Racial Borders

• Author: E. Tendayi Achiume
• Position: Alicia Miñana Chair in Law, UCLA School of Law
• Pages: 445-508

ARTICLES

Racial Borders

E. TENDAYI ACHIUME*

This Article explores the treatment of race and racial justice in domi-

nant liberal democratic legal discourse and theory concerned with inter-

national borders. It advances two analytical claims. The first is that

contemporary national borders of the international order—an order that

remains structured by imperial inequity—are inherently racial. The

default of liberal borders is racialized inclusion and exclusion that privi-

leges “whiteness” in international mobility and migration. This racial

privilege inheres in the facially neutral legal categories and regimes of

territorial and political borders and in international legal doctrine. The

second is that central to theorizing the system of neocolonial racial bor-

ders is understanding race itself as border infrastructure. That is, race

operates as a means of enforcing liberal territorial and political borders,

and as a result, international migration governance is also a mode of

racial governance. Normatively, this Article outlines the specific rela-

tional injustices of racial borders.

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446

I. THE HISTORICAL ORIGINS OF RACIAL BORDERS . . . . . . . . . . . . . . . . . . . . . 455

II. THE CONTEMPORARY SYSTEM OF RACIAL BORDERS. . . . . . . . . . . . . . . . . . 464

A. MIGRATION, MOBILITY, AND ASYLUM REGIMES . . . . . . . . . . . . . . . . . 466

1. Citizenship, Passports, and Visas . . . . . . . . . . . . . . . . . . 466

2. Refugee and Asylum Regimes . . . . . . . . . . . . . . . . . . . . 476

B. RACE AS BORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480

C. RACIAL BORDER DOCTRINE IN INTERNATIONAL LAW. . . . . . . . . . . . . 488

* Alicia Mi~

nana Chair in Law, UCLA School of Law. © 2022, E. Tendayi Achiume. This Article has

benefitted significantly from the wisdom of many more people than it is permissible to name in a

footnote. Thank you to all of the profoundly incisive, supportive, skeptical, and ambivalent interlocutors

who helped me work through this first iteration of Racial Borders—you know who you are. I would also

like to thank the following for their stellar research assistance: Cooper Christiancy, Marc Ja

´come, Erin

Shields, Mykel Skinner, and Rob Viano. With all its imperfections, this Article is nonetheless dedicated

to every person who carries fatal borders on their body.

445

III. NEOCOLONIAL RACIAL BORDER INJUSTICE . . . . . . . . . . . . . . . . . . . . . . . . . 494

A. RACIALIZED POLITICAL INEQUALITY. . . . . . . . . . . . . . . . . . . . . . . . . . 496

B. UNREMEDIED HISTORIC RACIAL INJUSTICE . . . . . . . . . . . . . . . . . . . . . 500

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505

INTRODUCTION

The 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.

1

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,

2

For example, in the wake of the murder of George Floyd, as tens of thousands of people across the

world took to the streets under the banner of Black Lives Matter, a transnational coalition of human

rights organizations mounted a campaign that resulted in the United Nations Human Rights Council

holding a Special Session devoted to systemic racism in law enforcement. See Sejal Parmar, The

Internationalisation of Black Lives Matter at the Human Rights Council, EJIL: TALK! (June 26, 2020),

https://www.ejiltalk.org/the-internationalisation-of-black-lives-matter-at-the-human-rights-council/

[https://perma.cc/WT9J-XG9F]. On the successes and failures of the Special Session in responding to

movement demands for racial justice, see E. Tendayi Achiume, Transnational Racial (In)Justice in

Liberal Democratic Empire, 134 HARV. L. REV. F. 378 (2021).

this Article brings a postcolonial racial justice lens to bear on the

1. I use the term “First World” to refer to former European colonial powers (including settler–

colonial nations such as the United States, Canada, and Australia), in keeping with the tradition of Third

World Approaches to International Law Scholarship (TWAIL). I use the term “Third World” to refer to

the territories and peoples formerly colonized by the First World. For an exposition of the category

Third World including responses to concerns regarding anachronism or offensiveness, see Balakrishnan

Rajagopal, Locating the Third World in Cultural Geography, 15 THIRD WORLD LEGAL STUD. 1, 3–4,

7–11 (1999). TWAIL interrogates ways that European colonialism continues fundamentally to structure

international law and relations and uses the terms First and Third World as theoretically and politically

productive categories. For helpful background, see James Thuo. Gathii, TWAIL: A Brief History of Its

Origins, Its Decentralized Network, and a Tentative Bibliography, 3 TRADE L. & DEV. 26 (2011); JOHN

REYNOLDS, EMPIRE, EMERGENCY AND INTERNATIONAL LAW 21 (2017) (“[The Third World is] a social

and political consciousness that bands together a diversity of actors through their common

marginalisation by the particularities of global North hegemony.”); and Obiora Chinedu Okafor, Critical

Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?, 10 INT’L

CMTY. L. REV. 371, 374–77 (2008). For analysis of the meaning, value, and limits of the concept of the

Third World, see B.S. Chimni, Third World Approaches to International Law: A Manifesto, 8 INT’L

CMTY. L. REV. 3, 4–7 (2006); Makau Mutua, What Is TWAIL?, 94 AM. SOC’Y INT’L L. PROC. 31, 31–32

(2000); Karin Mickelson, Rhetoric and Rage: Third World Voices in International Legal Discourse, 16

WIS. INT’L L.J. 353, 355–62 (1997); REYNOLDS, supra, at 21–24; and E. Tendayi Achiume, Migration as

Decolonization, 71 STAN. L. REV. 1509 (2019) (illustrating the relevance of the Third World and First

World categories for understanding historical and contemporary border injustice).

