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Ukrainian Refugees, Race, and International Law's Choice Between Order and Justice

Published online by Cambridge University Press:  27 October 2022

Marissa Jackson Sow
Marissa Jackson Sow*
Affiliation:
Assistant Professor of Law, University of Richmond School of Law, Richmond, VA, United States.
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Abstract

The resurgence of racist rhetoric and policies concerning people fleeing the war in Ukraine serves as a reminder that the ostensible goals of the 1951 Convention Relating to the Status of Refugees and 1967 Protocol are regularly eschewed by states making decisions about how to allocate grants of asylum. This Essay makes the claim that racial tiering of protection-seekers demonstrates that states use international refugee law to negotiate their national whiteness contracts and to secure racially hegemonic geopolitical ordering.

Type
Agora Essays: The War in Ukraine and the Future of the International Legal Order
Information
American Journal of International Law , Volume 116 , Issue 4 , October 2022 , pp. 698 - 709
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press for The American Society of International Law

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Footnotes

The author would like to thank Carla Laroche, Lisa Washington, Rebecaa Crootof, Jim Gibson, and the participants in the Summer 2022 Richmond Law faculty workshop for their very helpful comments on the early iterations of this project.

References

1 See Amy Shannon Liedy, Life as a Black Ukrainian: How Some Natives Are Treated Like Foreigners, Wilson Ctr. (May 2, 2011), at https://www.wilsoncenter.org/event/life-black-ukrainian-how-some-natives-are-treated-foreigners.

2 See Monica Pronczuk & Ruth Maclean, Africans Say Ukrainian Authorities Hindered Them from Fleeing, N.Y. Times (Mar. 1, 2022), at https://www.nytimes.com/2022/03/01/world/europe/ukraine-refugee-discrimination.html.

3 See Philip S. S. Howard, Bryan Chan Yen Johnson & Kevin Ah-Sen, Ukraine Refugee Crisis Exposes Racism and Contradictions in the Definition of Human, Conversation (Mar. 21, 2022), at https://theconversation.com/ukraine-refugee-crisis-exposes-racism-and-contradictions-in-the-definition-of-human-179150 (containing video link of Ukraine's deputy chief prosecutor, David Sakvarelidze, stating: “It's very emotional for me because I see European people with blue eyes and blonde hair being killed” and Ukrainian Ambassador to the United Kingdom, Vadym Prystaiko, saying, in response to reports of racism, “Maybe we will put all foreigners in some other place so they won't be visible. . . . And (then) there won't be conflict with Ukrainians trying to flee in the same direction.”)

4 See Lorraine Ali, In Ukraine Reporting, Western Press Reveals Grim Bias Toward “People Like Us,” L.A. Times (Mar. 2, 2022), at https://www.latimes.com/entertainment-arts/tv/story/2022-03-02/ukraine-russia-war-racism-media-middle-east (quoting CBS News correspondent Charlie D'Agata as saying: “This isn't a place, with all due respect, like Iraq or Afghanistan, that has seen conflict raging for decades. . . . This is a relatively civilized, relatively European—I have to choose those words carefully too—city, one where you wouldn't expect that or hope that it's going to happen.”).

5 Id. (quoting Daniel Hannan).

6 Id.

7 Article 3 of the Refugee Convention prohibits discrimination against refugees on account of “race, religion, or national origin.” Convention Relating to the Status of Refugees, Art. 3(1), July 28, 1951, 19 UST 6259, 6261, 189 UNTS 150, 156 (entered into force Apr. 22, 1954) [hereinafter Refugee Convention].

8 See Nessel, Lori A., Externalized Borders and the Invisible Refugee, 40 Colum. Hum. Rts. L. Rev. 625, 643–62, 696–97 (2009)Google Scholar.

9 According to E. Tendayi Achiume and other scholars, the international refugee law regime has excluded non-white refugees since its creation. “The regime excluded Third World, non-white refugees. The confluence of First World [nation-s]tate interest meant that the [UN] Refugee Convention definition of a refugee, which restricted status to those fleeing events in Europe, by design and effect racialized the very first international legal definition of a refugee.” E. Tendayi Achiume, Race, Refugees, and International Law, in The Oxford Handbook of International Refugee Law 56 (Cathryn Costello, Michelle Foster & Jane McAdam eds., 2021).

10 See Chimni, B.S., The Geopolitics of Refugee Studies: A View From the South, 11 J. Refugee Stud. 350 (1998)CrossRefGoogle Scholar (“In the post-1945 period the policy of Western states has moved from the neglect of refugees in the Third World to their use as pawns in Cold War politics to their containment now.”); Achiume, supra note 9, at 51–52 (noting that: “In some countries, scholars have argued that racism is actually institutionalized in asylum law and policy governed by the Refugee Convention.”).

