Gayblack Canadian Man

Foreign Policy Analysis
Migration – Transnational Legal Discourse on Race and Empire

Migration – Transnational Legal Discourse on Race and Empire

(whooshing) (beeping) (upbeat mellow music playing) – This project that Jennifer
and I are working on, we’re very excited to be
working on this project, ’cause it’s sort of crystallizing for us some thoughts that we’ve been sharing in non-written form for a very long time. The paper takes a small
slice of this project, trying to bring together, you know, broaden the way in which we
think about immigration law to encompass other forms
of marginalization, and any particular race,
and drawing connections to where the doctrinal origins
of the immigration power, you know, began in connection with the law governing the US
territories, and also, federal Indian law, which
is not a part of this paper, but also a very important
piece of that story. And for the purposes of this paper, we wanna take a look at the
failure of the Supreme Court in its jurisprudence to
directly acknowledge and engage the xenophobia, and
racism, and colonialism that’s embedded within its
jurisprudence on immigration, the constitutional power
to regulate immigration, and to govern the US territories. And in the paper, we use
as a jumping off point, a thought experiment that
Anderson Francois presents in a recent law review article, where he invited readers to
try to recall from memory, or to identify through a word search, a majority opinion from the Supreme Court of the United States in which the justices speak
plainly about white supremacy. Its text, its sub-text, its embodiments in civic
and political institutions, its incarnations over time, the remnants of its tenants in daily life, the leavings of its creed
in the national identity. Spoiler, the picking are rather slim. Professor Francois identifies only really two plausible candidates in the Supreme Court’s jurisprudence
among majority opinions. You expand to descents,
you can find some others. One, is Loving versus Virginia, but really, only because it actually uses the words “white supremacy”,
not because it actually engages in a deep, meaningful analysis. And the other one, which
is also quite revealing, in District of Columbia versus Heller, where Justice Scalia
somewhat opportunistically provides a partial discussion
of historical instances in which black people have
been denied the same right to arm self-defense that
white’s have enjoyed. But, of course, there,
begging the question, “Why is it relevant in that case, “and not in any number of others where one could’ve engaged in
that kind of analysis?” So what we wanna do in this project, is using that kind of thought experiment as a jumping off point to think about an analogous pathology in the Supreme Court’s case law on immigration and the territories. You know, the racialized legacies of territorial expansion, colonial rule, and xenophobic immigration
restriction, of course, have left deep imprints on
the court’s jurisprudence, particularly in the 19th century. And yet, in the contemporary case law there is essential tendency to avoid engaging with any of that, whether that’s in aid of perpetuating the kind of marginalization
that has existed in the past, or in, you know, softly resisting it in one form or another. Now, how precisely we
plan to conceptualize the idea of legal memory
or collective memory in this project, that is
something that, you know, as a work in progress,
we’re still refining. One starting point for us, though, does come from a recent
paper by Kara Swanson, which is forthcoming in
the Columbia Law Review, where she conceptualizes
curated legal memory, or curated collective legal memory, as that which is provided in, you know, curated by law reviews,
published cases, treatises, the content of law school classes, which is a memory that is
both continuous and changeable related to, but maybe distinct from what some would refer to as the legal canon. And, you know, what we are
suggesting in this project, looking at a few discreet
instances of recent cases, is a kind of legal
forgetting or legal eraser that is perpetuated in the
Supreme Court’s case law on both the territories and immigration of that xenophobic
legacy and restrictionist in colonialist legacy. This project doesn’t, as I mentioned, engage federal Indian law. A more complete project would, and we will certainly acknowledge that, and perhaps try to find ways to ensure that we are not also perpetuating that eraser in that manner. But, you know, the official narratives that are provided in that kind, those kinds of legal constructed memory, those are not, you could
define that more broadly, and I think we also wanna be careful not to sort of engage in
sort of a marginalization of where narratives come from, right? But official narratives by institutions, like the Supreme Court, of course, do have some power, right? They’re not the only official
narratives that matter. I’ve been thinking this week about, I’ve been spending this semester at the University of California, Berkeley, and, of course, many of you will know, that this week, UC Berkeley announced that they will be removing,
they have, in fact, already removed the name
Boalt from Boalt Hall. It’s now just the law building, because of John Boalt’s role in being an forcible advocate
for Chinese Exclusion. And, you know, it’s interesting too, Berkeley is not alone. Some of the leading exponents
of the discourse underlying the Supreme Court’s case
law on the territories, the Insular Cases are
prominently celebrated, you know, long-time members of the Harvard and Yale Law
School faculties, right? Who’s names are similarly
emblazoned on buildings, and in named chairs. But, you know, it’s interesting as I think about the Berkeley experience. Sometimes as we are remembering, we are also forgetting, right? So to take a selection
of statements made by Berkeley’s leadership this week, right? The chancellor, “In 2017, it came to light “that Boalt Hall’s
namesake, John Henry Boalt, “was a leading figure in the Chinese Exclusion movement in 2017.” The dean, “In spring, 2017, it was learned “that John Boalt was a strong supporter of the Chinese Exclusion Act.” The official UC press release, “The outcome of a nearly
three year process “launched after a Berkeley
lecturer discovered the racist writings of John Henry Boalt”. And, of course, this is a partial, right? When we speak of forgetting, and amnesia, that’s not quite precise,
because, of course, all along there are people
who have been remembering, and re-remembering, and
disseminating, right? The things that we all
talk about in this paper are not unknown, and yet, when the Supreme Court constructs
its official narratives, there is a kind of eraser and forgetting that is taking place at the same time. So I’ll turn to Jennifer to talk about the territories cases
that we’re looking at, and then I’ll come back and talk about some of the immigration
examples from the current case, and we welcome then, we’ll
start to talk about the prescription questions that
we were thinking about. – Right, so I think in this
first section of the paper, which is not written yet, (laughing)
but is in many ways written, because we’re not the first to come here. We wanna explore the way in
which 19th century case law governing the territories and immigration are explicitly premised on racism, and endorsement of the
legitimacy of colonial rule over, you know, over people
that are characterized as, quote/unquote, “savage”, right? That all of that is there in the law, very explicitly in the law, and that you can draw a
straight line from there to the contemporary cases. And so, what we do in the
second section of the paper, which we have more of
an elaboration on now, is look at some very recent cases where there’s an opportunity
to take this on, head on, and where the court just doesn’t, and we wanna sort of explicate that. And so, one of the examples
that we are drawing on, is the recent case involving Promesa, the legislation about the restructuring of Puerto Rican debt, so that’s financial
oversight in management board for Puerto Rico versus
Aurelius Investment, LLC. And we also consider
some immigration cases, and then we’ll talk specifically
about Hawaii versus Trump. Today we could also here consider some of the recent Guantanamo litigation. We can consider the citizenship case involving American Samoa. There are lots of particularly
