History of the Negotiations That Led to Border Security - Research Paper

Introduction

Border security is a critical component of international law. In this regard, border security aims to detect, suppress and prevent cross-border crimes such as human trafficking, people smuggling and drug trafficking. Examples of the key agencies that support the member states in the implementation of border security laws are Interpol and Europol. However, the origin of the border security laws has a history that dates back to the early 1920s immediately after the Second World War. At this point, the European governments, in particular, propagated an idea that there were urgent needs for the introduction of laws to control the free movement of people and goods across international boundaries. The first agreement between the European states led to the introduction of a passport to restrict immigrants. Nonetheless, it is challenging to historicize the idea of border control owing to the changes in boundaries (Walters 187).

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The signing and ratification of the Montevideo Convention (1933) ended controversies on the concept of statehood and its sovereignty by defining territorial boundaries (Grant 1). This aspect later emerged as a basis for negotiations and agreements for the need for border security. Before the ratification of this treaty, there was high fluidity in the control of populations in different territories. While the member states accepted the Montevideo Convention (1933) as part of the international customary law, there were no provisions on border security. However, the definition of territorial boundaries enables sovereign states to control their boundaries through treaties and the enactment of border security laws and regulations.

The Rabat Conference (2013) implemented the reports on the need for border management through international border security laws. Notably, the resolutions of the Rabat Conference (2013) emphasized the need for cooperation on border security. The primary arguments for border control are the need to tackle transnational organized crimes, control the travel of foreign terrorist fighters (FTF) and most importantly facilitate counter-terrorism. In this regard, the underlying treaty identified critical gaps that had raised security concerns during negotiations on border security laws. In this perspective, the United Nations Counter-Terrorism Committee Executive Directorate (CTED) and the United Nations Counter-Terrorism Centre (UNCCT) convened the Rabat Conference (2013) to address flaws in the border security (UNOCT Background Section). This convention marked a climax in the historical developments of international border security.

However, there were multiple contentious issues in the negotiation for international law on border security. The point, in this case, was about the concerns on the violation of human rights through control of immigration. The countries that implement stringent border security laws, for instance, may violate international treaties on upholding immigration laws that protect the fundamental rights of the refugees and other immigrants seeking asylum in liberal democracies. In such cases, it is upon the national courts to assess and define the features of legally acceptable walls where a state erects a structure as part of its border security strategies (Paz 606).

Relating Border Security with International Customary Laws and Doctrines

International customary laws consider contentious issues that underpin border security. However, classical learning points out the essence of protecting human rights from a perspective of implementing border security laws and regulations. The customs of international law, in particular, influence the migration policies that may contravene treaties and the provisions that protect human rights. Accordingly, it invokes soft laws to enable both domestic and international justice institutions to uphold human rights that are prone to violation when the state is enforcing border security laws. As such, it is argued that the near-term effects of this international law have profound impacts on refugees and other immigrant human rights (Martin 547).

The doctrines underlying legitimate defense are applicable in the study of international law about border security. However, several controversies surround the unilateral interpretation of Article 51 of the United Nations Charter. The latter has provisions on the state's right to self-defense through the approaches recognized in international law. However, the state may enforce stringent border security measures as part of its counterterrorism. International customary laws and the underlying treaties, in this case, require the state to uphold the underlying doctrines (Ohlin 91). The author, in this perspective, further argued that the international law on border security incorporates an aspect of natural law through reference to droid inherent to legitimate defense. Helfer, Laurence, and Ingrid noted that the International Court of Justice (ICJ) defines customs as "general practices accepted as law" (569).

The international humanitarian law on the protection of migrants is another aspect closely associated with border security. The international treaty on the protection of the immigrants acknowledges the fact that this group of people experiences humanitarian challenges as they move across international boundaries. The agreement requires the state to use non-discriminatory approaches when supporting aliens to reach their destinations safely in instances where they are fleeing from the effects of armed conflicts. Also, it further requires that immigrants receive reasonable support when they cross international boundaries (Gieseken 121). In this case, the examples of this group of people are asylum-seekers, refugees and internally displaced people (IDPs). Some of the primary factors that make a population flee their countries are persecution and human right violations, persistent violence, and armed conflicts, to mention a few.

