ARTICLES

Racial Borders

E. TENDAYI ACHIUME*

This Article explores the treatment of race and racial justice in domi-
nant liberal democratic legal discourse and theory concerned with inter-
national borders. It advances two analytical claims. The first is that
contemporary national borders of the international order—an order that
remains structured by imperial inequity—are inherently racial. The
default of liberal borders is racialized inclusion and exclusion that privi-
leges “whiteness” in international mobility and migration. This racial
privilege inheres in the facially neutral legal categories and regimes of
territorial and political borders and in international legal doctrine. The
second is that central to theorizing the system of neocolonial racial bor-
ders is understanding race itself as border infrastructure. That is, race
operates as a means of enforcing liberal territorial and political borders,
and as a result, international migration governance is also a mode of
racial governance. Normatively, this Article outlines the specific rela-
tional injustices of racial borders.

TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446

I. THE HISTORICAL ORIGINS OF RACIAL BORDERS . . . . . . . . . . . . . . . . . . . . . 455

II. THE CONTEMPORARY SYSTEM OF RACIAL BORDERS. . . . . . . . . . . . . . . . . . 464

A. MIGRATION, MOBILITY, AND ASYLUM REGIMES . . . . . . . . . . . . . . . . . 466
1. Citizenship, Passports, and Visas . . . . . . . . . . . . . . . . . . 466
2. Refugee and Asylum Regimes . . . . . . . . . . . . . . . . . . . . 476
B. RACE AS BORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480
C. RACIAL BORDER DOCTRINE IN INTERNATIONAL LAW. . . . . . . . . . . . . 488

* Alicia Mi~nana Chair in Law, UCLA School of Law. © 2022, E. Tendayi Achiume. This Article has
benefitted significantly from the wisdom of many more people than it is permissible to name in a
footnote. Thank you to all of the profoundly incisive, supportive, skeptical, and ambivalent interlocutors
who helped me work through this first iteration of Racial Borders—you know who you are. I would also
like to thank the following for their stellar research assistance: Cooper Christiancy, Marc Jácome, Erin
Shields, Mykel Skinner, and Rob Viano. With all its imperfections, this Article is nonetheless dedicated
to every person who carries fatal borders on their body.

445
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III. NEOCOLONIAL RACIAL BORDER INJUSTICE ......................... 494

A. RACIALIZED POLITICAL INEQUALITY. . . . . . . . . . . . . . . . . . . . . . . . . . 496
B. UNREMEDIED HISTORIC RACIAL INJUSTICE . . . . . . . . . . . . . . . . . . . . . 500

CONCLUSION ...................................................... 505

INTRODUCTION
The preoccupation of this Article is the manner in which race and racial justice
are typically conceptualized in relation to international borders in the dominant
liberal democratic legal discourse and theory of First World nation-states.1 In the
context of the 2020 transnational racial justice uprisings, which have pushed
issues of systemic racial injustice to the forefront of the agendas of international
lawmakers,2 this Article brings a postcolonial racial justice lens to bear on the

1. I use the term “First World” to refer to former European colonial powers (including settler–
colonial nations such as the United States, Canada, and Australia), in keeping with the tradition of Third
World Approaches to International Law Scholarship (TWAIL). I use the term “Third World” to refer to
the territories and peoples formerly colonized by the First World. For an exposition of the category
Third World including responses to concerns regarding anachronism or offensiveness, see Balakrishnan
Rajagopal, Locating the Third World in Cultural Geography, 15 THIRD WORLD LEGAL STUD. 1, 3–4,
7–11 (1999). TWAIL interrogates ways that European colonialism continues fundamentally to structure
international law and relations and uses the terms First and Third World as theoretically and politically
productive categories. For helpful background, see James Thuo. Gathii, TWAIL: A Brief History of Its
Origins, Its Decentralized Network, and a Tentative Bibliography, 3 TRADE L. & DEV. 26 (2011); JOHN
REYNOLDS, EMPIRE, EMERGENCY AND INTERNATIONAL LAW 21 (2017) (“[The Third World is] a social
and political consciousness that bands together a diversity of actors through their common
marginalisation by the particularities of global North hegemony.”); and Obiora Chinedu Okafor, Critical
Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?, 10 INT’L
CMTY. L. REV. 371, 374–77 (2008). For analysis of the meaning, value, and limits of the concept of the
Third World, see B.S. Chimni, Third World Approaches to International Law: A Manifesto, 8 INT’L
CMTY. L. REV. 3, 4–7 (2006); Makau Mutua, What Is TWAIL?, 94 AM. SOC’Y INT’L L. PROC. 31, 31–32
(2000); Karin Mickelson, Rhetoric and Rage: Third World Voices in International Legal Discourse, 16
WIS. INT’L L.J. 353, 355–62 (1997); REYNOLDS, supra, at 21–24; and E. Tendayi Achiume, Migration as
Decolonization, 71 STAN. L. REV. 1509 (2019) (illustrating the relevance of the Third World and First
World categories for understanding historical and contemporary border injustice).
2. For example, in the wake of the murder of George Floyd, as tens of thousands of people across the
world took to the streets under the banner of Black Lives Matter, a transnational coalition of human
rights organizations mounted a campaign that resulted in the United Nations Human Rights Council
holding a Special Session devoted to systemic racism in law enforcement. See Sejal Parmar, The
Internationalisation of Black Lives Matter at the Human Rights Council, EJIL: TALK! (June 26, 2020),
[Link] l/
[[Link] On the successes and failures of the Special Session in responding to
movement demands for racial justice, see E. Tendayi Achiume, Transnational Racial (In)Justice in
Liberal Democratic Empire, 134 HARV. L. REV. F. 378 (2021).
2022] RACIAL BORDERS 447

legal and political theory of borders.3 A robust body of liberal legal and other
scholarship critiquing the border and migration regimes of the First World exists.
Characteristic of much of this scholarship—especially in its international legal
variants—is what Debra Thompson, in another context, has termed “racial apha-
sia,” a calculated forgetting and unwillingness to confront the persisting and im-
perial operation of race in society.4 Movement demands for a global reckoning

3. In doing so, it elaborates the racial justice dimensions of the postcolonial critique of borders that I
have initiated in prior work. See E. Tendayi Achiume, Reimagining International Law for Global
Migration: Migration as Decolonization?, 111 AJIL UNBOUND 142, 144–45 (2017); Achiume, supra
note 1, at 1519–20.
4. According to Debra Thompson, racial aphasia is
not the same as amnesia, which indicates some unfortunate series of events that
led to an unintentional forgetting of how the modern world system was founded
on, and continues as, a hierarchical racial order. Racial amnesia obscures the
power involved in purposeful evasion, suggesting that, like a B-movie plot, we
must have accidentally fallen, hit our heads and forgotten our racist past. Amnesia
disavows intent. Aphasia, on the other hand, indicates a calculated forgetting, an
obstruction of discourse, language and speech. . . .
. . . International bodies and states alike profess normative and legal commit-
ments to racial equality while racial stratification persists both between the devel-
oped and developing worlds and within most, if not all, racially heterogeneous
societies. White supremacy as a global institution and racism as a pervasive social
structure are obscured . . . ; as a result, racism is instead reduced to abhorrent indi-
vidualistic acts or attitudes. The promise of the post-racial society is realized not
through reparations or substantive equality, but in the imposition of race-free dis-
courses that keep international and domestic racial orders firmly entrenched.

Debra Thompson, Through, Against and Beyond the Racial State: The Transnational Stratum of
Race, 26 CAMBRIDGE REV. INT’L AFFS. 133, 135 (2013). Within international human rights and refugee
law scholarship, a robust literature exists critiquing the exclusionary, violent, and deadly nature of
liberal borders. See, e.g., Thomas Gammeltoft-Hansen & James C. Hathaway, Non-Refoulement in a
World of Cooperative Deterrence, 53 COLUM. J. TRANSNAT’L L. 235, 243–44 (2015); Bethany Hastie &
Francois Crepeau, Criminalising Irregular Migration: The Failure of the Deterrence Model and the
Need for a Human Rights-Based Framework, 28 J. IMMIGR. ASYLUM & NAT’Y L. 213, 216 (2014);
James C. Hathaway & R. Alexander Neve, Making International Refugee Law Relevant Again: A
Proposal for Collectivized and Solution-Oriented Protection, 10 HARV. HUM. RTS. J. 115, 119–30
(1997). Scholarship such as that listed here has invaluably contributed to revealing the flaws of liberal
borders. But it has not centered the racially discriminatory or unjust nature of these borders. Among the
early and most notable exceptions is the work of Tayyab Mahmud who has powerfully written about
borders, race, and migration with a focus on empire and international law. See, e.g., Tayyab Mahmud,
Geography and International Law: Towards a Postcolonial Mapping, 5 SANTA CLARA J. INT’L L. 525
(2007) [hereinafter Mahmud, Geography and International Law]; Tayyab Mahmud, Colonial
Cartographies, Postcolonial Borders, and Enduring Failures of International Law: The Unending Wars
Along the Afghanistan-Pakistan Frontier, 36 BROOK. J. INT’L L. 1 (2010) [hereinafter Mahmud,
Colonial Cartographies]; Tayyab Mahmud, Cheaper than a Slave: Indentured Labor, Colonialism, and
Capitalism, 34 WHITTIER L. REV. 215 (2013) [hereinafter Mahmud, Cheaper than a Slave].
An emerging body of international legal scholarship is also beginning to resist the racial aphasia of
the field. See, e.g., E. Tendayi Achiume, Governing Xenophobia, 51 VAND. J. TRANSNAT’L L. 333, 344
(2018) [hereinafter Achiume, Governing Xenophobia]; E. Tendayi Achiume & Aslı U. Bâli, Race and
Empire: Legal Theory Within, Through, and Across National Borders, 67 UCLA L. REV. 1386 (2021);
Cathryn Costello & Michelle Foster, Race Discrimination Effaced at the International Court of Justice,
115 AJIL UNBOUND 339 (2021); Justin Desautels-Stein, A Prolegomenon to the Study of Racial
Ideology in the Era of International Human Rights, 67 UCLA L. REV. 1536, 1545 (2021); NADINE EL-
ENANY, (B)ORDERING BRITAIN: LAW, RACE AND EMPIRE 197 (2020); Michelle Foster & Timnah Rachel
448 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

with racial injustice underscore the urgency of legal scholarship—including that

on borders—capable of unmasking and explaining the complex nature of this
injustice as an important contribution to the project of achieving racial justice.
I aim to advance two analytical claims and consider their normative implica-
tions. The first is that contemporary national borders of the international order, an
order that is neocolonial,5 are inherently racial. That is, the default manner in
which they enforce exclusion and inclusion is racially disparate. Furthermore, the

Baker, Racial Discrimination in Nationality Laws: A Doctrinal Blind Spot of International Law?, 11
COLUM. J. RACE & L. 83, 94 (2021); Eddie Bruce-Jones, Refugee Law in Crisis: Decolonizing the
Architecture of Violence, in RACE, CRIMINAL JUSTICE, AND MIGRATION CONTROL: ENFORCING THE
BOUNDARIES OF BELONGING 176, 177, 179 (Mary Bosworth et al. eds., 2018); Glen Peterson, Colonialism,
Sovereignty and the History of the International Refugee Regime, in REFUGEES IN EUROPE, 1919–1959:
A FORTY YEARS’ CRISIS? 213, 213–14 (Matthew Frank & Jessica Reinisch eds., 2017); Karin de Vries &
Thomas Spijkerboer, Race and the Regulation of International Migration. The Ongoing Impact of
Colonialism in the Case Law of the European Court of Human Rights, 39 NETH. Q. HUM. RTS. 291
(2021). For an overview of scholarship on race and international refugee law specifically, see E. Tendayi
Achiume, Race, Refugees, and International Law, in THE OXFORD HANDBOOK OF INTERNATIONAL
REFUGEE LAW 43, 44 (Cathryn Costello et al. eds., 2021) [hereinafter Achiume, Race, Refugees, and
International Law]. A subset of scholars has also foregrounded empire and colonialism in their analysis
through both the TWAIL lens and other critical approaches. See Desautels-Stein, supra, at 1548;
EL-ENANY, supra, at 183; B.S. Chimni, The Geopolitics of Refugee Studies: A View from the South, 11 J.
REFUGEE STUD. 350, 358 (1998); LUCY MAYBLIN, ASYLUM AFTER EMPIRE: COLONIAL LEGACIES IN THE
POLITICS OF ASYLUM SEEKING (2017); Frédéric Mégret, The Contingency of International Migration
Law: ‘Freedom of Movement,’ Race, and Imperial Legacies, in CONTINGENCY IN INTERNATIONAL LAW:
ON THE POSSIBILITY OF DIFFERENT LEGAL HISTORIES 179, 186 (Ingo Venzke & Kevin Jon Heller eds.,
2021); James Souter, Towards a Theory of Asylum as Reparation for Past Injustice, 62 POL. STUD. 326,
338 (2014); James C. Hathaway, A Reconsideration of the Underlying Premise of Refugee Law, 31
HARV. INT’L L.J. 129, 170 & n.241 (1990); John Reynolds, Emergency and Migration, Race and the
Nation, 67 UCLA L. REV. 1768, 1782–83 (2021); de Vries & Spijkerboer, supra, at 298.
Similarly, among political theorists, the most influential communitarian and cosmopolitan theorists
alike have failed to account for and grapple with the inherently racial nature of liberal borders. For an
analysis of this failure in the relevant political theory and philosophy literature and its failure to confront
race, see Sarah Fine, Immigration and Discrimination, in MIGRATION IN POLITICAL THEORY: THE
ETHICS OF MOVEMENT AND MEMBERSHIP 125, 126 (Sarah Fine & Lea Ypi eds., 2016). Duncan Bell
remarks on the failures of theories of global justice more broadly to address the history of imperialism
and race in empire. See generally Duncan Bell, Introduction: Empire, Race and Global Justice, in
EMPIRE, RACE AND GLOBAL JUSTICE 1 (Duncan Bell ed., 2019). Communitarians elide the racially
unjust nature of the borders they defend, and the open-border arguments of cosmopolitan theorists
neglect to consider the specific racial injustices that cannot fully be rectified by their universalist ethical
orientation. For recent political theory work on race and borders, see generally David Owen, Migration,
Structural Injustice and Domination on ‘Race,’ Mobility and Transnational Positional Difference, 46 J.
ETHNIC & MIGRATION STUD. 2585 (2020).
Perhaps the deepest legal literature on race and borders/migration has been produced by domestic
U.S. immigration scholars, yet with a few important exceptions, this literature had centered national law
and politics with limited attention to inter/transnational law and politics. For a literature review of race
in U.S. immigration scholarship, see infra note 87.
Historians and nonlegal scholars of race and migration have also produced important knowledge on
racial borders, and their work is cited across this Article.
5. By referring to national borders as “neocolonial,” I mean that they are characterized by a
transnational, political, and economic interconnection that structurally benefits the First World, at the
expense of their former colonies or the Third World, notwithstanding the formal decolonization of much
of the world. See Achiume, supra note 1, at 1539–46. Whereas colonialism represented the formalized
domination of a territory by a metropole through settlement or exploitation, neocolonialism “is a
subsequent and distinguishable instance, which nonetheless retains the geopolitical terrain of colonial
2022] RACIAL BORDERS 449