interesting cases right now that sort of tee these questions up. All focus right now on the case involving Promesa. What we find here is a kind of, well, if we’re thinking
about what’s happening here, we clearly have colonial usurpation of territorial autonomy
and authority by Congress, while the coordinate
branches of governance pretend that’s not
what’s happening, right? So that’s what’s going on, right? We have an assertion by
Congress about sort of imposing a sort of viceroy-style structure that will tell Puerto Rico
how to fix its debt problems, and it’s styled as if it’s governing through the territorial government, but it is fact,
supplanting the government. And so the plaintiff’s
challenging the statute who brought their challenges under the rubric of the
Appointments Clause. So they say, “This presidentially
appointed Oversight Board “created by the act of Congress “is constitutionally legitimate, “because the individual’s
who are members of this board are not properly appointed.” And it’s important to note,
that if we look at the statute, the territorial government of
Puerto Rico is subordinated to the board by the statute. It clarifies, “That neither the government “nor the legislature of Puerto Rico “can exercise control over or impair the functions of this board.” So, although, it’s
structured as an entity, although, kind of the
government is arguing that it operates within
the territorial government. It supersedes the territorial government. And the First Circuit
opinion makes it clear that the board is vested with
enormous discretionary power in the supervision of Puerto
Rico’s physical affairs. So Title III creates a
broad bankruptcy safe haven that covers the territories and its subordinate instrumentalities, but it makes the board
the sole representative of the territories in those
bankruptcy proceedings. So we have this challenge. The plaintiff’s are really
this Investment, LLC, and then a union, UTIER, which is the Puerto
Rican labor organization that represents employees of the government-owned
electric power company. So there is this unholy alliance between labor and capital, and that probably begs some
interrogation of its own. But the argument here,
is that the board here is comprised of officers
of the United States, and therefore, it should
have been appointed in a particular way as specified
in the Appointments Clause, and they haven’t been
confirmed by the Senate, so the plaintiff’s argue that there is a constitutional violation here. The board members argue in response, that they’re not principle
officers of the United States, because they’re responsible
for purely local matters, but they also have made the argument that the Appointments
Clause doesn’t even apply to the board in this case, because they exercise authority
in Puerto Rico, a quote, “unincorporated territory
where the Territorial Clause endows Congress with plenary power”. So there are two layers
to the argument, right? One is sort of a pure
Appointments Clause-style argument about whether or not
the Appointments Clause pertains to the board. But there’s a second layer to this, which is whether or not
the Appointments Clause matters at all in the
governance of Puerto Rico. So the First Circuit concluded
that the board was governed by the Appointments Clause,
and board members were officers of the United States, and the appointment
without Senate confirmation therefore violates the Constitution. In this way, the First Circuit
engages in a narrow reading of the Territorial Clause, and says, that they’re not gonna accept the premise that the Territorial Clause displaces the Appointments Clause, but they’re also not
going to go to a place where they don’t feel empowered to go, which is to declare the
sort of underlying, broad, super structure the Territories
Clause has interpreted through the Insular Cases
as unconstitutional. So obviously, the hands
of the First Circuit are somewhat tied in overruling Supreme Court precedent in this way, but the Supreme Court
presumably does have latitude to engage this question head on. And, in fact, in oral argument
before the Supreme Court, council for the union, UTIER, urged the Supreme Court to
overrule the Insular Cases. She argued that the cases were a dark cloud over the entire matter, and that they were, quote, “Grounded in ideas of alien
racist and savage people “that brought a constitutional injury “on the party that she represented, and that this was something
that required judicial remedy”. And you could see immediately judicial resistance to the
idea of going down this road of overruling the Insular Cases. So Justice Breyer agreed,
and in Breyer fashion, that this was indeed a dark
cloud, but he says, quote, “It doesn’t matter here,
because the provision of the Constitution doesn’t apply”, i.e., we can decide this on
Appointments Clause ground without getting into the whole sad saga of the Insular Cases. Justice Roberts summarized the controversy as limited to the Appointments
Clause, and quote, “I just don’t see”, he said, “the pertinence of the
Insular Cases”, right? So what relevance could they possibly have to a case that involves
this huge usurpation of governmental power in Puerto Rico? The refusal of the court to grapple with this ingoing constitutional problem created by the Insular Cases is akin to the use of constitutional submergence that we’ll see in the immigration cases, and Anil’s gonna talk a little bit about Trump versus Hawaii right now. So we see huge pushback
from commentators about how this is clearly out of step with jurisprudence in other areas. It ignores the changes to law that have happened in
the mid 20th century, that sort of, at least, purport to favor some notions of an equality principle. It just bypasses them, so you
have a direct through line from the late 19th century to now without any sort of deviations, or moves away from these
sort of unequal doctrines. And what’s interesting about the argument in the Insular Cases, is you see the court’s squeamishness about revisiting any of this,
about taking it head on, about overruling it, and it was contrasted really nicely by council for the union, again, with the court’s willingness to overturn, in whatever form or fashion it did, Korematsu in Trump versus Hawaii. So you might remember, there
is a sort of late breaking, off-handed paragraph in Chief
Justice Roberts’ opinion for the court in Trump versus Hawaii that purports to overrule Korematsu. It is unnecessary for the holding, and we would maintain probably
at odds with a holding in Trump versus Hawaii, but they do it. And the willingness of the
court to overrule Korematsu in the context of that case, cementing sweeping executive power to discriminate an immigration exclusion, plays side-by-side with the
court’s complete unwillingness to revisit or even think about revisiting the racist Insular Cases,
when those cases are squarely implicated in the legal architecture that gives rise to Promesa, reveals how constitutional
submergence is a deliberate, strategic choice that
the court is engaging in, and one that operates in
service of the court’s unwillingness to grapple
with the realities of a racist colonial past. So I think with that,
I’ll turn it over to you to talk about the immigration cases. – Yeah, so we could pick a
number of different examples from the immigration
context that are analogous, where the court is avoiding engaging the traditional doctrines of
deference and non-reviewability. But I do wanna talk about
Trump versus Hawaii, in part, because of the
way in which it’s used in the Promesa case, and in
part, because it sort of, you know, really sharply
illustrates the forgetting that I think we’re trying to point to in a profound way, right? So Trump versus Hawaii,
there’s no reference to the sources of authority. The Chinese Exclusion cases
from the 19th century, nowhere mentioned, right? And even as they ruled the
cases that develop out of that, and are more whitewashed,
are, in fact, relied upon. Even recent history is erased. Chief Justice Roberts starts his opinion. The narrative starts in January, 2017, with the 3rd executive
order excluding Muslims, not with the full narrative of
where those orders came from. You know, Donald Trump
on the campaign trail promising a complete and total shutdown of Muslims entering the United States. When he does get around to talking about the origins of the Muslim ban, it’s something like 27 pages
