Theory and types of borders
Glossary

borders (international)

Politically defined boundaries separating territory or maritime zones between political entities and the areas where political entities exercise border governance measures on their territory or extraterritorially. Such areas include border crossing points (airports, land border crossing points, ports), immigration and transit zones, the “no-man’s land” between crossing points of neighbouring countries, as well as embassies and consulates (insofar as visa issuance is concerned).

More in Glossary

An essential element of statehood is the occupation of a territorial area within which State law operates. Within a defined territorial area, jurisdiction is exercised by the State over persons and property to the exclusion of other States – this is the concept of “territorial sovereignty” (Island of Palmas Case, 1928). Within its area of territorial sovereignty, a State exercises authority over its internal affairs and controls movement across its external borders. Border management functions are exercised by immigration and related agencies according to migration legislation, including international norms and human rights law to which the State has committed. Among other things, sovereignty confers on a State the right to impose rules regarding the entry and conditions of stay for foreign nationals, subject to its international obligations, to issue permits and visas and to levy fees.

In some countries, national borders encompass diverse populations with distinct languages, ethnicities or traditions. For example, some borders divide people of the same ethnicity and language, thus posing challenges for border management. There is also the issue of nomadic populations.

Example
Virtual borders

Where States cannot build physical fences as borders, some are considering virtual borders that are maintained by technology. Rather than metal or concrete fences, this concept utilizes a digital approach to security. It uses a system of sensors, cameras and monitoring equipment to generate information and run it through an algorithm. It then reports on migrants in irregular situations, who can be intercepted and prevented from entering the country.

Source

Koslowski, R., Global mobility regime: A conceptual framework, 2011.

Air borders correspond to the land and/or maritime borders of a State in a direct vertical line. Every State has complete and exclusive sovereignty over the airspace above its territory, including its territorial sea (Chicago Convention, Articles 2 and 3). It follows from the principle of airspace sovereignty that every State is entitled to regulate the entry of foreign aircraft into its territory and that persons within its territory are subject to its laws (see Air law).

Maritime borders are governed by treaties and customary international law, most prominently the United Nations Convention on the Law of the Sea (UNCLOS). States have sovereign rights over their internal waters (for archipelagic States, also the archipelagic waters) and territorial sea, as established by international law more generally. The right to establish the breadth of a State’s territorial sea up to a limit of 12 nautical miles is guaranteed by UNCLOS. The baseline is the low water line along the coast. In a zone contiguous to the territorial sea and up to 24 miles from the baseline, States are allowed to exercise jurisdiction to prevent violations of customs, immigration and sanitary laws in its territory and territorial waters.

For States with a sea boundary, the decision on the physical area where migration rules will be applied is central to the operation of the border management system. This is also important in search and rescue situations where maritime zones are referenced (see Law of the sea). Inland waterways, despite being fully integrated into the national territory of the State or States on their banks, often serve international navigation purposes. Issues concerning freedom of transit and sovereignty concerning waterways such as the Nile River can be negotiated between neighbouring States by means of an international agreement.

Image / Video
Figure 1. Maritime zones

Source

Geoscience Australia.

National policy and border management

A national policy framework that respects and is in line with international law needs to set out migration rules in a clear, coherent, and predictable way. Such a framework will strengthen a State’s capacity to manage and facilitate migratory movements to and through its territories, while addressing border-related issues and optimizing border management practices. Further, timely and accurate information on what cross-border travellers are expected to do should be available and understandable, and should be supported by campaigns advising travellers of the benefits of compliance and of penalties for non-compliance. In this way, the community at large is reassured that migrants and travellers are well informed of existing regulations in order to help enforcement and compliance.

A State’s policy decisions about border management will be affected largely by the nature of the border and relations with neighbouring States, and the capacity to sufficiently address security concerns and combat transnational crime. The effectiveness of the border management system is also significantly affected by the rules and processes chosen to enforce the conditions under which entry is permitted, including a commitment to removing those who breach the conditions of their entry and are not otherwise eligible to remain. Finally, national policy and border management strategies should ensure that victims of trafficking in persons, smuggling, refugees (by virtue of the principle of non-refoulement) and other vulnerable individuals are adequately protected.

