Abstract

Excerpted From: Marissa Jackson Sow, Ukrainian Refugees, Race, and International Law's Choice Between Order and Justice, 116 American Journal of International Law 698 (October, 2022) (60 Footnotes) (Full Document)

 

MarissaJacksonSowWhile a tradition of white supremacy in the former Soviet bloc nations is no secret, many observers were shocked to see that in the face of a global humanitarian crisis, Ukrainian officials doubled down on racism in attempting to exclude Ukrainian residents of African and Asian descent from fleeing Ukraine after the 2022 Russian invasion. Moreover, rhetoric regarding the Ukrainian war and humanitarian crisis from Ukrainian officials, journalists, and pundits explicitly depicted Ukrainians as more deserving of the world's sympathy and care than other, non-white victims of conflict. One such journalist, a British baron and former politician, wrote of his empathy with Ukrainians, noting that “They seem so like us. That is what makes it so shocking .... Ukraine is a European country. Its people watch Netflix and have Instagram accounts ....” Others openly pushed back on these Eurocentric, and fundamentally racialized, expressions of solidarity; MSNBC's Medhi Hasan, for his part, retorted as follows: “When they say, 'Oh, civilized cities' and, in another clip, 'Well-dressed people’ and 'This is not the Third World,’ they really mean white people, don't they?”

Such biases are reflected in the enforcement of humanitarian law and policy: according to the 1951 Convention Relating to the Status of Refugees (Refugee Convention), asylum is to be accorded to valid refuge seekers in a non-discriminatory fashion, without respect to race. However, many nations consider race in deciding to whom they will and will not grant refuge. Are racial sorting, and racial discrimination, then, violations of international refugee law, or rather part and parcel thereof?

The inability--or lack of will--of the international legal order to adequately meet the needs of Black and other non-white protection seekers, and to compel Ukraine to respect the principles of anti-discrimination and equality in its attempts to quell its humanitarian crisis, show that: international law remains much more political than it is legal; state sovereignty still holds more authority than formal international legal norms; and racism continues to undermine international law's effectiveness as a tool for justice. The Refugee Convention is either not being properly enforced or is meant to gaslight petitioners into believing that remedies are consistently and equitably available to them when, instead, the Refugee Convention is part of the mechanics of racialized geopolitical ordering.

Part II of the Essay claims that international refugee law is not justice and equity-oriented, but instead supports national and global racial contracting and white supremacist geopolitical ordering. Part III then briefly describes how non-white residents of Ukraine were excluded from refugee convoys to neighboring European nations after the Russian invasion began, as well as the claims of public pundits and officials that white Ukrainian refugees deserved special welcome and sympathy from the world specifically because of their whiteness and European origins. The Essay thus challenges readers to reconsider the widespread assumption that international refugee law ensures a right to asylum in a non-discriminatory fashion. It concludes by insisting upon a focus on anti-racist justice and equity in international refugee law by ending racial tiering in asylum enforcement and rejecting states' claims of sovereignty in their use of racist refugee admissions policies.

[. . .]

International refugee law as a tool for justice is a possibility, but not yet a reality. No legal system premised upon colonial or neocolonial oppression, and fueled by white supremacy, can effectuate a vision of justice that is anything other than a white supremacist imagination of a world order that guarantees legal formalism and economic liberalism for the express purpose of maintaining strict racialized geopolitical hegemony. If a legal regime designed to create a more just, anti-racist world order is actually desired, it will need to be created. And for such a regime to be effective, the existing regime must be dismantled. As with all enforceable agreements, the sociolegal agreement currently undergirding the laws of asylum and refuge must be dissolved before a new agreement can take force.

The solution is as simple as it is complex, and as practicable as it may be permanently infeasible: anti-Black racism must be acknowledged as a scourge within international law and geopolitics and targeted for immediate eradication within international law. Acknowledgement of the existence of a system of racial contracting and tiering upon which modern international affairs and law have been structured would do much to advance this project, as bodies of international governance could then commit to racial contractual rescission. Within the sphere of the law of refugees and displaced persons, this must include a recalibration of the Refugee Convention and its enforcement mechanisms in a way that does not allow racist national interests to trump the demands of humanitarian law.

One thing is certain: a system of asylum law that allows states' political and economic interests, including their racial contracts, to flout the principles of equality and non-discrimination formally undergirding them is no system at all--unless, of course, the system is oriented to gaslight refuge seekers into believing that remedies attached to their rights exist while simultaneously protecting the ability of states to reject would-be asylees based on their racialized identities. If the latter is, in fact, the system at play, then such a system continues to prove that it is very effective indeed.


Assistant Professor of Law, University of Richmond School of Law, Richmond, VA, United States.