The Transit Visa: International Law, Travel, And More, More, More Borders

[Ọláolúwa (Laolu) Òní is in the PhD program at Osgoode Hall Law School in Toronto and holds other law degrees from the University of Lagos and NYU School of Law.]

[Disclaimer: This essay is excerpted from a longer research paper, still in progress, titled international Law, Language, and More, More, More Borders, which applies law and language methodology to comment on transit visa restrictions.]

Introduction

On the 19^th of March, 2024, the  Institute for Poverty, Land, and Agrarian Studies (PLAAS) published a statement via its X (formerly Twitter) account highlighting the injustice that transit visa regimes perpetuate against travelers caught within the scheme. The statement noted that four grantees of the Land Deal Politics Initiative, all from the African continent, who were scheduled to present at the recently concluded International Conference on Global Land Grabbing could not attend the conference despite their holding valid visas to enter the Republic of Colombia (the conference location.) These individuals, the institute explained, were denied transit through European airports.

While there is much scholarship on travel visa regimes, with particular attention to how they constitute discriminatory (paper) borders, very little, if any scholarly attention, has been given to the peculiar imposition that airport transit visas (transit visa) constitute. In this blog post, I argue that transit visa regimes are manifestly inconsistent with the fundamental norms of international law that are associated with cross-border movement.

The Right to Movement and Regulation of Cross-Border Travel

Granted the international right to move freely (UDHR, Article 13, ICCPR, Article 12) is not absolute, and states may regulate—and even restrict—movement into and within their territory. But such restrictions must be imposed under conditions provided for by law such as those that are “necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others.” (ICCPR, Article 12(3).) Visa regimes may find justification under this exception, arguably policing presumed threats to state security at a distance. However, transit visa regimes cannot be brought within this justification as they operate against travelers who do not intend, and in fact are required to demonstrate that they do not intend, to visit the transit country. Transit visas are granted for the exceptionally limited purpose of permitting continuous, onward, and outbound travel. Holders of transit visas (for example, the EU Schengen Airport Transit Visa and the UK direct airside Transit Visa) cannot even pass through border control (i.e. enter the country) and are compelled to wait out their transit stop in the international transit area of the airport. Yet transit visas operate as borders against a traveler, interfering with the internationally recognized right to free movement. For many travelers, transit visas have become embedded into the experience of cross-border movement; they constitute a border not unlike other forms of travel visas (e.g. visitors or short-stay visas.)

Houtum and Uden, both European migration scholars, note in their paper, The birth of the paper prison: The global inequality trap of visa borders, that visa regimes operate as “a pre-border of a state, bordering people even in their actual travel to their intended destination, turning the entry permission of the visa thereby also into a leave permission to even travel to that country” (p.21) Visa regimes extend the borders of a country far beyond the geographical boundaries of the territory, sometimes even locating the borders within the point of origin. Whereas visa regimes, for good or bad, extend the borders of a country, transit visas compound the borders, creating additional borders between a traveler and their intended destination. A traveler who is caught within a transit visa scheme is forced to negotiate both the borders of the transit country as well as the borders of the destination country.

The researchers in the opening anecdote to this essay were forced to confront not only the extended borders of the Republic of Colombia (which visa they secured,) but also the extended borders of whatever European country through which they hoped to transit. The failure to clear the added burden imposed by the transit visa meant that they could not attend the conference.  While the Republic of Colombia might find justification under international law to impose a visa, the transit country, which the researchers had no intention to enter, is not so justified.

By so compounding the borders, transit visa regimes interfere not only with travelers’ individual rights but also with states’ exercise of sovereign authority. Transit visa regimes are only activated when other states have acted to permit both exit (i.e. the state from which travel begins) and entry (i.e. the destination state) in exercise of their sovereign authority. Permission to enter is made meaningless if the grantee of such permit cannot exit their point of origin, and freedom to exit is similarly rendered impotent if other states refuse entry. The ideal situation is realized when a traveler is both free to leave one state and has secured permission to enter a second state. But this ideal is corrupted when a transit visa is imposed, requiring that a traveler get the permission of a third (or several other) sovereign(s) (the transit state(s)) before the permissions of the other two sovereigns can be acted upon.  The transit visa locates a traveler’s ability to act on permissions granted by other states in the transit state, thus making this third state the ultimate arbiter over the leave or entry permission of other states. And the transit state so arrogates this power even though it merely holds a tenuous connection to the traveler’s journey. 

However, the pernicious effect of transit visa regimes goes far beyond compounding borders. By interfering with entry and leave permissions, transit visa regimes have the power to erect a border where none should permissibly exist under international law—transit states erect a border against a citizen returning home. I had to confront this reality when, in 2022, I made my journey home to Lagos from Toronto; my travel itinerary placed me in transit through a Schengen-area EU airport which put me under obligation for the EU Schengen airport transit visa. Luckily, my Canadian student visa meant that I was able to travel without obtaining the transit visa, but what it also meant was that access to my country came to be located, by operation of EU law, in a permission granted by the Canadian state. It should be noted that the right to return home is one of the most sacrosanct rights under international law, closely guarded, and often protected from the typical exceptions allowed from the right to movement. Yet, transit visa regimes interfere, without due justification, with one’s ability to return home.

A Discriminatory and Inescapable Burden

Whether or not a traveler will find themselves under an obligation for a transit visa is often beyond their control. The choice of transit country is typically determined by airlines based on their partnership and agreement with other airlines. When I had to travel in 2022, I booked my ticket with Air Canada, and the airline, through its partnership with a European airline, routed me through the transit country. In fact, as at time of writing, there are no direct commercial flights from Toronto to Lagos, and most transit countries require transit visas.  Airlines typically do not inform travelers of transit visa obligations until the point of check-in (usually about twenty-four hours before the flight) by which time it is too late to secure a transit visa. However, even where travelers can secure transit visas, they nonetheless bear added burden in terms of time, financial resources, and other opportunity costs to their travel experience.

This burdening has the effect of creating a discriminated travel experience between travelers from the global south (the nationalities whose citizens are typically required to secure transit visas) and travelers from the global north (the nationalities whose citizens are typically able to travel visa free.) The effect of this discrimination is readily apparent.  As the PLAAS incident demonstrates, transit visas have the effect of deepening the already existing gap in knowledge transfer, as well as participation in global life.

Conclusion

Every time a transit visa is required of a traveler, they confront a border where none should exist and thus face a particularly pernicious imposition on their right to free movement.  Yet this class of visas continue to enjoy wide adoption with little critical consideration for the peculiar ways they violate the most fundamental norms of international law. Transit visas curate a world where only citizens from a select group of countries (often from the global north) get to experience near-boundless international travel while the rest of the world remains stuck negotiating tight and unyielding borders.