11 Refugee law scholars have often described what I characterize here as a dichotomy between justice and order and as a dichotomy between protection and state sovereignty, such as Peter Schuck did in his influential 1997 article. See, e.g., Schuck, Peter H., Refugee Burden-Sharing: A Modest Proposal, 22 Yale J. Int'l L. 243, 246–47 (1997)Google Scholar (describing his “effort to salvage a meaningful human rights regime from the carcass of state sovereignty” and acknowledging that “many well-informed commentators on refugee law and policy in the academy and in the field . . . often maintain that state sovereignty constitutes perhaps the chief threat and impediment to the fulfillment of human rights goals”).

12 The UNHCR also describes the Refugee Convention as being “[g]rounded in Article 14 of the Universal Declaration of Human Rights 1948” and notes that the Convention has been supplemented by “the progressive development of international human rights law.” Office of the High Commissioner for Refugees, “Introductory Note by the Office of the High Commissioner for Refugees (UNHCR)” Convention and Protocol Relating to the Status of Refugees, at https://www.unhcr.org/en-us/3b66c2aa10.

13 See Sow, Marissa Jackson, Whiteness as Contract, 78 Wash. & Lee L. Rev. 1803, 1817–28 (2022)Google Scholar.

14 The United Kingdom, for example, has implemented a “hostile environment” policy to refugees to cater to ethnonationalist sentiments, which led to the formation of its “UK-Rwanda Migration and Economic Development Partnership” asylum claim transfer agreement. See Melanie Gower & Patrick Butchard, UK-Rwanda Migration and Economic Development Partnership, House of Commons Library (July 12, 2022), available at https://researchbriefings.files.parliament.uk/documents/CBP-9568/CBP-9568.pdf; Sen, Piyal, et al. , The UK's Exportation of Asylum Obligations to Rwanda: A Challenge to Mental Health, Ethics and the Law, 62 Med., Sci., & L. 165 (2022)Google ScholarPubMed.

15 See Hathaway, James C., A Reconsideration of the Underlying Premise of Refugee Law, 31 Harv. Int'l L. J. 129, 130 (1990)Google Scholar (“Refugee law is often thought of as a means of institutionalizing societal concern for the well-being of those forced to flee their countries, grounded in the concept of humanitarianism and in basic principles of human rights.”)

16 See id. at 130 (“In practice . . . international refugee law seems to be of marginal value in meeting the needs of the forcibly displaced and, in fact, increasingly affords a basis for rationalizing the decisions of states to refuse protection.”)

17 See id. at 134–35 (“Refugee law, with its predominant emphasis on the establishment of secure conditions of exile, is fundamentally a product of European political culture. . . . By the beginning of the twentieth century . . . the view in Europe of the state as an instrument for carrying out a spiritually inspired mandate had been discarded in favor of a conceptualization of the state as an independent political apparatus dedicated to advancing the general good of its own population.”)

18 See Antony Anghie, Imperialism, Sovereignty and the Making of International Law 193 (2004) (contending that “the reproduction of the basis premises of the civilizing mission and the dynamic of difference [is] embodied in the very structure, logic and identity of international institutions”)

19 See Charles Mills, The Racial Contract 20 (1997) (describing “international law, pacts, treaties and legal decisions” as part of a “series of acts” by which “Europeans . . . emerge as the ‘lords of all the world’ . . . with the increasing power to determine the standing of the non-Europeans who are their subjects”).

20 See Anghie, supra note 18, at 103 (“[U]nderstanding . . . the role of race and culture in the formation of basic international law doctrines such as sovereignty is crucial to an understanding of the singular relationship between sovereignty and the non-European world.”); B.S. Chimni, International Institutions Today: An Imperial Global State in the Making, 15 Eur. J. Int'l L. 1, 4 (2004) (arguing that “which exercises the greatest influence in IIs [international institutions] today . . . is that of the transnational fractions of the national capitalist class in advanced capitalist countries with the now ascendant transnational fractions in the Third World playing the role of junior partners”).

21 See Jackson Sow, supra note 13, 1810–11 (2022).

22 See id.

23 See United Nations, United Nations Security Council: Current Members, at https://www.un.org/securitycouncil/content/current-members.

24 See Achiume, E. Tendayi, Transnational Racial (In)Justice in Liberal Democratic Empire, 134 Harv. L. Rev. F. 378, 379 (2021)Google Scholar (describing Western nations’ campaign to undermine the Africa Group's petition for a Commission of Inquiry regarding racial discrimination in the United States in June 2020); David Helps, “We Charge Genocide”: Revisiting Black Radicals’ Appeals to the World Community, 3 Radical Americas 10 (2018) (describing the United States’ efforts to discredit the 1951 We Charge Genocide petition).