racial disparities enforced by national borders structurally benefit some nations

and racial groups at the expense of others. I build on the work of other scholars of
race and of borders to detail how, because of legal doctrine developed in the serv-
ice of specific imperial and colonial projects initiated in the past and that persist
today, whiteness confers privileges of international mobility and migration. And
proximity to whiteness calibrates these privileges. This racial privilege inheres in
the facially race-neutral legal categories and regimes of territorial and political
borders (sovereignty, citizenship, nationality, passports, and visas). It also inheres
in rules and practices of national membership and international mobility.
I use the term “racial borders” to refer to territorial and political border regimes
that disparately curtail movement (mobility) and political incorporation (mem-
bership) based on race and sustain international migration and mobility as racial
privileges.6 Such borders govern access to legal and political rights through
access to geographic territory and vice versa. As a result, we should understand
today’s national borders—especially those of the First World—as racial technol-
ogy, in the sense that the default output of these borders is differential treatment
and outcomes based on race, with white supremacy as one important ordering
principle, among others, that determines benefit or advantage. Racial borders,
then, are also a form of imperial technology that facilitate exploitation and pros-
perity within a transnational, political, and economic association of neocolonial
empire. Notably, these borders structurally exclude and discriminate on a racial
basis as a matter of course often through facially race-neutral law and policy.

imperialism and colonial advantage.” Id. at 1542. For additional scholarship on neocolonialism and
international law, see generally Antony Anghie, The Evolution of International Law: Colonial and
Postcolonial Realities, 27 THIRD WORLD Q. 739 (2006); Daniel Butt, Colonialism and Postcolonialism,
in 2 THE INTERNATIONAL ENCYCLOPEDIA OF ETHICS 892 (Hugh LaFollette ed., 2013); SUNDHYA
PAHUJA, DECOLONISING INTERNATIONAL LAW: DEVELOPMENT, ECONOMIC GROWTH AND THE POLITICS
OF UNIVERSALITY (2011); THE DECOLONIZATION READER (James D. Le Sueur ed., 2003); WALTER
RODNEY, HOW EUROPE UNDERDEVELOPED AFRICA (1972); and KWAME NKRUMAH, NEO-COLONIALISM:
THE LAST STAGE OF IMPERIALISM (1965).
6. I am not the first to use the term “racial borders.” See, e.g., Devon W. Carbado, Racial
Naturalization, 57 AM. Q. 633, 634, 636 (2005) (referring to “the racial borders of America,” within
which “policed black identity is a national and natural resource—an American reserve that can be mined
to fuel our anxieties about race, place, and crime”). But to my knowledge, I am the first to use it to refer
to the transnational, empire-centric legal account of the racial operation of borders that I introduce in
this Article. I understand my work as also building on that of Nicholas De Genova, who has argued:
Europe’s deadly borders . . . must be understood as racial borders. The physical barri-
cading and ever more lethal policing of Europe’s borders, likewise, signify an abun-
dantly racialized affair. Rather than perceiving the brute racial (post)coloniality of
Europe’s borders as a merely “exclusionary” matter, it is vital that we discern the
ways that this profoundly racialized system of immigration and asylum operates in
fact in a perfectly predictable way as a machine of inclusion—albeit a form of inclu-
sion that is always one of racialized, postcolonial, illegalized labor subordination.

Nicholas De Genova, Europe’s Racial Borders, MONITOR RACISM (Jan. 2018), [Link]
europes-racial-borders/ [[Link] My aim is legal elaboration of De Genova’s
sociological provocation. For additional treatment of Europe’s racial borders, and in particular of how
emergency doctrine in international and domestic law reinforces these racial borders, see Reynolds,
supra note 4, at 1788–93.
450 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

My second claim is that central to theorizing the system of imperial racial bor-
ders is understanding race itself as a border. It is useful to define what “borders”
are in this analysis. As border theorists have noted, “[b]orders are complex com-
posites,” but at least one articulation of what all borders share in common is that
“they introduce a division or bifurcation of some sort into the world.”7 I am espe-
cially interested in borders understood as sites of enforcement of inclusion or
exclusion—they realize and concretize insider versus outsider status.8 In the
sense that national borders are sites or means of enforcement of national territo-
rial and political exclusion, the second contribution of this Article is to mark race
as political and territorial border infrastructure, alongside other border infrastruc-
ture, that ranges from physical walls to the institution of citizenship.9 In their
fairly positivist (at least relative to my analysis) study of the borders of liberal
states, Steffen Mau, Heike Brabandt, Lena Laube, and Christof Roos define

7. THOMAS NAIL, THEORY OF THE BORDER 1–2 (2016).

8. I focus on territorial and political borders of nation-states as articulated in: (1) legal and political
concepts such as sovereignty, citizenship, and nationality; and (2) policy institutions, mechanisms, and
regimes such as passports, visas, and asylum. I care about legal and political institutions that: (1)
constitute and determine membership in a given nation-state; and those that (2) authorize cross-border or
international mobility and confer entitlements of various kinds to those in possession of this
authorization, which is typically derivative of citizenship and nationality. According to Nail, “a theory
of the border aims to describe the conditions or set of relations under which empirical borders emerge.”
Id. at 11. My transnational racial account of borders aims to describe the racial conditions and relations
that attend the empirical emergence and operation of international borders as imperial technology.
Central to this account is an approach to borders that breaks with the dogmatic public international law
(and even domestic constitutional law) theorization of borders, which begin from the premise of an
international order comprised of independent and equal sovereign nation-states that individually govern
immigration on a unilateral basis unless they consent to alternative arrangements. Elsewhere, and
building on the work of scholars such as Chantal Thomas and Anthony Anghie, I have argued that an
important starting point for legal theorists of borders should instead be the fact of contemporary
transnational political and economic interconnection, according to which some nation-states are super-
or hyper-sovereign, such as First World or former European colonial nations and others that are only
quasi-sovereign, such as Third World or former colonial nations. See generally Achiume, supra note 1.
An important feature of this interconnection is thus its unequal relations—some nation-states
structurally benefit from global or transnational interconnection at the expense of others, and benefit
allocation is a function of (neo)colonial logics. I have argued that in this context, which I call
neocolonial empire, legal and political borders are implicated in preserving inequality among nations
and their peoples. See generally id. In this Article, I aim to foreground the racial nature of this inequality
and injustice.
9. It is important to highlight that meaningful borders are also demarcated by other social
constructions that have been appropriately theorized as intersecting with—but distinct from—race, such
as gender, ethnicity, and caste. My account of racial borders does not engage their gendered nature, but
intersectional analysis of this sort is undoubtedly urgent. For scholarship on the raced and gendered
nature of borders, see generally JOE TURNER, BORDERING INTIMACY: POSTCOLONIAL GOVERNANCE AND
THE POLICING OF FAMILY (2020); Catherine Powell, Race, Gender, and Nation in an Age of Shifting
Borders: The Unstable Prisms of Motherhood and Masculinity, 24 UCLA J. INT’L L. & FOREIGN AFF.
133 (2020) (examining the usage of the tropes “welfare cheat” and “criminal” in the current immigration
debate to demonstrate how these narratives shape nationhood and borders as both raced and gendered);
ILLEGAL MIGRATION AND GENDER IN A GLOBAL AND HISTORICAL PERSPECTIVE (Marlou Schrover et al.
eds., 2008); and Eva Brems, Lourdes Peroni & Ellen Desmet, Migration and Human Rights: The Law as
a Reinforcer of Gendered Borders, 37 NETH. Q. HUM. RTS. 282 (2019) (analyzing gendered borders in
relation to asylum, domestic labor, and gender-based violence).
2022] RACIAL BORDERS 451

borders as “a system of rules (and their enforcement) determining conditions of

entry into a particular territory that take into account possible costs and benefits
for those inside the territory.”10 Even with this definition, race seems to function
as precisely such a set of rules. I will focus on whiteness as a means or site of pre-
sumptive inclusion in neocolonial empire and nonwhiteness (with specific atten-
tion to Blackness) as a means or site through which political and territorial
exclusion (or subordinate inclusion) is achieved in neocolonial empire.11
To ground my two analytical claims, consider the following. In early
November 2017, the bodies of twenty-six Nigerian girls and women aged
between fourteen and eighteen were found floating in the Mediterranean Sea, fol-
lowing their failed attempt to reach Europe.12 These girls and women joined the
tens of thousands of Black Africans and other refugees and migrants who have
met their deaths in the Mediterranean Sea, in large part because of a migration
governance regime that is calculated to keep as many of these migrants and refu-
gees out,13 including through their deaths if necessary. European Union

10. STEFFEN MAU, HEIKE BRABANDT, LENA LAUBE & CHRISTOF ROOS, LIBERAL STATES AND THE
FREEDOM OF MOVEMENT: SELECTIVE BORDERS, UNEQUAL MOBILITY 2–3 (2012).
11. In centering whiteness in addition to other racial categories, my aim is to mark what Devon
Carbado has astutely termed “colorblind intersectionality”—“instances in which whiteness helps to
produce and is part of a cognizable social category but is invisible or unarticulated as an intersectional
subject position.” Devon W. Carbado, Colorblind Intersectionality, 38 SIGNS 811, 817 (2013). Even as
increasing attention is paid to racial subordination of nonwhite migrants, it is important to account for
whiteness and the constitutive and other work it performs in the context of international migration
governance.
Nonwhiteness is not a monolith—Black, Asian, Indigenous peoples, and persons of other racial
backgrounds are not treated the same way. And historically, these groups were hierarchically ranked in
ways that translated to differential treatment among them, notwithstanding their across-the-board
subordination to white people. Throughout this Article, I contrast the treatment of white to nonwhite
people in general terms, mostly glossing over distribution of privilege and subordination among
nonwhite people in the context of international migration. Although interrogation of the latter is
important, it falls beyond the scope of my analysis here.
12. Angela Giuffrida, Teenage Nigerian Girls Drowned at Sea, Italian Autopsies Confirm,
GUARDIAN (Nov. 16, 2017, 8:14 AM), [Link]
nigerian-girls-drowned-mediterranean-sea-italian-autopsies-confirm [[Link]
Before the burial of the twenty-six Nigerian girls and women in Italy, two were identified as Marian
Shaka and Osato Osaro. Italy Holds Funeral for 26 Nigerian Women Drowned in Mediterranean,
REUTERS (Nov. 17, 2017, 8:32 AM) [hereinafter Italy Holds Funeral], [Link]
us-europe-migrants-italy/egit-holds-funeral-for-26-nigerian-women-drowned-in-mediterranean-idUSK
BN1DH1NL [[Link] Commentators speculated that these girls and women,
like the many others who make the dangerous journey between Africa and Europe, had been physically
and sexually abused prior to their drowning. Giuffrida, supra. Autopsies later ruled out rape or physical
abuse by the smugglers associated with the drowning. Id. However, Nigerian and other girls and
women traveling to Europe regularly experience sexual and other forms of physical abuse. See U.N.
SUPPORT MISSION IN LIBYA & OFF. OF THE HIGH COMM’R FOR HUM. RTS., DESPERATE AND
DANGEROUS: REPORT ON THE HUMAN RIGHTS SITUATION OF MIGRANTS AND REFUGEES IN LIBYA 44, 46
(2018), [Link] [[Link]
9EAF-3BHE].
13. Crucially, these regimes are also intended to ensure the inclusion of refugees and migrants into
Europe on subordinate terms. As discussed further below, undocumented migrants serve as a highly
exploited and exploitable form of labor for Europe, and some have argued that exploitable labor weighs
in favor of maintaining the current deadly migration governance regime.
452 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

coastguards and Libyan coastguards funded by the European Union heavily

police the Mediterranean Sea and push migrants and refugees back to Libya
where they are detained in migrant detention centers also funded by the European
Union. The European Union and European national coastguards themselves used
to do the work of “pushing back”14 migrants and refugees but had to outsource
these activities to Libyans,15 presumably to avoid liability within the European
human rights’ regional framework.
The drowning of the twenty-six Nigerian girls was characterized as a tragedy,
as well as a crime, attributable to ruthless but organized transnational smuggling
and trafficking networks. The problem—according to African and European lead-
ers—was a pathology external to the international order and its governance mech-
anisms (such as criminal smuggling and trafficking networks), rather than a
systemic, logical, and predictable output of the international system.16 The pre-
dominant human rights critique highlighted the brutal conditions of migration
including the harassment and abuse that characterizes unauthorized migration.17
Such critiques also highlighted the complicity of European and African govern-
ments in consolidating punitive migration governance regimes that, among other
things, violate the rights to due process and the protection that refugees and others
have under international law.18 But little—if anything—was made of the race of

