Excerpted From: Natsu Taylor Saito, Race, Indigeneity, and Migration, 117 AJIL Unbound 43 (2023) (39 Footnotes) (Full Document)


NatsuTaylorSaitoRace, indigeneity, and migration are integrally related in international law. This relationship can be traced to their origins in a legal system dedicated to facilitating European colonialism and imperial expansion. International law has constructed racial difference and deployed racialized hierarchies to determine who would be permitted to migrate to various parts of the world and what their rights or responsibilities would be in those locations, as well as the status of those already living in the territories at issue. Genealogical inquiry makes it clear that the imposition of racialized hierarchies, the construction of indigeneity, and the restrictions placed (or not placed) on migration in international law have been, and continue to be, functions of a colonial world order. This essay begins by acknowledging the colonial roots of contemporary migration patterns, considers how formal decolonization reified arbitrarily imposed states and state borders, and argues that genuine redress has been sidelined by framing colonial dispossession as poverty and underdevelopment. It concludes that, because the system remains structurally dependent upon racism, xenophobia, and the systemic erasure of indigeneity, remediation of these problems will require the genuine decolonization not only of subordinated peoples, but of international law itself.

Indigeneity refers to peoples with longstanding cultural and spiritual ties to particular lands. In the words of UN Special Rapporteur José Martínez Cobo, Indigenous peoples have “a historical continuity with pre-invasion and pre-colonial societies,” and a determination “to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.” By contrast, migration--as constructed in international law--refers to the relocation of individuals or peoples, often from what they understand as their places of origin, to territories occupied by others. As such, indigeneity and migration would appear to be diametrically opposed phenomena.

In fact, however, the migrations of European colonizers have resulted in the racialized construction of indigeneity and the elimination, dispossession, and dislocation of Indigenous peoples. These developments, in turn, have generated further migrations, sometimes instigated by Euro-derivative states and often despite their resistance. Contemporary international law condemns racial discrimination, recognizes at least some degree of Indigenous sovereignty, and mandates basic protections for migrants, but it has not yet come to terms with its own legacy of empire. As a result, despite facial condemnation of racism and colonialism, the international legal system has not been able to effectively address the complexities of indigeneity and migration in the twenty-first century.

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The contemporary international legal system recognizes that global peace and security depend upon the protection of fundamental human rights. Nonetheless, some 258 million people now live outside their countries of origin, and the number of refugees “forcibly displaced as a result of persecution, conflict, violence, human rights violations or events seriously disturbing public order” has more than doubled in the past decade. As individuals, migrants are vulnerable to gendered predation and racialized violence; collectively, they are also the targets of racially disparate state practices that violate international prohibitions on refoulement as well as collective expulsion.

Racism and racial violence remain endemic. A 2022 UN report concluded that there has been “little progress combating systemic racism against people of African descent,” and racial disparities are reflected in all measures of well-being as well as consistent patterns of state-sponsored and private violence. Xenophobia and “nativism” persist, their perpetrators intent on asserting preemptive rights to place and space. Racialized violence against Indigenous peoples is commonplace, particularly in regions coveted by extractive industries, and attacks on Indigenous women and girls--a global problem--are perpetrated with impunity.

But the harm suffered by Indigenous peoples who remain on or near their ancestral territories, by those who have been forcibly removed from their homelands, and by persons compelled to migrate for any number of other reasons goes beyond racially disparate treatment and threats of physical violence. Their racialized subordination and exclusion are structurally embedded in international and domestic legal systems in ways that often threaten their very survival. Without the actual decolonization of international law, starting with the recognition of the rights of Indigenous peoples and, particularly, their right to self-determination, we will not be able to eliminate racism or xenophobia, or ensure migrants' rights, because states will continue to perpetuate the status quo by relying on the racial narratives, legal advantages, and dynamics of a global economy skewed by its heritage of colonial exploitation.

Regents Professor Emerita, Georgia State University College of Law, Atlanta, GA, United States.