01 February 2026, NIICE Commentary 12299
Swarnava Hati
“Prejudice is a burden that confuses the past, threatens the future, and renders the present inaccessible”, said Maya Angelou.
Border discrimination is an after-effect of European colonialism. It is a global north project to immobilise the Global South's citizens. This has been exemplified through the European treatment of Africans, Syrians, Afghans and others. However, it was only with the advent of sophisticated technologies that borders began discriminating based on race and digital technologies. The impact of digital technologies on border discrimination is significant and warrants greater attention. It would be naïve to assume that digital borders are not racial. On the contrary, they are premised on racial superiority. They preclude genuine asylum seekers from their fundamental rights and have the potential to strip the legal migrants of their status under the garb of 'illegality' without being challenged. The United Nations Committee on Economic, Social and Cultural Rights General Comment (CESCR) No. XX on non-discrimination states that, irrespective of legal status, some individual rights can be accessed simply by virtue of being a human. However, what is found is that States, under the guise of nationality, often render borders racial.
The Contemporary Relevance
The United States of America’s (USA) migration practices have raised more significant questions about restrictions on people's mobility. The history of discriminatory immigration practices in the USA dates back to the 19th Century, when around 50,000 Irish Catholics were deported from Massachusetts. This trend is reflected in the recent executive orders of President Trump that sanction deportations. They are not just problematic but are issues that need attention. An example is 5 February 2025, when a US C-17 military aircraft carrying about 100 Indians landed at Amritsar airport in the Indian State of Punjab. Reports alleged that the individuals were handcuffed and denied mobility inside the aircraft. Amidst speculations of the USA trying to send a political message by the signage of a military aircraft and handcuffs, questions about their fundamental rights loomed large. On this line, this piece examines the USA’s immigration practices through the lens of digital technologies, which blur the lines between nationality and raciality. With this thought in mind, it aims to analyse the legal framework, delineate its impacts, and provide solutions.
The Legal Framework
Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises everyone's right to work. Further, the non-discrimination clause in Article 2(2) of the ICESCR provides that the Covenant will be exercised without discrimination on grounds of nationality, social origin, language, colour, or race. In General Comment No. XX on non-discrimination, the CESCR has also clarified that the Covenant applies to everyone, including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking. Further, Article 25 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families explicitly recognises the right to equal treatment regarding remuneration and work conditions for all migrant workers. An exception is the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which permits distinctions between citizens and non-citizens. However, Article 1(2) does not give a clean cheque to racial discrimination. Further, Article 6 of the CERD gives the right to effective remedies to 'everyone' within a State's jurisdiction. Therefore, when read together, these provisions would provide a comprehensive understanding of the global rights framework available to a human, irrespective of race, nationality or gender. On these lines, the Inter-American Court of Human Rights has held that the prohibition of discrimination on grounds such as migration status is a jus cogens norm, including grounds of nationality.
Implications of America’s Digitalised Borders
It has been found that technologies are increasingly used at borders to detect and identify migrants in the USA. Further, they were also used to obstruct migrants. It is also presumed that the information these organisations hold could be used against migrants, who have no legal recourse due to the opaque system of private data storage. The USA also uses artificial intelligence at its borders, posing many ethical and moral challenges, as it would perpetuate discrimination and increase social inequalities. Molnar writes that the USA-Mexico border is guarded by an ‘arsenal of border technologies’ which includes facial recognition technologies and other means. These are actively used to deport people. Hence, it is marginalised people who face the wrath of these technologies, without recourse to justice. Molnar also says that the USA has failed to inform the public of the human rights repercussions that would follow from the use of sophisticated technologies, including artificial intelligence. Another issue is the privatisation of the borders, who promote the xenophobic interests of the state. Hence, the right of asylum seekers, migrant workers and refugees is fundamentally jeopardised.
Addressing the Structural Problem
While a framework of rights exists, Fredman says that restrictions subsist in various forms. She identifies four kinds of restrictions. They are as follows: i) restrictions on migration status, ii) restrictions on political participation, iii) restrictions on movement and iv) requirements of cultural adaptation. Fredman suggests that to combat this inequality, existing stigmas, prejudice and violence should be tackled on a structural level. She also says that people's participation should be increased. Farahat supplements this by suggesting that a way could be to legally regularise undocumented migrants, especially those who contribute to the labour market. She bases her argument on the premise that States regularise when it suits their economic interest. However, such regularisation should not be unequal. This way, the structural inequities could be tackled.
Conclusion and Way forward
Since the COVID-19 pandemic, occurrences of digital discrimination have rapidly increased. It is said that data is extracted from personal devices and is used to target asylum seekers. The racial profiling of Roma in Europe is an illustration of the same. Madianou calls this ‘technocolonialism’. These technologies are used to discriminate against people for the same reasons that colonial structures survived. While borders have discriminated via various means in the past, the new normal is digital technologies. Technologies that appear to be racially neutral are actually not. Hence, it is argued that technology is systematising racial bias. Non-citizens are more at risk of facing executive discretion, with no human rights framework to govern them. It is not because a compendium of human rights law does not exist. However, it can at most mitigate problems rather than abolish or question the entirely unjust structure. At the root of it lies the colonial question. Polished with sophisticated logic and reasoning, these discriminations carry the vestiges of colonialism. The technology here becomes the means of oppression, acting on the command of its colonial operator. Hence, it must be borne in mind that to fight racial borders, racial injustice must be done away with.
Swarnava Hati is an LL.M. student at the Faculty of Legal Studies, South Asian University, New Delhi, India.