14. The term “pushbacks” is regularly used to describe the forceful prevention of migrant and
refugee access to Europe via the Mediterranean, but “pushbacks” is a euphemism that could more
realistically be replaced by “drownings” and “returns to Libyan territory where African migrants risk
enslavement and even death.” Niamh Keady-Tabbal and Itamar Mann convincingly suggest the term
“pushbacks” is a euphemism, among other things, for torture. Niamh Keady-Tabbal & Itamar Mann,
“Pushbacks” as Euphemism, EJIL: TALK! (Apr. 14, 2021), [Link]
euphemism/ [[Link] The Global Legal Action Network has made the legal
case in support. See “Drift-Backs” and Torture on the Aegean, GLOB. LEGAL ACTION NETWORK,
[Link] [[Link] (last visited Dec.
26, 2021).
15. See Benjamin Bathke, When Helping Hurts—Libya’s Controversial Coast Guard, Europe’s Go-
To Partner to Stem Migration, INFOMIGRANTS (Nov. 12, 2019), [Link]
18196/when-helping-hurts-libya-s-controversial-coast-guard-europe-s-go-to-partner-to-stem-migration
[[Link]
16. See, e.g., Giuffrida, supra note 12 (“Italy’s interior minister, Marco Minniti, defended the deal
[with Libya to prevent migration], saying: ‘The alternative cannot be to resign ourselves to the
impossibility of managing migratory flows and hand human traffickers the keys to European
democracies.’”); Agence France-Presse, African Union Calls for Libya ‘Slave Market’ Probe, VOA
(Nov. 17, 2017, 8:57 PM), [Link]
[Link] [[Link] (“African migrants from nations including Guinea,
Senegal, Mali, Niger, Nigeria and Gambia make the dangerous crossing through the Sahara to Libya
with hopes of making it over the Mediterranean Sea to Italy. But testimony collected by AFP in recent
years has revealed a litany of rights abuses at the hands of gang leaders, human traffickers and the
Libyan security forces, while many end up stuck in the unstable north African nation for years. . . .
‘These modern slavery practices must end and the African Union will use all the tools at its disposal,’
[Guinean President and Chairman of the African Union Alpha] Conde added.”).
17. See Italy Holds Funeral, supra note 12.
18. See Giuffrida, supra note 12 (“Italy defended the agreement on Wednesday after it was
lambasted by the UN human rights chief, Zeid Ra’ad al-Hussein, as being ‘inhuman’. Rights groups
have denounced the policy, saying it exposes returned migrants to Libya’s lawless detention centres
with no legal recourse. . . . ‘The suffering of migrants detained in Libya is an outrage to the conscience
2022] RACIAL BORDERS 453

these girls and women, and there was no political or legal critique anchored spe-
cifically in postcolonial or racial justice concerns.
Analyses such as those I reference above—which are the typical liberal analy-
ses19—miss the fundamentally racial nature of the governing border regime and
operation of race itself as political and territorial border infrastructure within this
regime. I aim to show that for the twenty-six Nigerian girls mentioned above, and
many others like them, their death is significantly, though not wholly, attributable
to what we should think of as the contemporary system of neocolonial racial bor-
ders, which is constructed and legitimated by law. Their deaths are a predictable
outcome of a racially exclusionary migration governance regime. And their
Blackness is a determinant of their deaths, rather than a correlative or coinciden-
tal feature, because of what Blackness has socially, politically, economically, and
legally been constructed to mean.
I use the term “race” to refer to “the historically contingent social systems of
meaning that attach to elements of morphology and ancestry.”20 This definition
recognizes race as a social construction informed by physical features and lineage
not because features and lineage are a function of biological racial variation but
because societies invest morphology and ancestry with social meaning.21 At the
same time, race is by no means simply or even mostly about physical attributes
such as color. It is centrally about the legal, social, political, and economic mean-
ing of being categorized as Black, white, brown, or any other racial designation.22
Race brings with it concrete individual and structural material realities. Anibal
Quijano noted that race remains the product of centuries-long colonial interven-
tion 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.”23 In the colonial context, race structured rights and
privileges on hierarchical terms determined by white supremacy. Although for-
mal decolonization has occurred in most of the world, race persists as a neocolo-
nial structure that still allocates benefits and privileges to the advantage of some

of humanity,’ . . . . ‘The European Union’s policy of assisting the Libyan coastguard to intercept and
return migrants in the Mediterranean [is] inhuman.’” (third alteration in original)).
19. By liberal analyses I mean analyses falling within the broad tradition of liberalism. The literature
on “liberalism” is vast, and definitions of liberalism are numerous. For a useful overview of relevant
debates, see generally Duncan Bell, What Is Liberalism?, 42 POL. THEORY 682 (2014). I use the term
liberalism to refer to the normative commitment to “securing individual liberty and human dignity
through a political cast that typically involves democratic and representative institutions, the guaranty of
individual rights of property, and freedom of expression, association, and conscience, all of which are
taken to limit the legitimate use of the authority of the state.” UDAY SINGH MEHTA, LIBERALISM AND
EMPIRE: A STUDY IN NINETEENTH-CENTURY BRITISH LIBERAL THOUGHT 3 (1999).
20. IAN HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 10 (10th Anniversary
ed. 2006).
21. See id.
22. E. Tendayi Achiume, Putting Racial Equality onto the Global Human Rights Agenda, 28
SUR – INT ’ L J. H UM . RTS ., Dec. 2018, at 141, 145.
23. Anibal Quijano, Coloniality of Power, Eurocentrism, and Latin America, 1 NEPANTLA 533, 535
(2000).
454 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

and the disadvantage of others mainly along the same geopolitical and racial lines
that characterized the European colonial project.24
Here, I am interested in race as it has emerged, operated, and evolved in the
context of European empire, specifically European colonial and neocolonial
empire.25 Even in this context, however, I eschew any approach that treats race as
a “discursive monolith” or even as a “static ontology.”26 Instead, I adopt the
approach advanced by Patrick Wolfe, who argues that “race is colonialism speak-
ing, in idioms whose diversity reflects the variety of unequal relationships into
which Europeans have co-opted conquered populations.”27 I should note that my
approach is not a totalizing or exhaustive account of race—race is and does many
different things in many different places, and although a global analysis of certain
racial categories is possible and urgent,28 Blackness, whiteness, and all other
racial categories are also locally constructed and determined in ways that are eli-
ded by a global or transnational analysis. Furthermore, even transnationally, there
are multiple meanings, histories, and functions of race and even the categories
Black and white, which are not encapsulated in my analysis.
Part I of this Article provides the historical origins of racial borders. It provides
a brief legal and political genealogy of borders as technology for racial exploita-
tion during European colonialism, with attention to facially neutral legal and pol-
icy regimes governing migration and mobility with racialized effects. In Part II, I
turn to the postcolonial period to provide an account of the contemporary system
of racial borders. I describe how migration, mobility, and asylum regimes con-
tinue to deploy facially neutral legal institutions and processes to sustain racial-
ized exclusion. I also describe how race operates as border infrastructure within
these frameworks and how liberal legal doctrine is also part of the broader sys-
tem. In Part III, I explain the nature of the racial injustices perpetrated by the
racial borders described in Part II. I illustrate how racial borders facilitate and sus-
tain neocolonial political inequality within neocolonial empire, privileging white-
ness in access to effective collective and individual self-determination within

24. For a recent analysis of race as a neocolonial distributor of resources in the context of global
natural resource extraction, see E. Tendayi Achiume (Special Rapporteur), Global Extractivism and
Racial Equality: Rep. of the Special Rapporteur on Contemporary Forms of Racism, Racial
Discrimination, Xenophobia and Related Intolerance, U.N. Doc. A/HRC/41/54 (May 14, 2019).
25. See Bell, supra note 4, at 2 (“While imperialism and racism are not necessarily connected —
imperialism antedates the development of modern conceptions of race by centuries, and many critics of
empire held racist views — they have typically been fused together, especially during the nineteenth and
twentieth centuries.”). For an illuminating discussion on the meaning, function, and operation of race in
international law as shaped by international law and liberal legal thought, see generally Desautels-Stein,
supra note 4.
26. PATRICK WOLFE, TRACES OF HISTORY: ELEMENTARY STRUCTURES OF RACE 3, 27 (2016).
27. Id. at 5. In this sense, my focus is race as it was colonially invented and as it emerged in the
eighteenth century as a hierarchical mechanism according to which difference was far from neutral but
determined rights and one that linked “physical characteristics to cognitive, cultural, . . . moral,” and
economic ones. Id. at 7.
28. For a helpful discussion of how race—defined both as an idea and as “constitutive of and created
by material and structural social relations”—was produced, operates, and should be analyzed
transnationally, see Thompson, supra note 4, at 139–42.
2022] RACIAL BORDERS 455

neocolonial empire. Racial borders are also the site and means of perpetuating
historic colonial injustice, thus warranting corrective justice or reparative
intervention.
I. THE HISTORICAL ORIGINS OF RACIAL BORDERS
The purpose of this Part is to provide a brief genealogy of border and migration
governance as a means of effecting racialized exclusion and exploitation that was
concertedly pursued in the service of European colonialism. Borders and migra-
tion governance served the specific function (one among many) of designating
and securing the beneficiaries of colonial exploitation on a racial basis, ultimately
privileging whiteness over nonwhiteness.29 Not only were international mobility
and migration regimes racially calibrated but also their racial calibration was an
essential feature of the economic and political exploitation that characterized co-
lonial intervention.30 Initially, this was achieved through explicitly racialized
mechanisms and institutions of migration governance, but this would eventually
give way to a facially race-neutral migration apparatus that nonetheless achieved
the desired racialized ends. The regimes described in this Part must be understood
as the institutional and legal antecedents of the dominant contemporary regimes
governing international mobility and migration, which I turn to in Part II.
European imperialism in the nineteenth century played a crucial role in produc-
ing the migration and mobility regimes that we should consider the progenitors of
contemporary regimes.31 I use the term “imperialism” here in a similar fashion to
early nineteenth century theorists to call attention to informal empire as an eco-
nomic project—namely, the expansion of European capitalism and its projection
of commercial and investment interests across the globe—whereas colonialism
entailed formal empire as a territorial enterprise often fused with the economic
ambitions of informal empire.32 The historical overview provided in this Part

29. My examples in this Part are drawn primarily from the British Empire, mainly because of the
foundational influence it had on the evolution of international law governing migration. For a brief
discussion of the French Empire’s history of racialized migration governance, see Mégret, supra note 4,
at 187–88. For a comprehensive account of its racialized citizenship and nationality, see generally GARY
WILDER, THE FRENCH IMPERIAL NATION-STATE: NEGRITUDE AND COLONIAL HUMANISM BETWEEN THE
TWO WORLD WARS (2005).
30. By racial calibration I mean tailoring based on race to perform a specific function or achieve a
specific outcome, which in this case was colonial exploitation. In line with the analysis offered here,
Frédéric Mégret has explored the ways in which “the international law of migration is not even much of
a conversation about law. Instead, race has been the variable hiding in plain sight when it comes to its
constitution, the one that provides the key to the weird contingency and non-contingency of its evolution
through the ages.” Mégret, supra note 4, at 181.
31. As described by Mégret, “[a]ctual patterns of global mobility were shaped first and foremost by
logics of empire.” Id. at 186.
32. For a discussion of imperialism and colonialism in this sense with the example of how they
overlapped in the British East African Protectorate, see James Thuo Gathii, Imperialism, Colonialism,
and International Law, 54 BUFF. L. REV. 1013, 1015–33 (2007). For a discussion of the different
meanings of imperialism and colonialism, see Achiume, supra note 1, at 1541–42; sources cited supra
note 1. For a summary and literature review of the concept of empire in international relations, see Bell,
supra note 4, at 5–8.
456 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

foregrounds how, during this period and through the mid-twentieth century, colo-
nial borders and territories were explicitly racialized in the service of economic
imperatives of imperialism.
As late as the mid-nineteenth century, immigration was mostly unrestricted
across the British Empire and its settler colonies.33 But even during this period,
large scale international mobility of Europeans and non-Europeans across impe-
rial territories was a function of race and of the economic needs and political
desires of metropolitan and settler–colonial nations.34 With slavery’s abolition in
the first half of the nineteenth century, the global imperial economy could no lon-
ger rely on brutally coerced migration of enslaved Africans for its labor supply.35
This shift thrust Indians into the role of “the global working class of the British

