporary Forms of Racism, Racial
Discrimination, Xenophobia and Related Intolerance (E. Tendayi Achiume), supra note 2.
30
Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance
(E. Tendayi Achiume), supra note 2; Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination,
Xenophobia and Related Intolerance (E. Tendayi Achiume), supra note 10.
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338 AJIL UNBOUND Vol. 115
indeed among the greatest drivers of the problem and barriers to fundamental change is “the prevalence of a socio-
technical imaginary in which political dilemmas are displaced by the invocation of technological objectivity and
progress.”31 Racial injustice inheres in and is constructed by the very nature of borders and the international law
that undergirds them,32 such that undoing digital racial borders must entail a fundamental remaking of interna-
tional law’s rendering of the borders of the nation-state.
31
Dimitri Van Den Meerssche, Submission informing the Report of the Special Rapporteur on Contemporary Forms of Racism, Racial
Discrimination, Xenophobia and Related Intolerance (E. Tendayi Achiume), supra note 2.
32
Achiume, supra note 1.
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