TABLE OF CONTENTS I. INTRODUCTION 335 II. INTERNATIONAL LAW AS A SOLUTION: AN INTRODUCTION TO THE EMERGING ANTI-XENOPHOBIA FRAMEWORK 342 A. International Human Rights Law on Equality and Discrimination 344 B. Ancillary Processes and Architecture in the International Law and Policy of Cross-Border 361 Movement C. The Framework's Priority Commitments: The Prejudice Approach 365 III. INTERNATIONAL LAW'S XENOPHOBIC ANXIETY RATCHETS 368 A. Xenophobic Anxiety as 369 Political Anxiety B. Gaps in International Refugee Law: Refugee Regional Containment and Absence of a Sustainable and Equitable International Cost-Sharing 374 Mechanism C. Gaps in International Refugee Law and in the "International Law of Migration": Chaotic and Unauthorized 379 Movement IV. IMPROVING THE EMERGING ANTI-XENOPHOBIA FRAMEWORK 390 A. Ideal Solutions 391 B. Second Bests?: Targeting the Ratchets 393 V. CONCLUSION 398 I. INTRODUCTION
Existing global frameworks governing the movement of people across international borders are ill-suited to such movement (1) This Article specifically focuses on the manner in which these frameworks can heighten problems they should not, make dangerous journeys worse, and exacerbate conflict regarding where people go and their fate on arrival. This Article examines this counterintuitive dynamic in the context of large-scale contemporary involuntary migration (2) and the growing problem of xenophobia that accompanies it.
Between mid-2015 and mid-2016, over 1 million involuntary migrants including Syrian refugees sought refuge in Europe (3) Many European states responded with vitriolic anti-migrant policies (4) For example, at Hungary's border, Syrian refugees and other involuntary migrants faced brutal beatings, razor-sharp fences, and other tactics to prevent their entry. (5) A member of Hungary's government publicly remarked that hanging pigs' heads at that country's border might effectively deter arrival of Muslim refugees (6) In this period Hungary's President described migration as "poison," adding that "every single migrant poses a public security and terror risk (7)" Following the United Kingdom's referendum to exit the European Union, xenophobic speech and violence saw a sharp rise in that country (8) And despite the geographic remoteness of the United States from the events in Europe, xenophobic backlash nonetheless escalated here, too. In his presidential campaign, Donald Trump espoused an explicit anti-Muslim, Islamophobic rhetoric, which characterized Islam and its adherents as per se threats to the United States. Among his campaign promises was a "total and complete shutdown" of Muslims entering the United States. (9) And during this campaign and following his election, reports documented a spike in prejudice-motivated crimes against Muslims in the United States, (10) while governors, mayors, and members of Congress called for blanket exclusion of refugees from Syria, alleging urgent national security concerns. (11) This is but a snapshot of a problem of global prevalence (12)
At present, there is no consensus definition of xenophobia or xenophobic discrimination in international law. For the purposes of this Article, "xenophobia" refers to a certain class of illegitimate anti-foreigner attitudes and actions that should be understood as political in fundamental respects (13) A later Part details the prevailing ambiguity at the international level as to precisely how this class of illegitimate attitudes and action is delineated. But at this early stage it is sufficient to describe xenophobic attitudes and actions as those that have the purpose or effect of racialized exclusion of non-nationals. (14) Although shifts in global involuntary displacement have reinvigorated scholarly attempts to conceptualize different facets of global migration governance, (15) little exists on the specific question of xenophobia. (16) This Article addresses this gap.
