Thursday, August 06, 2020

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 Abstract

Excerpted From: Natsu Taylor Saito, Crossing the Border: The Interdependence of Foreign Policy and Racial Justice in the United States, 1 Yale Human Rights and Development Law Journal 53 (1998) (144 Footnotes) (Full Document)

NatsuTaylorSaitoP1 Scholars, social activists, and policy makers often regard the United States' foreign policy as it relates to human rights and its domestic policy with respect to race as distinct areas, separated by the nation's border. Although this border exists geographically, through the assertion of jurisdiction, and in the recognition of citizenship, is there really a border between our foreign and domestic policy in these matters? The U.S. government is often criticized for failing to comply with international human rights law and for perpetuating economic and racial inequality in its foreign policy. Racism within the United States is recognized as pervasive and virulent, but generally considered unrelated to U.S. foreign policy. For the most part, scholars and activists concentrate on either the international or the domestic realm, reflecting a widely accepted assumption that the problems confronted in each are distinct. There is, however, evidence that this border between the two is much more permeable than contemporary legal analyses or social attitudes suggest.

P2 In fact, because perceptions of and attitudes toward those who are regarded as racial or ethnic minorities flow quite readily across this border, racism towards those outside the United States makes discrimination within this country seem more acceptable; the ill-treatment of racial and ethnic minorities within our borders, in turn, makes it easier to disregard the rights and humanity of those outside the border. This attitude manifests itself in many ways, one of which is the United States' willingness to disregard international law, particularly human rights law.

P3 It is a mistake to think that we can remedy discrimination against Americans while allowing our government to treat people who live in other countries or carry different passports as not deserving of full, or even basic, human rights. Taking such a position allows the basis of the discrimination to be constantly re-created at the same time that we deplore its consequences. It is like cutting off the head of a weed while fertilizing its roots. This cycle is especially problematic in the United States because our population has cultural and historic ties with so many parts of the world. We cannot expect a formal legal distinction between 'citizens' and 'non-citizens,' or 'Americans' and 'foreigners' to protect the rights of racial or ethnic minorities simply because we live inside the U.S. border, particularly when prejudice and disregard move so easily across its territorial boundaries.

P4 We have been conditioned to define ourselves in terms of citizenship, and to think of ourselves in relation to the border. With respect to human rights, we uncritically accept the distinction between 'Americans' and 'foreigners,' and frame the struggle for justice and human decency in terms of 'civil rights' for those at home and 'human rights' for those overseas. This is reinforced by the belief that the U.S. Constitution provides significantly more protection than is afforded by international law, and that we can only take advantage of this higher level of protection by maintaining the power of the border.

P5 Because these concepts are so deeply rooted in our thinking, it is easier to see the connections between foreign and domestic policy if we leave aside, for the moment, the concepts of race and citizenship, and think in terms of the identification of the 'other.' The distinction between 'us' and 'them' is, of course, one that affects all social interaction, creating complex layers of overlapping identities. Here, however, I am limiting the term to the kind of 'otherness' that is ascribed on the basis of what we commonly call racial or ethnic characteristics. It thus encompasses people of color, people who speak languages other than English, and people from significantly different cultural traditions. What makes this concept of 'otherness' more confusing-- and correspondingly, more useful--is that, unlike distinctions based on fixed characteristics such as 'race' or nationality, 'otherness' mutates in response to social and political change. Thus, for much of our history, African Americans have been defined as 'other,' based on the strict racial classifications that emerged in the seventeenth and eighteenth centuries to help create and maintain the institution of slavery. Nonetheless, we see current attempts to enlist African Americans, as U.S. citizens, in campaigns to restrict the rights of recent immigrants. While Cuban Americans have sometimes been identified as 'other' or 'foreign' based on their national origin, we have recently seen distinctions made on the basis of race, class, and political affiliation between the Cuban Americans who came to the United States in the 1960s, now portrayed as 'insiders,' and more recent Cuban immigrants, generally poorer and darker-skinned, who are portrayed as 'others.'

P6 Although who is 'other' can change over time, once people have been identified as outsiders, public perceptions of them often do not keep pace with advances in their legal status. This is illustrated by the legacy of slavery. The portrayal of Africans as less than human--and therefore not deserving of human rights--as a rationale for slavery created a basis for ongoing oppression of African Americans that did not end with the granting of citizenship or formal legal equality. As the Dred Scott decision made painfully clear, until the passage of the Fourteenth Amendment, persons of African descent were not considered citizens, or even 'persons,' under the law. From Jim Crow laws to the Kerner Commission to contemporary reports of racial violence and discrimination, we see the lingering effects of the viewpoints that once rationalized slavery. One result of this history is that we cannot understand racism today without reference to the continuing, often unconscious, portrayal of whiteness as the norm and African Americans as 'other.'

P7 This article explores some of the ways in which U. S. foreign policy affects the treatment of those peoples within the United States who are identified as 'other' based on socially constructed notions of race, ethnicity, or national origin and how, in turn, the treatment of such groups within the United States influences our foreign policy. In Section II, I consider how the portrayal of peoples outside the U.S. border as 'other' can both stem from and perpetuate the ill-treatment of racial and ethnic minorities within the United States. I describe some contemporary situations in which the U.S. government has exhibited a flagrant disregard for human rights and international law in our foreign policy, and the adverse effect this disregard has on racial and ethnic minorities at home. In Section III, I present a case study, the currently pending legal action regarding the United States' kidnapping, holding hostage, and incarceration of Japanese Peruvians during World War II, and relate this policy to discrimination against Japanese Americans, discrimination which extended to the point of threatening large-scale deportations of U.S. citizens. Section IV focuses on the important role international law can play in developing governmental policies that promote human rights for racial and ethnic minority groups both at home and in other countries. I conclude in Section V that an integral part of the struggle for racial justice at home is the insistence that our government comply with international law and treat those who are identified as 'foreign' or 'other' with respect.