into a 32 page opinion, and in somewhat desaltery fashion, right? Sort of with these kind of
hemming and hawing around what is really at stake in the arguments that are squarely being
presented by the challengers to the Trump exclusion orders. And then there is, of
course, the weird role played by Korematsu
versus the United States in this opinion on page 32 of 32. It’s not an affirmative
mention of Korematsu. It is a response to Justice Sotomayor, who has the temerity to say, “That today’s holding is
all the more troubling “given the stark parallels between the reasoning of this case,
and that of Korematsu”, which she then proceeds to elaborate. The language, which Jennifer pointed to in Chief Justice Roberts’ opinion, is palpably angry at
this being raise, right? It’s almost like a triggering of fragility to use another sort of conceptual way of thinking about race, right? To draw from the work on Robin DiAngelo on white fragility, right? Where he says, “Well, whatever rhetorical
advantage the descent sees, Korematsu has nothing to
do with this case”, right? Query whether one should
say anything further if that’s true, but Chief
Justice Roberts goes on to say, “The forcible relocation of US citizens “to concentration camps
solely and explicitly “on the basis of race
is objectively unlawful, “and outside the scope of
presidential authority, “but it is wholly inept to liken “that morally repugnant order
to a facially neutral policy “denying certain foreign nationals the privilege of admission”. “The entry suspension as an act is well within executive authority, and could’ve been taken
by any other president.” “The only question is
evaluating the actions of this particular president promulgating an otherwise valid proclamation.” “The descent’s reference
to Korematsu, however, “affords this court the
opportunity to make express what is already obvious.” “Korematsu was gravely wrong
the day it was decided.” “Has been overruled in
the court of history, “and to be clear, has no place in the law under the Constitution”, right? This was praised. This language, of course,
all of us have read, right? Critics of the exclusion
orders, critics of this decision went out of their way to praise this, on its own terms, irrelevance,
dicta, about Korematsu, which is, you know, therefore
logically inconsistent, but it also presents a
distorted picture of history, and I wanna emphasize this as a way of tying it to the broader project here. It is true that the cases that
made it to the Supreme Court challenging the removal
and incarceration regime during World War II
involved US citizens, right? But 35% of the people who were incarcerated were non-citizens, right? This is part of the immigration history of the United States. So there’s a distortion of history, and a sort of reading out, right? Sometimes when we are remembering, we are also forgetting, right? So here’s another example, and we can talk about other
examples if folks are interested about the ways in which
this erasure takes places. – And I think we’re over
time, so I just wanna say, a lot of this is doctrinal analysis that sounds more NTRS than TWAIL, I think. But part of what we’re trying to do, is demonstrate how
international law is embedded in the US racial construction project, particularly is embodied in
its immigration jurisprudence, and then there’s a
trapped in amber quality to the embedded international law in the domestic law treatment of it that then sort of kind of travels outward, so from immigration
jurisprudence elsewhere, and creates a sort of sticky
anchor for colonial racism in the international law frame as well. So I think that’s how we wanna
bring it into conversation with the broader project
of this symposium. And I think we need to be
attentive as we’re doing so to the court without being unduly guilty of centering the US
Supreme Court in analyzing the present moment, and
searching for paths forward. So we welcome critique, and
criticism, and guidance on that, kind of that caveat point,
and I’ll close there. (audience applauding) – Chantal. – Okay, thank you. And good afternoon, everyone. And it is amazing to be back here in this space within a year. So really, kudos to the organizers who have so brilliantly put this together. And, you know, as I was
saying to one of the editors in the hallway just now, it’s so crucial to actually
create the physical space in which these conversations can occur, and I’m interested in my scholarship in practices of knowledge production. So I know that as a historical fact, and so creating these kinds
of opportunities for people to engage is really what allows
our knowledge to advance. So I just express my gratitude again to all the faculty, and the students who, and the staff who made this possible. Okay, I’ve used up five
of my 12 minutes now, but. (laughing) So I’m gonna shift gears a little bit into the international law of space, and where the whole
point of this, you know, conversation is to think about various mutual implications
between the two planes. But this is building on that presentation that I initially made a year ago now in the initial version
of this conversation, which wanted to look at
the connections between race migration and
global political economy, and how they connect, in
particular, in international law exploring three propositions. First, economic migration is a function of global inequality. Second, racial formations
have crucially shaped the landscape of global inequality. And third, the social and legal construct of racial difference in its myriad in shifting manifestations,
and sometimes contradictions, gaps, contradictions, and ambiguities, has played a central role in shaping the international order through which people move in
search of economic opportunity. So, then I was developing
the piece and presenting it, proposing it to this symposium, and realized that I
wanted to think more about both of these aspects in
connection with each other. So not just migration, but
the economic inequality that forms the precursor for migration. So now, this piece is even more broad, and the title is Race Law
In Global Political Economy, and so, it’s a thought piece
about racial hierarchy in law, and political economy, and in particular, how they manifest in international law and global governance. And so, the project is to think about how we understand racialization as part of the process by which institutions of economic hierarchy not only were created, but
continue to be legitimated. So the paper has three sections. The first is a literature review, because one can’t enter
into this conversation without acknowledging, and
building on, and incorporating all of the incredibly brilliant
work that’s gone before. And then, I focus on a couple of sectors in global political
economy, so in particular, commodity production and labor migration. And then, finally, I think about the concept of technology and
racialization as a technology of global economic governance. So I’ll try to quickly go through some of the observations I
make in those three sections. So in the first section,
looking at literature’s on racially hierarchy in
global political economy, looking at literature’s that occur both situated in the United States, and situated from the
post-colonial perspective. So the genealogies that many have been discussing today are really crucial, including the relationship
between critical race theory, and Third World approaches
to international law. So I won’t say more about that. So much has been said already of value, so I don’t know that I could add to it. I do wanna, though, give
a shout out to Michael idea of the oral history. So, again, thinking about kind of practices of knowledge production, I totally agree with that. I think that would be an
amazing project to do, an oral history, and talk to folks at various moments during
the Anti-Apartheid Movement. You know, we still have
people who, you know, were in the UN General Assembly,
and in related institutions during the time of de-colonization in the new international economic order. Sure, Shaw BeSauv is still
around, but, you know, it would be amazing to do that. So if anybody who’s
interested, you know email me. So those literature’s and then, also, looking at literature’s and
economics, and economic history. So clearly, many of us are returning to literature on racial capitalism. And just to highlight
the crucial point that the work of Cedric Robinson,
building on so many others, W. E. B. Du Bois, C. L.
