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Excerpted From: E. Tendayi Achiume, Digital Racial Borders, 115 AJIL Unbound 333 (2021) (32 Footnotes) (Full Document)
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.
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Digital borders, then, are digital racial borders. 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. 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, governments 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 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.” Racial injustice inheres in and is constructed by the very nature of borders and the international law that undergirds them, such that undoing digital racial borders must entail a fundamental remaking of international law's rendering of the borders of the nation-state.
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.
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