Policy Approaches
Key considerations in national policy decisions on border management

1) Will visas be made available at the border or only in the country of embarkation?

2) Where will points of entry (POE) be located and what will be the level and duration of staffing? 

  • Consider possible POE and resource availability.
  • Clarify which governmental agencies will play the primary role in the inspection process (of both goods and people).
  • Consider joint designation of POE with a neighbouring country and resource availability.

3) Will migrants in irregular situations be intercepted by preventing them from boarding? If so, how will these measures be adapted to prevent refoulement and collective expulsion?

  • Intercepting migrants in irregular situations will require cooperation with embarkation and transit States, with carriers and through interdiction at sea where relevant.
  • Migrants in irregular situations are typically intercepted at the border by walls and similar barriers, drones, sensors and other technology, but also by border management personnel.
  • As per the European Court of Human Rights, these obligations do apply extraterritorially where the acting State exercises jurisdiction, for example, the Hirsi case concerning maritime interdictions.

4) Will penalties be imposed on carriers who bring unauthorized passengers to the State?

  • If it is decided to impose penalties, decisions need to be made on the circumstances where penalties will apply and the scale and form that such penalties will take, according to Annex 9 of the Chicago Convention.

5) Will border controls be adopted in cooperation with neighbouring States, or States that contain major transit points for travellers to your State?

  • Take into account factors in neighbouring States, or States that contain a major transit point for travellers to your State, that might encourage irregular migration. Such factors include poverty, unemployment, natural disasters, human rights abuses, or the State’s limited willingness or capacity to manage irregular migration.
  • Building cooperation with these neighbouring States is particularly important and can include technical cooperation and financial assistance.

6) Will detention ever be used for adult migrants in irregular situations (to ensure their availability for processing applications to remain, or for removal if no authorization to remain is granted)? If so, how will individual assessments be conducted to ensure any such detention is both necessary and proportional, and used only as a last resort? Where detention is not necessary and proportionate, what alternatives to detention will be employed?

  • Alternatives to detention should be prioritized (more information on the detention of migrant children specifically, see the Chapter on Child migration).
  • Immigration detention requires an individualized judicial determination subject to regular judicial review. A blanket provision requiring detention in all cases of appeal would not be consistent with this standard (see Human rights of migrants and Administrative detention in this chapter).

7) How will the protection needs of persons intercepted and/or not admitted be identified and met? How will the State ensure that refugees – and others in need of international protection by virtue of the principle of non-refoulement – are allowed to stay? How will the State ensure the application of other international rules (such as providing for the best interest of children)? How will the State ensure that victims of human trafficking and other vulnerable individuals are adequately protected?

8) Can you return undocumented passengers?

  • All persons have the right to return to their countries of origin under international law, although not all States agree to return them, particularly in circumstances when return is not feasible and if States have questions about the identity and citizenship of the returnee  (see Return and reintegration of migrants). 

9) Do migrants and other travellers understand your State’s border management requirements?

  • Transparency is a key goal and an essential marker of a comprehensive national border management policy and of the laws that implement it. Provide clear information to potential migrants about laws, regulations, visas and other opportunities for regular migration.
  • Make publicly available data about migration flows and dangers during the migratory journey (such as death, trafficking in persons and other associated forms of violence and abuse).
  • Establish effective information sharing between government agencies regarding border management requirements.
 
Integrated border management systems

An integrated border management (IBM) system is a system of national and international coordination and cooperation among all relevant authorities and agencies involved in border security and trade facilitation. Its aim is to establish effective, efficient and coordinated border management, in order to reach the objective of open but well controlled and secure borders. An example is the one initiated among European Union Member States and other regions (European Commission, 2018).

As a concept, IBM is a proven border processing system that promotes intraservice cooperation and inter-agency cooperation. It requires that all competent authorities work together in an effective and efficient manner, including across borders, with relevant agencies of neighbouring States. Indeed, a State’s policy decisions about border management will be affected largely by the nature of the border and relations with neighbouring countries. If borders are relatively impermeable, or if border control resources are inadequate, compliance checking and data sharing between agencies and with neighbouring countries become critical.