33. See MARILYN LAKE & HENRY REYNOLDS, DRAWING THE GLOBAL COLOUR LINE: WHITE MEN’S
COUNTRIES AND THE INTERNATIONAL CHALLENGE OF RACIAL EQUALITY 16 (2008). Significant
exceptions to this restriction include racial prohibitions on migration and mobility of free Black persons
in the South and across other regions of the United States as early as 1786. See, e.g., Michael A.
Schoeppner, Black Migrants and Border Regulation in the Early United States, 11 J. CIV. WAR ERA 317,
318–23 (2021). Several southern states of the United States adopted the Seamen Acts, which restricted
the entry of free Black mariners (from northern states or elsewhere) to their territories as early as 1822.
See generally Michael Schoeppner, Peculiar Quarantines: The Seamen Acts and Regulatory Authority
in the Antebellum South, 31 LAW & HIST. REV. 559, 562 (2013) (surveying the history of the Seamen
Acts, and using them to understand “how the laws ‘happened’ in the antebellum South”). Another
exception is an 1818 Canadian law that banned free Black immigration. Vilna Bashi, Globalized Anti-
Blackness: Transnationalizing Western Immigration Law, Policy, and Practice, 27 ETHNIC & RACIAL
STUD. 584, 585 (2004).
34. The starkest example of the centrality of transnational migration and racialized labor regimes to
European empire is arguably the transatlantic enslavement and trade of Africans. As one historian notes:
“Between the sixteenth century and the nineteenth some twelve million Africans (of whom about 20 percent
died en route) were forcibly taken to the Americas; it was the greatest involuntary migration in history
and it established the largest slave empire since Roman times.” PIERS BRENDON, THE DECLINE AND
FALL OF THE BRITISH EMPIRE 1781-1997, at 16 (2007) (footnote omitted). Slavery was profoundly
profitable even beyond the settler colonies of the Americas. For example, although the industrial
revolution did not depend on slavery, slavery massively injected the British economy with resources that
helped fuel its phenomenal economic growth. Id. Even after the abolition of slavery, racially stratified
labor regimes remained central to European colonial exploitation. European migrants in mostly
managerial, skilled, and well-paying jobs, through a web of direct and indirect coercion oversaw the
large numbers of unskilled and other laborers under them, who were primarily Africans. Examples
include the production of cocoa in the British Gold Coast (Ghana) and groundnut production in Nigeria.
See MARJORY HARPER & STEPHEN CONSTANTINE, MIGRATION AND EMPIRE 114 (2010). Of note,
economic opportunities within the British Empire were not limited to its subjects but extended to
incorporate the citizens and subjects of other contemporaneous empires. See generally R. Bayly Winder,
The Lebanese in West Africa, 4 COMPAR. STUD. SOC’Y & HIST. 296 (1962) (describing a substantial
Lebanese middle class in West Africa during British colonial rule). Lebanon was a part of the Ottoman
Empire until the Empire’s collapse after World War I, after which France acquired direct control of the
territory of present-day Lebanon through a League of Nations mandate. See Richard David Barnett,
Clovis F. Maksoud, Samir G. Khalaf, Paul Kingston, William L. Ochsenwald & Glenn Richard Bugh,
French Mandate, BRITANNICA, [Link] (last visited
Jan. 26, 2022). Goans and Arabs labored alongside Africans even when members of these groups were
subject to other imperial projects. See HARPER & CONSTANTINE, supra, at 116. In addition, African labor
in British colonies also included African migrant labor. See id. at 116–17.
35. See Mahmud, Cheaper than a Slave, supra note 4, at 228 (“The main successor to modern slavery
was the institution of indentured labor, that is often portrayed as a bridge between slavery and modern
forms of contract labor.”).
2022] RACIAL BORDERS 457

Empire,”36 as millions were contracted as laborers to work across the British col-
onies in the Caribbean, Southeast Asia, South Africa, and the Pacific.37 Millions
of Chinese were also recruited to work in the Dutch, Spanish, and British empires.
British treaties recognized and protected certain forms of mobility and migration,
even for nonwhite people, for the purposes of imperial prosperity.38 Specifically,
recruitment for the British occurred through the Treaty of Nanking,39 which
established qualified freedom of movement for Chinese as an exception to the
Chinese emperor’s prohibition on emigration.40 The Burlingame Treaty41
between China and the United States in 1868 went even further, recognizing
“freedom of movement and migration as universal rights: ‘the inherent and inal-
ienable right of man to change his home and allegiance and also the mutual
advantage of the free migration and emigration of their citizens and subjects
respectively from one country to the other for purposes of curiosity, of trade or as
permanent residents’.”42
By the late nineteenth century, however, immigration restrictions that would
ultimately implement a regime of racial segregation on an international scale
emerged, with British self-governing settler colonies leading the charge.43 Within
and across these colonies, conceptions of a universal right to freedom of move-
ment would give way to the more rigorously defended republican discourse, first
regarding “the rights of the sovereign [Australian and Californian] male subject
to insist on their democratic right to determine who could join their self-govern-
ing communities.”44 For much of the nineteenth century “freedom of movement
was encouraged in the West by an expanding economy, an unusual compatibility
of demographic interests between source and destination countries, Manifest

36. LAKE & REYNOLDS, supra note 33, at 23.

37. Id. Not all Indians who traveled were indentured laborers. Although much fewer in number, some
Indians traveled for business, education, and adventure. Id.
38. See id. at 24 (explaining how the Treaty of Nanking allowed the British to “hire any kind of
Chinese person who may move about in the performance of their work or craft without the slightest
obstruction from Chinese officials” (quoting Michael R. Godley, China’s Policy Towards Migrants,
1842–1949, in ASIANS IN AUSTRALIA: THE DYNAMICS OF MIGRATION AND SETTLEMENT 1, 3 (Christine
Inglis et al. eds. 1992))).
39. Treaty Between Great Britain and China, 29 Aug. 1842, China-Gr. Brit., 30 BSP 389 (1858)
(Gr. Brit.).
40. See LAKE & REYNOLDS, supra note 33, at 24.
41. Burlingame Treaty, China-U.S., July 28, 1868, 16 Stat. 739.
42. See LAKE & REYNOLDS, supra note 33, at 26 (citing Burlingame Treaty, supra note 41, at art. V).
The U.S. Supreme Court in 1889, however, upheld the authority of the U.S. Congress to override the
Burlingame Treaty and constrained judicial oversight over the treatment of immigrants in the United
States. See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 609–11
(1889).
43. Historians of borders have provided instructive accounts of the transnational emergence of these
regimes. See generally LAKE & REYNOLDS, supra note 33; EVE LESTER, MAKING MIGRATION LAW: THE
FOREIGNER, SOVEREIGNTY, AND THE CASE OF AUSTRALIA (2018); ADAM M. MCKEOWN, MELANCHOLY
ORDER: ASIAN MIGRATION AND THE GLOBALIZATION OF BORDERS (2008).
44. LAKE & REYNOLDS, supra note 33, at 26. Lake and Reynolds link this to “contradictions inherent
in political liberalism. Individual liberty and freedom of movement were heralded as universal rights,
but only Europeans could exercise them.” Id.
458 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

Destiny in the Western Hemisphere, and the predominance of liberal thought con-
ducive to the free circulation of human beings and capital.”45 But by the end of
the nineteenth century, the rise of nationalism and protectionism led Western
governments, for the first time, to start systematically denying admission to cer-
tain classes of aliens on a racial basis.46 In their seminal book, Drawing the
Global Colour Line, historians Marilyn Lake and Henry Reynolds argue: “The
figure of the ‘white man’, in whose name white men’s countries were forged, was
produced in a convergence of imperialism and republican discourse that found
political expression in the late nineteenth century in talk of an Anglo-American
alliance.”47 Inspired by the work and thought of W.E.B. Du Bois, Lake and
Reynolds chart “the spread of ‘whiteness’ as a transnational form of racial identi-
fication, that was, as [Du Bois] noticed, at once global in its power and personal
in its meaning, the basis of geo-political alliances and a subjective sense of
self.”48 This racial identity was forged in the context of nineteenth century impe-
rial projects and the mass migrations that attended them.49 Lake and Reynolds
describe an “imagined community of white men” in this period as having bol-
stered border protection regimes and the doctrine of national sovereignty.50
At the level of legal doctrine, the late nineteenth and early twentieth centuries
were also the periods in which an absolutist conception of the sovereign right to
exclude crystallized51 and did so legally to legitimate the exclusion of Asians,

45. James A. R. Nafziger, The General Admission of Aliens Under International Law, 77 AM. J.
INT’L L. 804, 815 (1983).
46. See id. at 816.
47. LAKE & REYNOLDS, supra note 33, at 8.
48. Id. at 3.
49. The authors put these figures for the nineteenth century at about fifty million Chinese, about fifty
million Europeans, and about thirty million Indians. Id. at 6.
50. Id. at 4. In encounters between Europeans and indigenous peoples in North America and
Australasia, those of European origin “defined their identit[ies] and rights in racial terms: the right of
Anglo-Saxons to self-government and the commitment of white workers to high wages and conditions,
[as] against those they saw as undermining their new-found status.” Id. at 7.
51. James Nafziger, for example, reviews the territorial principles of the Greek and Roman Empires,
as well as the work of classical publicists including Grotius, Vitoria, Pufendorf, and Vattel to conclude
that prior to the late nineteenth century “there was little, in principle, to support the absolute exclusion of
aliens.” Nafziger, supra note 45, at 809–15. The Chinese Exclusion Case was emblematic of these
developments. See 130 U.S. 581, 609 (1889) (“The power of exclusion of foreigners being an incident of
sovereignty belonging to the government of the United States, as a part of those sovereign powers
delegated by the Constitution, the right to its exercise at any time when, in the judgment of the
government, the interests of the country require it, cannot be granted away or restrained on behalf of any
one.”); see also id. at 603–04 (“That the government of the United States, through the action of the
legislative department, can exclude aliens from its territory is a proposition which we do not think open
to controversy. Jurisdiction over its own territory to that extent is an incident of every independent
nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to
the control of another power.”); Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893) (“The right to
exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in
peace, being an inherent and inalienable right of every sovereign and independent nation, essential to its
safety, its independence and its welfare . . . .”). For a similar case involving a Japanese immigrant, see
Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) (“It is an accepted maxim of international
law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-
preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such
2022] RACIAL BORDERS 459

especially from white settler colonies of the British Empire. Eve Lester’s doctri-
nal analysis of early international law reveals how in the works of international
legal theorists Grotius, Vitoria, Pufendorf, and Vattel, for example, “the [rights
bearing] foreigner was—always and anywhere—a European insider.”52 With
European colonial expansion, however “it was the appearance of the foreigner as
a racialised (non-European) figure and the desire to regulate her labour that led
directly to the emergence of restrictive migration laws and then a common law
doctrine of ‘absolute sovereignty’.”53
In a comprehensive historical study of modern borders, Adam McKeown fur-
ther shows how the most basic principles of contemporary border control were
initially developed in the white-settler nations, especially between the 1880s and
1910s, and such control would eventually “become universalized as the founda-
tion of sovereignty and migration control for all states within the [international]
system.”54
In 1790, the United States restricted naturalization to free white men.55 In
1855, the British self-governing Colony of Victoria, which would later become
part of the Federation of Australia, introduced the first immigration restriction in
its Chinese Immigration Act,56 which defined an immigrant “as ‘any male adult
native of China or its dependencies or any islands in the Chinese Seas or any per-
son born of Chinese parents’.”57 At its modern inception, then, immigration
restriction as we know it was racially purposed, and crucially, the economic com-
petition such restrictions sought to curtail was racially specified.58 Furthermore,

cases and upon such conditions as it may see fit to prescribe.”). Nafziger notes the consolidation of this
absolutist conception in British courts at the turn of the century. Nafziger, supra note 45, at 828–29
(focusing on the 1891 case Musgrove v. Chun Teeong Toy, and concluding that it “seems more absolutist
and protective of sovereign prerogatives” than the aforementioned U.S. opinions). More recently, Justin
Desautels-Stein argues that, influenced by the eugenics movement, “this right to exclude individual
people from domestic society was decisively racial—and was the twentieth century update to the
nineteenth century’s right to exclude peoples from international society.” Desautels-Stein, supra note 4.
Vincent Chetail offers a comprehensive primer of the evolution of the right to exclude in relation to
sovereignty in international legal doctrine. See VINCENT CHETAIL, INTERNATIONAL MIGRATION LAW 18–
51 (2019). Among other things, Chetail’s analysis notes nuances between Anglo-American and
continental European jurists but concludes that “from the end of the 19th century until the mid-20th
century, immigration controls were primarily introduced for racial reasons.” Id. at 48.
52. LESTER, supra note 43, at 78; see id. at 51–80.
53. Id. at 82.
54. MCKEOWN, supra note 43, at 3. McKeown’s book makes the powerful case for how “the basic
legal and political justifications of modern migration control” had “developed in the context of isolating
particular peoples from participation in the modern world.” Id. at 9.
55. LAKE & REYNOLDS, supra note 33, at 19.
56. An Act to Make Provision for Certain Immigrants 1855 (Vic) (Austl.).
57. LAKE & REYNOLDS, supra note 33, at 20 (quoting An Act to Make Provision for Certain
Immigrants 1855 (Vic) art. I). This Act was eventually repealed in 1865 due to pressure from the British,
which was motivated by their desire to comply with a new treaty provision. Id. at 26.
58. Lake and Reynolds describe the rise of immigration restrictions targeting Chinese as European
miners and colonists rallied against Chinese who also sought their fortunes in the Victorian goldfields.
Id. at 15–45. In this period, Victorian administrators closely followed Californian efforts to implement
similar restrictions against Chinese, which were overturned by the U.S. Supreme Court at the time as
federally preempted. See id. at 17–20.
460 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

techniques of racialized border exclusion were perfected in national jurisdictions

before being launched transnationally. For example, national segregationist tech-
nology such as the literacy test used to disenfranchise Black voters in Mississippi
in 1890 would later be transferred from that context to the immigration restriction
context to prevent the migration of nonwhite people, first in the United States and
then in South Africa (Natal) and other British Dominions.59
The late nineteenth and early twentieth centuries were also periods in which
the United States, Canada, Australia, New Zealand, and South Africa shared
among themselves various technologies that achieved racialized migrant exclu-
sion without running afoul of formal and informal constraints on overtly racist
measures.60 The literacy test, for example, was one such innovation, which in
effect, restricted migration and membership possibilities to white people thereby
rendering “the imperial non-racial status of British subjects increasingly irrele-
vant.”61 Some jurisdictions made the judgment of literacy discretionary such that
they ensured the restrictions would not apply in ways that denied illiterate white
people seeking entry.62 Daniel Ghezelbash details how, in addition to literacy
tests, settler–colonial nations used landing taxes for “Asiatics,”—passenger-per-
ship restrictions targeting specific geographic locations such as China—to
exclude on racial bases.63 Ghezelbash notes that there is “ample evidence” that
these different jurisdictions actively sought to learn from each other in perfecting
the facially neutral mechanisms for racialized exclusion.64 This early pursuit of
facially race-neutral legal and policy migration governance mechanisms fore-
shadows their contemporary dominance, and as Ghezelbash notes, is replicated in
contemporary governance strategies such as pushbacks and migrant interdictions
at sea.65
Passports also helped facilitate racialized immigration restrictions.66 Through
passports, nationality emerged as a “privileged axis for state control over

