|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of New South Wales Law Journal Student Series |
ANJALI WIJERATNE
In 2020, the murder of George Floyd led to mass protests in the United States of America (‘US’), demanding justice for African Americans killed by police brutality.[1] Beyond the US, the Black Lives Matter (‘BLM’) movement reached popular prominence,[2] transcending both national borders and social and political movements.[3] It has amplified calls to justice for Indigenous Australians who have died in police custody,[4] black migrants in Mexico who are subject to the US’ closed border policy[5], and more. Evidently, many marginalised groups have aligned their struggle with the anti-black racism oppressing African Americans.[6]
In light of this solidarity throughout movements, [7] it has become difficult to ignore the role that systematic racism has played in the implementation of the international refugee law regime, specifically in the US. During the 1980s, the US welcomed thousands of Cuban refugees fleeing Fidel Castro’s dictatorship.[8] In 2022, the Biden administration announced that the US would accept up to 100,000 Ukrainian refugees.[9] This stands in stark contrast to the treatment of Haitian refugees – a predominantly black population. Since 1981, the US has interdicted and deported Haitian refugees,[10] and in 2021 they repatriated countless Haitians without assessing their asylum claims.[11] Using Critical Race Theory (CRT) as a framework of analysis, this paper argues that the US has failed to implement its international refugee law obligations in relation to Haitian refugees. This failure is a product of the US’ racial ideology in combination with a Eurocentric international refugee law regime. It is one that has proven time and time again that in the US, black lives do not really matter.
A What is CRT?
CRT is an academic and political framework that was developed in the 1970s, as lawyers, activists and scholars recognised that the progress made by the civil rights movement was being reversed.[12] Legal scholar Derrick Bell, whose work formed the foundations of CRT,[13] argued that the social progress regarding racial equality was merely a façade[14] in which victories ‘slide into irrelevance as racial patterns adapt in ways that maintain white dominance’.[15] At its core, CRT conceptualises that race is the ‘central analytic category for understanding how domestic law, racist science, and literature have for generations justified the dehumanization and discrimination of African Americans’.[16] It exposes ‘the law’s blindness toward unconscious racism, the ways in which legal discourse inscribes and reproduces subordinating images of racial groups’.[17]
The scholarship on CRT is vast, however Richard Delgado and Jean Stefancic proposed six central characteristics of CRT.[18] Firstly, CRT argues that ‘racism is ordinary, not aberrational’.[19] That is, formal equality in the law can only resolve ‘blatant forms’ of racism,[20] and not issues such as the legacy of slavery.[21] Secondly, since racism progresses the interests of white populations, there is limited motivation to eliminate it.[22] Thirdly, race is not the product of biology, but rather a social and historical construction.[23] Fourthly, various marginalised groups are racialized by mainstream society in response to changing needs.[24] Fifthly, in accordance with intersectionality, no person can be identified by membership to a single group.[25] Finally, because of their histories and experiences with oppression, people of colour have a unique perspective on race and racism.[26]
There are three reasons why CRT was chosen as the framework of analysis for this paper. Firstly, to date, CRT has predominantly concentrated its analysis on domestic law.[27] In contrast, Third World Approaches to International Law (TWAIL) is the most prominent race-related framework in international law, and ‘uncovers how international law originated in and still perpetuates empire’.[28] However, race is not always the main feature of TWAIL analysis.[29] Whilst this paper will take ‘cognizance of the history of imperialism’[30] as advocated for by Chimni, it aims to enhance TWAIL literature with CRT’s race-centred framework.[31] Secondly, as argued by Achiume, there is a tendency to neglect understanding how ‘race operates as a structure of power according to which privileges and rights are allocated’.[32] By examining how racial hierarchies created and perpetuated a racialized refugee regime,[33] this paper supplements the deficiencies that Achiume notes. Finally, the BLM movement held up a mirror to the structural racism embedded within the refugee regime. As CRT overlaps with BLM in its aims and purposes, it forms an important lens of analysis.
B The Role of Race in International Refugee Law
The concept of race is the result of centuries-long colonial intervention and exploitation, which, historically under international law, was legal.[34] It is in this colonial context that ‘race structured rights and privileges on hierarchical terms determined by white supremacy’.[35] That is, minority groups were deemed inferior to white Europeans, reflecting CRT’s position that race is a product of society.[36] This legacy continues to endure today.[37]
In international refugee law, race is often the reason for persecution that motivates individuals to seek refugee status under the 1951 Refugee Convention (the ‘Convention’).[38] Consequently, it has become a crucial concept for refugees to make sense of the legal frameworks that dictate their experiences.[39] Many scholars have argued that refugees are treated ‘on a discriminatory basis, according to the interests of powerful states’.[40] For example, Global South refugees – who are mostly people of colour - are likely to be provided with food and medical supplies, whereas Global North refugees are likely to be resettled.[41] It is precisely this notion of ‘colourblindness’ that CRT challenges; the law ‘pretends to have transcended racism while at the same time systematically channel[ling] opportunities and resources along racial lines’.[42] Therefore, race has become an inherent aspect of the refugee regime.