Good Practice
Zambia–Zimbabwe One Stop Border Post

The One Stop Border Stop (OSBP) is an example of an integrated border management (IBM) and coordinated border management framework. It involves intensive bilateral cooperation between adjoining States from the national level down to border operations. The main feature of the concept is co-locating, by two adjoining countries, each other’s border agency officials in their territory so that one side of the border jointly controls the traffic moving in one direction, for example northbound, and the other controls the traffic moving in the opposite direction, southbound. The effect is that the traffic in either direction will stop only at one border post – hence OSBP.

Zambia and Zimbabwe have good operational experience in the implementation of the concept at the Chirundu OSBP on the border between the two countries. Areas of cooperation between the two countries and the benefits that are expected are outlined in a Southern African Development Community (SADC) draft guideline on coordinated border management.

Source

Crawford, J., Jurisdictional competence, 2019.

IBM seeks to address three levels of cooperation and coordination: intraservice cooperation, inter-agency cooperation and international cooperation. Each of these three levels has its own process, so through cooperation agencies can maximize the efficiency of their border management actions. In essence, all the relevant agencies with various interests at the border can thus work together, aware of each other’s responsibilities, as a united enterprise.

Intraservice cooperation

Intraservice cooperation is the efficient management of processes, information and resources within agencies responsible for specific tasks. It thus refers to interaction between:

• The different administrative departments of a ministry or agency at headquarters;

• The ministry/agency and regional centres;

• The ministry/agency/regional centres and the units working at the borders;

• The various points of entry (POE) and other border control/crossing points (BCP).

Inter-agency cooperation

Inter-agency cooperation describes the cooperation between all agencies involved in border issues both at the borders and at the central level, thus minimizing overlap and inconsistency and optimizing the efficient use of resources. There are three priority areas for inter-agency cooperation at the border and within the country: coordinated processing at borders; integrated information technology systems; and awareness building and joint responsibilities.

The operational components of an effective border management system should be interconnected (and preferably automated) subsystems. These components will include trained personnel, an audit capability, inter-agency and international cooperation and strategic partnerships with carriers and industry. Properly documented, comprehensive and coordinated border management procedures will eliminate spur-of-the-moment decisions and bolster command and control management principles. In this way, the designated border management agency should develop a strategic plan with standard operating procedures (SOPs). This will contribute to the security of the State by denying admission to persons who may pose a threat to the safety and security of its citizens, and it will also facilitate the entry of low-risk passengers who are not likely to breach the conditions of entry, use fraudulent documents or make deceitful claims.

Image / Video

Source

UNIDO, 2016.

Moreover, effective border management also relies on adequate and clear immigration laws, regulations and procedures related to a wide range of issues, including:

  • ​​​​​​​​​​​​​​​​​​​​​​​​​​​​Risk-based analysis for migrant screening. Such analysis incorporates alert lists, INTERPOL systems, health alerts, advance passenger information (API) and passenger name records (PNR).​​​​​​​
  • Migration data management and intelligence, interpreting mixed flows at borders, identifying the categories of migrants, streaming and vetting, referral system.
  • Customer relations, as the image of the State is being represented by border management officials.
  • Enforcement, compliance, investigation, non-custodial measures, alternatives to detention, administrative removal.
  • Guidelines on interviewing and detection, including special skills and task forces to detect and address specific categories of migrants (for example, victims of trafficking, unaccompanied migrant children).
  • Humanitarian border management, and human rights at the border.
  • Document examination and the role of a forensic laboratory.
Policy Approaches
Enhancing inter-agency cooperation
  • Establish a system interface that records and tracks the unique identifier of each visa and links this information with information on the travel document, preferably through biometric data.
  • The provision of automated data capture and analysis for all entries and exits should be encouraged. High-speed dedicated data channels between headquarters and the border should also be provided. For instance, using a system of arrival/departure cards to collect information on travellers subject to International Civil Aviation Organization (ICAO) standards.
  • Border inspectors should have access to real-time, regularly updated electronic watchlists (for instance, lists of war criminals, of persons wanted for arrest, of suspected terrorists or those who breached immigration conditions on a previous stay, and of stolen passports). Further, system interfaces between border authorities and domestic/international law enforcement are required, as well as protocols to govern the creation, maintenance and use of shared information and lists.
  • Agencies operating at the border should actively cooperate with headquarters/regional offices to avoid fragmentation of information and data. Some countries cross-train all personnel with border-related functions in order to provide them all with a better idea of what the others do and, in some cases, to cover for each other if necessary.
  • A coordinated process should be developed to assess genuine claims for international protection and other claims of entitlement to remain. Such coordination should include agencies and authorities designated to protect and address the needs of vulnerable migrants (see Migrants vulnerable to violence, exploitation and abuse).