R. James, and many others. Internationally, Aimé Césaire,
Stuart Hall, Paul Gilroy. So many, many others
who were in this space. But breaking out of an idea
of thinking about whether slavery is a product of chattel slavery as occurred
in the United States was a product of racism
that caused slavery, or was it capitalistic
greed that created slavery, that then produced racialization? So there’s a kind of this classic debate, and very simplifying debate, and Robinson’s work shows
that it was really near, but that capitalism flowed through these discourses of racialism
that had already existed, and so was organic to,
co-constitute each other, right? So slavery is an organic
product of capitalism as one among a wide variety of various forms of labor coercion that would include indentured
servitude and wage labor, and that’s a rebuke not only
of the dominant conception, and celebration of capitalism as a kind od end of history formation, or a manifestation of, you know, classic values of
liberalism and universalism, but it’s also a rebuke to the sort of traditional left position, the sort of classical Marxist position, that capitalism is a fundamental break from practices of feudalism
and other pre-capitalist modes of socioeconomic organization. That, of course, it builds on
those, and very much reflects. We still live with feudal
and post-feudal, right? Forms of economic production
and social organization. So I go into that a bit, and
then look at dependency theory, and the site of critiques
with decolonization, looked at how practices of empire maintained economic inequality. And here, kind of a similar observation, that rather than looking at
the sort of developed world, and the developing
world as being organized along kind of an evolutionary spectrum in which, you know, the
advanced economies had, just had this set of inherent qualities, and the other economies had this other backward set of qualities that what you see in the developing world is a product of the colonial encounter. So that, in many cases,
as Walter Rodney put it, “Europe under-develops
other parts of the world”. And so, what looks like, what might look to the untrained eye, like a set of sort of
backwards social formations is crucially part of
the colonial encounter. Okay, so despite all
the differences in focus of all of these different theorists, they’re all looking to show how a population once formally excluded from a putatively universal
and liberal legal system, and relegated to a formally
separate and subordinate system, non-whites in the US, and other metro poles of the center, Third World states in the international interstate
community have been failed by a subsequent formal inclusion, and that ignored deep rooted
structural inequities. And they show how formal and
identity-based differentiation provides the backdrop for early formations of
capitalism and colonialism that continue to generate effects today, even as those formal differentiations have been at least partially rejected. Okay. So the analysis then is looking at both historical and
contemporary formations. So, again, here, rejecting the notion that the inequality that we’re seeing today is a product of, and it’s an
unfortunate legacy of practices that occurred in the distant past, but that racial markers
continue to provide explanatory power for how and why contemporary practices of suppression, and subordination, and dispossession reinforce and perpetuate
those historical inequalities. So with that as kind of a framework, I then turn to an analysis of key sectors in the global political economy, and ask in the international law context, what is the connection between
the law’s co-constitution of racialization and
global economic inequality, both in historical formations and in contemporary manifestations? So in this section, I’m looking at international legal norms that shape global economic governance, how they reinforce inequality, and how that illuminates the
dynamic of racialization. And so, not going to go
into a ton of detail here. I look at international economic law that sets out rules on
trade in agriculture, and I look at labor and migration, and basically look at
how the presumptive norms in each of these areas
of international law create this internally
contradictory dynamic of open markets but closed borders. So both the ideal of liberalization
and non-discrimination in international economic
law, and its effects on economic production on the one hand, so open markets, and
the ideal of sovereign prerogative over territorial
entry of non-citizens, and its effects on labor
migration closed borders that have this internal contradiction that reinforces global inequities that are the product of racialized power. So, here, I’m looking not
just at the history in which explicit racialization
and racial formations form the basis for the organization of these patterns of production and movement, but also the way in which
the contemporary rules track, and have their own sets
of gaps, contradictions, and ambiguities that reveal and reinforce that underlying dynamic. Okay, so this is where
I started to think about race as a technology of
global economic governance, and so I had this one kind of sentence actually in my thing last year, that racial formation has
constituted a technology of global economic governance, a marker for sorting the
distribution of hierarchy, the distribution and hierarchy
of economic entitlements. And so, here I try to
develop what that means. So what the concept of technology is, and how it might add explanatory power, how it adds to the notion
of social construction because it incorporates a role for strategic decision making, for
expertise, and for knowledge. So this concept of technology is, it has a broader scope than
the way the term is deployed. For example, in Radhika, Mongia’s brilliant work on the passport as a technology for regulating migration, where she’s looking at the
passport as sort of an artifact, and as a mode of administrative practice, and that’s reflecting this
important insight that the enforcement of even
a foundational concept, like sovereign rule,
depends on the existence of this wide range of capacity. So the enforcement of border control actually depends on the existence of mechanisms of governance that can detect valid and invalid
entries, and can mobilize resources of coercion to
effectuate exclusionary policy, but those practices themselves have to be politically and ethically justified, and its here that the scripts of nation, and the partially subtextual scripts of race and ethnicity do their work. So as Mongia says, “The passport
is one concrete technology “that harnesses this strategy to produce the nationalized migrant body”. And here, I think about the term as going beyond the analysis
of the concrete artifact, but to refer these larger strategies to the set of knowledge practices involved in the
construction, legitimation, and enforcement of social categories. And so, race as a technology is about racialization as a technology. And I think here, at least partially influenced by some
pretty foundational work in development economics,
including the literature on new institutional economics in which economists like Douglass North, talk about institutions
as being really key to economic development,
and explain, essentially, Western economic growth as a
product of good institutions, and North is very clear
that by institutions, he means not just like
concrete organizations, but norms, rules of the game. And so, of course, he’s talking about sort of the classic narrative
of freedom of contract, and sort of principles of liberalism in both politics and economics. But here, I would suggest that those narratives and those norms include very substantially and centrally the dynamic of racialization,
and racial hierarchy, and white supremacy. So it’s sort of a mirror image to the story that new institutional
economics might tell about the history of Western development. So we can think about
race or racialization as a technology of empirical knowledge, so how knowledge gets constructed about the natural world, so human biology, and all of the attendant
forms of knowledge, academic discipline that
accompanied colonial expansion, so geography, anthropology, et cetera that are supporting this master discourse of racial difference, In addition to a technology of emperics, a technology of legal rules. So, of course, the reinforcement
of racialized difference, has been pointed out multiple times today, depends on this very complex
organization of governance, and then, finally, as a
technology of economic production. So here is where we get to the notion of race as a marker for sorting the distribution and the
hierarchy of economic entitlement. So where you sit in the chain
of production and consumption, forced labor versus indentured servitude, raw materials versus
industrialized products, and so on. So to conclude, the argument is that racialization and political economy is a social phenomenon
of enormous significance that technologies of emperics legal rule and economic production
have served to establish, and entrench these hierarchies, and have shaped at various levels the contemporary global
economic governance, and the project of
uncovering and articulating those dynamics has been shared across a range of scholarly disciplines, and I see our contributions today as very much contributing
to that ongoing project. So I’ll stop there. (audience applauding) (speaking incoherently) – I just wanna quickly add my thanks to the faculty who organized, you know, bring together this amazing community. My neighbors probably do
feel like exiles within, you know, the legal world,
and its really lovely to be in conversation with everyone here. Thanks also to the student organizers who’ve done just an amazing job. And, again, I feel really lucky to here. – It’s there.
