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Excerpted From: E. Tendayi Achiume, Racial Borders, 110 Georgetown Law Journal 445 (March, 2022) (312 Footnotes) (Full Document)

ETendayiAchiumeThe preoccupation of this Article is the manner in which race and racial justice are typically conceptualized in relation to international borders in the dominant liberal democratic legal discourse and theory of First World nation-states. In the context of the 2020 transnational racial justice uprisings, which have pushed issues of systemic racial injustice to the forefront of the agendas of international lawmakers, this Article brings a postcolonial racial justice lens to bear on the legal and political theory of borders. A robust body of liberal legal and other scholarship critiquing the border and migration regimes of the First World exists. Characteristic of much of this scholarship--especially in its international legal variants--is what Debra Thompson, in another context, has termed “racial aphasia,” a calculated forgetting and unwillingness to confront the persisting and imperial operation of race in society. Movement demands for a global reckoning with racial injustice underscore the urgency of legal scholarship--including that on borders--capable of unmasking and explaining the complex nature of this injustice as an important contribution to the project of achieving racial justice.

I aim to advance two analytical claims and consider their normative implications. The first is that contemporary national borders of the international order, an order that is neocolonial, are inherently racial. That is, the default manner in which they enforce exclusion and inclusion is racially disparate. Furthermore, the racial disparities enforced by national borders structurally benefit some nations and racial groups at the expense of others. I build on the work of other scholars of race and of borders to detail how, because of legal doctrine developed in the service of specific imperial and colonial projects initiated in the past and that persist today, whiteness confers privileges of international mobility and migration. And proximity to whiteness calibrates these privileges. This racial privilege inheres in the facially race-neutral legal categories and regimes of territorial and political borders (sovereignty, citizenship, nationality, passports, and visas). It also inheres in rules and practices of national membership and international mobility.

I use the term “racial borders” to refer to territorial and political border regimes that disparately curtail movement (mobility) and political incorporation (membership) based on race and sustain international migration and mobility as racial privileges. Such borders govern access to legal and political rights through access to geographic territory and vice versa. As a result, we should understand today's national borders--especially those of the First World--as racial technology, in the sense that the default output of these borders is differential treatment and outcomes based on race, with white supremacy as one important ordering principle, among others, that determines benefit or advantage. Racial borders, then, are also a form of imperial technology that facilitate exploitation and prosperity within a transnational, political, and economic association of neocolonial empire. Notably, these borders structurally exclude and discriminate on a racial basis as a matter of course often through facially race-neutral law and policy.

My second claim is that central to theorizing the system of imperial racial borders is understanding race itself as a border. It is useful to define what “borders” are in this analysis. As border theorists have noted, “[b]orders are complex composites,” but at least one articulation of what all borders share in common is that “they introduce a division or bifurcation of some sort into the world.” I am especially interested in borders understood as sites of enforcement of inclusion or exclusion--they realize and concretize insider versus outsider status. In the sense that national borders are sites or means of enforcement of national territorial and political exclusion, the second contribution of this Article is to mark race as political and territorial border infrastructure, alongside other border infrastructure, that ranges from physical walls to the institution of citizenship. In their fairly positivist (at least relative to my analysis) study of the borders of liberal states, Steffen Mau, Heike Brabandt, Lena Laube, and Christ of Roos define borders as “a system of rules (and their enforcement) determining conditions of entry into a particular territory that take into account possible costs and benefits for those inside the territory.” Even with this definition, race seems to function as precisely such a set of rules. I will focus on whiteness as a means or site of presumptive inclusion in neocolonial empire and nonwhiteness (with specific attention to Blackness) as a means or site through which political and territorial exclusion (or subordinate inclusion) is achieved in neocolonial empire.

To ground my two analytical claims, consider the following. In early November 2017, the bodies of twenty-six Nigerian girls and women aged between fourteen and eighteen were found floating in the Mediterranean Sea, following their failed attempt to reach Europe. These girls and women joined the tens of thousands of Black Africans and other refugees and migrants who have met their deaths in the Mediterranean Sea, in large part because of a migration governance regime that is calculated to keep as many of these migrants and refugees out, including through their deaths if necessary. European Union coastguards and Libyan coastguards funded by the European Union heavily police the Mediterranean Sea and push migrants and refugees back to Libya where they are detained in migrant detention centers also funded by the European Union. The European Union and European national coastguards themselves used to do the work of “pushing back” migrants and refugees but had to outsource these activities to Libyans, presumably to avoid liability within the European human rights' regional framework.

The drowning of the twenty-six Nigerian girls was characterized as a tragedy, as well as a crime, attributable to ruthless but organized transnational smuggling and trafficking networks. The problem--according to African and European leaders--was a pathology external to the international order and its governance mechanisms (such as criminal smuggling and trafficking networks), rather than a systemic, logical, and predictable output of the international system. The predominant human rights critique highlighted the brutal conditions of migration including the harassment and abuse that characterizes unauthorized migration. Such critiques also highlighted the complicity of European and African governments in consolidating punitive migration governance regimes that, among other things, violate the rights to due process and the protection that refugees and others have under international law. But little--if anything--was made of the race of these girls and women, and there was no political or legal critique anchored specifically in postcolonial or racial justice concerns.