[. . .]

P40 Activists and intellectuals have recognized the connections between U.S. foreign policy and domestic racism in some contexts--understanding, for example, that we could not allow the U.S. government to support apartheid in South Africa and still expect that African Americans would be respected at home. As long as the United States supported virulent racism in another country, no border could keep it from infecting public attitudes and domestic governmental policies. As the African American experience has so painfully demonstrated, citizenship--the nominal protection of the border--is not enough to protect human rights and human dignity.

P41 As with the anti-apartheid movement, we need to take on the responsibility of paying attention to, and holding the government accountable for, the effects of its actions on the rest of the world. Sometimes we feel that the problems of racism at home are so overwhelming that we cannot afford to pay attention to what happens overseas. But we need to understand that the two are inseparable, and that if we want our government to treat all Americans with respect, we have to insist that the government treat 'foreigners' with respect as well.

P42 A foreign policy that promotes human dignity is not limited to, but certainly requires respect for international law. The United States could be at the forefront of the movement to expand international human rights law. Until we get to that point, we can at least insist that our government comply with existing law and promulgate a foreign policy that does not discount the value of human life in any country.

P43 We are tempted sometimes to believe that gross violations of human rights and international law by the United States are a thing of the past. We cannot imagine that our government would support slave traders or hold hundreds of innocent civilians hostage simply because of their race or national origin. Nonetheless, a closer look at the recent actions and policies of the U.S. government reveals a disturbingly familiar disregard for the rights of people, particularly people of color, on the other side of the border. P44 In matters of both international and domestic concern, human rights violations are often rationalized as necessary to preserve 'national security.' In examining these situations, we must not accept assertions of military necessity or national security interests uncritically. If there were ever a case where national security interests could override international law, it surely would have been the Amistad case, given the imminent threat of civil war. Yet it is clear in retrospect that the Supreme Court furthered the cause of justice both at home and internationally by ruling as it did. Conversely, the rationale of military necessity was accepted almost without question at the time of the internment of Japanese Americans and Japanese Peruvians during World War II. One of the few to challenge this justification was Professor Eugene Rostow, who noted that the rights and liberties of all Americans were endangered by the Supreme Court's willingness to allow the military to determine the extent to which constitutional protections would apply to an ethnic minority in times of war. It has since come to light that the War Department deliberately had misled the courts about the nature of the military danger, and that Justice Murphy correctly identified racism, rather than military necessity, as the true motivation for the internment. As these cases illustrate, it is in times of war that the military is given the greatest latitude and therefore requires the most scrutiny. During the Cold War, the excesses of McCarthyism were said to be justified by concern for national security, but then, too, the human rights and dignity of American citizens suffered the most. Today the United States is unquestionably the most powerful nation on earth. We need to be extremely cautious about accepting 'national security' or analogies to war as justifications for curtailing human rights at home or abroad, whether they are framed in terms of military warfare, economic threat, the invasion of our geographic borders, or the 'war on drugs.' During war, human rights should not be violated because these are precisely the situations in which we most need human rights to be protected. P45 Speaking about his experiences representing Haitian refugees interdicted at sea, Professor Harold Koh has said:

I heard our government assert claims of national security and national emergency in support of its demand for presidential power: the Korematsu argument being made against the Haitians. I heard the Chinese Exclusion arguments about sovereignty and inherent power to protect our borders invoked against the Haitians. The Government cited U.S. ex rel. Knauff v. Shaughnessy, an egregious case that had declared that '[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.'

. . .

. . . [I]t finally dawned on me that the Haitian saga is not someone else's saga. It is my story. We need to apply this analysis to all of our foreign policy. The Haitian story is certainly the story of Asian American immigrants, but it is more than that. As Koh says, 'I realized that the Haitian story reduces to a story about 'we’ and 'they.’ Our government was able to depersonalize the Haitians because Americans wanted to believe that the Haitians are not us.' That depersonalization comes back to harm us.

P46 In the struggle for racial justice at home, it is sometimes tempting to believe that we will achieve more progress on domestic rights by avoiding criticism of U.S. foreign policy. There are several problems with this approach. One is that we all become part of the problem when our silence can be bought with the promise of a higher standard of living or a little less discrimination. Another is that as we struggle for domestic respect and recognition, we have to demonstrate that we are part of this polity. This is our government acting in the world and if it is not representing us in those actions, we need to insist that it change. And finally, as discussed above, disregard for the rights of those identified as 'other' does not stop at the border. Discussing the reaction to his decision to speak out against the war in Vietnam, Martin Luther King, Jr. said

[M]any persons have questioned me about the wisdom of my path. . . . Why are you speaking about the war, Dr. King? . . . Peace and civil rights don't mix, they say. Aren't you hurting the cause of your people? they ask. And when I hear them, though I often understand the source of their concern, I am nevertheless greatly saddened, for. . .their questions suggest that they do not know the world in which they li 


Associate Professor, Georgia State University College of Law.


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Vernellia R. Randall
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Professor Emerita of Law
The University of Dayton School of Law

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