25 See Jackson Sow, supra note 13, at 1822–23 (discussing the failure of anti-discrimination laws to dismantle white supremacy in the United States).

26 See Mills, supra note 19, at 83 (1997).

27 See id.

28 The United States notoriously implemented a family separation policy to deter people from migrating or fleeing to the country via the southern border under the Trump administration. See generally Cordero, Carrie F., Feldman, Heidi Li & Keitner, Chimène I., The Law Against Family Separation, 51 Colum. Hum. Rts. L. Rev. 432 (2020)Google Scholar (describing the origins of the policy and making the case that U.S. and international law limit the Trump administration's ability to put such a policy in place).

29 See Human Rights Watch, Australia: 8 Years of Abusive Offshore Asylum Processing (July 15, 2021), at https://www.hrw.org/news/2021/07/15/australia-8-years-abusive-offshore-asylum-processing (describing Australia's policy of forcibly transferring asylum seekers to offshore camps for processing in Papua New Guinea and Nauru).

30 See Chimni, supra note 10, at 365–68.

31 Hathaway, supra note 15, at 130.

32 Id. at 174.

33 Achiume, supra note 9, at 50.

34 Criddle, Evan J. & Fox-Decent, Evan, The Authority of International Refugee Law, 62 Wm. & Mary L. Rev. 1067, 1072 (2021)Google Scholar.

35 See note 3 supra.

36 According to Katerina Linos and Elena Chachko, “The preamble to the 1951 Refugee Convention, the cornerstone of the international refugee law regime, includes a general obligation to assist refugee receiving countries through international cooperation.” Linos, Katerina & Chachko, Elena, Refugee Responsibility Sharing or Responsibility Dumping?, 110 Cal. L. Rev. 897, 898–99 (2022)Google Scholar. See also Schuck, supra note 11, at 246 (describing how most refugee law scholars and commentators focus on the “radical, enforced dislocation and isolation” of refugees, and how to alleviate their plights—a focus that stands in contrast to Schuck's focus on nation-states).

37 According to Christopher Kyriakides and others, “The construction of ‘the refugee’ as a ‘forced’ ‘non-Western’ object without will or socio-cultural history, to be rescued by the benevolent West is the central point of overlap between racialization and refuge in the contemporary context of refugee reception.” Christopher Kyriakides, Dina Taha, Carlo Handy Charles & Rodolfo D. Torres, Introduction: The Racialized Refugee Regime, 35 Refuge 3, 5 (2019).

38 See Achiume, supra note 9, in which Achiume recalls Chimni's assessment of how refugee scholars contribute to a “Global apartheid” approach to refugee law policy (quoting Chimni, supra note 10); See also Kyriakides, Taha, Charles & Torres, supra note 37, at 4–5 (“A set of political and media-validated scripts play out—particularly in the cultural construction of a war-induced “refugee crisis”—that informs Western assumptions of what a refugee is and that excludes the “non-deserving.” In the West, migrants and refugees from the Global South and East are (in)validated within a ‘victim-pariah’ representational status couplet, where entrants must prove they do not constitute a threat to the receiving state.”)

39 See id.

40 See Drew DeSilver, After a Month of War, Ukrainian Refugee Crisis Ranks Among the World's Worst in Recent History, Pew Res. Ctr. (Mar. 25, 2022), at https://www.pewresearch.org/fact-tank/2022/03/25/after-a-month-of-war-ukrainian-refugee-crisis-ranks-among-the-worlds-worst-in-recent-history (noting that over 3.7 million Ukrainians fled to other countries within the first month of the 2022 Russian invasion of Ukraine).

41 See Achiume, supra note 9, at 58 (“The two-tier system of refugee protection sustained by the non-entrée regime enforces a racial hierarchy.”)

42 See Rachel Treisman, The U.N. Now Projects More Than 8 Million People Will Flee Ukraine as Refugees, NPR (Apr. 26, 2022), at https://www.npr.org/2022/04/26/1094796253/ukraine-russia-refugees (noting that as of the date of publication, over five million people had already fled Ukraine as a result of the Russian invasion).

43 Rashawn Ray, “The Russian Invasion of Ukraine shows Racism Has No Boundaries,” Brookings (Mar. 3, 2022), at https://www.brookings.edu/blog/how-we-rise/2022/03/03/the-russian-invasion-of-ukraine-shows-racism-has-no-boundaries. According to the article, “Videos show Black people being pushed off trains and Black drivers being reprimanded and stalled by Ukrainians as they try to flee.”