59. Id. at 5 (noting that “[t]he republican origins of the literacy test as an instrument of racial
exclusion were significant”).
60. See Daniel Ghezelbash, Legal Transfers of Restrictive Immigration Laws: A Historical
Perspective, 66 INT’L & COMPAR. L.Q. 235, 238–39 (2017).
61. LAKE & REYNOLDS, supra note 33, at 5.
62. Ghezelbash, supra note 60, at 247.
63. Id. at 239 (describing the 1855 California legislation that imposed a fifty dollar per person
landing tax on “Asiatics” arriving to the state by ship, an amount ten times higher when compared to the
landing tax for “free white persons”). Radhika Viyas Mongia also highlights how facially neutral
migration rules such as the “continuous journey” rule, which required migrants to arrive in Canada on a
continuous journey from their country of origin and primarily impacted Indian migrants, were modified
to facilitate the discretionary entry of white migrants. Radhika Viyas Mongia, Race, Nationality,
Mobility: A History of the Passport, 11 PUB. CULTURE 527, 540 (1999). Executive discretion in
immigration was and remains a mechanism for fine-tuning the racially disparate impact of facially
neutral criteria.
64. Ghezelbash, supra note 60, at 243; see also Sherally Munshi, Race, Geography, and Mobility, 30
GEO. IMMIGR. L.J. 245, 265–66 (2016) (describing adoption of the European literacy test to draw “an
imaginary border” between Europe and Asia and legislative debates citing the adoption of the test by
South Africa and Australia).
65. See Ghezelbash, supra note 60, at 252–55.
66. See Mongia, supra note 63, at 528–529.
2022] RACIAL BORDERS 461

mobility,” specifically as a means for the liberal exclusion of non-Europeans at a

time when explicit reliance on race-based justifications became less tenable than
they had been before.67 Radhika Viyas Mongia shows how it was the relatively
modest increase in the numbers of free Indian migrants to Canada that resulted in
the introduction of a passport system for Indian migration for the first time.68 The
arrival of about 2,000 Indians in Canada in 1906 generated racial anxiety within
Canada, at a time when explicitly racial restrictions on mobility stood in unten-
able tension with notions of common British subject-hood across the British
empire.69 Therefore, as a means of restricting free Indians from Canada, Canada
proposed the introduction of a passport system in 1907, which stated that free
Indians would be admitted only if they possessed a passport, but passports would
be selectively issued by the colonial Indian administration so as to curtail this
form of international migration.70 Mongia’s work shows how passports, which
we today consider neutral machinery of migration governance, functionally
emerged in this colonial period as a technology capable of racialized exclusion
without explicit reliance on race, as nationality played the mediating function.71
By the early twentieth century, nationality—a racialized concept introduced into
immigration governance by metropolitan and dominion powers—served as
means of tethering nonwhite people to their regions and countries of ancestry and
ensuring their exclusion from white nations.72
The racial stakes implicated by national border governance in the colonial area
—and racial equality stakes, in particular—were perhaps most vividly illustrated
in the fate of the racial equality clause proposed by the Japanese for inclusion in
the founding charter of the League of Nations following the end of World War I.
In February 1919, in the lead up to the formation of the League of Nations,
Woodrow Wilson joined others in the Anglo–American alliance that presided
over the rejection of a proposal by Japan that would have constituted the first

67. Id. (arguing that it is the migration of “free” non-European colonial subjects that creates state
monopoly over migration practices, including through the passport, which codifies race as a national
attribute while eliminating the need for explicit reference to race as a criterion for exclusion).
68. See id. at 533, 536.
69. Id.
70. See id. at 536.
71. See id. at 553–54 (“The passport emerges here as a state document that purports to assign a
national identity rather than a racial identity—a mechanism that would conceal race and the racist
motivations for controlling mobility in the guise of a reciprocal arrangement between states described as
national. Simultaneously . . . the passport generates ‘nationality’ as the intersection between the nation
and the state.”).
72. See id. at 528 (using the colonial history of Indian exclusion from European settler colonies to show
that “the passport not only is a technology reflecting certain understandings of race, nation/nationality, and
state but was central to organizing and securing the modern definitions of these categories”); see also id.
at 546–47 (“And this understanding of nationality, whereby people are tethered to the geographical
space of the nation, would, articulated to other discourses, eventually culminate in the passport as the
definitive state document authorizing national identity and further curtailing mobility.”). See generally
Munshi, supra note 64, at 271–81 (describing exclusion based on geography as a proxy for racialized
exclusion).
462 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

international treaty provision prohibiting racial discrimination.73 Japan’s proposal

was to include a “racial equality” clause in the League of Nation’s foundational
treaty that would have required all members of the League of Nations to grant “to
all alien nationals of States members of the League equal and just treatment in ev-
ery respect, making no distinction either in law or in fact, on account of their race
or nationality.”74 If adopted, this proposal would have enshrined racial equality
and equality between nationals and non-nationals in international law, at least for
international migrants who were nationals of the member states of the League of
Nations.
Among the concerns motivating the racial equality clause was that the found-
ing treaty of the League of Nations risked entrenching the status quo that “pre-
served the dominance of the leading Western nations and their control of the
world’s resources through shutting out foreigners from their ‘colonial areas’.”75
Foreigners, in this context, referred to nonwhite people seeking to access these
territories or maintain their native ties to colonized territories on terms other than
those permissible to white colonial authorities who claimed these territories.
Japan proposed that the League of Nations treaty include a provision according to
which all bound parties “agree[d] that concerning the treatment and rights to be
accorded to aliens in their territories, they [would] not discriminate, either in law
or in fact, against any person or persons on account of his or their race or national-
ity.”76 This formulation makes plain the tight relationship between the categories
of race and nationality or at least points to analogous functionality between the
two categories as mechanisms for imperial exclusion and differentiation.
Unsurprisingly, then, although rooted firmly in Japan’s own concerns with dis-
crimination against its nationals in the British and Anglo–American colonial and
settler–colonial territories, historians describe how “[s]upporters and opponents
alike came to see the proposal for an end to racial discrimination as a universal
crusade.”77
For the settler–colonial nations that ensured the rejection of the racial equality
clause, including the United States and especially Australia, the threat of Asian
migration was perhaps the most salient concern.78 However, imperial commit-
ment to white supremacy was also at play in other ways. The British Foreign
Secretary at the time, for example, rejected racial equality as an old, outmoded
Enlightenment ideal in that he did not see how an African “could be regarded
as the equal of a European or an American.”79 The categories “African,”

73. See Nicholas Wisseman, “Beware the Yellow Peril and Behold the Black Plague”: The
Internationalization of American White Supremacy and Its Critiques, Chicago 1919, 103 J. ILL. ST.
HIST. SOC’Y 43, 43 (2010).
74. Id. at 45.
75. LAKE & REYNOLDS, supra note 33, at 288.
76. Id. at 289.
77. Id. at 287.
78. See id. at 288–302 (describing the negotiations in which Asian migration to the United States
(California especially), Australia, and other settler colonies was a principal motivating concern).
79. Id. at 292.
2022] RACIAL BORDERS 463

“European,” and “American” were, without doubt, racial. Of special interest for
international legal scholars, and immigration scholars more broadly, is that oppo-
nents of the racial equality clause articulated the concern that this clause “could
be construed as giving jurisdiction to an international body over immigration, nat-
uralisation, the franchise, land ownership and marriage,”80 a move that would
pose an existential threat to the sovereignty of the settler–colonial nations.
Immigration and naturalization—regimes of racialized control over access to the
benefits of colonial exploitation—were regimes to be shielded from external scru-
tiny, especially scrutiny that might insist on principles of equality and nondiscri-
mination. As Anam Soomro notes, the Anglo–American alliance sought to
remove matters of immigration and racial discrimination from international scru-
tiny and challenge, and it sought to do so through international legal doctrine,
specifically the invention of the doctrine of “domestic jurisdiction.”81 The inter-
war period turned out to be a period during which racial governance82 was deeply
embedded in regimes of migration governance.83
In conclusion, two points are important to highlight from the historical context
provided above. First, border and migration governance regimes were mecha-
nisms for enforcing racialized access to benefits of colonial exploitation and for
the production of these benefits to a significant extent. These regimes were thus,
to an important extent, functionally related to the ideologies, norms, and institu-
tions of economic and political interconnection at the heart of empire. As a result,
legal theory even narrowly concerned with border and migration governance in
this historical period and subsequent periods (such as our contemporary one) can-
not be complete without some accounting for the extent to which empire shapes
borders and migration.84 Racialized mobility, immobility, inclusion, and exclu-
sion were not incidental or unfortunate by-products of colonial empire but rather

80. Id. at 293; see CHETAIL, supra note 51, at 52 (“Since the end of the First World War, immigration
has been increasingly considered a matter of domestic jurisdiction (also referred to as ‘reserved
domain’), which is by definition not governed by international law. In fact, the very notion of domestic
jurisdiction was literally invented by the [United States] with a view to avoiding any interference in its
sovereign right to decide the admission of foreigners.”).
81. Anam Soomro, Speaking of Silences: A Genealogy of Freedom of Movement in International
Law 188 (Ph.D. Dissertation, Freie Universität Berlin) (on file with author). Soomro notes that the
domestic jurisdiction clause that was eventually included in the Covenant of the League of Nations was
reproduced almost verbatim by United Nations (U.N.) member States in Article 2 of the U.N. Charter in
1945. Id. at 191. Soomro’s dissertation, aptly named, elevates the existing literature by detailing the
racialized imperial origins of, among other things, the anemic right of freedom of movement in
international law.
82. Achiume & Bâli, supra note 4, at 1397 (“[R]acial governance refers to the different ways that
race creates a means of ordering bodies and territories on a hierarchy according to which imperial
exploitation can occur.”).
83. For an analysis of the implementation of segregation on an international scale during the interwar
period, see LAKE & REYNOLDS, supra note 33, at 310–31.
84. See Mahmud, Geography and International Law, supra note 4, at 531 (explaining that modern
geography emerged “largely, if not mainly, to serve the interests of imperialism in its various aspects
including territorial acquisition, economic exploitation, militarism and the practice of class and race
domination” (quoting Brian Hudson, The New Geography and the New Imperialism: 1870-1918,
ANTIPODE, Sept. 1977, at 12, 12)).
464 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

imperially productive technologies for creating and allocating the benefits of

empire. The final point to highlight from this history is that it is in this era of for-
mal colonial empire that the racial operation and function of borders was per-
fected through facially race-neutral legal categories, doctrines, and policies—
including citizenship, nationality, and even sovereignty doctrine—as it relates to
the right to exclude non-nationals.
II. THE CONTEMPORARY SYSTEM OF RACIAL BORDERS
In Part II, I turn to contemporary international borders, focusing on those
between the First and the Third World, with the aim of foregrounding these bor-
ders’ persisting racial nature.85 The color line Du Bois insightfully perceived as
the definitive dividing line of the twentieth century,86 remains in effect in the
twenty-first century, embedded in international borders. In this Part, I outline key
mechanisms, processes, and institutions through which migration and mobility
remain racially allocated, privileging whiteness over nonwhiteness in a contem-
porary system of racial borders. In other words, I outline the infrastructure of this
contemporary system of racial borders, which includes: (1) migration, mobility,
and asylum regimes; (2) race itself; and (3) liberal democratic border doctrine. I
focus on the borders between the United Kingdom and European Union on the
one hand and African nations on the other as fitting examples of the racial nature
of neocolonial borders. I include only a few examples of the operation of the
racial borders of the United States and instead refer readers to an impressive liter-
ature detailing how these borders effect mobility and migration as racial privi-
leges structured to a significant extent by white supremacy.87 Note that this Part is

85. National borders within the Third World are also characterized by racialized allocation of
migration and mobility. Some of these do so in ways that are the product of European Colonial-Era
legacies, such as the racialized xenophobic exclusion of Black Africans from South Africa. Others more
directly advance different supremacist imperial projects, such as Hindu nationalist-driven exclusion of
Muslim ethnic groups from India. I do not elaborate the operation of racial borders in these other
contexts.
86. W. E. BURGHARDT DU BOIS, THE SOULS OF BLACK FOLK (5th ed. 1904); see also Munshi, supra
note 64, at 279 (placing Du Bois on the forefront of grasping the future salience of the global color line).
87. David Cook-Martı́n and David FitzGerald, for example, have shown that “an examination of
immigration and nationality laws throughout the Americas from 1850 to 2000 suggests that racial
discrimination has been more common in liberal than in illiberal countries of immigration,” and that
“[l]iberal states [in the Americas] have had more racialized policies partly because of their liberalism.” David
Cook-Martı́n & David FitzGerald, Liberalism and the Limits of Inclusion: Race and Immigration Law in the
Americas, 1850-2000, 41 J. INTERDISC. HIST. 7, 7, 9 (2010). A significant literature exists analyzing the
salience of race in U.S. immigration and naturalization law and policy. See generally Richard A. Boswell,
Racism and U.S. Immigration Law: Prospects for Reform After “9/11?,” 7 J. GENDER RACE & JUST. 315
(2003) (analyzing U.S. immigration law’s history of explicitly racialized exclusion and the structural barriers
still faced by nonwhite immigrants today, despite the move toward facially race-neutral laws in the 1960s);
Jennifer M. Chacón, Immigration and Race (unpublished manuscript) (on file with author); Gabriel J. Chin,
A Nation of White Immigrants: State and Federal Racial Preferences for White Noncitizens, 100 B.U. L.
REV. 1271 (2020) (noting historical legal distinctions that gave white noncitizens that intended to naturalize
privileges that were not available to nonwhite noncitizens including voting and land ownership); LAURA E.
GÓMEZ, INVENTING LATINOS: A NEW STORY OF AMERICAN RACISM 1–18 (2020); Kevin R. Johnson, Race
and the Immigration Laws: The Need for Critical Inquiry, in CROSSROADS, DIRECTIONS, AND A NEW
2022] RACIAL BORDERS 465