The way in which international refugee law itself became racialized is apparent through the geopolitical history of the 20th century. Ever since World War II, which resulted in a massive refugee crisis, powerful states demonstrated a preference to allocate global resources to ‘the most deserving’.[43] This catered to individuals whose flight was driven by western ideology; that is, white, European refugees.[44]
During the drafting of the Convention in the late 1940s, principles of humanitarianism were rejected in favour of a ‘Eurocentric legal mandate derived from a highly selective definition of international burden sharing’.[45] In particular, article 1(2) of the Convention confined the temporal and geographical application of the refugee definition to those persecuted ‘as a result of events occurring before 1 January 1951’.[46] This encompassed those affected by World War II, which excluded refugees from the Global South from the scope of protection and demonstrated an inclination that their needs be met ‘by regional rather than international solutions’.[47] This created a ‘two-tiered protection scheme that shield[ed] Western states from most Third World asylum seekers’.[48]
Following pressure by newly decolonized countries,[49] the 1967 Protocol to the Refugee Convention (the ‘Protocol’) eliminated the temporal and geographical restrictions to the refugee definition.[50] A refugee was thus defined as ‘someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group, or political opinion’.[51] However, this retained the substantive matter of the 1951 definition, and continued to exclude Global South refugees.[52] This is because most refugee crises in the Global South are motivated ‘by broadly-based political and economic turmoil rather than individualized “persecution,” as it is understood in the European context’.[53] This definition perpetuates Chimni’s ‘myth of difference’,[54] where the ‘normal refugees’, that is, those who are white and prescribed to western political ideologies, clash with refugees from the Third World.[55] Hence, what emerged from the Convention and Protocol was a legal structure that was ‘fundamentally a product of European political culture’.[56] As the rest of this paper will argue, these Eurocentric preferences contributed to the US’ poor treatment of Haitian refugees.
A Haiti’s History
Haiti was colonised by the French in the 17th century, who enslaved the Haitian people and engaged in a ‘brutal’ rule.[57] In 1804, Haiti won independence after a rebellion by the enslaved population.[58] Following independence, France demanded that Haiti pay a liability in return for recognising Haiti’s sovereignty.[59] This debt took 122 years to repay,[60] severely damaged Haiti’s economy and stunted its ability to grow.[61]
Moreover, the US has been interested and involved in Haiti since the slave trade, creating a relationship that was ‘marred by racism, exploitation and political control’.[62] Haiti’s geographical proximity meant it was vital to US security, whilst ‘cultural links between the slaveholding South and the Caribbean’ meant the island was of interest to them.[63] From 1915 to 1934 the US officially occupied the country, after which it left behind a ruined economy and an illiterate population.[64] Following this, the US supported the dictatorships of Francois “Papa Doc” Duvalier from 1957 to 1971 and his son Jean-Claude “Baby Doc” Duvalier from 1971 to 1986 in order to curb the spread of communism.[65] Alongside their violent Tonton Macoute army, these dictators conducted a ‘campaign of terror’ which sparked the flight of countless Haitian refugees.[66]
In 1991, Jean Bertrand Ariste became the first democratically-elected leader, however was ousted in a coup by the Tonton Macoute seven months afterwards.[67] As a result, Haitians were murdered, and subjected to torture, detention, and violence because of their political views.[68] This led to another mass exodus of refugees.[69] The US provided economic and military support to restore Ariste’s presidency in October 1994, however then ‘orchestrat[ed] and support[ed] a coup to oust him from power and force him into exile in 2004’.[70]
B The Haitian Program
From 1972 to 1980, 30,000 Haitians fleeing Baby Doc’s regime arrived in the US by boat, after which most were repatriated back to Haiti.[71] In response, Ronald Reagan enacted the Haitian Program, which was an agreement with Haiti that authorised the US Coast Guard to interdict boats attempting to reach the US.[72] The Immigration and Naturalization Service (INS) would then assess Haitians to decide whether they had credible asylum claims.[73] However, out of the 24,600 Haitians intercepted between 1981 and 1991, only 28 were deemed to have legitimate asylum claims and brought to the US to be heard.[74] For the rest, the INS concluded that they were economic refugees and not entitled to protection under the Convention.[75]
Following a brief pause in the Haitian Program during Ariste’s presidency, interdiction recommenced in November 1991 following the military coup, with the Coast Guard intercepting over 34,000 Haitian refugees in six months.[76] During this period, they were sent to Guantanamo Bay for an initial screening of their asylum claims.[77] However, President George H.W. Bush later enacted an Executive Order declaring that the international refugee law obligation of non-refoulement did not apply beyond US territorial waters.[78] This allowed Bush to repatriate all Haitians, without screening their asylum claim, from May 1992.[79]
The Haitian program was continued by President Bill Clinton.[80] Another increase in boat arrivals following Ariste’s second ousting in 2004 led President George W. Bush to have made “it abundantly clear to the Coast Guard...[to] turn back any refugee that attempts to reach our shore”.[81] Currently, Haitians who attempt to reach the US by boat can only access asylum through a ‘shout test’, which demands they voice their protection needs to the Coast Guard.[82] There is no requirement that Creole translators be present, and so even if Haitians attempted to voice their asylum claim, the Coast Guard may not be able to understand them.[83] Since the enactment of this policy, every Haitian boat arrival has been repatriated back to Haiti.[84]
C The US’ International Refugee Law Obligations
