Border Crossings and Human Rights
Border Crossings and Human Rights
Migration is a global phenomenon, a consequence of corporate globalization, neoliberal economic policies, political instability, ethnic conflicts, war, and domestic violence. The United Nations (UN) estimates that “one out of every 35 persons worldwide is an international migrant,” a figure inclusive of migrant workers, families, refugees, and other immigrants. Countries typically receiving an influx of migrants are better positioned economically than the migrants’ countries of origin. Migration has human rights implications because the migrating population, though often undocumented, maintains inalienable human rights. The human rights of migrants are recognized by the UN and the international community as a result of the Universal Declaration of Human Rights and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
The UN and human rights groups, such as Human Rights Watch and Amnesty International (AI), monitor border crossings around the world and report that common problems occur along the world’s national borders, which include a lack of legal representation or due process and lengthy detentions. Illiteracy, language barriers, racism, and xenophobia exacerbate human rights violations. Undocumented migrants can suffer indignities and human rights abuses due to their uncertain legal status because they are often treated as if they have no legal rights. The U.S.–Mexico border and Spain’s borders have distinct entry points for border crossers; yet patterns of human rights abuses and the racial dimensions of those abuses are evident.
In March 2002, the UN Special Rapporteur of the Commission on Human Rights on the human rights of migrants, Ms. Gabriela Rodríguez Pizarro, visited parts of the 2,000-mile U.S.–Mexico border at the invitation from the U.S. and Mexican governments. Through her own investigation and interviews with migrants, she identified the following risks when crossing the border from Mexico to the United States:
Lack of protection against smugglers in the irregular crossing of the border; the problem of trafficking in persons; excessive use of force against migrants; crossing of the border through dangerous areas; vulnerability of children on the border; racist, xenophobic and discriminatory attitudes; and the conditions in which undocumented migrants are detained, especially when they are in the custody of private security agencies. (United Nations 2002, p. 2)
Entire families migrate to the United States from Mexico, despite the tremendous risk and insecurity involved, because of prospective better-paying job opportunities in the United States as compared to Mexico. Migrants face human rights abuses by the U.S. Border Patrol, other border patrolling units, smugglers, U.S. civilians, and private security agencies. The Special Rapporteur reviewed many allegations of abuse by Border Patrol agents, including severe beatings and shootings of unarmed migrants (Dunn 1996). Other abuses along the U.S.–Mexico border include rape and sexual assault of women (Falcón, forthcoming). Moreover, the judicial and legal rights of undocumented migrants have become severely restricted due to various immigration laws adopted in the United States since the mid-1990s (United Nations 2002, pp. 7–8). Smugglers exploit the vulnerability of migrants and have been known to leave them in the desert where many become severely dehydrated, suffer heat strokes, and die (Marosi 2005). Smugglers are also known to engage in the trafficking of persons, including for prostitution. Private security agencies are not under the authority of the U.S. government, raising questions about their obligation and accountability to human rights standards and international law. The Special Rapporteur revealed that migrants detained in private detention centers were less aware of their rights and the status of their cases when compared to U.S. government-operated detention centers (United Nations 2002, p. 14). She recommended that the United States ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families to affirm the human rights of migrants along this international border (United Nations 2002, p. 7).
Redress in abuse cases has occurred in a few court cases, but it is far from common. Fearful of reprisals, migrants may forego filing a formal complaint, making it extremely difficult to investigate alleged abuse. Many of these alleged abuse cases happen in remote areas of the U.S.–Mexico border, with no additional witnesses beyond the U.S. official and the undocumented migrant(s). The undocumented migrant can file a complaint, but the prospect of challenging a very powerful state is intimidating for many. At the international level, the UN has established an individual complaints system available on its Web site for reporting human rights violations experienced by migrants, which is reviewed by the Special Rapporteur. But this international process can be complicated if there is lack of access to the Internet.
Spain shares borders with Portugal and France and has a unique entry point for migrants in its southern region due to its coastline. Migrants entering Spain are from other European countries, Latin America, and Africa (in particular Morocco). Many of these migrants qualify for refugee consideration and they enter Spain via Madrid’s international airport and by using boats to cross the strait of Gibraltar. Rodríguez Pizarro and AI conducted investigations regarding the treatment of migrants by the Spanish government during the period 2003–2005.
AI’s investigation specifically focused on the plight of refugees fleeing human rights violations. In its 2005 report, AI stated that the public discourse concerning migrants in Spain and other European countries is focused “almost exclusively on immigration control,” which has “undermined the protection of refugees.” In some cases, asylum-seekers throughout Europe “are returned to third, supposedly ‘safe,’ countries” until their case is reviewed, a practice that AI condemned (Amnesty International 2005, p. 3). The number of refugee applicants in Spain, including those granted refugee status, fell between 2000 and 2005 as a result of restrictive state immigration policies. In 2001, only 278 out of 9,490 applicants were granted asylum, whereas 166 out of 5,544 applicants were granted asylum in 2004 (Amnesty International 2005, p. 4). According to the AI report, “Spain has one of the lowest per capita rates in the European Union [of refugee applicants]: one application for every 10,000 residents,” which it cited as a grave concern (p. 3).