44 Id.

45 Id. See also Ralph Wilde, Hamster in a Wheel: International Law, Crisis, Exceptionalism, Whataboutery, Speaking Truth to Power, and Sociopathic, Racist Gaslighting, OpinioJuris, (Mar. 17, 2022), at http://opiniojuris.org/2022/03/17/hamster-in-a-wheel-international-law-crisis-exceptionalism-whataboutery-speaking-truth-to-power-and-sociopathic-racist-gaslighting (describing the “contrasting treatment” of Black and Brown people in Ukraine who sought protection as “of course telling”).

46 Ali, supra note 4.

47 See Ukrainian Official's Remark on People with “Blue Eyes and Blonde Hair” Being Killed Sparks Racism Row, India Today (Feb. 28, 2022), at https://www.indiatoday.in/world/russia-ukraine-war/story/russia-ukraine-war-news-latest-racism-row-white-skin-blue-eyes-killed-1918857-2022-02-28.

48 See Ali, supra note 4 (quoting Charlie D'Agata).

49 See Moustafa Bayoumi, They are “Civilised” and “Look Like Us”: The Racist Coverage of Ukraine, Guardian (Mar. 2, 2022), at https://www.theguardian.com/commentisfree/2022/mar/02/civilised-european-look-like-us-racist-coverage-ukraine.

50 See notes 3–4 supra and corresponding text.

51 Achiume, supra note 9, at 57.

52 James Thuo Gathii, Writing Race and Identity in a Global Context: What CRT and TWAIL Can Learn From Each Other, 67 UCLA L. Rev. 1610, 1641 (2021).

53 Id. at 1641.

54 See id. at 1613 (“Just as slavery dehumanized Blacks as degenerate and outside the boundaries of humanity in the construction of the United States as a White racial state, European/White international law was constructed to relegate non-European peoples who were considered to live outside the bounds of humanity and therefore outside of sovereignty.”); Anghie, supra note 18, at 103 (“Sovereignty was therefore aligned with European ideas of social order, political organization, progress and development. . . . In contrast, lacking sovereignty, non-European states exercised no rights recognizable by international law over their own territory.”).

55 But see Anna Spain Bradley, Human Rights Racism, Race, Racism & L., at 7 (2019), at https://racism.org/articles/worldwide/human-rights/3146-human-rights-racism, wherein Anna Spain Bradley notes that “international law neither explicitly defines nor prohibits racism in a treaty,” id. at 7, despite “outlawing racial discrimination (emphasis added) through a multilateral treaty in 1965.” Id. at 2.

56 See Achiume, supra note 9 and corresponding text.

57 See Kaila C Randolph, Executive Order 13769 and America's Longstanding Practice of Institutionalized Racial Discrimination Towards Refugees and Asylum Seekers, 47 Stetson L. Rev. 1, 21–29 (2017) (documenting the longstanding “[d]e [f]acto ‘[n]o [a]sylum’ [p]olicy for Central Americans,” the disparate treatment of Cuban and Haitian refugees, and concluding that “All in all, the U.S. government has a long-standing history of excluding immigrants from entry into the country based on race and national or ethnic origin.”).

58 Robert Tsai has written that Trump “by seeking to restore a set of marginalized values through autocratic methods—has targeted immigration and refugee policy as the new front for eroding foundational principles” and that he has done so “for the purpose of returning to a highly selective ‘country-of-origin’ approach to immigration policy and to treat Hispanic and Muslim migrants differently from other immigrants, often based on vague assertions of group-based threat.” Robert L. Tsai, Immigration Unilateralism and American Ethnonationalism, 51 Loy. U. Chi. L. J. 523, 526–27 (2020). See also Achiume, supra note 9, at 50 (noting that “In some cases, discriminatory application of the Convention is explicit and formal in its racialized exclusion of refugees from recognition and protection. For example, in the wake of arrivals in Europe of Syrian refugees in significant numbers, the United States and a number of countries in Europe pursued religious and country of origin bans that were plainly discriminatory against refugees fleeing Muslim-majority countries.”).

59 See Yael Schacher & Chris Beyrer, Expelling Asylum Seekers Is Not the Answer: U.S. Border Policy in the Time of COVID-19, Refugees Int'l (Apr. 27, 2020), at https://www.refugeesinternational.org/reports/2020/4/26/expelling-asylum-seekers-is-not-the-answer-us-border-policy-in-the-time-of-covid-19 (describing the U.S. use of 42 U.S.C. § 265 to expel refugees under the guise of protecting U.S. citizens from COVID-19).

60 See Nurith Aizenman, Trump Wishes We Had More Immigrants From Norway. Turns Out We Once Did, NPR (Jan. 12, 2018), at https://www.npr.org/sections/goatsandsoda/2018/01/12/577673191/trump-wishes-we-had-more-immigrants-from-norway-turns-out-we-once-did.