The conduct of the US raises questions as to the legality of the Haitian Program under international refugee law. The US has ratified the Protocol – albeit not the Convention[85] - and translated its provisions into domestic law through the Immigration and Nationality Act of 1965 (‘INA’) as amended by the Refugee Act of 1980 (the ‘Act’).[86] Reflective of the Protocol,[87] the Act defines a refugee as ‘any person who is outside of his country of nationality...and who is unable or unwilling to return to such country because of persecution or a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group’.[88] Moreover, s 243(h) of the INA reproduces the non-refoulement obligations in article 33 of the Protocol,[89] providing that the ‘Attorney-General shall not deport or return any alien...to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion’.[90]
Prima facie, the US’ domestic legislation demonstrates a receptiveness to international refugee law.[91] However, their actual conduct is inconsistent with their obligations.[92] In particular, the repatriation of Haitians without consideration of their asylum claims breaches non-refoulement because it sends refugees ‘back to face the same persecution they initially sought to escape’.[93]
This failure to uphold non-refoulement was alleged in the 1993 Supreme Court case, Sale v Haitian Centers Council, Inc.[94] In this case, the majority decided against the extraterritorial application of non-refoulement, holding that the INA as amended by the Act did not extend beyond US territory to encompass refugees in the high seas.[95] Therefore, the interception and repatriation of Haitian refugees was validated.[96]
However, the Sale decision was heavily criticised. Firstly, the majority relied upon ‘dubious interpretations of the text’ of the Convention.[97] The court held that the word ‘return’ in article 33 meant to ‘repulse’, instead of ‘reinstate’.[98] This was a much narrower definition than the ordinary meaning.[99] In reaching this conclusion, the majority disregarded the text of article 33 in favour of an interpretation in the Leng May Ma decision.[100] This was despite the legislative history of the Act demonstrating an intention to align s 243(h) of the INA with the Protocol.[101] This conclusion has been described as ‘questionable’[102] and in violation of a fundamental treaty construction principle; that treaty text be ‘construed according to its ordinary meaning’.[103]
Moreover, the decision was criticised for relying heavily on the Convention’s travaux preparatoires.[104] In particular, the majority elevated the Convention’s negotiating history above the text of article 33,[105] once again violating treaty construction principles. This was condemned by Blackmun J who dissented, various academics and organisations, and the United Nations High Commissioner for Refugees, who affirmed that ‘the obligation not to return refugees to persecution arises irrespective of whether governments are acting within or outside their borders’.[106]
By legitimising the Haitian Program in violation of international refugee law, the Sale decision ‘set a dangerous international precedent’.[107] It conveyed ‘an attitude of calculated cynicism towards international obligation, which in the long run may provide its most destructive legacy’.[108] It had an instant detrimental impact on the safety of Haitian refugees being forcibly repatriated without consideration of their asylum claims.[109] The Program also established precedents that defined US refugee policy from the 1990s and onward.[110] It became ‘a ‘testing ground’ for detention practices, discourses on criminality...and the present-day deportation regime’.[111] It has also been used as a framework for Europe’s refugee crisis, evident in their current regime where refugees – predominantly black populations – are interdicted on the Mediterranean Sea.[112]
A Contrasting Treatment of Cuban Refugees
Having established that the Haitian Program violated the US’ international refugee law obligations, the role that race played becomes increasingly palpable when compared with the US’ treatment of Cuban refugees.
Following Fidel Castro’s rise to power in 1959, the US adopted policies permitting Cuban refugees to enter the country.[113] From 1962 to 1979, 690,000 Cubans were accepted into the US. In 1966, the Cuban Adjustment Act (‘CAA’) was enacted, which enabled Cubans in the US to obtain permanent residency.[114] Moreover, in contrast to the ‘shout test’ imposed upon Haitian refugees, Cubans were subject to a ‘wet foot/dry foot policy’.[115] Under this policy, Cubans who were interdicted were informed of their right to seek asylum, and if they chose to exercise that right they were transported to Guantanamo Bay and provided a refugee determination interview; Cubans who attempted to enter the US via land rather than boat were typically allowed to stay as per the CAA. [116]
The differing treatment of Cubans and Haitians disregards the Protocol’s objectives and purpose, which recognised refugee rights regardless of their nationality.[117] It also contradicts the legislative history of the Act, which provided that its incorporation of the Protocol was to ‘mandate equity in our treatment of all refugees’.[118] This affirms CRT’s position that race neutrality in the Act creates ‘the illusion that racism is no longer the primary factor responsible for the condition of the Black underclass’.[119]
It is important to note that although Cubans are also people of colour, the majority of Cuban refugees attempting to enter the US at the time were ‘light-skinned, affluent professionals’.[120] This stands in contrast to Haitians, who are a majority black population. This prima facie suggests that anti-black racism contributed to the Haitian Program. This is supported by the fact that following the deterioration of the Cuban economy in 1994, thousands of ‘poor, black Cubans’ arrived on American shores.[121] The Clinton administration expanded the interdiction program in response, ‘ending over three decades of favored treatment of Cuban refugees’.[122]
B Findings of Racial Discrimination
Two court decisions, Haitian Refugee Center v Civiletti[123] and Jean v Nelson,[124] were integral to establishing that racism was the reason for the poor treatment of Haitians.[125]
The 1980 Civiletti case was a class action brought by over 4,000 Haitians seeking asylum in the US.[126] They alleged that in expediting asylum hearings such that all Haitian claims were ‘prejudged as lacking any merit’[127] and denied, the Haitian Program ‘violat[ed] substantive and procedural asylum rights’.[128] The District Court decided in favour of the claimants.[129]