International cooperation

International cooperation for border management can be made effective at the day-to-day level by encouraging bilateral collaboration and intelligence sharing between neighbouring States. International cooperation also includes delineating responsibility for border surveillance, co-locating POE, sharing common contact offices, exchanging current information and even joint patrols. At the local level, with the express approval of respective capitals, officials on either side of the border should be encouraged to cooperate on operational issues through regular meetings focused on current developments.

At a more elevated multilateral level, the challenge is to arrive at a consensus approach to address transborder crime, irregular migration, trafficking in persons and smuggling, extradition and terrorism, among others (see International frameworks, initiatives and dialogues). However, international cooperation can be enhanced to better address irregular migration by sharing relevant information about trends, or about new travel documents. Increasingly, destination and transit countries are seeking the cooperation of origin countries to manage irregular migration flows.

Policy Approaches
Bilateral, regional and international cooperation mechanisms
  • Negotiate and enter into bilateral agreements and memorandums of understanding (MoUs) with origin, transit and destination countries, with a view to addressing border management and border security concerns.
  • Factor into bilateral, regional and international agreements that each State will have different objectives for their border management policies.
  • Maintain an inventory of all migration-related international and regional instruments that the State has signed and/or ratified related to border management, for the purpose of developing an action plan to recognize and implement those standards.
  • Ensure active participation in inter-State consultation mechanisms to maintain open dialogue.
  • Formalize dialogue and the sharing of good border management practices with other countries, including training programmes (bilateral and regional, in which border agencies from neighbouring countries train together).
  • Ensure monitoring of border policy, with periodic review and evaluation, to enable it keep abreast of subregional, regional and global changes in migration in the context of regional cooperation and global solidarity.
Good Practice
Multilateral cooperation and partnership at the 2007 Cricket World Cup

States are increasingly recognizing that partnerships and data sharing are crucial among countries that share borders. For instance, during the 2007 Cricket World Cup held in the Caribbean, small island States in the region stepped up efforts to cooperate in order to bolster security and facilitate movement within the Caribbean Community (CARICOM) region. They implemented advance passenger information (API) systems, submitted by airlines prior to arrival in or departure from CARICOM Member States. The system also had access to watchlists such as the International Criminal Police Organization (INTERPOL) stolen and lost travel documents database to check against all passengers arriving into the Caribbean region.

At the same time, the Inter-American Committee against Terrorism (Organization of American States; OAS/CICTE) made joint assessments of possible terrorist attacks on critical infrastructure and made recommendations to protect assets, with strong support from the United States Government. CARICOM States also agreed to take additional measures to facilitate the movement of visitors during the 2007 Cricket World Cup, including the creation of a “single domestic space” visa amongst the ten CARICOM countries. Travellers accessed this territorial space by having their passports stamped, after submitting standard entry and departure forms at their first point of entry (POE).

To ease movements among the States, travellers were issued with event-style blue CARICOM wristbands as a means of quick identification when commuting within the single domestic space, which included island hopping to observe various matches.

Key messages
  • Borders (air, land and maritime) are politically defined boundaries separating territory or maritime zones between political entities. They are the areas where political entities exercise border governance measures on their territory or extraterritorially.
  • National policy framework, in line with international law, can strengthen a State’s capacity to manage and facilitate migratory movements to and through its territory, while addressing border-related issues and optimizing border management practices.
  • Integrated border management (IBM) seeks to ensure the streamlining of customs and immigration processes, timely sharing of information, reduced waiting periods and an enhanced capacity to detect illicit transborder activities. It establishes close cooperation at three levels: intraservice, inter-agency and international.
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