The Suda and Hernandez vs. Customs and Border Protection (2019) case law supports an argument that the state should be fair and non-discriminatory when enhancing border security. In this case, Suda, a foreigner in the US spoke Spanish in a shop near the border and thus raising suspicion on the legality of crossing the border. The court ruled that there was no basis to support the reason for her arrest. The ruling further stated that the arrest was a form of discrimination since the security agent singled out the Spanish woman in a group of shoppers at the checkpoint (Glendanwirp para. 1). As such, the arrest was a proxy for a race since the fact that the lady was speaking Spanish does not justify the suspicion of illegally entering the United States. This case law sets a precedent that fairness and the use of non-discriminatory mechanism is the basis of enhancing border security.

Nonetheless, international humanitarian laws entirely depend on treaties since it does not have specific rules on the protection of migrants when the state is enhancing its border security. This aspect does not necessarily mean that the law does not consider the rights of immigrants. They are part of the civilian population, and hence the state must protect their rights as outlined in international treaties and laws. In other words, the laws that protect the civilians from both armed and non-armed conflicts cover the rights of the aliens both under non-international and international armed conflicts. The immigrants, however, are treated as refugees under international armed conflicts. It is worth noting that international law does not consider the migratory status of civilians that flee armed conflicts in their countries. However, the proliferation of technology, security sectors and actors have brought the issue of border security to focus (Cote-Boucher et al., 197).

The border security doctrines and other aspects of international customary laws have continuously evolved to its present-day positivism. One of the most elaborate and applicable guises of natural law is found in Aquinas. This element has transformed the border security through its distinct types of law that includes human-made, natural, divine and eternal. While the Aquinas statement on natural law theory reflects God's grand plan for shebang, human-made laws, on the other hand, has evolved to reflect the changes in modern societies. Therefore, it means that the natural law is based on the doctrines that emphasized the essence of the human race living together. There was no concept of statehood and international boundaries in the past, and hence, its evolution to positivism reflects societal developments and changes in the need for laws. After a series of treaties and other forms of agreements, the international community saw the essence of border security. The decision is based on the reasoning that while open borders allow free movement of people and goods for economic prosperity, it also increases the chances of cross-border organized crimes. As such, the Montevideo Convention (1933) marked the development of natural laws and doctrines to a positivism form.

The natural law theorists argue that the purpose of the human race is to live a happy and a good life. It implies that any action that goes against this rule is immoral and unacceptable. Also, it means that any course that limits the ability of a fellow human being to live a happy life is considered unnatural in this regard. The doctrines of natural law could apprehend the principles that guide human conduct. Accordingly, it provided the ways that the human race ought to behave, relate and live in their societies. Aquinas further argued that the principle of non-contradiction had remained the basis of natural law and the underlying theories (Murphy 95).

Arguably, some principles underlying natural law are general and unchanging. Since they were the same for everyone, it suggests that it discouraged people from engaging in actions that are now regarded as forms of crimes under the human-made law. The latter regulates cross border activities that have led to the emergence of crimes such as human trafficking and international terrorism. With the existence of these crimes, it suggests that border security is necessary for the defense of the state against external aggression. Also, it protects a country from practices that have negative socio and economic development. The present-day border security laws, however, are human-made and therefore suggests that they are continuously changing to accommodate changes in the society. The international rules on border security, in this regard, is one of the aspects that are necessary for order within a jurisdiction.

Obligations Under the Border Security Law

The purpose of border security law is to specify the organization and the underlying methods that the state may use. Under the applicable treaties, this form of international law aims at controlling movements across the borders for security reasons. The objectives of border security and control procedures according to this law is to prevent illegal immigration, protect the environment and most importantly the health and life of the people. The other objectives are secure inviolability of the borders of the state and apprehend the perpetrators of that engage in cross border criminal offenses.

The critical parties under the border security laws are the state and the persons crossing the borders. These parties have obligations that are recognized under the law. The party crossing an international border has commitments that are outlined in Article 26. It includes a responsibility to act according to the orders and warning of state border police officers and give the necessary information required by the officers. Also, the party is obliged to show the documents denoted by th...