CRITICAL RACE THEORY 187 (Francisco Valdes et al. eds., 2002) (using a critical race theory lens to identify
the relationship between domestic racial subordination and immigration laws in the United States and
encouraging further critical race theory engagement within the field of immigration); Kevin R. Johnson,
Race, the Immigration Laws, and Domestic Race Relations: A “Magic Mirror” into the Heart of Darkness,
73 IND. L.J. 1111 (1998) (analyzing the United States’ history of racialized exclusion through laws governing
immigration and naturalization, and arguing that the country’s harsh treatment of immigrants reflects how
racial minorities within the United States would be treated if not for constitutional protections granted to
citizens); Karla McKanders, Immigration and Racial Justice: Enforcing the Borders of Blackness, 37 GA. ST.
U. L. REV. 1139, 1149 (2021) (analyzing how “at the intersection of anti-Black racism and immigration
status, [U.S.] immigration laws and enforcement policies operate to reinforce structural racism in America”);
Hiroshi Motomura, The New Migration Law: Migrants, Refugees, and Citizens in an Anxious Age, 105
CORNELL L. REV. 457, 460–74 (2020) (describing racial and ethnic discrimination in U.S immigration and
naturalization law and policy and the civil rights framing of immigrant justice claims); Mae M. Ngai, The
Architecture of Race in American Immigration Law: A Reexamination of the Immigration Act of 1924, 86 J.
AM. HIST. 67 (1999) (providing a nuanced account of the 1924 Quota Laws and the ways in which race and
national origin were constructed in this period and as a result of this law, as well as the ways in which this
facially race-neutral law was designed to exclude nonwhite migrants); Munshi, supra note 64, at 250 (tracing
immigration law’s move, via laws meant to exclude Hindu migrants, from explicit racialized exclusion to “a
more discrete policy of geographic segregation” which, despite being racially neutral, continues to affect
racialized exclusion); David B. Oppenheimer, Swati Prakash & Rachel Burns, Playing the Trump Card: The
Enduring Legacy of Racism in Immigration Law, 26 BERKELEY LA RAZA L.J. 1, 40–42, 40 n.309 (2016)
(analyzing the ways in which succeeding waves of immigrants were racialized and had to in some way
“become white” to assimilate). Some scholars highlight intersectional structures. See generally Sarah L.
Hamilton-Jiang, Children of a Lesser God: Reconceptualizing Race in Immigration Law, 15 NW. J.L. & SOC.
POL’Y 38, 65–70 (2019) (analyzing how race contributes to the “adultification” of unaccompanied migrant
children, who are left to navigate a system built for adults with few special legal protections, and leads to
fewer successful claims for visas or asylum); Cristina A. Qui~ nónez, Comment, Exposing the American
History of Applying Racial Anxieties to Regulate and Devalue Latinx Immigrant Reproductive Rights, 54
U.S.F. L. REV. 557 (2020) (analyzing the ways in which racial anxieties about migration have had a
gendered effect on the reproductive rights of Latina migrants, creating racial borders within the bodies of
migrant women); Olivia Salcido & Cecilia Menjı́var, Gendered Paths to Legal Citizenship: The Case of
Latin-American Immigrants in Phoenix, Arizona, 46 Law & SOC’Y REV. 335 (2012) (taking an intersectional
approach to understanding the gendered pathways toward citizenship that Latin American migrants
experience). A smaller universe of scholarship has framed its analysis of race and borders in imperial terms.
See generally Hannah Gordon, Note, Cowboys and Indians: Settler Colonialism and the Dog Whistle in U.S.
Immigration Policy, 74 U. MIA. L. REV. 520 (2020) (comparing the treatment of Native Americans in the
United States to its treatment of Mexican and Central American migrants to situate U.S. immigration law in
the U.S. settler–colonial project); Sherally Munshi, Immigration, Imperialism, and the Legacies of Indian
Exclusion, 28 YALE J.L. & HUM. 51, 55 (2016) (situating “the history of Indian exclusion from the United
States against the backdrop of settler colonialism and decolonization” in order “to widen the nationalist
framework of American exceptionalism through which questions about immigration law and policy are often
presented”); Monika Batra Kashyap, Unsettling Immigration Laws: Settler Colonialism and the U.S.
Immigration Legal System, 46 FORDHAM URB. L.J. 548 (2019) (analyzing contemporary U.S. immigration
laws and policies within a settler–colonial framework to locate the U.S. immigration system at the heart of
settler colonialism’s ongoing project of elimination and subordination of racial Others); K-Sue Park, Self-
Deportation Nation, 132 HARV. L. REV. 1878, 1884–88 (2019) (analyzing the United States’ long history of
using “self-deportation”—“a variety of state-sponsored coercive removal that assigns some agency to
individuals in their own departure”—as an indirect immigration policy, and tracing self-deportation’s
evolution “from colonial policies meant to obscure the goal of removal and thereby guard settler-tribal
diplomatic relations” into a modern policy directed mostly at Mexican and Central American migrants);
Natsu Taylor Saito, Asserting Plenary Power over the “Other”: Indians, Immigrants, Colonial Subjects, and
Why U.S. Jurisprudence Needs to Incorporate International Law, 20 YALE L. & POL’Y REV. 427 (2002)
(analyzing the plenary power doctrine’s emergence and application to Native Americans, external colonial
subjects of the United States (such as Guam and Puerto Rico, among others), and immigrants and how the
466 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

a descriptive account of the racialized operation of the contemporary system of

racial borders. That is, I set aside normative assessment of this system for Part III.
A. MIGRATION, MOBILITY, AND ASYLUM REGIMES

1. Citizenship, Passports, and Visas

First World citizenship is racially bordered and, in turn, operates as a crucial
component of racial bordering.88 It is racially bordered in the sense that access to
and retention of First World citizenship privileges whiteness, even within regimes
that have evolved to incorporate nonwhite people as citizens. With respect to
access to citizenship, race mediates through bloodline or jus sanguinis laws that
confer exclusive citizenship privileges.89 Race also mediates access to citizenship

plenary power cases continue to be used against these groups to justify the legal subordination of the Other in
a way that violates international law).
88. I begin with citizenship here, but racialization extends to the very constitution of the modern
nation-state. For an insightful exposition of how the borders of the nation-state were racially constituted
under European colonialism through modern geography and international law, see generally Mahmud,
Geography and International Law, supra note 4; Mahmud, Colonial Cartographies, supra note 4; and
Mahmud, Cheaper than a Slave, supra note 4.
89. Jus sanguinis (acquisition of citizenship through descent) is the primary mechanism for
conferring citizenship in the European Union and the world more broadly, as compared with jus soli
(acquisition of citizenship through birth in the territory of a country). See Maria Margarita
Mentzelopoulou & Costica Dumbrava, Acquisition and Loss of Citizenship in EU Member States, EUR.
PARLIAMENTARY RSCH. SERV. 2 (July 2018), [Link]
2018/625116/EPRS_BRI(2018)625116_EN.pdf [[Link] (“The vast majority
of people in Europe (and the world) acquire citizenship at birth, most often through jus sanguinis.
No country in the EU grants automatic and unconditional citizenship to children born in their
territories to foreign citizens. The most common condition for jus soli is that parents should have
resided in the country for a certain period of time before the child’s birth. Five EU countries have
such rules of conditional jus soli. . . . In seven EU countries children born in the country to foreign
citizens can acquire citizenship at birth if at least one of their parents was also born in the country
(double jus soli).”).
Extensive scholarship has highlighted the ethnonationalist and racial implications of these laws. See
Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of
Family, Race, and Nation, 123 YALE L.J. 2134, 2137 (2014) (arguing that “a primary and overlooked
explanation for the development and durability of gender-asymmetrical jus sanguinis citizenship law [in
the United States] was the felt need of judges, administrators, and legislators to further the racially
nativist policies that were central to American nationality law until 1965” (footnote omitted)); Muneer I.
Ahmad, Beyond Earned Citizenship, 38 IMMIGR. & NAT’Y L. REV. 617, 655–56 (2017) (“[A] regime of
jus sanguinis in the absence of jus soli citizenship tends toward ethnonationalism, because it entrenches
the citizenship claims of those ethnic groups already incorporated into the nation. Jus sanguinis is
status-preserving rather than status-creating, and as Shachar has shown, treats citizenship as a form of
inheritance.” (footnote omitted)); Costica Dumbrava, Bloodlines and Belonging: Time to Abandon Ius
Sanguinis?, in DEBATING TRANSFORMATIONS OF NATIONAL CITIZENSHIP 73, 73–75 (Rainer Bauböck ed.,
2018); Gillian R. Chadwick, Legitimating the Transnational Family, 42 HARV. J.L. & GENDER 257,
266–69 (2019) (surveying critiques of jus sanguinis in the United States and European contexts). But see
Rainer Bauböck & Ius Filiationis, A Defence of Citizenship by Descent, in DEBATING
TRANSFORMATIONS OF NATIONAL CITIZENSHIP, supra, at 83, 87 (“What is morally arbitrary is not that
states use these fundamental features of personal identity to determine membership in political
communities, but that in our world citizenship provides individuals with hugely unequal sets of
opportunities. This is not an inherent feature of birthright citizenship but of the global economic and
political (dis)order.”); Ahmad, supra, at 655 (listing common justifications for jus sanguinis, such as
“preventing statelessness, fostering normative notions of family, ensuring care and protection of
children, and promoting intergenerational development of the political community,” as well as “mere
2022] RACIAL BORDERS 467

through the racialized mobility and migration restrictions I describe in more

detail below. Even to the extent that jus soli access to citizenship is available in
the First World, it is only available to those who can territorially access First
World nations. In this way, racially exclusive territorial access through racialized
migration governance also restricts jus soli citizenship on a racial basis. With
respect to lack or loss of citizenship, this too, is a racialized phenomenon—the
United Nations High Commissioner for Refugees estimates that seventy-five per-
cent of the known global stateless population are minorities.90 The growing prev-
alence of racialized citizenship-stripping policies across the First World,
particularly in the last two decades, points to the persistence of the preferential
status of whiteness over nonwhiteness for First World citizenship, and this prefer-
ence is achieved often as the result of facially race-neutral legal and policy
provisions.91
Conversely, citizenship also contributes to racially differentiated migration
and mobility and to a great extent does so through visa policies. Although the sub-
ject of limited international migration scholarship, visa policies constitute “the
central instrument of mobility restriction and control concerning the vast majority
of cross-border movements.”92 As a result of visa regimes composed of national
immigration laws and bilateral and multilateral treaties, possession of a particular
passport not only gives you certain rights as a citizen of your own country but
also confers a specific status within what some term the “global mobility re-
gime.”93 Visas affect migration almost as much as they affect mobility, even
though differences in mobility attributable to visa policies are arguably most pro-
nounced in the regulation of short-term visits. Visa-waiver regimes that confer
visa-free travel on certain nationalities typically apply for short-term visits rather
than permanent migration, but researchers note that “short-term mobility is

convenience,” but observing that “none of these are merit-based arguments” (footnotes omitted)). For a
recent discussion and literature review of racialized citizenship, see Foster & Baker, supra note 4, at 92–
97.
90. U.N. HIGH COMM’R FOR REFUGEES, “THIS IS OUR HOME”: STATELESS MINORITIES AND THEIR
SEARCH FOR CITIZENSHIP 1 (2017), [Link]
2017IBELONG_Report_ePub.pdf [[Link]
91. See INST. ON STATELESSNESS & INCLUSION, THE WORLD’S STATELESS: DEPRIVATION OF
NATIONALITY 12, 211–22 (2020), [Link] (describing the resurgence in the
instrumentalization and expansion of citizen-stripping and denaturalization laws enacted under the guise
of antiterrorism in countries including the United Kingdom, Denmark, the Netherlands, and Belgium);
OPEN SOC’Y JUST. INITIATIVE, UNMAKING AMERICANS: INSECURE CITIZENSHIP IN THE UNITED STATES
10–11 (2019), [Link]
[Link] [[Link]
cc/762L-XA6E] (providing a mixed quantitative and qualitative analysis of denaturalization cases in
the United States filed during the Trump Administration that demonstrates a significant increase in
such cases, which are characterized by “selective targeting based on national origin, as a proxy for
race, ethnicity, and religion” and result in “a disproportionate number of cases filed against visible
minorities”).
92. Steffen Mau, Fabian Gülzau, Lena Laube & Natascha Zaun, The Global Mobility Divide: How
Visa Policies Have Evolved over Time, 41 J. ETHNIC & MIGRATION STUD. 1192, 1194 (2015).
93. Id. at 1195.
468 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

closely linked to migration.”94 Most migration begins as short-term travel, and

short-term mobility is also a central pathway for irregular migration as a result of
overstays.95 This means that ease of migration is closely tied to ease of short-term
mobility, which in turn is closely governed by visas. Passport nationality, and
thus citizenship, are determinative because they dictate the application of visa
restrictions.
Consider the European Union’s Schengen visa regime, which is regulated by
treaty.96 The European Union’s Visa Regulation maintains two lists of countries:
one widely (and at its inception officially) referred to as the Black list containing
countries whose nationals require visas to enter and another, the White list, with
countries whose nationals do not need a visa.97 A range of factors determine the
list to which a given country belongs,98 but the ultimate effect of the categoriza-
tion is that the nationals on the Black list are presumptively undesirable, and
those on the White list are presumptively desirable.99 Nationals of Black listed
countries face a structural bar to short-term mobility, which they must overcome
on a costly, individualized basis through processes mostly insulated from founda-
tional, liberal due process rights let alone substantive equality protections.