Particularly significant was the court’s recognition of the differing outcomes of Cuban and Haitian refugees.[130] For example, the court stated that Haitians ‘are part of the first substantial flight of black refugees from a repressive regime to this country...in contrast, for example, only a relatively small percent of the Cuban refugees who have fled to this country are black. Prior to the most recent Cuban exodus, all of the Cubans who sought political asylum...were granted asylum routinely. None of the over 4,000 Haitians processed during the INS “program” at issue in this lawsuit were granted asylum’.[131]
In the 1985 Jean decision, the Haitian applicants, who were seeking asylum in the US, were detained by the INS ‘at various federal detention facilities pending disposition of their asylum applications’.[132] They were excluded as per the INS’ policy of ‘accelerated exclusion proceedings and detention without parole for all Haitian refugees’.[133] In being denied parole, it was claimed that the INS discriminated against them due to their race and nationality,[134] thereby violating ‘their fifth amendment right to equal protection of the laws’.[135] The plaintiffs relied on statistics which showed a less than ‘two in ten billion chance that so many Haitians would be detained and denied parole under immigration standards applied in a racially-neutral fashion’.[136] The Eleventh Circuit Court found ‘a strong case of discrimination’[137] and that the INS had violated the Haitians’ fifth amendment rights.[138]
C Viewing the Haitian Program through CRT
Having established that Haitian refugees were in fact subject to racist treatment, it is important to note that it cannot be deemed an isolated, arbitrary decision by policymakers. Rather, the Haitian Program ‘must be viewed as an integral part of a larger mosaic of racial discrimination in American society’.[139]
Systematic anti-black racism has pervaded the US throughout its history[140] through ‘mechanisms of oppression’[141] such as the slave trade, segregation laws, disproportionate rates of incarceration and police brutality, and more. In contrast, ‘whiteness was legally produced, protected and institutionalised’.[142] As argued by Ruth Gordon, ‘race is the predominant American paradigm, one that is at the center of our existence as people whether it is conscious or unconscious, whether it is acknowledged or unacknowledged’.[143] As the US is inherently shaped by its racial ideology on a domestic level, this in turn ‘influence[s] [their] foreign policy and [their] interactions with other nations and peoples’.[144] Therefore, as posited by CRT, any notion of formal equality under the law cannot remedy the legacy of these mechanisms of oppression.
Moreover, since colonialism, Haitians have been designated as the ‘other’.[145] Black people have been framed as ‘chaotic, barbaric, violent’[146], which constructed ‘concepts of racial and cultural inferiority and superiority and justified domination and subjugation’.[147] Consequently, the ‘racism that fuelled the slave trade also contributed to the characterization of Haitians as barbarians and cannibals’.[148] During the Haitian Program, this stereotype ‘evoke[d] an unwarranted degree of fear and resistance’[149] that acted as a justification to refoulement. This supports CRT’s argument that ‘dominant society racializes different minority groups at different times, in response to shifting needs’.[150]
Finally, the Haitian Program can be explained through CRT’s concept of interest convergence; that is, ‘the interests of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites’.[151] During the Cold War, the US was interested in curbing the spread of communism. Although the Duvalier regimes were dictatorships, they were not communist governments.[152] In contrast, Castro’s regime was, and so accepting Cubans into the US converged with their anti-communist fight.[153]
Therefore, using a CRT lens, the Haitian Program can be viewed as a policy that ‘naturalises and protects White preferences and privileges as an inevitable order’.[154] It is indicative of the law’s ‘blindness towards unconscious racism’ and ‘the ways in which legal institutions and discourse contribute to the construction and maintenance of racial hierarchies’.[155]
It is important to acknowledge other explanations that have been offered as a justification for the refoulement of Haitian refugees; namely, that Haitians are economic refugees such that they fall out of the scope of protection, and the role of geopolitics.
A Haitians are Economic Refugees
The US argued that Haitians’ asylum claims were not recognised because they are economic, and not political refugees, and so they do not fall under the definition of a refugee[156]. Indeed, Haiti is the poorest country in the Latin American and Caribbean region, and had a poverty rate of 52.3% in 2021.[157] These conditions have persisted since the 1980s, with Haitians making a daily minimum wage of $3 in 1985 and the country having an adult illiteracy rate of 47% in 1990.[158] Intertwined with these conditions is the belief that ‘the poor in a capitalist society are poor by choice, whereas those in a communist society are poor due to political inequities’.[159] Under this rationale, as Haitians lived in a capitalist society, if ‘motivated’ they would be able to overcome poverty.[160] In contrast, those living under communist rule had to accept the conditions imposed upon them.[161] Hence, ‘those fleeing communist countries are per se political refugees and those fleeing capitalist countries are per se economic refugees’.[162]
However, these longstanding economic conditions do not explain the sharp influx in Haitians – 38,000 of them - that fled following the coup in 1991.[163] Haitians clearly faced political persecution; in 2014, Human Rights Watch reported that under Baby Doc’s regime, Haitians were subject to systematic human rights violations. Political prisoners ‘died from mistreatment, or were victims of extrajudicial killings’,[164] and journalists were beaten, tortured and jailed.[165] Labelling Haitians as purely economic refugees is reductive, as the economic circumstances are a product of the political conditions that existed.