2.

446 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

legal and political theory of borders.

3

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 apha-

sia,” a calculated forgetting and unwillingness to confront the persisting and im-

perial operation of race in society.

4

Movement demands for a global reckoning

3. In doing so, it elaborates the racial justice dimensions of the postcolonial critique of borders that I

have initiated in prior work. See E. Tendayi Achiume, Reimagining International Law for Global

Migration: Migration as Decolonization?, 111 AJIL UNBOUND 142, 144–45 (2017); Achiume, supra

note 1, at 1519–20.

4. According to Debra Thompson, racial aphasia is

not the same as amnesia, which indicates some unfortunate series of events that

led to an unintentional forgetting of how the modern world system was founded

on, and continues as, a hierarchical racial order. Racial amnesia obscures the

power involved in purposeful evasion, suggesting that, like a B-movie plot, we

must have accidentally fallen, hit our heads and forgotten our racist past. Amnesia

disavows intent. Aphasia, on the other hand, indicates a calculated forgetting, an

obstruction of discourse, language and speech. . . .

. . . International bodies and states alike profess normative and legal commit-

ments to racial equality while racial stratification persists both between the devel-

oped and developing worlds and within most, if not all, racially heterogeneous

societies. White supremacy as a global institution and racism as a pervasive social

structure are obscured . . . ; as a result, racism is instead reduced to abhorrent indi-

vidualistic acts or attitudes. The promise of the post-racial society is realized not

through reparations or substantive equality, but in the imposition of race-free dis-

courses that keep international and domestic racial orders firmly entrenched.

Debra Thompson, Through, Against and Beyond the Racial State: The Transnational Stratum of

Race, 26 CAMBRIDGE REV. INT’L AFFS. 133, 135 (2013). Within international human rights and refugee

law scholarship, a robust literature exists critiquing the exclusionary, violent, and deadly nature of

liberal borders. See, e.g., Thomas Gammeltoft-Hansen & James C. Hathaway, Non-Refoulement in a

World of Cooperative Deterrence, 53 COLUM. J. TRANSNAT’L L. 235, 243–44 (2015); Bethany Hastie &

Francois Crepeau, Criminalising Irregular Migration: The Failure of the Deterrence Model and the

Need for a Human Rights-Based Framework, 28 J. IMMIGR. ASYLUM & NAT’Y L. 213, 216 (2014);

James C. Hathaway & R. Alexander Neve, Making International Refugee Law Relevant Again: A

Proposal for Collectivized and Solution-Oriented Protection, 10 HARV. HUM. RTS. J. 115, 119–30

(1997). Scholarship such as that listed here has invaluably contributed to revealing the flaws of liberal

borders. But it has not centered the racially discriminatory or unjust nature of these borders. Among the

early and most notable exceptions is the work of Tayyab Mahmud who has powerfully written about

borders, race, and migration with a focus on empire and international law. See, e.g., Tayyab Mahmud,

Geography and International Law: Towards a Postcolonial Mapping, 5 SANTA CLARA J. INT’L L. 525

(2007) [hereinafter Mahmud, Geography and International Law]; Tayyab Mahmud, Colonial

Cartographies, Postcolonial Borders, and Enduring Failures of International Law: The Unending Wars

Along the Afghanistan-Pakistan Frontier, 36 BROOK. J. INT’L L. 1 (2010) [hereinafter Mahmud,

Colonial Cartographies]; Tayyab Mahmud, Cheaper than a Slave: Indentured Labor, Colonialism, and

Capitalism, 34 WHITTIER L. REV. 215 (2013) [hereinafter Mahmud, Cheaper than a Slave].

An emerging body of international legal scholarship is also beginning to resist the racial aphasia of

the field. See, e.g., E. Tendayi Achiume, Governing Xenophobia, 51 VAND. J. TRANSNAT’L L. 333, 344

(2018) [hereinafter Achiume, Governing Xenophobia]; E. Tendayi Achiume & Aslı U. Ba

ˆli, Race and

Empire: Legal Theory Within, Through, and Across National Borders, 67 UCLA L. REV. 1386 (2021);

Cathryn Costello & Michelle Foster, Race Discrimination Effaced at the International Court of Justice,

115 AJIL UNBOUND 339 (2021); Justin Desautels-Stein, A Prolegomenon to the Study of Racial

Ideology in the Era of International Human Rights, 67 UCLA L. REV. 1536, 1545 (2021); NADINE EL-

ENANY, (B)ORDERING BRITAIN: LAW, RACE AND EMPIRE 197 (2020); Michelle Foster & Timnah Rachel

2022] RACIAL BORDERS 447