– It’s hard to see. Yeah, it’s up there, okay. So in January of 2017, in one of his first acts as president, Donald Trump signed an executive order authorizing the construction of a wall along the Southern border
of the United States. The proposed wall would cut
across the ancestral lands of the Tohono O’odham,
bisecting their reservation, which has straddled the US/Mexico border for more than a century. At the end of the Mexican
American War, in 1848, when the United States seized
nearly 2/3rds of Mexico, the international boundary
line was drawn above the Gila River just
North of O’odham lands, but a few years later,
with the Gadsden Purchase, the United States and Mexico shifted the international boundary line again, dividing O’odham land and peoples. The O’odham themselves, of course, were never consulted about the division. The Gadsden Purchase had
a little immediate affect on the lives of the O’odham, but since the late 19th century, the tribe has lost territory
on both sides of the border to settler encroachment,
to railroad construction, to ranching, mining, other
extractive industries. Since the 1990s, O’odham
land has become the site of intensified border enforcement. Members of the tribes are routinely stopped by border patrols. Some have been returned to Mexico, though they are US citizens enrolled in federally recognized tribes. In 2006, border patrol
installed gated barriers across the reservation, and these gates opened regularly for family
reunions and celebrations, but for the O’odham the
barriers stand in the way of exercising a natural freedom, a freedom of movement
that predates colonialism and that nation’s state. Nicholas de Genova has used
the term “autonomy of movement” to recognize this self-authorizing and deeply political capacity,
or capacity for movement exercised outside of and independently of the contemporary nation state system. For a millennium, movement and migration have been essential to O’odham
survival in an arid desert, essential to trade with adjacent tribes, and maintaining flexibility in the face of political displacement
and ecological disruption. The O’odham have survived the cleaving of their land and community
for more than 150 years. The proposed border wall represents only the most recent violation in a continuous, unbroken
history of colonial conquests. Until recently, it had
become commonplace to suggest that the only things that liberal, the only thing that
liberals and conservatives can agree upon with respect
to our immigration system is that it’s broken, and talk of fixing it has been limited by a
framework of compromise. One that trades regularization of certain desirable immigrants
for heightened enforcement, and further restriction of
future streams of migration, a neo-liberal kind of reform. But in the few years since he announced his campaign for office, Donald Trump has radically
reframed the immigration debate, recasting it in explicitly paranoid terms of white nationalism, characterizing
immigrants as invaders, insinuating that they threaten not only the physical security of white Americans, but the survival of the nation itself. Since taking office, the Trump administration has implemented a series of viscously
ant-immigrant policies, testing the norms of polite
discourse, and legal constraint, often leaving his critics bewildered at the apparent weakness
of our public norms, and the apparent incapacity
of our institutions to constrain the president, particularly in his dealings
with immigrant non-citizens. The Muslim ban, the separation
of parents and children, proposals to end birthright citizenship, all of these have been met with demonstrations of liberal outrage. That outrage, however genuinely felt, has failed to give rise to
either a sustained critique of our current immigration system, or a meaningful alternative to it. And it’s that failure
of liberal imagination that my contribution seeks to address. So in the past couple of years, a number of writers attempted
the trace the origins of whit nationalism to earlier
moments in American history. Henry Louis Gates Jr., for instance, locates it in the redemption
or the reassertion of white supremacy after reconstruction. Others trace the fear of white genocide and racial replacement back to the eugenics movement in native policies of
the early 20th century. Others identify the resurgence
of global white nationalism with its emergence a century ago, and what W.E.B. Du Bois, who’s come up a number of times today, recognized to be a response
to anti-colonial movements on the one hand, and
mass migration from the colonized peripheries to white
metro poles on the other. And in this paper, I wanted to argue, that white nationalism has
its roots in the soil itself, of course, in the very
construction and composition of the United States, a
state founded in conquest, shaped by histories of
territorial expansion, Native elimination, racial slavery, and as Aziz Rana pointed out, unilateral exercise of economic
and military power abroad, as well as immigration policies that have tended to
encourage or facilitate white settlement on the one hand while controlling race, migration, and social mobility on the other. White nationalism, in other words, is not a corruption of an otherwise respectable immigration
discourse or policy. Instead, immigration policy
has played in integral role in creating and
maintaining a racial state, which is itself the source of a contemporary white nationalism. In other words, again, white
nationalism is bound up with the border itself. My paper then seeks to intervene in legal and public
debates by asserting first, that if we’re to imagine
a meaningful alternative to our current immigration regime, then liberal or progressive Americans have to be willing to
confront white nationalism, its relationship to settler colonialism, colonial capitalism and
bordering practices. And second, recognizing
that white nationalism has its roots in settler colonialism. My paper urges us to sort of press beyond the nation’s state framework within which questions about immigration law
and policy are often framed, and replace it with a temporal and spacial expanded framework of settler
empire to evoke, again, Rana enormously useful term. In scholarship and public
debates about immigration, we often take for granted the normative and conceptual
priority of national borders, as the borders came first,
and migration second, but national borders, the
contemporary nation state form, the international system, of nation states of relatively recent formations settled in the aftermath of World War, the closing of new world frontiers, the collapse of European empires, and the clamoring for
post-colonial independence. And in the United States,
which I’m interested in thinking about a little
bit more carefully, I think the O’odham remind us that there’s nothing natural or inevitable about either of the United
States’ contemporary borders, nor its power to restrict
movement across the border. Their presence remind us not only of their prior and persistent claim to lands now situated within the United States, but also the priority of
their claim to move freely across those same lands. Part of my paper then is an attempt to, is an attempt to remap the crisis. And so, the language of crisis
is often used to refer to the flow of unauthorized migrants across the US Southern border. The word crisis is
sometimes used to refer to the senseless suffering
endured by migrants forced to flee their circumstances, but more often, I think,
it’s really used to refer to a loss of control over the border, or a loss of control over unruly others. The crisis, in other words, is really a crisis of state control. The problem with
unauthorized migration is not that it threatens national security, as Trump has vaguely asserted, and as the Supreme Court
has long maintained. Instead, the problem with
unauthorized migration is that it confronts us with
the essential fragility, or the essential instability of the contemporary nation state system, which as Hannah Arendt anticipated at the time of its consolidation, would itself become the cause of unprecedented homelessness in the world. Unauthorized migration
exposes the violence that settler democracies, like the United States and Australia, are prepared to unleash upon
their most vulnerable neighbors to defend their national
identity and independence. As Aileen Moreton-Robinson
reminds us, quote, “It takes a great deal of work to maintain the United
States and Australia”, those societies founded
as settler colonies, “It takes a great deal
of work to maintain them as modern nation states.” The United States maintains
itself as a white possession by perpetuating indigenous dispossession. It maintains its exclusive sovereignty by denying indigenous sovereignty, and they maintain their
essential whiteness in the United States, within a continent that was once inhabited
exclusively by non-white people, by enforcing its borders
and denying other mobility, overwhelmingly indigenous peoples. And much of post-colonial Asia and Africa, the nation state is often felt to be an ill-fitting imposition, reflecting the experience
and preoccupation of former colonizers,
rather than the desires of the ones colonized. In the United States,
the nation’s state form as that imagined unity of
people, place, and government is further complicated by the United States settler imperial history. So in part of the paper, then I attempt to de-naturalize, unsettle the apparent fixity of US borders by recalling histories
of continental conquest, and overseas expansion, processes that have involved the continuous redrawing
of territorial boundaries, as well as demographic boundaries, as others have already mentioned. Paul Frymer reminds us,