Even though the US’ economic refugee argument is flawed, it points to a broader deficiency in the international refugee law regime. The definition of a ‘refugee’ excludes economic factors and, as aforementioned, restricts the scope of application to individualised ‘persecution’.[166] Therefore, people fleeing circumstances such as poverty, climate crises, or general violence, like Haitians, often cannot obtain refugee status.[167] This largely affects refugees from the Global South[168] – inevitably people of colour – highlighting the Convention’s Eurocentric bias once more.
C The Role of Geopolitics
As aforementioned, the US’ agenda to curb the spread of communism contributed to the favourable treatment of Cubans compared to Haitians. The influence that geopolitics plays can be seen today, particularly when comparing the current treatment of Haitians with that of Ukrainian refugees.[169]
Following the 2022 Russian invasion of Ukraine, the US provided Temporary Protected Status (‘TPS’) to Ukrainians who were already present in the US, irrespective of their immigration position.[170] On the 11th March 2022, the US exempted Ukrainians from Title 42, which was a policy that allowed the US to reject migrants and asylum seekers on a public health basis.[171] On the 24th March 2022, it was announced that the US would welcome up to 100,000 Ukrainians fleeing the conflict.[172] A month later, President Joe Biden launched the ‘Uniting for Ukraine’ program, which allowed admission of sponsored Ukrainian nationals into the US for an initial timeframe of two years.[173] As of the 24th June 2022, more than 15,000 Ukrainians have entered the US through the program, with another 23,000 approved and yet to arrive.[174]
This generous welcome stands in contrast with the US’ response to Haiti’s deteriorating conditions. On 7th July 2021, Haitian President Jovenel Moïse was assassinated, and on the 14th August 2021 an earthquake killed 2,200 people and injured 12,000 more.[175] On the 3rd August 2021, the US granted TPS to Haitians who were already in the US, which meant Haitians had less than one month to arrive following the assassination.[176] This did not cover those fleeing the earthquake.[177] Subsequently, many Haitians arrived at the US-Mexico border, with the Biden administration using Title 42 to reject ‘countless’ refugees regardless of their asylum claims.[178]
In 2022, renewed gang violence destabilised the conditions in Haiti. Between January and May 2022, ‘540 people were kidnapped and more than 780 people were killed’.[179] However, since September 2021 over 25,000 Haitians have been deported from the US and repatriated back to Haiti, once again in violation of the US’ non-refoulement obligations.[180]
An important factor in the generous reception of Ukrainian refugees is ‘the geopolitical implications of a nuclear power attacking a country that shares borders with NATO allies’.[181] The US has long stood in opposition to Russia for a number of reasons, from the fear of Russia that emerged during the Cold War, to the country’s interference in the 2016 election in support of Donald Trump.[182] Since the end of the Cold War, the US’ priorities in Ukraine have been to ensure a steady country as ‘with Ukraine suborned and then subordinated, Russia automatically becomes an empire’.[183] And so, welcoming Ukrainian refugees ‘enable[s] governments to express self-righteous outrage at Russia’s imperialist ambitions and violent militarism’.[184]
Ukrainian support may also be a result of the circumstances of the conflict; whereas Haitians are fleeing internal crises relating to gang violence and poverty, Ukrainians are under attack by a larger, foreign power ‘where the plot is simple, and the villain is clear’.[185] Therefore, the principle of sovereignty is ‘easier for Americans to understand and defend than’ in other countries such as Haiti.[186]
However, it is important to note that if Ukrainians are a product of ‘Russian brutality’,[187] then by that logic Haitian refugees are evidence of a similar type of brutality by the US, whose formal occupation of the country, support of the Duvalier regimes and role in ousting Aristide left the country on the brink of collapse. Even if geopolitical considerations may be the driving force of the US’ support of Ukrainians, all refugees should be provided the same opportunity to reach safety.[188]
Currently, the US has not implemented any policies to resolve the extremely high number of Haitians seeking refuge, other than to repatriate them back to Haiti.[189] They clearly have the capacity and political will to welcome refugees, however only in a selective way to those who are most deserving[190] – that is, white refugees who advance the US’ political interests. In contrast, black refugee lives are consistently excluded.
The racism that killed Trayvon Martin, Breonna Taylor, George Floyd, and countless other African Americans is the same racism that validated the Haitian Program. The US is founded on anti-black institutions, which has created a legacy that systematically excludes black people, both domestically and in the international sphere. It is no wonder why so many refugee groups have stood in solidarity with the BLM movement – just as the US has failed to protect its black citizens, it has also failed to protect black refugees.
It is glaringly obvious that the existing refugee law infrastructure has resulted in extremely different outcomes for ‘people fleeing conflict depending on the colour of their skin and their country of origin’.[191] The refugee definition is imbued with Eurocentric bias; the categories of recognised refugees are limited, and the requirement of persecution excludes those fleeing generalised violence, natural disasters, and poverty – which disproportionately affects refugees from the Global South. By examining various court decisions and viewing the Haitian Program through CRT, the anti-black racism is palpable. Even where geopolitics results in favourable treatment to white refugees such as Ukrainians, the same opportunities must be afforded to their black counterparts.
As posited by CRT, racism is ‘normal’;[192] it is the everyday experience of black people. Indeed, the refugee definition should be amended to be more inclusive. Decision makers who implement their country’s international refugee law obligations should be forced to grapple with their own prejudice.[193] However, these solutions are not an instant fix to the anti-black racism that has pervaded our society for centuries. Perhaps the answer lies in questioning who the law is really created for.[194] Perhaps it requires an even deeper interrogation: ‘what will it take for us to recognize everyone’s humanity, vulnerability, and dignity without condition?’.[195]
[1] See, eg, Derrick Bryson Taylor, ‘George Floyd Protests: A Timeline’, The New York Times (Web Page, 5 November 2021) <https://www.nytimes.com/article/george-floyd-protests-timeline.html>.