Both AI and Rodríguez Pizarro have documented similar kinds of human rights abuses and both expressed concern over the treatment of minors, women and girls, members of ethnic minorities (i.e., Roma), and foreign nationals. They documented an “excessive use of force when expelling foreign nationals” and an “increase in complaints of racist or xenophobic behaviour” (Amnesty International 2005, p. 4). Examples of human rights issues identified by AI for migrants entering through Cueta, Spain, include:
- Clandestine expulsion of foreign nationals.
- Illegal expulsion of asylum-seekers.
- Illegal expulsion of minors.
- Inadequate reception facilities for asylum seekers and foreign nationals.
- Inadequate information provided to foreign nationals on arrival.
- Insufficient legal and interpreting/translation assistance.
- Problems and irregularities in the asylum process (pp. 16–29).
Many of these issues were also outlined in Rodríguez Pizarro’s report on Spain. Following her visit in September 2003, the Special Rapporteur, also troubled by the inadequate legal guarantees (guarantees that should be afforded to all migrants), stated “migrants are frequently confronted with the risk of defencelessness in the face of possible abuses and violations due to the absence or insufficiency of legal assistance” (United Nations 2004, p. 2). Concerned about incidents of racism and xenophobia, the Special Rapporteur encouraged the Spanish media and government to “avoid statements and remarks which tend to foster fear of foreigners” (p. 21). She also recommended that Spain ratify the migrant workers convention.
The human rights concerns along the world’s borders are strikingly parallel and show a clear pattern. Rodríguez Pizarro also found similar human rights abuses and a resistance to reporting abuses during her investigation of the treatment of Peruvian migrants crossing the borders of Ecuador, Colombia, Chile, and Brazil (United Nations 2005). The Peruvian economy is noticeably divergent from that of its neighbors, with more than half of Peru’s population living below the poverty line. Dependent on jobs outside of Peru for survival, these undocumented migrants prefer not to file complaints “in order to be able to continue going … to work” (United Nations 2005, p. 8). Filing a formal complaint could result in reprisals for undocumented migrants. The Special Rapporteur’s report on Peruvian migrants, the majority of whom are poor, indigenous, and female, cited additional problems with human trafficking, exploitative working conditions, and violence.
Human rights abuses range from not informing migrants of their legal rights to violent and degrading treatment by border patrol units. Minors, women, and the undocumented are particularly vulnerable. Migrants experience racism and xenophobia by border patrol groups, whose actions are supported by state immigration policies that jeopardize the rights of migrants. Domestic and international redress are difficult to process due to the lack of documentation regarding abuses and migrants’ fears of reprisals. Migration is a direct consequence of the domestic, global, and geopolitical context in which everyone lives. International law and human rights groups are not opposed to governments controlling immigration, however; they argue that all people—including undocumented migrants—are entitled to dignified, humane treatment and legal rights. As of 2005, thirty-four countries have ratified the human rights convention on migrants and their families, but the United States and Spain have yet to ratify it.
Amnesty International. 2005. “Spain: the Southern Border.” Amnesty International (AI Index: EUR 41/008/2005).
Dunn, Timothy. 1996. The Militarization of the U.S-Mexico Border 1978–1992: Low-Intensity Conflict Doctrine Comes Home. Austin: University of Texas, Austin: Center for Mexican American Studies.
Falcón, Sylvanna M. Forthcoming. “Rape as a Weapon of War: Advancing Human Rights for Women at the U.S.-Mexico Border Region.” In Women in the U.S.-Mexico Borderlands: Structural Violence and Agency in Everyday Life, edited by Denise A. Segura and Patricia Za Vella. Durham: Duke University Press.
Marosi, Richard. 2005. “Border Crossing Deaths Set a 12-Month Record.” Los Angeles Times, October 1, p. 1A.
United Nations. 2002. “Mission to the Border between Mexico and the United States of America.” Report submitted by Ms. Gabriela Rodríguez Pizarro, Special Rapporteur on the human rights of migrants. Document No. E/CN.4/2003/85/Add.3. New York: United Nations, Office of the High Commissioner for Human Rights.
———. 2004 (14 January). “Specific Groups and Individuals: Migrant Workers and Visit to Spain.” Report submitted by Ms. Gabriela Rodríguez Pizarro, Special Rapporteur on the human rights of migrants. Document No. E/CN.4/2004/76/Add.2. New York: United Nations, Office of the High Commissioner for Human Rights.
———. 2005 (13 January). “Specific Groups and Individuals: Migrant Workers and Visit to Peru.” Report submitted by Ms. Gabriela Rodríguez Pizarro, Special Rapporteur on the human rights of migrants. Document No. E/CN.4/2005/85/Add.4. New York: United Nations, Office of the High Commissioner for Human Rights.
Sylvanna M. Falcón