Governing Xenophobia

By Achiume, E. Tendayi | Vanderbilt Journal of Transnational Law, March 2018 | Go to article overview

Governing Xenophobia


Achiume, E. Tendayi, Vanderbilt Journal of Transnational Law


       TABLE OF CONTENTS I.     INTRODUCTION                                     335 II.    INTERNATIONAL LAW AS        A SOLUTION: AN        INTRODUCTION TO THE        EMERGING ANTI-XENOPHOBIA        FRAMEWORK                                        342          A. International Human             Rights Law on             Equality and Discrimination                 344          B. Ancillary Processes             and Architecture             in the International             Law and Policy             of Cross-Border                             361             Movement          C. The Framework's Priority             Commitments:             The Prejudice Approach                      365 III.   INTERNATIONAL LAW'S XENOPHOBIC        ANXIETY        RATCHETS                                         368           A. Xenophobic Anxiety as                      369              Political Anxiety           B. Gaps in International              Refugee Law:              Refugee Regional Containment              and Absence of a              Sustainable and Equitable              International Cost-Sharing                 374              Mechanism           C. Gaps in International              Refugee Law              and in the              "International Law of              Migration":              Chaotic and Unauthorized                   379              Movement IV.    IMPROVING THE EMERGING        ANTI-XENOPHOBIA        FRAMEWORK                                        390           A. Ideal Solutions                            391           B. Second Bests?: Targeting the Ratchets      393 V.     CONCLUSION                                       398 

I. INTRODUCTION

Existing global frameworks governing the movement of people across international borders are ill-suited to such movement (1) This Article specifically focuses on the manner in which these frameworks can heighten problems they should not, make dangerous journeys worse, and exacerbate conflict regarding where people go and their fate on arrival. This Article examines this counterintuitive dynamic in the context of large-scale contemporary involuntary migration (2) and the growing problem of xenophobia that accompanies it.

Between mid-2015 and mid-2016, over 1 million involuntary migrants including Syrian refugees sought refuge in Europe (3) Many European states responded with vitriolic anti-migrant policies (4) For example, at Hungary's border, Syrian refugees and other involuntary migrants faced brutal beatings, razor-sharp fences, and other tactics to prevent their entry. (5) A member of Hungary's government publicly remarked that hanging pigs' heads at that country's border might effectively deter arrival of Muslim refugees (6) In this period Hungary's President described migration as "poison," adding that "every single migrant poses a public security and terror risk (7)" Following the United Kingdom's referendum to exit the European Union, xenophobic speech and violence saw a sharp rise in that country (8) And despite the geographic remoteness of the United States from the events in Europe, xenophobic backlash nonetheless escalated here, too. In his presidential campaign, Donald Trump espoused an explicit anti-Muslim, Islamophobic rhetoric, which characterized Islam and its adherents as per se threats to the United States. Among his campaign promises was a "total and complete shutdown" of Muslims entering the United States. (9) And during this campaign and following his election, reports documented a spike in prejudice-motivated crimes against Muslims in the United States, (10) while governors, mayors, and members of Congress called for blanket exclusion of refugees from Syria, alleging urgent national security concerns. (11) This is but a snapshot of a problem of global prevalence (12)

At present, there is no consensus definition of xenophobia or xenophobic discrimination in international law. For the purposes of this Article, "xenophobia" refers to a certain class of illegitimate anti-foreigner attitudes and actions that should be understood as political in fundamental respects (13) A later Part details the prevailing ambiguity at the international level as to precisely how this class of illegitimate attitudes and action is delineated. …

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