[2] Gin Saffi Abad, ‘Why Does the BLM Movement Matter in Australia?’, United Nations Association of Australia (Web Page, 3 November 2021) < https://www.unaa.org.au/2021/11/03/why-does-the-blm-movement-matter-in-australia/>.
[3] Paulina Olvera Canez, Ebony Bailey and Leslie Meyer, ‘Commentary: ‘No puedo respirar’. The Black Lives Matter movement is growing in Tijuana’, The San Diego Union Tribune (Web Page, 25 June 2020) < https://www.sandiegouniontribune.com/opinion/commentary/story/2020-06-25/commentary-no-puedo-respirar-the-black-lives-matter-movement-is-growing-in-tijuana>.
[4] Abad (n 2).
[5] Canez, Bailey and Meyer (n 3).
[6] S. Priya Morley, ‘Connecting Race and Empire: What Critical Race Theory Offers Outside the U.S. Legal Context’ (2022) 69 UCLA Law Review Discourse (Law Meets World) 102, 103.
[7] Ibid.
[8] Roza E. Patterson, ‘Black Bodies Drowning in a Mediterranean Sea’ (2019) 23(1) UCLA Journal of International Law and Foreign Affairs 183, 215.
[9] Allie Malloy, Kevin Liptak and Maegan Vazquez, ‘US to welcome 100,000 Ukrainian refugees’, CNN Politics (Web Page, 24 March 2022) <https://edition.cnn.com/2022/03/24/politics/us-to-accept-more-ukrainian-refugees/index.html>.
[10] Patterson (n 8) 213.
[11] Elizabeth Sweet, ‘The U.S. is trying to do right by Ukrainian refugees. What about Afghans? Haitians?’ Wbur (Web Page, 12 April 2022) <https://www.wbur.org/cognoscenti/2022/04/12/ukraine-refugee-crisis-title-42-elizabeth-sweet>.
[12] Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction (New York University Press, 2001) 3-4.
[13] Ibid 5.
[14] Leroy D. Clark, ‘A Critique of Professor Derrick A. Bell’s Thesis of the Permanence of Racism and His Strategy of Confrontation’ (1995) 73(1) Denver Law Review 23, 35.
[15] Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (Basic Books, 1993) 12.
[16] Morley (n 6) 103-104, quoting James T. Gathii, ‘Writing Race and Identity in a Global Context: What CRT and TWAIL Can Learn From Each Other’ (2021) 67 UCLA Law Review 1610,1612.
[17] Patterson (n 8) 212, quoting Eric K. Yamamoto, ‘Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America’ (1997) 95 Michigan Law Review 821, 868.
[18] Delgado and Stefancic (n 12) 6-9.
[19] Ibid 7.
[20] Ibid.
[21] Gathii (n 16) 1623.
[22] Delgado and Stefancic (n 12) 7.
[23] Ibid.
[24] Ibid 8.
[25] Ibid 9.
[26] Ibid.
[27] Morley (n 6) 104.
[28] Ibid.
[29] Ibid 105.
[30] B.S. Chimni, ‘The Geopolitics of Refugee Studies: A View from the South’ (1998) 11(4) Journal of Refugee Studies 350, 369.
[31] Morley (n 6) 105.
[32] E Tendayi Achiume, ‘Race, Refugees, and International Law’ in Cathryn Costello, Michelle Foster and Jane McAdam (ed), The Oxford Handbook of International Refugee Law (Oxford University Press, 2021) 43, 43.
[33] Ibid 44.
[34] See Antony Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’ (2006) 27(5) Third World Quarterly 739, 742.
[35] Achiume (n 32) 45.
[36] Philip S. S. Howard, Bryan Chan Yen Johnson and Kevin Ah-Sen, ‘Ukraine refugee crisis exposes racism and contradictions in the definition of human’, The Conversation (Web Page, 22 March 2022) <https://theconversation.com/ukraine-refugee-crisis-exposes-racism-and-contradictions-in-the-definition-of-human-179150>.
[37] Achiume (n 32) 45.
[38] Ibid 49.
[39] Ibid 43.
[40] Ibid 55.
[41] Ibid.
[42] Gathii (n 16) 1623.
[43] James Hathaway, ‘A Reconsideration of the Underlying Premise of Refugee Law’ (1990) 31(1) Harvard International Law Journal 129, 140.
[44] Ibid 148.
[45] Ibid 144.
[46] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art 1(2) (‘Refugee Convention’).
[47] Hathaway (n 43) 156.
[48] Ibid 144.
[49] Edwin O. Abuya, Ulrike Krause and Lucy Mayblin, ‘The neglected colonial legacy of the 1951 refugee convention’ (2021) 59(4) International Migration 265, 266.
[50] Ibid; Hathaway (n 43) 162.
[51] 1967 Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) art 1(2).
[52] Hathaway (n 43) 162.
[53] James R. Zink, ‘Race and Foreign Policy in Refugee Law: A Historical Perspective of the Haitian Refugee Crises’ (1998) 48(2) DePaul Law Review 559, 616.