94. Id. at 1196.

95. See id. Several studies show, for example, that “the majority of irregular [migrants] present in the
OECD today entered their country legally but overstayed their visa.” Id.
96. For detailed analysis of the Schengen visa regime, see Didier Bigo & Elspeth Guild, Policing at a
Distance: Schengen Visa Policies, in CONTROLLING FRONTIERS: FREE MOVEMENT INTO AND WITHIN
EUROPE 233, 241–43 (Didier Bigo & Elspeth Guild eds., 2005) and VIOLETA MORENO-LAX, ACCESSING
ASYLUM IN EUROPE: EXTRATERRITORIAL BORDER CONTROLS AND REFUGEE RIGHTS UNDER EU LAW
81–116 (2017).
97. Amade M’charek, Katharina Schramm & David Skinner, Topologies of Race: Doing Territory,
Population and Identity in Europe, 39 SCI. TECH. & HUM. VALUES 468, 473 (2014) (“Responding to
concerns about the racist connotations of the original terminology, the EU changed the wording from
Black/White list to Positive/Negative list . . . .”).
98. According to the governing regulation, the criteria for determining visa requirements of third-
country nationals include “illegal immigration, public policy and security, economic benefit, in
particular in terms of tourism and foreign trade, and the [EU]’s external relations with the relevant third
countries, including, in particular, considerations of human rights and fundamental freedoms, as well as
the implications of regional coherence and reciprocity.” Commission Regulation 2018/1806, art. 1, 2018
O.J. (L 303) 39, 43 (EU).
99. See RYSZARD CHOLEWINSKI, IMMIGR. L. PRACS.’ ASS’N, BORDERS AND DISCRIMINATION IN THE
EUROPEAN UNION 21 (2002). Cholewinski aptly notes that the visa lists amount to a system of national
profiling, according to which nationals on the “black visa list” must on an individual basis work to
overcome their presumptive exclusion. See id. at ii.
2022] RACIAL BORDERS 469

Table 1: Schengen Area Visa Policy100

In their study of the Schengen visa regime, Didier Bigo and Elspeth Guild note
that for nationals on the Black list, this visa system shifts the border of the
European Union to the consulates in the nationals’ home countries where they
must receive travel authorization prior to even embarking on any journey.101
According to an official interviewed for their study, this relocation of the border
is a central control strategy, which aims “to dry up flows from the source.”102
Despite the appearance of a centralized system, the issuance of a Schengen visa is
determined by the internal national consulate rules and local practices, but across
the board, nationals from countries on the Black list bear the burden of explaining
why they are “an exception in comparison with fellow nationals who are, by defi-
nition, threats or risks to the European Union.”103 Individual consulate officials
often determine visa application outcomes, and visa refusals are not necessarily
accompanied by justifications or reasons.104

100. Visa Policy, EUR. COMM’N, [Link]

visa/visa-policy_en [[Link] (last visited Jan. 26, 2022). Table 1 is based on a
map provided in the previous citation; Table 1 has been adapted for grayscale, and a legend has been
added based on the original map’s data.
101. Bigo & Guild, supra note 96, at 239.
102. Id. at 241.
103. Id. at 249–50.
104. See id. at 250–51. To comply with Article 47 of the Charter of Fundamental Rights of the
European Union, “Member States,” per the Court of Justice of the European Union’s (CJEU) ruling in a
2017 case, must make available judicial appeal at some stage in the visa refusal appeal process. See Case
C-403/16, El Hassani v. Zagranicznych, ECLI:EU:C:2017:960, ¶ 42 (Dec. 13, 2017). Yet despite the
CJEU’s ruling in El Hassani, commentators have pointed out that the EU legislature “left to the Member
States the task of deciding the nature and specific conditions of the remedies available to visa
470 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

The sorting effected by the Schengen visa regime differentiates based on

nationality, but its effect is racialized.105 It mainly excludes the predominantly
nonwhite world from Schengen while including the predominantly white
world.106 In 2002, all of Africa was on the visa Black list.107 Today, this has
mostly remained unchanged. The only African nations on the White list are
Mauritius and Seychelles.108 Almost all of Asia is on the Black list, whereas all of
North America and most of Latin America are on the White list.109 And although
nationals on the Black list may overcome their presumptive exclusion through
successful application for a visa, there is good reason to believe that the process
for overcoming this presumptive exclusion is also racially fraught. Visa applica-
tions are typically adjudicated through processes that, by law, are characterized

applicants.” Alžbeta Králová, Legal Remedies in Asylum and Immigration Law: The Balance Between
Effectiveness and Procedural Autonomy?, 16 CENT. EUR. PUB. ADMIN. REV. 67, 76–77 (2018). Králová
notes that the court in El Hassani “tried to have [its] cake and eat it too — the ‘right to appeal’ does not
equal the right to judicial review and it is up to the Member States . . . how they will arrange the nature
of appeal within their remedial systems.” Id. at 77. Further, as the court noted, judicial review is only
guaranteed “at a certain stage of the proceedings.” El Hassani, ECLI:EU:C:2017:960, at ¶ 42.
105. See Mekonnen Tesfahuney, Mobility, Racism and Geopolitics, 17 POL. GEOGRAPHY 499,
512–13 (1998).
106. There are some important exceptions. For example, Latin America, which is majority nonwhite,
is mostly exempt from the Schengen short-term visa requirement. See supra Table 1. This is a product of
the specific colonial history between Spain and this region, including the strong political, cultural, and
arguably even racial ties that have bound them together. For some, Latin America neatly fits into the
category Third World because it is a territory formerly colonized by Europe (or because it fits the range
of other associations attributed to the Third World designation—such as economic exploitation and so
on). But Latin America’s relationship to both the First and the Third World is far more complex. For
many Latin American nations, their independence from European powers preserved internal colonial
dynamics that privileged white people at the expense of Indigenous and Black people. See Quijano,
supra note 23, at 562–64. Spain, unlike other former colonial powers, advocated for visa exemptions for
its former colonies in Latin America likely because its immigration regime had evolved to recognize
close cultural and ethnic ties with these effective settler colonies, many of which had explicitly tried to
“whiten” themselves by aggressively pursuing the immigration of white Europeans to their territories in
the past.
107. CHOLEWINSKI, supra note 99.
108. See Maarten den Heijer, Visas and Non-Discrimination, 20 EUR. J. MIGRATION & L. 470, 484
(2018). The inclusion of these islands is part of a broader trend of small island nations being included on
the White list. One scholar attributes this, in part, to European vacationers. See id. at 484–85 (“[T]hese
islands are popular holiday destinations for Europeans (it was expected that the visa exemption would be
reciprocated through visa waiver agreements) and the practical difficulty that in some of these islands,
none of the Member States offered consular services.”).
109. Commission Regulation 2018/1806, annex 1, 2018 O.J. (L 303) 39, 51–53 (EU). Bolivia,
Belize, Cuba, Ecuador, Guyana, Haiti, Jamaica, and the Dominican Republic are all excluded. Id.; see
Who Must Apply for a Schengen Visa, EUR. COMM’N, [Link]
schengen-borders-and-visa/visa-policy/who-must-apply-schengen-visa_en [[Link]
BC36] (last visited Dec. 29, 2021). Cholewinski explains this variation in Latin America in the
following way:
[T]he non-imposition of a visa requirement on most of the South American coun-
tries relates to the special relationship of Spain with those countries, although . . .
it would appear that the criteria of illegal immigration and crime overrode this spe-
cial relationship in respect of Colombia, which was placed on the negative list.
CHOLEWINSKI, supra note 99, at 26.
2022] RACIAL BORDERS 471

by broad discretion that is barely insulated from both explicit and implicit racially
infused decisionmaking. Although the United Kingdom maintained a separate
visa regime apart from Schengen even when it was part of the European Union, a
study of its visa processing is illustrative.
A 2019 parliamentary report in the United Kingdom found that African citi-
zens who applied for British visas were twice as likely as the average applicant to
be denied a visa and nearly seven times more likely than a North American appli-
cant.110 Although African and North American are not, strictly speaking, “racial
categories,” there can be no question that nationals of African countries are pre-
dominantly nonwhite (and mostly Black) and those of at least the United States
and Canada are predominantly white. Indeed, the report raised concerns about
gender and racial discrimination and prejudice in the visa decisionmaking pro-
cess.111 Obstacles to approval for African visa applicants included poor quality
and inconsistent decisionmaking by visa officers,112 disregard for individual cir-
cumstances,113 strict (but inconsistent) documentation requirements,114 and an
apparent institutional presumption that African visa applicants—particularly
those with limited financial means—intend to violate U.K. immigration laws.115
The “single most common issue” brought to the report’s authors was the denial of
applications because of the “requirement to prove the financial circumstances of

110. PAUL ASQUITH, HENRIETTA BAILEY, DAVID HOPE-JONES, AMBREENA MANJI & NICK
WESTCOTT, VISA PROBLEMS FOR AFRICAN VISITORS TO THE UK: A JOINT ALL-PARTY PARLIAMENTARY
GROUP REPORT BY THE APPG FOR AFRICA, THE APPG FOR DIASPORA, DEVELOPMENT & MIGRATION
AND THE APPG FOR MALAWI 8 n.4 (2019), [Link]
[Link] [[Link]
KFTB].
111. See id. at 25 (“The grounds on which an application can be rejected are often not clear and can
vary enormously, even for a single applicant. This elasticity gives rise to inconsistency, and to decisions
that can be considered discriminatory or prejudiced.”).
112. See id. at 21 (“The inquiry Chairs believe that it is not the rules in themselves which are
problematic but it is the application of these legal requirements which is inconsistent and affects
decision quality.”).
113. See id. at 22 (“The poor level of accuracy and completeness of the visa issue notes and refusal
notices was raised by a number of witnesses and has been a repeated theme in previous inspection
reports of the ICBI. This further suggests that due consideration of individual circumstances is not
taking place.”).
114. See id. at 8, 19 (“The volume and type of documentation required as well as the process is
considered particularly demeaning by [African] visitors, who fell that they are treated differently from
visitors from other regions.”).
115. See id. at 23. The report states:
The inquiry has not seen any compelling evidence to justify an approach which
views a lack of affluence as, in itself, reasonable grounds for declining a visa appli-
cation. It is unclear on what basis financial details are required from the applicant
if a visit is fully funded. It is deeply problematic to conflate poverty with presumed
criminality without a clear evidence base.
Id. at 23–24.
472 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

the applicant.”116 Notably, this requirement caused problems even when appli-
cants were fully sponsored by prestigious organizations providing financial surety
for these applicants. In other words, even unequivocal evidence of financial
means was insufficient to overcome financial suspicion of African applicants and
prevent visa denials.117 Note also that the absence of visa requirements for short-
term stays for American, Canadian, and other First World citizens, for example,
means that citizens of these countries whose financial means fall below the finan-
cial thresholds that apply to African citizens are presumptively entitled to entry to
the United Kingdom and the European Union.118
EU visa policies are justified in significant part on the need to curb unauthor-
ized migration,119 and the same is true of the United Kingdom.120 Yet the most
recent data from the U.K. government shows that of those nationalities requiring
visas to enter the United Kingdom for short-term visits and for study and work
purposes, 96.3% left the country prior to the expiration of their visas.121 This
remarkably high compliance rate excludes “the majority of visitors to the UK—
who don’t need a visa (UK and other EU nationals living overseas who visit the
UK as well as ‘non-visa’ nationals such as US citizens who don’t normally need a

116. Id. at 23. The report states:

Inability to demonstrate that the applicant has sufficient money to pay for the visit
is another common reason for rejection. In the evidence received by the inquiry, it
was often asserted that this results in systemic prejudice against African appli-
cants. The entry clearance system seems to make little consideration of, or allow-
ances for, the bureaucratic or cultural context .
. . . For example, regular banking is not always readily available, individuals
may have multiple jobs or incomes, [and] salary payments may not always follow
a strict monthly pattern . . . . Insisting therefore that every small transaction is
accounted for becomes an impossible burden.