Analyses such as those I reference above--which are the typical liberal analyses the fundamentally racial nature of the governing border regime and operation of race itself as political and territorial border infrastructure within this regime. I aim to show that for the twenty-six Nigerian girls mentioned above, and many others like them, their death is significantly, though not wholly, attributable to what we should think of as the contemporary system of neocolonial racial borders, which is constructed and legitimated by law. Their deaths are a predictable outcome of a racially exclusionary migration governance regime. And their Blackness is a determinant of their deaths, rather than a correlative or coincidental feature, because of what Blackness has socially, politically, economically, and legally been constructed to mean.

I use the term “race” to refer to “the historically contingent social systems of meaning that attach to elements of morphology and ancestry.” This definition recognizes race as a social construction informed by physical features and lineage not because features and lineage are a function of biological racial variation but because societies invest morphology and ancestry with social meaning. At the same time, race is by no means simply or even mostly about physical attributes such as color. It is centrally about the legal, social, political, and economic meaning of being categorized as Black, white, brown, or any other racial designation. Race brings with it concrete individual and structural material realities. Anibal Quijano noted that race remains the product of centuries-long colonial intervention and exploitation during which “race became the fundamental criterion for the distribution of the world population into ranks, places, and roles in ... society's structure of power.” In the colonial context, race structured rights and privileges on hierarchical terms determined by white supremacy. Although formal decolonization has occurred in most of the world, race persists as a neocolonial structure that still allocates benefits and privileges to the advantage of some and the disadvantage of others mainly along the same geopolitical and racial lines that characterized the European colonial project.

Here, I am interested in race as it has emerged, operated, and evolved in the context of European empire, specifically European colonial and neocolonial empire. Even in this context, however, I eschew any approach that treats race as a “discursive monolith” or even as a “static ontology.” Instead, I adopt the approach advanced by Patrick Wolfe, who argues that “race is colonialism speaking, in idioms whose diversity reflects the variety of unequal relationships into which Europeans have co-opted conquered populations.” I should note that my approach is not a totalizing or exhaustive account of race--race is and does many different things in many different places, and although a global analysis of certain racial categories is possible and urgent, Blackness, whiteness, and all other racial categories are also locally constructed and determined in ways that are elided by a global or transnational analysis. Furthermore, even transnationally, there are multiple meanings, histories, and functions of race and even the categories Black and white, which are not encapsulated in my analysis.

Part I of this Article provides the historical origins of racial borders. It provides a brief legal and political genealogy of borders as technology for racial exploitation during European colonialism, with attention to facially neutral legal and policy regimes governing migration and mobility with racialized effects. In Part II, I turn to the postcolonial period to provide an account of the contemporary system of racial borders. I describe how migration, mobility, and asylum regimes continue to deploy facially neutral legal institutions and processes to sustain racialized exclusion. I also describe how race operates as border infrastructure within these frameworks and how liberal legal doctrine is also part of the broader system. In Part III, I explain the nature of the racial injustices perpetrated by the racial borders described in Part II. I illustrate how racial borders facilitate and sustain neocolonial political inequality within neocolonial empire, privileging whiteness in access to effective collective and individual self-determination within neocolonial empire. Racial borders are also the site and means of perpetuating historic colonial injustice, thus warranting corrective justice or reparative intervention.

[. . .]

[I]t is crucial that we recognize that the hegemony of one experience of travel can make it impossible to articulate another experience or for it to be heard. From certain standpoints, to travel is to encounter the terrorizing force of white supremacy. To tell my “travel” stories, I must name the movement from racially segregated southern community, from rural black Baptist origin, to prestigious white university settings. I must be able to speak about what it is like to be leaving Italy after I have given a talk on racism and feminism, hosted by the parliament, only to stand for hours while I am interrogated by white officials who do not have to respond when I enquire as to why the questions they ask me are different from those asked the white people in line before me. Thinking only that I must endure this public questioning, the stares of those around me, because my skin is black, I am startled when I am asked if I speak Arabic, when I am told that women like me receive presents from men without knowing what those presents are. Reminded of another time when I was stripped searched by French officials, who were stopping black people to make sure we were not illegal immigrants and/or terrorists .... To travel, I must always move through fear, confront terror. It helps to be able to link this individual experience to the collective journeying of black people, to the Middle Passage, to the mass migration of southern black folks to northern cities in the early part of the 20th century.

For many people racialized as nonwhite, the experience of racial borders--systems of racialized exclusion and race itself as a border--is all too familiar. The epigraph above, in which bell hooks narrates a personal experience with racial borders, tells a version of a story that might well have been told by one of the twenty-six Nigerian girls I mention in the Introduction if they had survived their encounters with racial borders. Indeed, the racialized and gendered terror that hooks describes is personally resonant. Notwithstanding the nontrivial privilege I enjoy as an academic at an elite, First World institution (and even during my tenure as an independent expert for the U.N.), I share hooks's terror because of the numerous humiliating experiences characteristic of many travels through the First World in my own Black, bordered body. Certainly, hooks's formative experiences of race, gender, and borders coming from the American South and from travel to Europe are markedly different from the experiences and circumstances of the twenty-six Nigerian girls. Yet, notwithstanding the many differences that divide bell hooks and the Nigerian girls, my point has been to argue that a throughline--a transnational system of racial borders that privileges whiteness--exists that connects their respective experiences.