[54] Chimni (n 30) 350.
[55] Ibid 351.
[56] Hathaway (n 43) 134.
[57] Zink (n 53) 592.
[58] Ibid.
[59] Jasmine Armand, ‘Establishing Economic Independence in Haiti Through Public-Private Partnerships and Foreign Direct Investment’ (2020) 40(3) Northwestern Journal of International Law & Business 363, 369.
[60] Ibid.
[61] Marlene Daut, ‘When France Extorted Haiti – the greatest heist in history’, The Conversation (Web Page, 30 June 2020) <https://theconversation.com/when-france-extorted-haiti-the-greatest-heist-in-history-137949>.
[62] Lori Nessel, ‘Externalized Borders and the Invisible Refugee’ (2008) 40 Columbia Human Rights Law Review 625, 691-692.
[63] Ibid.
[64] Ibid 692.
[65] Ibid.
[66] Zink (n 53) 563.
[67] Nessel (n 62) 692-693.
[68] Kevin R. Johnson, ‘Race, the Immigration Laws, and Domestic Race Relations: A “Magic Mirror” into the Heart of Darkness’ (1998) 73(4) Indiana Law Journal 1111, 1142.
[69] Zink (n 53) 573.
[70] Nessel (n 62) 693.
[71] Ibid 638.
[72] Zink (n 53) 572.
[73] Johnson (n 68) 1142.
[74] Zink (n 53) 573.
[75] Ibid 569-570.
[76] Johnson (n 68) 1142.
[77] Nessel (n 62) 640.
[78] Ibid.
[79] Johnson (n 68) 1143.
[80] Ibid.
[81] Nessel (n 62) 642.
[82] Ibid.
[83] Ibid 643.
[84] Ibid.
[85] Zink (n 53) 565.
[86] Ibid 568; Joan Fitzpatrick, ‘The International Dimension of U.S. Refugee Law’ (1997) 15(1) Berkeley Journal of International Law 1, 1.
[87] Ibid.
[88]Refugee Act of 1980, Pub L No 96-212 § 201(a), 94 Stat 107 (1980) (‘Refugee Act’).
[89] Fitzpatrick (n 86) 2.
[90] Refugee Act (n 87) § 243(h)(1).
[91] Fitzpatrick (n 86) 3.
[92] Ibid.
[93] Andrew G. Pizor, ‘Sale v. Haitian Centers Council: The Return of Haitian Refugees’ (1993) 17(4) Fordham International Law Journal 1062, 1100.
[94] Sale v Haitian Centers Council, Inc, [1993] USSC 89; 509 US 155 (1993).
[95] Zink (n 53) 580.
[96] Nessel (n 62) 640.
[97] Fitzpatrick (n 86) 9.
[98] Zink (n 53) 585.
[99] Ibid 584.
[100] Ibid 577.
[101] Ibid 584.
[102] Ibid.
[103] Ibid 584-585.
[104] Fitzpatrick (n 86) 9.
[105] Zink (n 53) 586.
[106] Fitzpatrick (n 86) 9, quoting UN High Commissioner for Refugees Responds to US Supreme Court Decision in Sale v Haitian Centers Council (1993) 32 ILM 1215.
[107] Pizor (n 93) 1100.
[108] Fitzpatrick (n 86) 10.
[109] Ibid.
[110] Philip Kretsedemas, Black Interdictions: Haitian Refugees and Antiblack Racism on the High Seas (Rowman & Littlefield, 2022) 18.
[111] Ibid.
[112] Ibid.
[113] Patterson (n 8) 215.
[114] Ibid.
[115] Nessel (n 62) 695.
[116] Ibid.
[117] Zink (n 53) 591.
[118] Malissia Lennox, ‘Refugees, Racism, and Reparations: A Critique of the United States’ Haitian Immigration Policy’ (1993) 45(3) Stanford Law Review 687, 714.
[119] Gathii (n 16) 1622-1623.
[120] Zink (n 53) 606.
[121] Ibid.
[122] Ibid.
[123] Haitian Refugee Center v Civiletti, [1980] USCA5 528; 614 F 2d 92 (5th Cir, 1980) (‘Civiletti’).
[124] Jean v Nelson, [1988] USCA11 1231; 854 F 2d 405 (11th Cir, 1998) (‘Jean’).
[125] Laura E. Alexander et al, ‘How race and religion have always played a role in who gets refuge in the US’, The Conversation (Web Page, 28 April 2022) < https://theconversation.com/how-race-and-religion-have-always-played-a-role-in-who-gets-refuge-in-the-us-181700>.
[126] Margaret J. Wynne, ‘An Analysis of Haitian Requests for Political Asylum after Haitian Refugee Center v. Civiletti’ (1982) 33(6) Hastings Law Journal 1501, 1513.
[127] Ibid.
[128] Ibid.
[129] Ibid.
[130] Lennox (n 118) 716.
[131] Ibid, quoting Civiletti (n 122) 451.
[132] Mary Jane Lapointe, ‘Discrimination in Asylum Law: The Implications of Jean v. Nelson’ (1986) 62(1) Indiana Law Journal 127, 127.
[133] Jeffrey C. Gilbert, ‘Jean v. Nelson: A Stark Pattern of Discrimination’ (1982) 36 University of Miami Law Review 1004, 1008.
[134] Lapointe (n 132) 127.
[135] Gilbert (n 133) 1024.