the nation’s appetite for territorial expansion has
been limited only by racism. After the Mexican American
War, for instance, the United States could
have seized more land. It took to the unsettled half into which the US could
introduce an American population, avoiding incorporation on non-white mestizo and indigenous populations. As Laura Gomez, who was
here earlier, but is gone, has demonstrated the United
States refused to incorporate non-white peoples as
self-governing citizens, deferring statehood to
the new Mexican territory well into the 20th century. By contrast, Aziz Rana has shown, European immigrants were often encouraged to settle with land grants, voting rights, among other inducements. And it’s worth recognizing, that settler colonialism and
nation building has involved not just racial selection,
but racial expulsion, periodic racial expulsion. So legal histories that tend to focus on the legislative means of racial exclusion sometimes obscure the
role that brute violence has played in securing the United States as a white possession. It’s perhaps no accident
that the euphemism now used to refer to the
deportation of immigrants, removal is the same euphemism
that was used to refer to the expulsion of indigenous Americans, and that pattern of racial removal is one that has appeared as a
strategy for eliminating indigenous people from the continent, as well as overseas territory, which is what this slide shows, and it has been a consistent strategy for dealing with other racialized groups. From African Americans,
subject to varieties of forced migration and confinement, to Chinese and Indian
immigrants purged from cities across the Pacific Northwest in campaigns of coordinated violence, to Mexicans aggressively recruited to work on farms and factories during
periods of economic boom, and then forced to repatriate
during times of bust. Of course, the United
States has never been contained by its own borders. The United States has never been contained by its own borders, economically,
politically, or otherwise. The War of Independence
was, in large part, fought to transgress an imperial boundary drawn to prevent settlers
from claiming Indian land. The United States has
expanded and contracted its overseas empire in a number of ways, a number of times since
the early 20th century, and it maintains an archipelago of military bases around the world, stretching the physical reach
and conceptual plausibility of territorial limits or boundaries. So re-situating immigration within a spatially expanded terrain
of settler imperialism, I think allows us to bring into
a single field of analysis. The relationship between
immigration and empire, or the unilateral assertion of economic and military
power beyond its borders, that’s sort of what I mean by empire, and particularly within
the Western Hemisphere. In its 2012 documentary,
called “Harvest of Empire”, based on a book by the same title, Juan González traces major
migrations from central, from several countries in the
Caribbean and Central America to a history of US intervention, with which many of us are familiar. Formal domination or
occupation in some instances, as in Puerto Rico and Cuba, but in more recent histories, informal or covert intervention, as in Guatemala,
Nicaragua, and El Salvador. The documentary, if you’ve seen it, is exhausting in the way
that in which it plods through the history of
one country after another, the story of US aggression
remains constant, though the sort of particulars
within each nation change. But over the course of the film, the grid of nation states
that organizes the narrative begins to give way to another picture, one of a century’s long hemispheric war, and it’s within that
context that I want us to sort of re-situate the border conflict. So I wanna conclude with
just one final image. In the days leading up
to the midterm elections, the president sought to drum up support for conservative candidates
by promising to defend the United States against
a migrant invasion. As a caravan of migrants, overwhelmingly asylum
seekers from Central America, overwhelming indigenous peoples
made its way through Mexico, the president sent armed guards
to the border at one point, suggesting he might even
order guards to shoot. The president’s opponents meanwhile had very little to say in response, insisting on changing the
conversation to healthcare. But if we were to widen our frame a bit, we would recognize, that in fact, it’s not the immigrant who is
the invader, it’s the settler. It’s the settler who, you know, as in a Hollywood Western
reference in the paper, the settler find himself
surrounded by Natives, but it’s the settler who presents
the danger to the Natives, and not the other way around. It’s the settler rather
than the Native who invades, and it’s his own act of invasion
that occasions his terror, which he then uses to
justify catastrophic violence he inflicts upon others. The migrant then, I think presents us with
an ethical challenge, to recognize what is human
or sacred in the other. And by failing to meet
that ethical challenge, we also miss an opportunity
for epistemic correction. The caravan challenges us
to see things differently, to unsettle the settler self-image, and we also miss an opportunity to imagine an alternative order, right? One within which the unauthorized migrant is a self-authorized
migrant, who presents us with a way of imagining an
alternative geography, to use, you know, language
that was already offered. Premised not on a kind
of border imperialism, but a relationality,
reciprocity, and interdependence. Thanks. (audience applauding) – All right. Thank you to the organizers and students that were the ones that put this together. It’s great. Thank you for my co-panelists
here, and all during the day. I’ve just been super shocked by the, how smart all the presentations and papers all day long have been. They’re not always this good
from beginning to right there, maybe ’cause (mumbling). Okay, so my project begins in encounter with what we could call a
conventional historical narrative. So let me run quickly through that conventional historical narrative. It begins after the Napoleonic Wars, after the end of the Congress of Vienna, after the Concert of
Europe comes into being, and over the decades, in the middle part of the 19th century, a standard of civilization
comes into fashion. The purpose of which, as we know, is to separate out the uncivilized,
the backward peoples, from those rights bearing
members of the family of nations. As we move past the high peaks
of the standard civilization, by the time we get into the 1880s, and then into the early
decades, and the 20th century, and we meet the head peace conferences, we come to the League of Nations, we come to the United Nations In a mainstream version of
this historical narrative, the standard civilization is fading, and it’s about to disappear entirely. There are gonna be problems, for sure, but that vulgar standard civilization, for whatever it was, it was religious, it was cultural, it was,
sure, it was racist, but I don’t really know
exactly what it was. It was too amorphous. Whatever it was, it’s going away now. As we make our way into
the League of Nations, the mandate system is surely
an improvement, warts and all. The United Nations is
improvement further still, despite the veto and other kinds
of difficulties, all right? But this is historic progress. Now, in a familiar, though
not quite mainstream version of that same moment, the
standard civilization didn’t disappear or fade. It transformed, and it
transformed in such a way as to give rise to a series of phases of economic exploitation, right? As we enter the long development game, or perhaps, it’s a different
kind of cultural domination, yet somehow different now
after the move to institutions. The standard didn’t disappear. It transformed. It changed. But still, in this familiar, though not mainstream version
of the historical narrative, it’s not a racial story,
whatever’s going on here, okay? If we push further still in
this conventional narrative, we make our way into the middle
decades of the 20th century. Now, we have the rise of
what is becoming known as the Third World, gaining
voice in the General Assembly, a number of different
kinds of conferences pin, African conferences,
racial amity conferences, declarations coming our
of the General Assembly. They all signal a change in tenor, an expansion, an
inclusiveness that just, well, hadn’t been there before, and this is also the
moment when we have the international convention on the elimination of racial
discrimination, right? Emerging here in the 1960s. Nevertheless, in any version of this conventional historical
narrative, this moment, this decolonization moment,
this self-determination moment, this anti-colonial moment, it’s going to fall into desuetude. It’s going to run out of steam. It’s going to crash. On the shores of the 1980s, by the time we’re in the 1980s, we now have two fists, right? And they’re all neos, right? We have our neo-formalistic rise of international human rights law, and we have our neo-liberal
Washington consensus, strange, yet somehow
comfortable bed fellows, ’cause they’re all neos, right? Joined together in the
’80s, as we push forward, until the moment of
globalization that takes us into the 21st century and past 9/11 in those transformations. Okay, so this conventional story leads up to the question that’s
at the center of my project. At the contemporary moment where this conventional
historical narrative ends, and we ask this question, well, what is the problem with race in international law today? Is there a racism problem
in international law? Sure there are racists, but is there a problem