To recapitulate the core claims of this Article, I have aimed to make the following points. I have argued that contemporary international borders, with particular focus on the borders of First World nation-states, are racial borders. I have defined racial borders as political and territorial border regimes that disparately curtail movement (mobility) and political incorporation (membership) on a racial basis. Racial borders sustain international migration and mobility as racial privileges, especially privileges of whiteness. I identify the infrastructure of the contemporary system of racial borders as including migration, mobility, and asylum legal and policy regimes in which facially neutral institutions, policies, and practices reliably result in racialized exclusion and border doctrines that entrench rather than disrupt this racialized exclusion. Furthermore, the infrastructure of the contemporary system of racial borders includes the operation of race itself as territorial and political border infrastructure. Both dimensions of racial borders--racialized exclusion through facially neutral means and race as border infrastructure--have historical antecedents. Indeed, the genealogy of contemporary international border doctrine and practice shows the European colonial origins of racial subordination and exploitation through border governance. Racialized mobility, immobility, inclusion, and exclusion were not incidental or unfortunate by-products of colonial empire. Rather, they were imperially productive technologies for creating and allocating the benefits of empire, and they remain so today. As Adam McKeown notes, liberal democratic ideals and practices of self-rule were also the basis for exclusionary policies such that “[m]odern border controls are not a remnant of an 'illiberal’ political tradition, but a product of self-conscious pioneers of political freedoms and self-rule.”

I have also argued that the contemporary system of racial borders effect neocolonial racial injustice in numerous ways. I have previously made the case that First World nation-states have no right to exclude Third World citizens because the latter form part of the demos of neocolonial empire and the former constitute the only real, effective vehicles of collective self-determination in that empire. I have further argued that racial borders enforce and produce racial, political inequality in neocolonial empire, privileging whiteness in the pathways to effective collective and individual self-determination in neocolonial empire. Put differently, racialized mobility, migration regimes, and race-as-border infrastructure are a crucial axis of First World exploitation of Third World citizens. At the same time, this axis of exploitation effects political inequality between nonwhite and white people subject to neocolonial empire. Racial borders are thus racist, whether they are underwritten by racist intent. Furthermore, racial borders are the site of unremedied historic injustice; they helped create, and they now preserve, the racialized constitutive debt owed to the Third World by the First.

I do not claim to provide an exhaustive account of the way race operates through and alongside borders. By focusing on the white supremacy of neocolonial borders, I do not mean to imply that this system of racial ordering and this imperial formation are the only ones of contemporary salience. I do believe, however, that they are of unique significance for understanding the borders of our international orders because of how fundamentally European colonialism and white supremacy have shaped all contemporary national borders through international legal doctrine and governance mechanisms.

If we think of the concept of race functionally at a high level of abstraction, it is reasonable to think that any time two or more communities demarcate borders that meaningfully allocate rights between or among their members, something “race”-like will emerge, by which I mean some system for determining and identifying structurally and at the individual level who is entitled to fundamental rights and resources. Views will differ on the ethical valence of this “racial” property of immigration regimes among those who accept that it is indeed an inherent feature of immigration regimes. For some, the racial nature of borders is legitimate. For others, it may be a justifiable, or at least tolerable, by-product of a greater good such as cohesive, self-determining, national, political communities. Still, the racial nature of borders may be an untenable injustice. My analysis has aimed to make the case that neocolonial racial borders fall into this last category--that is, they are racial in a racist sense--because they preserve for the First World the ill-gotten gains of colonial exploitation for which reparations were never achieved, and these borders enact contemporary injustices along neocolonial lines.

A significant implication of casting racial borders as functions or products of empire is that to do so lays bare the level at which intervention is required to achieve justice. The problem of racial borders is not merely or even fundamentally an immigration law problem. It is a problem that goes to the core of neocolonial empire and its terms of political and economic interconnection. Genuine border justice may require both the abolition of the extant international liberal order that entrenches unequal sovereign interconnection at the foundational level--sovereignty doctrine--and its replacement with an entirely different political and economic theory of what it means for political communities to interdepend on equitable terms. But it is decidedly not the ambition of this Article to take on the prescriptive project of radical reimagination. Its diagnostic and analytical ambitions are sufficient as necessary precursors to any attempts to reimagine and recreate borders on more racially just and equitable terms. This work is urgent as international, regional, and national policymakers; institutions; and migrants-rights activists continue to debate and reform border governance, especially as they start to do so in contexts that increasingly demand racial reckoning. Such reckoning must begin from a place that acknowledges that the racial injustice of borders is embedded at the core of liberal border regimes.

Alicia Miñana Chair in Law, UCLA School of Law.

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