[136] Lennox (n 118) 715.
[137] Gilbert (n 133) 1028, quoting Jean (n 123) 2823.
[138] Ibid.
[139] Nessel (n 62) 1153.
[140] Ruth Gordon, ‘Critical Race Theory and International Law: Convergence and Divergence Racing American Foreign Policy’ (Lecture, Proceedings of the Annual Meetings (American Society of International Law), 5-8 April 2000) 260, 262.
[141] Patterson (n 8) 216.
[142] Gathii (n 16) 1624.
[143] Gordon (n 140) 266.
[144] Ruth Gordon, ‘Critical Race Theory and International Law: Convergence and Divergence’ (2000) 45( 5) Villanova Law Review 827, 835.
[145] See Patterson (n 8) 199-211.
[146] Ibid 201.
[147] Ruth Gordon, ‘Saving Failed States: Sometimes a Neocolonialist Notion’ (1997) 12(6) American University International Law Review 903, 929.
[148] Nessel (n 62) 694.
[149] Ibid 627.
[150] Delgado and Stefancic (n 12) 8.
[151] Zink (n 53) 606.
[152] Ibid.
[153] Ibid.
[154] Gathii (n 16) 1623.
[155] Patterson (n 8) 212, quoting Eric K. Yamamoto, ‘Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America’ (1997) 95 Michigan Law Review 821, 868.
[156] Lennox (n 118) 704.
[157] ‘The World Bank in Haiti’, The World Bank (Web Page, 14 June 2022) <https://www.worldbank.org/en/country/haiti/overview>.
[158] Lennox (n 118) 705.
[159] Ibid 713.
[160] Ibid.
[161] Ibid.
[162] Ibid.
[163] Ibid.
[164] ‘Haiti: Three Years On, Duvalier Prosecution Stalled’, Human Rights Watch (Web Page, 14 January 2014) <https://www.hrw.org/news/2014/01/15/haiti-three-years-duvalier-prosecution-stalled>.
[165] Ibid.
[166] Zink (n 53) 616.
[167] Amy McMeeking, ‘Haitian Migration and the Importance of Non-Refoulement’, Voice of Promise (Web Page) <https://www.promisehumanrights.blog/blog/2021/11/haitian-migration-and-the-importance-of-non-refoulement>.
[168] Morley (n 6) 117.
[169] Due to the temporal proximity of events, there is currently limited literature available on the Russia-Ukraine conflict and US policies relating to Ukrainian refugees.
[170] Sweet (n 11).
[171] Alexander et al (n 125).
[172] Sweet (n 11).
[173] Nayla Rush, ‘Uniting for Ukraine: A New ‘Privately’ Sponsored Pathway to the United States’, Center for Immigration Studies (Web Page, 15 June 2022) <https://cis.org/Report/Uniting-Ukraine-New-Privately-Sponsored-Pathway-United-States#:~:text=Uniting%20for%20Ukraine%20allows%20for,well%20as%20refugee%20resettlement%20benefits>.
[174] Nina Lakhani, ‘US on course to welcome 100,000 Ukrainians fleeing war this summer’, The Guardian (Web Page, 24 June 2022) <https://www.theguardian.com/us-news/2022/jun/24/ukrainians-enter-us-asylum-biden-pledge>.
[175] Sweet (n 11).
[176] Ibid.
[177] Ibid.
[178] Ibid.
[179] ‘Haiti: Wave of Violence Deepens Crisis’, Human Rights Watch (Web Page, 22 July 2022) <https://www.hrw.org/news/2022/07/22/haiti-wave-violence-deepens-crisis>.
[180] Eileen Sullivan, ‘U.S Accelerated Expulsions of Haitian Migrants in May’, The New York Times (Web Page, 9 June 2022) <https://www.nytimes.com/2022/06/09/us/politics/haiti-migrants-biden.html>.
[181] Patsy Widakuswara, ‘What’s Behind American Support for Ukraine?’, Voa (Web Page, 29 April 2022) <https://www.voanews.com/a/what-s-behind-american-support-for-ukraine-/6551539.html>.
[182] Ibid.
[183] Jonathan Masters, ‘Ukraine: Conflict at the Crossroads of Europe and Russia’, Council on Foreign Relations (Web Page, 1 April 2022) <https://www.cfr.org/backgrounder/ukraine-conflict-crossroads-europe-and-russia#chapter-title-0-7>.
[184] Sonali Kolhatkar, ‘Why don’t we treat all refugees as though they were Ukrainian’, Minnpost (Web Page, 18 March 2022) <https://www.minnpost.com/community-voices/2022/03/why-dont-we-treat-all-refugees-as-though-they-were-ukrainian/>.
[185] Widakuswara (n 181).
[186] Ibid.
[187] Kolhatkar (n 184).
[188] Veronica Øverlid, ‘Is the welcome to Ukrainian refugees unusually generous – or overtly racist?’, The Conversation (Web Page, 17 March 2022) <https://theconversation.com/is-the-welcome-to-ukrainian-refugees-unusually-generous-or-overtly-racist-178819>.
[189] Sullivan (n 180).
[190] Øverlid (n 188).
[191] Ibid.
[192] Delgado and Stefancic (n 12) 7.
[193] Kretsedemas (n 110) 21.
[194] Ibid.
[195] Howard, Johnson and Ah-Sen (n 36).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UNSWLawJlStuS/2022/35.html