Excerpted From: Tendayi Achiume, Pandemic Borders and Racial Borders: Keynote Delivered at the 2020 Annual Symposium of the UCLA Journal of International Law and Foreign Affairs Symposium Keynote Speech, 27 UCLA Journal of International Law and Foreign Affairs 1 (Fall, 2023) (9 Footnotes) (Full Document)

TendayiAchiume.jpegThe theme of this Symposium is mapping the dynamic interaction among different bordering technologies in shaping the allocation and enjoyment of human rights in the specific context of the Covid-19 pandemic. I'm going to focus my Keynote on the international legal order and in ways that I hope present a broader frame within which many of the discussions during the Symposium might fit.

There are many different legal accounts of what international borders are, what they do, and why we even have them in the first place. A central premise of international law is the following: the international order is made up of sovereign, independent, and equal nation states, each with a largely unilateral right to exclude non-nationals. There are constraints on this right to exclude that nation states may impose upon themselves, for example through international refugee law, but the prevailing sovereignty doctrine includes a capacious right to exclude that is most robustly justified on the basis of rights to collective self-determination.

Scholars in the Third World Approaches to International Law (TWAIL) tradition, as well as other post-colonial theorists, have challenged this account of the international order. And they've persuasively argued that, notwithstanding the formal decolonization of much, but obviously not all of the world, neocolonial forms of political and economic interconnection continue to characterize the international order.

TWAIL and other scholars have shown how the international order, including through international law and international institutions, continues to privilege the interests of former colonial powers, which I will refer to as First World nation states, at the expense of formerly colonized peoples and territories, which I will call the Third World, and that such contemporary conditions can be described as neo-colonial empire. In my scholarship, I study the neocoloniality of international borders, including the ways in which these borders intersect with race, and in doing so, I rely heavily on scholarship by critical race theorists. My Keynote today will focus on what I call “racial borders,” highlighting the historical racialization of borders and the imperial significance of this racialization in the present.

For those interested in a deeper understanding of the analytical purchase of centering race and empire in the study of international law, I want to point you to the Promise Institute's “Race and Human Rights Reimagined Initiative” website, which provides helpful resources. I also want to highlight that Professor Asl Ü. Bâli, who moderated one of the earlier panels, and I convened a series of events that were sponsored by the Promise Institute and that resulted in articles that were published in the 64th volume of the UCLA Law Review, and in the twenty-seventh volume of in JILFA, bringing together academic scholarship at the intersection of TWAIL and CRT.

Anibal Quijano's work reminds us that “race” today is the product of centuries long colonial intervention and exploitation, during which “race became the fundamental criterion for the distribution of the world population into ranks, places, and roles in society's structure of power.” In the colonial context, race structured rights and privileges on hierarchical terms, determined by white supremacy. Although formal decolonization has occurred in most of the world, race persists a neocolonial structure, one that still allocates benefits and privileges to the advantages of some and the disadvantage of others, largely along the same geopolitical and racial lines that characterize the European colonial project. This is by no means a totalizing account of the meaning of race, but I offer it because the structural and materialist dimensions of this account are central to the conception of race I rely upon in this Keynote.

The racially disparate impact of Covid globally really evinces the neocoloniality of race transnationally, along the lines of Quijano's account of how we should understand race. Across the globe, Covid deaths and exposure have had the worst impact on racially, ethnically, and religiously marginalized populations. Racialization has also been transnational. In February 2022, only 11 percent of persons in Africa, for example, had received the Covid-19 vaccine compared to the global average of 50 percent. According to one analysis, in October 2021, only 0.7 percent of vaccines had gone to low-income countries at that time, while nearly half had gone to wealthy countries. And just a month earlier, it was reported that 2 percent of Africans, 15 percent of Indians, 63 percent of Europeans were fully vaccinated. Meanwhile, for example, Canada bought five times more vaccine doses from the global pharmaceutical companies than it needed.

In the time that I have, I want to focus on borders with a lens, as I mentioned, that highlights race and empire. And in advancing this account of borders as racialized, imperial technology, I want to center law, especially international law and domestic laws with transnational effects as well as history. And in addition to that, I want to walk through how thinking of borders as racialized imperial technology helps us both make sense of borders in the Covid-19 pandemic context, and also helps us to articulate more precisely the injustices that borders have either made possible or at least legitimated. I also want to note that my analysis privileges race, but the aim of this symposium has been to call attention, not only to race and ethnicity, but to sexual orientation, gender identity, and disability status as bordering access to human rights.

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Racial borders, irrespective of whether they are underwritten with racist intent, subject politically equal and interconnected persons in the Third World and in the First World to different structures, treatment, and possibilities for self-determination on a racial basis. And persisting neocolonial interconnection means that the contemporary system of racial borders is unjust in many of the same ways that rendered Jim Crow in the American South and apartheid in South Africa and other colonial regimes of racial segregation unjust.

And the point that I'm trying to make here is, when we are accounting for the injustice that is embedded in international migration governance regimes, that accounting should include the ways in which borders keep separate on a racial and geographic basis, groups that remain otherwise bound by political and economic interconnection on unjust terms.

Where does that leave us? I would argue that at least one lesson is to keep clear sight of the fact that racial justice, where borders are concerned, but even arguably more broadly, has to be a decolonial project as Natsu Taylor Saito has argued in her recent book, Settler Colonialism, Race, and the Law. And part of what it means to think about racial justice as a decolonial project, is that it requires a commitment to undoing structures of imperial subordination and rethinking and reimagining the political and economic systems that structure our lives, and that bind us together even across borders.

Thank you for the privilege of your attention.

Inaugural Alicia Miñana Professor of Law. This Keynote address draws heavily on my article Racial Borders 110 Georgetown Law Journal 445 (2022), to which I refer readers for detailed references and citations.