The first contribution of this Article is to describe an emerging global framework intended by its authors to improve international cooperation to combat the problem of xenophobia (the Framework). (17) Recent developments in this emerging Framework include a UN Human Rights Council Resolution initiating the drafting of new international law criminalizing acts of a xenophobic nature. In parallel, states and other international actors are engaged in a separate process intended to revamp the global governance of involuntary migration through two new global agreements: a Global Compact for Refugees, and a Global Compact on Migration. In this context, the United Nations SecretaryGeneral has initiated "a global campaign led by the United Nations to counter xenophobia" (18) as a fundamental feature of an international regime capable of addressing large movements of migrants and refugees. In the New York Declaration for Refugees and Migrants (New York Declaration) adopted in September 2016, UN member states condemned xenophobia and committed to implementation of the global anti-xenophobia campaign. (19) This Article situates these developments in a broader trajectory of global cooperation to combat xenophobia and its manifestations to sketch, for the first time, the apparatus of the nascent Framework. This Article also identifies and assesses the key debates among states, occurring within the Framework regarding xenophobia under international law. Understanding the emerging normative, doctrinal, and institutional commitments of this Framework is vital, not least because this Framework may well be a prototype or precursor to a full-fledged global anti-xenophobia regime.
The second contribution of this Article is to bring to light a dangerous blind spot in the emerging Framework that ignores various ways that features of the global governance of involuntary migration (20) itself make the problem of xenophobia worse. (21) Study of the Framework reveals priority of what I have identified elsewhere as the prejudice approach to combatting the problem of xenophobia. (22) Through this prejudice approach, global actors prioritize initiatives improving interpersonal relations among private citizens and involuntary migrants and guaranteeing punishment of anti-foreigner conduct explicitly motivated by prejudice. This effectively reduces the problem of xenophobia primarily to a problem of individuals harboring xenophobic prejudice, requiring international engagement or cooperation that combats xenophobic prejudice and its manifestations at the level of individuals. There is merit to anti-xenophobia intervention at this level, but a broader approach is necessary.
Global governance of involuntary migration occurs largely through international human rights law and international refugee law, which establish various rules and principles constraining states' treatment of involuntary migrants. (23) Both bodies of law provide vital protections to involuntary migrants. However, this Article argues that the governance regime they undergird has built-in gaps and incentive structures that increase opposition--including xenophobic opposition--to the admission and inclusion of involuntary migrants. (24) In the New York Declaration, UN member states pledge to "consider reviewing [their] migration policies with a view to examining their possible unintended negative consequences." (25) This Article makes a significant contribution in this regard. It provides an account of how specific features of international law and policy on involuntary migration are seemingly themselves part of the problem of xenophobia. These flawed features reside mainly in the international law relating to refugee cost-and responsibility-sharing, and that relating to the passage and admission of involuntary migrants, as well as common state practice on these issues. Addressing these features is as least as urgent as combatting individual prejudice.
The third contribution of this Article is to offer concrete proposals for how the prejudice approach could be supplemented to include serious attention to the dangerous effects that governance structures and state activity within them contribute to the problem of xenophobia. Many of the principal challenges of involuntary migration today--xenophobia included--speak to the very foundations of the nation-state system, deeply implicating popular and legal conceptions of state sovereignty. Fully confronting these challenges requires a radical rethinking of the relationship between territory and political community in our world of increasing international mobility. It is, however, beyond the scope of this Article to advance a proposal for reform at that level. (26) The aim here is instead to advocate for a more attainable shift in the emerging Framework, one that does not eliminate the root of the problems the Article identifies but that nonetheless diminishes the inhumanity and suffering that attends the status quo.
The remainder of this Article proceeds as follows. Part II identifies the nascent global anti-xenophobia framework in international human rights law and recent global initiatives governing involuntary displacement and explains its prejudice approach. Part III posits features in the structure and content of the global governance of involuntary migration that seem to ratchet up the problem of xenophobia, using examples from recent events of mass involuntary displacement. Part IV identifies important policy reform implications of the arguments, prior to the Article's conclusion.
INTERNATIONAL LAW AS A SOLUTION: AN INTRODUCTION TO THE EMERGING ANTI-XENOPHOBIA FRAMEWORK
At present, there exists a discernable but nascent apparatus this Article terms the global anti-xenophobia framework (or the Framework). The term "framework" describes developing and increasingly formalized structures of global cooperation to combat xenophobia. (27) The Framework presently falls short of a formal international regime in the technical sense of the term. (28) Because no...