for international law that we would call racial, or racist, or something like that? Because if there is, it seems we already know the answer, and the 1980s crystallized that answer. If there’s racism, eliminate it. If there’s discrimination, get rid of it. Clearly, it’s peripheral. It’s marginal. It’s weird if we see racism
in international law, and we figured that out a long time ago. And so, the claim that racism, or race, or some relation between the two concepts might actually play a central
structural or systemic role. And the international order today is very difficult to articulate. Why? Why is it so difficult to
situate its centrality? Well, I don’t think it has to
do with a lack of interest, or a lack of resources, or a lack of will. I also don’t think it’s the
work of some secret cabal of evil racist magicians
out somewhere either, but what is going on, right? So James earlier today, when he says, “What’s going on with this Oxford Handbook “on comparative foreign relations law “with its 5,000 chapters
that’s moving across “every angle of foreign
relations across the world, and there’s nothing racial about it?” Or if you pick up a book
on the 27 different ways of thinking about international law today, and race isn’t anywhere
in the table of contents, and we just go and and on, right? It just doesn’t appear. Why? So my project focuses on a potential answer to that question, and it’s the idea of racial ideology. So racial ideology in
international law is my answer, the one that I’m trying to work up as the answer to that question of, what is going on with
respect to the difficulties that we encounter in conversations about how to situate
race in international law with our colleagues, and in
the discipline more broadly? So I don’t have any time
in this presentation to dig in to what I mean by ideology, so I’ll just give you my
working definition here, which is this. I define a racial ideology as a style of naturalizing
juridical science in which patterns of
argumentative practice that once give structure to
indeterminate legal concepts, and justify relations of domination through the use of seemingly
neutral racial classifications. Okay, so if I start the story over, and now racial ideology is the target, and not the standard civilization, and we look to the 19th
century, and we’re asking, “Well, what was a classic
form or classic style of racial ideology, and what did it do?” It starts to orient our gaze
in a very different sorta way. And I think what Chris was doing in his presentation this morning was a very similar sorta spirit. When you look at the
debates, which were hot, and everywhere in the 19th
century, in race science, international lawyers were generally a part of these conversations. They were all reading the same text. They were citing the same guise. And when look at just to take one example, take Lassa Oppenheim’s,
incredibly influential, schematic of the international legal order that he’s writing at the
turn of the 20th century with its core of the great powers, and the family of nations,
and then these vassal states, and then these, you know, regions that were not really anything. They’re terranoley basically. It looks just like the typologies that these ethnologists
and anthropologists are putting together about the human race. It’s the same thing. They map on to each other. Okay, so what? This idea of a classic racial ideology, and here, I’ll focus in on
the last remark I wanna make, it highlights the importance
of a right to exclude, a right to exclude in international law. So what did this right
to exclude look like, and how is it justified in the classic racial ideology of the 19th century? Sovereigns enjoyed two types
of the right to exclude here in the 19th century. The first type was a right to exclude the racially inferior peoples of the world from the community of racial superiors. This is very similar to what the standard civilization’s doing, but now we are explicitly calling it a racial marker, a racial boundary. It’s sovereigns excluding sovereigns from the international community. The second type is sovereigns
having the right to exclude other sovereigns from their territory. If you like, if you’re
a property kinda person, this kinda tracks the distinction between imperium and dominium, right? So the sovereign has both
kinds of right to exclude here, but what the sovereign does not enjoy in this classic mode of racial ideology is a right to exclude people. It’s not there, right? It’s becoming increasingly common in works like Chantal has done, and Tendayi and others have done, right? Where there just was not a sovereign right to exclude individual migrants. Certainly not individual
migrants who are coming from other members of the family of nations, but this was not part of the tool kit that the sovereigns enjoyed. Okay, so what? The transformation of
classic racial ideology in international law to what I
call a modern racial ideology I think is where all the action is in trying to understand where
and how racial ideology today does its work in international law. So very quickly, the right to exclude undergoes a transformation
as it makes the shift from a classic to a modern structure. The right to exclude that
sovereigns had enjoyed at the level of the
international community, it’s going to weaken. It’s gonna give way toward
a new ideology of inclusion. It really is. That’s gonna happen. But it’s a mistake to think
that this right to exclude, this racialized right to exclude, because it diminishes there, actually leaves international law, or that it transforms into something else about economic exploitation,
or about cultural domination. Yes, it does those things, but that racialized right to
exclude has not disappeared. It has duplicated itself
at a different space than international law. It is now duplicating itself at the borderland between
national communities. It is at this moment that the fight is on for a new thing called
international migration law, and the fight’s gonna get lost. The fight is gonna get lost, why? Because it’s right here at the turn in the first couple
decades of the 20th century that this new racialized right to exclude is going to have migrated down
to the right of sovereigns to exclude people, to exclude migrants. That wasn’t there before, and it doesn’t just come out of nowhere. It’s the same style of
naturalizing juridical science, the same style that racialized
the right to exclude that duplicates itself here. And so, in modern racial
ideology in international law, you have a mystification,
and you have a justification. The mystification is, “Hey,
look, racism, we dealt with it”. “Isn’t it more inclusive now?” “Isn’t it expanding?” Yeah, sure it is. We did it. When in fact, what simply
migrated to this deeper space of the sovereign right to exclude, which is now at the border,
at the territorial border, not the border of the
international community. The justification is, and this
right to exclude is natural. Even though it’s being
invented out of whole cloth at that very moment, it’s natural. Now, for my money, to understand, to get a grip on the problem of racism at
this level of legal thought in contemporary international law, we not only have to say
something or know something, see something about what
happened to racial ideology at this crucial moment in
the early 20th century, it’s mystifications, it’s justifications. More crucially, we have to see how that modern form of racial ideology transformed yet again
into the contemporary, the neo-racial ideology that we have now, but that’s another story. All right, thank you. (audience applauding) – Thanks so much to all the panelists, and thank you again to the organizers for enabling us to keep
this conversation going. So unlike Michael, who got
to be the uncle who sat back, and took a drag of his cigarette, I’m like the fourth auntie, who’s house you visited this afternoon, and I’m trying to stuff another piece of halvah into your belly, so. (laughing) I don’t know that I’m saying anything new, but maybe you’ll like my carrot halvah. (laughing) So in particular, for this conversation, this trans-national legal
discourse on race and empire, migration is, of course,
a salient point of study. It is, of course,
inherently trans-national. It involves crossing borders, yet there’s an interesting
chasm that some of us on this panel and in the
audience are working on between domestic and international law, similar to the CRT TWAIL gap. As currently performed on the world stage, as the panelists have ably shown, migration is deeply racialized, and there are, of course,
key connections to empire, and Sherally reminds us importantly that indigeneity should
always be our starting point. And though, those of us who have studied migration law for some time,
are not surprised to see both the constitutional order
and the international project. We’re not surprised to
see their seams showing. Perhaps we’re taken aback at the ferocity with which has happened, but migration has long
highlighted, as Aziz spoke about, the failures of both of these projects to live up to their own myths. So let me start by
talking a little bit about the agenda of international legal thought with respect to race. Like Darrell and others,
I really struggled a lot with the slipperiness
of the concept of race. I, of course, recognize its
importance in this conversation, but trying to figure
out what exactly it is we’re talking about
was a challenge for me, so I wanted to foreground
some of those questions with the hope that we can continue the conversation about them. The first question is,
of course, the one that, the halvah that Michael already gave you, which is, what is the
