MANSHA MOHEE
In November last year, a CNN investigation unveiled slave markets auctioning African migrants in one of the North African gateways to Europe. As the new year dawned, African asylum seekers in Israel were threatened with incarceration and deportation if they did not leave the country in the next three months. Two weeks ago, in an Oval Office meeting with lawmakers, the US President referred to African immigrants as hailing from “shithole countries”. Whilst these incidents sent shock waves across the globe, shook the pan-African conscience and provoked indignation and dismay from the international community, they, more than ever before, reveal and accentuate the deep-seated inequality and hypocrisy in the international refugee regime, its unspoken exploitative potential and reality for the historically oppressed and the pertinence of critical discourses and movements in international law in understanding and responding to the flux of people across borders.
Migration Rhetoric and Afro-Pessimism
Migration has been racialised in contemporary political rhetoric and policy.[1] This was palpable and instrumental in international political developments, notably the nationalist surge and enduring rise of right-wing populism in Europe, Trump’s accession to Presidency and the Brexit vote. Particularly, recent events shed light on the legacy of slavery and colonial injustice on Africa and its people and are redolent of past and neo-imperialist efforts to make it the dark and hopeless continent it is notoriously and expediently still projected to be on the international stage. The current migration malaise is also a lesson and a case in point in Afro-Pessimism. Developed mostly in American Studies in the last two decades, the school of thought challenges a post-racial paradigm and insists that blackness is still associated with slavery and the “social death”[2] that characterised it, notably a “life exposed to gratuitous violence, injured or withheld personhood, and denied humanity”[3].
This repudiation of rights and dignity is said to have permuted from a construct of powerlessness intrinsic in slavery to one of danger dominant in criminal profiling or stereotyping.[4] Both these dynamics are manifest in the global migration context: the perception has recurrently been put forward that African migrants are not contributing members of society but existential threats,[5] associated with crime, disease or terrorism. Empirical research has however failed to substantiate such arguments. Whereas hostility to African migrants is legitimated and perpetuated through a politics of fear and identity, it is ironical that in the last two centuries, enslaved African labour was circulated across continents where they contributed significantly to build America and advance European economies. Today, African migrants are still commonly trafficked and exploited as cheap labour in many industries and for domestic work. The recent media coverage of abuse in Libya exposed the additional hurdles faced by African migrants when seeking asylum and their susceptibility to persecution and exploitation. Appraisals on the ground had previously indicated that not all migrants are treated the same. Young migrants from Sub-Saharan Africa have been shown to be the most vulnerable and to face the highest risks of abuse when navigating the asylum system.[6] Recent events are therefore symptomatic of a larger problematic view, highlighted previously by the African Union, that Africans are conveniently taken as slaves but not accepted as refugees.[7]
TWAIL and the “myth of difference”
Latest developments also lead one to appreciate the hegemonic forces at play in international law. Those were already evident in mainstream political rhetoric and media. Commentators were quick to point to Libya as a failed and lawless state in the aftermath of the Gaddafi regime after the release of the CNN footage, dismissing the more relevant EU efforts to make the Libyan coast a gatekeeper for refugees and push back migration into Europe.[8] Most pertinently, the recent global prise de conscience of the horrors experienced by African migrants prompt one to question the structure of the international refugee system and its propensity to protecting some and not others.
Third World Approaches to International Law (TWAIL), an intellectual movement that emerged in the postcolonial era, seeks to identify and contest structures of dominance in international law and assert the voice and perspective of the Global South within the international legal regime. In TWAIL scholarship, refugee governance has been referred to as one of the provisos of global justice, for international law to effectively shift from a system of alienation to one of emancipation.[9] After the end of the Second World War, international refugee policy has purportedly facilitated the pursuit of a policy of “neglect of refugees in the Third World to their use as pawns in Cold War politics to their containment” after the fall of the Berlin Wall.[10] This policy of containment was founded on the “myth of difference”, a paradigm shift – from the post-war espousal of human rights ideals and commitments – responding to the supposed surge of refugees from the Third World after decolonisation, which was purported to be fundamentally different in magnitude, nature and character from European mass movements in the Inter-war period.[11] The construct also asserts that the root causes of these refugee flows are internal, not international and thus justified the ongoing approach to asylum from the Third World, notably voluntary repatriation and the non-entrée regime. The undercurrents in this approach however were xenophobia[12] and public opposition to admitting people of dark skin.[13]
Deconstructing the international refugee regime
As the 1951 UN Refugee Convention came to establish the refugee as a special social category and recognise refugee rights, its Euro-centric rationale including its nexus with “longer histories of colonialism, exclusion and ‘othering’” should not be forgotten.[14] It is time that the structures and notions that sustain these notions be deconstructed, reassessed and reconceptualised to combat the culture of discrimination, exclusion and prejudice embedded in the system to better reflect the better interests of all.
[1] Umut Erel et al ‘Understanding the contemporary race–migration nexus’ (2016) 39(8) Ethnic and Racial Studies 1340.
[2] Orlando Patterson Slavery and Social Death: A Comparative Study (Harvard University Press 1982) 38.
[3] Sebastian Weier ‘Consider Afro-Pessimism’ (2014) 59(3) American Studies 420.
[4] Jared Sexton ‘The Social Life of Social Death: On Afro-Pessimism and Black Optimism’ (2011) 5 Intensions 6.
[5] Adrian A Smith ‘Migration, development and security within racialised global capitalism: refusing the balance game’ (2016) 37(11) Third World Quarterly 2119.
[6] UNICEF ‘Harrowing Journeys: Children and youth on the move across the Mediterranean Sea, at risk of trafficking and exploitation’ September 2017 <https://www.unicef.org/publications/files/Harrowing_Journeys_Children_and_youth_on_the_move_across_the_Mediterranean.pdf> accessed 20 January 2017 39.
[7] ‘African Union criticises US for “taking many of our people as slaves” and not taking refugees’, The Independent, 30 January 2017 <http://www.independent.co.uk/news/world/africa/donald-trump-muslim-ban-african-union-refugees-slaves-immigration-a7553041.html> accessed 20 January 2017.
[8] Amnesty International Report ‘Libya’s Dark Web Of Collusion: Abuses Against Europe-Bound Refugees And Migrants’ 11 December 2017 <https://www.amnesty.org/en/documents/mde19/7561/2017/en/ > accessed 20 January 2017.
[9] Bhupinder Chimni ‘The Past, Present and Future of International Law: A Critical Third World Approach’ (2007) 8(2) Melbourne Journal of International Law 507.
[10] Bhupinder Chimni ‘The Geopolitics of Refugee Studies: A View from the South’ (1998) 11(4) Journal of Refugee Studies 349.
[11] Ibid 351.
[12] Marie-Claire Caloz-Tschopp ‘On the Detention of Aliens: The Impact on Democratic Rights’ (1997) 10(2) Journal of Refugee Studies 169.
[13] Prakash Shah Refugees, Race and the legal concept of asylum in Britain (Cavendish 2000).
[14] Lucy Mayblin ‘Colonialism, Decolonisation, and the Right to be Human: Britain and the 1951 Geneva Convention on the Status of Refugees’ (2014) 27(3) Journal of Historical Sociology 438-439.