work that race is doing in international law, right? That’s an important question, and one of the points
that the panelists raised is that this is structural work. This is not an aberration. That’s a really important point, and we need to expose both the continuities and discontinuities. I think that’s one think
that we want to say. Chantal lays out very helpfully this idea of race as a
technology of domination in the way that it shapes
our conceptions of the world, and race is something we
must continually navigate. This gives us a sense of the hidden work of ideologies of racial domination, and also keys us into the practical and strategic dimensions. I also wanna ask as Michael did, that I wanna flip the script a little, and we need to ask, what
work is white supremacy doing in international law, right? This is not just about race. This is about white supremacy. So, of course, my panelists gave all kinds of very thoughtful answers. This is about economics. This is about movement. Christopher, in his
paper talked also about the epistemological aspects of this, which I think are really important, and we could discuss much further the expressive function
that law has in this stigma that attaches to white supremacy and race. And at the heart, as others
have said already today, this is about one’s ability
to govern one’s own nation, one’s self, one’s autonomy,
I think is at the heart. And to take a page from
James Baldwin’s book, we might ask, what is
it about white Europeans and the global north that require the construction of race, right? What is it that made them need race? And we have some helpful thoughts around that question, I think. Sherally tells us, that
race inverts the role of the aggressor in a way
that’s incredibly useful to the violence of the colonial project. Justin tells us, that
race is a way to enable the functioning of the liberal
international legal order. With decolonization,
we see border control. And then I wanted to
think a little bit about reading race back in. What work does it do to read race back in? Chantal tells us, I think she didn’t get
to this in her talk, but she gave us a helpful
typology of critics in her paper, and I think race is helpful
in that it places us in an illegitimate ideological space, right? So we can point to racial
bases for decision making, and say, “That’s illegitimate”, and I think that’s a really helpful tool. Race helps us reject this
linear progress narrative of a racial lens. So asking the race question to take a move from the feminists. Asking the woman question, asking the race question illuminates. So the project then is, in part, at least, to excavate the operation
of racial subordination through international law. So how do we go about doing this? And each of the papers,
I think, approaches, each of the papers, I might
describe as a mapping project, and a mapping project
of the erasure of race. That’s what I really see as the theme that works its way through all the papers. So Jennifer and Anil talk about
submerging the Constitution, and about these deliberate, strategic choices that avoid race. I also wanted to add, of course, that there is a deliberate
erasure of international law in the conversation, and
this happened, of course, because of human rights laws’ promise or a threat of racial equality, and so that was explicitly written out, and I think that may be helpful to the points you were making. And so, this highlights the importance of reconnecting domestic and international critical race perspectives to respond to this deliberate erasure. We can’t, of course, control
what the Supreme Court, certainly not this Supreme Court, what is sees and doesn’t see, but it’s still worth engaging around. Chantal helpfully talks to us about the obscured role of race in
global economic inequality, and she looks to Tayyab Mahmud to say, this is exactly because
racialized classifications facilitate legally sanctioned regimes of discipline and control,
and that’s what it’s doing, and it’s submerged. Sherally talk about
the strenuous avoidance of these histories that she
tells of white settlement, Native elimination, racial
subordination, and exclusion. She tells us of the
separation of using time to separate the colonial past, and the ways in which maps
obscure these histories, and the histories of the
imperialism of free trade, the exercise of economic and
military power and violence. Justin engages with a slippery concept, and talks to us about
the shifting of the work of racial ideology in international law from colonialism, to borders,
and economic development. He talks about the idea of
sovereignty as universal, and race as the technology through which it’s applied
to non-white people. So stepping away, as he says, from this classic racial
ideology to the nation, we have to understand how
this classic mode modernized to grasp the centrality of
international laws’ race problem. As he just told us,
sovereignty is premised on the right to exclude individuals in order to uphold this
myth of sovereign equality, and this fear of
international migration law requiring states to open their borders, which is found in the Travaux
Preparatoires of the treaties, this concern about being
required to open your borders, even to those fleeing Syria’s violence. So he talks about his neos, right? Neo-liberalism, neo-formalism
of rights in post-modernism, and this new utopia of human rights that enabled the rejection of cause for programmatic higher
order social justice. So taking us away from
these structural critiques, and the need to move back
to the structural critiques, and, of course, with this
shift, as we see with migration, nationality can be used to
obscure the race question. So it’s important to bring
back the race question, and to say, “This is not
just about nationality”. “This is not just about
cultural difference.” “This is about race.” Because of the illegitimacy, that it lends support to our argument. A couple of the panelists also talk about this new visibility of white nationalism, and the new urgency to critique it. I, of course, agree to some extent. I guess to some extent, I
think it’s always been urgent. But I will say, for those
of you who have not been subject to the firestorm in your inbox of the immigration law scholars, there is, as we’ve been sitting here today, a new Muslim ban been implemented. Now banning nationals
of six more countries, Burma, Eritrea, Kyrgyzstan,
Nigeria, Sudan, and Tanzania for immigrant, for non-immigrant, and Anil tells me, immigrant visas. So this is indeed urgent. It’s happening, as we speak, all the time. It’s impossible to open your inbox, and not find a piece of horror in there. And they also talk about
the liberal response, which is basically to
join the restrictionists. So the importance of
foregrounding race, again, to question that move. And because, I also wanna raise the point, that because white nationalists ideology travels so effectively, our response has to be transnational. So there has to be this
joining of the domestic and the international in
order to respond effectively. So Sherally asks, “How do
we unsettle these borders?” And Anil and Jen also talk about the (mumbling) role of law in reifying settled disputes, regardless
of their accuracy. So thinking about law in that way, and the way it settles race questions, the importance of pushing back. I think all of the panelists point to the importance of a response that ties history to the present, right? That opens up empire and
economics, as Chantal does. Settle colonialism, as Sherally does, and race through culture and
nationality, as Justin does. White supremacy has deep roots, domestically and internationally, and it’s inextricably linked
to the movement of people, because the movement of people both enables and threatens white control. So being mindful of the
instability of border imperialism. This is an important place to do the work. So I’m just gonna close
with a couple of thoughts. The first one about, of
course, the challenges, right? This is a still a
conversation about bringing CRT and TWAIL together,
and there are challenges. So first of all, to centering
race in TWAIL scholarship, this is a move that’s going to require a lot of minds to work on. And to have to a transnational approach that theorizes race and empire within, through, and
across national borders. And where are the shortcomings of CRT in capturing these global dynamics? There is little about
race in international law, as many folks have said
today, even in TWAIL. But these mapping projects
begin to show us ways that we might begin to
meet these challenges. So I guess I’ll leave you with
a couple of final thoughts. First of all, the point
that Asil and Tendayi both made in their paper,
and by bringing us together, is the importance of building
intellectual community around this research agenda, and I think the real thirst for this space that we saw in March and we see now, that it’s so important
to open up this space to have these conversations, and to keep having these conversations. As Sherally says at the
very end of her paper, “Thinking about our
shared capacity to imagine our way beyond the
enclosures of the present”, and to think about what is enclosing us. And I think the papers talk about erasure and historical amnesia. And while we’re doing this, to, of course, be mindful of the voices
that we’re putting forward, in particular, being mindful of including the voices of newer
scholars in this group, and also, too, of
course, the many subjects of international law who
don’t have the same platform that we do from which
to express our thoughts, to do what we can to bring
their voices forward as well. Thank you. (audience applauding) (whimsical instrumental music playing)

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