Id. This speaks to an inflexible visa standard or prerequisite that excludes evidence of sufficient means
any time the evidence does not conform to the financial metrics characteristic of life in Britain. This
makes admission dependence less about whether you have the financial means and more about
conformity with the culture of British financial metrics.
117. Id.
118. As two other commentators have noted:
The issue of white and black visa lists, of imposition or not of visas seems then to
say less about safety and migration imperatives, than about the social construction
of more or less shared fears concerning the Other and about the way Europeans
seek to construct an image of themselves, a common identity.
Bigo & Guild, supra note 96, at 237.
119. See Commission Regulation 2018/1806, art. 1, 2018 O.J. (L 303) 39 (EU); Bigo & Guild, supra
note 96, at 244.
120. See Will Somerville & Peter William Walsh, United Kingdom’s Decades-Long Immigration
Shift Interrupted by Brexit and the Pandemic, MIGRATION POL’Y INST. (Aug. 19, 2021), [Link]
[Link]/article/united-kingdom-shift-immigration-interrupted-brexit-pandemic [https://
[Link]/Z2FV-N8B6].
121. HOME OFF., SECOND REPORT ON STATISTICS BEING COLLECTED UNDER THE EXIT CHECKS
PROGRAMME 11 (2017), [Link]
attachment_data/file/639621/[Link] [https://
[Link]/P6QG-56P9].
2022] RACIAL BORDERS 473

visa to visit the UK).”122 Given the conventional wisdom that most unauthorized
migration is due to persons who enter the country legally and overstay their per-
missions and given the high rates of compliance among those required to obtain
visas, it stands to reason that visa-exempt nationalities are nontrivially repre-
sented in the unauthorized population. Yet, as migration scholar Gurminder
Bhambra notes, when the British government adopted its aggressive “hostile
environment” policies billed as targeting illegal migration, the government’s pol-
icies did not target “the areas of London where the greatest number of visa over-
stayers reside—that is, areas of white Australian, New Zealand, Canadian
migration.”123 The policies instead targeted Black and other racial and ethnic mi-
nority communities, resulting in the deportation of even Black British citizens
from the United Kingdom.124
With respect to Schengen, Steve Garner’s work explains how between 1985
and 2006, European immigration policy through the European Union and the
Schengen zone essentially “render[ed] the conditions of entry and settlement
more difficult for those people not racialized as ‘white’” and how this was
achieved through facially race-neutral policies combined with political cam-
paigns and media engagement that traded on racialized tropes of existential (non-
white) threats to Europe.125 Garner argues that a central thrust of Schengen’s
external borders is to limit nonwhite labor access into and across the Schengen
zone.126 Prior to 1985, European migration policy was significantly shaped by
national labor needs, with some European nations such as Britain, France,
Belgium, the Netherlands, and Portugal drawing on their former colonies, the for-
mer colonies of others, and labor-sending countries such as Turkey.127 In that
period, “immigration was racialized in that it was largely colonial subjects and non-
Europeans who found themselves in particular niches of the European econo-
mies.”128 The creation of the European Union and the Schengen zone changed this
policy and produced a different form of racialized immigration policy—one that
excluded more nonwhite people than prior regimes—which included them on subor-
dinate terms through guest-worker and related migrant-labor regimes.
The European Union’s common visa policy pressured former colonial powers
to eliminate any remaining preferential immigration or mobility regimes

122. Id.
123. Gurminder K Bhambra, Turning Citizens into Migrants, RED PEPPER (Apr. 19, 2018), https://
[Link]/talking-about-migrants-is-a-dogwhistle-way-of-talking-about-race/ [https://
[Link]/Q65N-LW5S].
124. See WENDY WILLIAMS, WINDRUSH LESSONS LEARNED REVIEW 10 (2020), [Link]
[Link]/government/uploads/system/uploads/attachment_data/file/876336/6.5577_HO_
Windrush_Lessons_Learned_Review_LoResFinal.pdf/ [[Link] (documenting the
deportation of Black British citizens to the Caribbean due to the overly broad application of the “hostile
environment” policies).
125. Steve Garner, The European Union and the Racialization of Immigration, 1985–2006, 1
RACE/ETHNICITY: MULTIDISCIPLINARY GLOB. CONTEXTS 61, 61–62, 69 (2007).
126. Id. at 65.
127. Id. at 77.
128. Id.
474 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

previously applied to former colonies and instead to prioritize EU mobility and

migration, including for labor purposes.129 Expansion of the European Union to
include Eastern European countries opened up the internal so-called low-skilled
labor pool, drastically limiting the chances of non-EU nationals accessing visas
for low-income work.130 Freedom of movement within the European Union and
Schengen region for non-EU nationals was thus shaped by a labor regime for
non-EU nationals that privileges the access of so-called highly skilled professio-
nals over all others.131 This regime privileges the majority white population of the
European Union and disadvantages the majority nonwhite population of the non-
European Union,132 even while relying on the latter to supply labor on exploita-
tive terms, including under conditions of illegality.133
Racialized mobility through visa regimes extends beyond Schengen. Visa-free
access to the United States is primarily limited to the predominantly white
world.134 Visualizations showing the range of travel for different nationalities
starkly illustrate the high levels of freedom of movement of First World nation-
state passport holders and the restrictions on Third World nation-state passport
holders—especially African, Caribbean, and Asian—preventing similar access to
the First World.135 Notably, “the citizens of Europe, North America and
Australia/New Zealand can travel easily around the world.”136 A 2015 review of
visa literature and study of visa-free travel data suggested “a clear pattern of the

129. See id. at 74.

130. Id. at 66; see also id. at 69 (noting that “white Europeans have, on the whole, a major
institutional advantage in terms not only of mobility, but access to employment and the perks of
citizenship, as well as the lesser ones of ‘denizenship’”).
131. See id. at 68.
132. See id.
133. The work of Chantal Thomas is illustrative in this regard. See Chantal Thomas, Race as a
Technology of Global Economic Governance, 67 UCLA L. REV. 1860, 1884 (2021) [hereinafter
Thomas, Race as a Technology] (“Immigration controls do not deter migration in a world which is both
highly unequal and highly interconnected. Rather, those controls make it more likely that some people’s
movements across borders will be unauthorized, and that those people will then be vulnerable to
exploitation.”); Chantal Thomas, Immigration Controls and “Modern-Day Slavery,” in REVISITING THE
LAW AND GOVERNANCE OF TRAFFICKING, FORCED LABOR AND MODERN SLAVERY 212, 214 (Prabha
Kotiswaran ed., 2017) [hereinafter Thomas, Immigration Controls] (“[I]mmigration controls remain the
single most formal and legally permitted basis for discrimination and coercion that contributes to those
exploitative conditions.”); Chantal Thomas, Undocumented Migrant Workers in a Fragmented
International Order, 25 MD. J. INT’L L. 187, 216–20 (2010); see also Tayyab Mahmud, Precarious
Existence and Capitalism: A Permanent State of Exception, 44 SW. L. REV. 699, 721–25 (2015) (arguing
that neoliberal economic and migration governance places undocumented migrant workers in a state of
“hyper-precarity”).
134. See Visa Waiver Program, U.S. DEP’T OF ST., [Link]
tourism-visit/[Link] [[Link] (last visited Dec. 29, 2021)
(listing visa-exempt nationalities for travel to the United States).
135. See, e.g., Global Passport Power Rank 2021, PASSPORT INDEX, [Link]
[Link] [[Link] (last visited Dec. 29, 2021). A significant number of Latin
American countries have visa-free access to the European Union, and among Asian countries, Japan,
South Korea, and Malaysia enjoy extensive free travel. See Thomas Spijkerboer, The Global Mobility
Infrastructure: Reconceptualizing the Externalisation of Migration Control, 20 EUR. J. MIGRATION & L.
452, 458 (2018).
136. Spijkerboer, supra note 135.
2022] RACIAL BORDERS 475

apparent mobility divide, with the West or North being privileged and the Global
South being excluded.”137 Between 1969 and 2010, the world experienced an
overall increase in visa-free travel possibilities and also experienced “an
increased stratification of associated mobility rights.”138 In that period,
Organisation for Economic Co-operation and Development (OECD) countries
dramatically increased the freedom of movement of their citizens, while
non-OECD countries failed to do the same.139 The exceptions were non-OECD
countries with relatively high gross domestic product per capita and those with
membership in influential regional bodies, for example the European Union and
the Southern Common Market (MERCOSUR).140 The mobility “winners” were
North American, South American, and European countries, and what was most
striking to the researchers conducting the study was “the loss of mobility rights
by African countries.”141 To the extent that there is a “[w]all around the West,”
visa policy analysis indicates this wall “is primarily a fence of protection against
African migrants.”142
Third World immobilization exists alongside the hypermobility of the First
World, and this hypermobility is at least in part the result of what Thomas
Spijkerboer refers to as the “the global mobility infrastructure.”143 Spijkerboer
notes that although the “non-entrée” regime of the First World, underwritten by
border externalization, privatization, and securitization, has helped shut the Third
World out of the First, a parallel infrastructure has enhanced mobility by making
it faster, cheaper, and more accessible—at least for a select group.144 First World

137. Mau et al., supra note 92, at 1201.

138. Id. at 1199. For a study highlighting the visa restrictiveness of African and Asian countries
specifically, see generally Mathias Czaika, Hein de Haas & Marı́a Villares-Varela, The Global
Evolution of Travel Visa Regimes, 44 POPULATION & DEV. REV. 589 (2018). The authors find that
Organisation for Economic Co-operation and Development (OECD) countries removed visa barriers
among each other but that African and Asian countries have maintained, and even increased, visa
barriers against OECD countries. Id. at 610. They further argue that visa restrictiveness has not
increased globally, but that it has been high since the 1970s, and that “visa liberalization has been to a
significant extent an intra-American, intra-European and intra-OECD affair.” Id. at 611. That Third
World nation-states have visa restrictions in place against First World nation-states does not on its own
undercut the claim that First World citizens, and white citizens in particular, retain international
mobility and migration privileges on terms that are unjust. As I discuss in greater detail in Part III, my
justice claims are relational and the kinds of claims that Third World citizens have over First World
nation-state borders are different from those that First World citizens have over Third World citizens.
See Achiume, supra note 1, at 1541–46. Furthermore, the anecdotal evidence and limited studies
available suggest that First World citizens are significantly more successful in securing visas to enter the
Third World than vice versa, and that whiteness is de facto a privileged migration and mobility status
even in places where that is not the case de jure.
139. See Mau et al., supra note 92, at 1202.
140. Id. at 1203
141. Id.
142. Id. at 1205.
143. Spijkerboer, supra, note 135, at 455.
144. Id. at 453, 456–57 (emphasis omitted). The global mobility infrastructure comprises physical
developments such as air and seaports and associated transportation vehicles; services such as travel
agencies and visa intermediaries; and laws that liberalize international transportation of people. Id. at
455. For an overview of the non-entrée regime and scholarship analyzing it, see generally Thomas
476 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

control over the global mobility infrastructure itself has become yet another
means through which First World nation-states control access to their territories,
especially through requiring airlines to adjudicate access to their planes.145
Airlines are required to prevent embarkation of persons not in possession of visas
where required or who may be listed in no-fly databases.146 Access to the global
mobility infrastructure depends greatly on nationality and class as a result of visas
whose approval processes establish socioeconomic thresholds in the form of
income or property.147 As Spijkerboer notes, race and gender are also clear deter-
minants of mobility.148 From access to passport nationality to the visa systems
and wider immigration policies of liberal democratic nation-states, First World
states embed racial (and gender) privileges in migration and mobility regimes.149
2. Refugee and Asylum Regimes
International refugee law establishes the most robust carveout of the ability of
nation-states to exclude non-nationals in the right of asylum. By doing so, it also
creates a regime of international migration—albeit migration that is coerced and
motivated specifically by a well-founded fear of persecution based on “race, reli-
gion, nationality, membership of a particular social group or political opinion.”150
The Convention Relating to the Status of Refugees and its Protocol require States

Gammeltoft-Hansen & Nikolas Feith Tan, Extraterritorial Migration Control and Deterrence, in THE
OXFORD HANDBOOK OF INTERNATIONAL REFUGEE LAW 502 (Cathryn Costello et al. eds., 2021) and
THOMAS GAMMELTOFT-HANSEN, ACCESS TO ASYLUM: INTERNATIONAL REFUGEE LAW AND THE
GLOBALISATION OF MIGRATION CONTROL (2011).
145. Spijkerboer, supra note 135, at 456; see also GAMMELTOFT-HANSEN, supra note 144, at 158–
208 (discussing the privatization of migration control, including via airline carrier sanctions).
146. Spijkerboer, supra note 135, at 456–57.
147. Id. at 457–58.
148. Id. at 458.
149. Id. at 452–58. For a detailed analysis of how the various skill-based immigration policies of the
United States, European Union, United Kingdom, Canada, and Australia contribute to racialized and
gendered immigration outcomes, including with regard to access to nationality, see generally Anna
Katherine Boucher, How ‘Skill’ Definition Affects the Diversity of Skilled Immigration Policies, 46 J.
ETHNIC & MIGRATION STUD. 2533 (2020). For an account of past and contemporary denaturalization
laws and discrimination in the United Kingdom, see generally Matthew J. Gibney, Denationalisation
and Discrimination, 46 J. ETHNIC & MIGRATION STUD. 2551 (2020). For examples of Australia’s
racially exclusionary border policies, see, for example, Dominic Npoanlari Dagbanja, The Invisible
Border Wall in Australia, 23 UCLA J. INT’L L. & FOREIGN AFF. 221 (2019). For analysis of racialized
immigrant exclusion through visa categories, see generally Kevin R. Johnson, The Intersection of Race
and Class in U.S. Immigration Law and Enforcement, LAW & CONTEMP. PROBS., Fall 2009, at 1. For a
more global scope, see Achiume, supra note 24. There, I identified and reviewed present-day racist and
xenophobic ideologies, along with institutionalized laws, policies, and practices, which together have
had a racially discriminatory effect on individuals’ and groups’ access to citizenship, nationality, and
immigration status. See generally id.
150. Convention Relating to the Status of Refugees art. 1(A)(2), July 28, 1951, 189 U.N.T.S. 137.
International human rights law is also a source of important, though qualified, constraints on the right to
exclude. See JANE MCADAM, COMPLEMENTARY PROTECTION IN INTERNATIONAL REFUGEE LAW 1–6
(2007); Vincent Chetail, Moving Towards an Integrated Approach of Refugee Law and Human Rights
Law, in THE OXFORD HANDBOOK OF INTERNATIONAL REFUGEE LAW 202, 204 (Cathryn Costello et al.
eds., 2021) (arguing that international human rights law has “shaped, updated, and enlarged refugee
law” to such an extent that the two bodies of law are best understood as offering a “single continuum of
protection”).
2022] RACIAL BORDERS 477

to grant lawful status to non-nationals in their respective territories who meet the
refugee definition and furthermore envision the significant, if not full, incorpora-
tion of these refugees, socially, economically, and politically.151 But the interna-
tional regime of refugee admission and incorporation is racialized in the sense
that race and related categories of ethnicity, national origin, indigeneity, and reli-
gion shape access to and the experience of the rights guaranteed by this regime.152
Asylum doctrine, although formally prohibiting discrimination based on race, is
racially exclusive, especially of nonwhite, Third World citizens, both through the
scope of the refugee definition and through its application in practice. The inter-
national mobility of recognized refugees and of asylum seekers pursuing formal
recognition as refugees is effectively constrained on a racial basis, through migra-
tion control techniques I describe below. And the granting of refugee status itself,
along with enjoyment of the rights and means of incorporation, are shaped by
race.153
Historically, the Convention restricted the definition of a refugee geographi-
cally and temporally to persons fleeing events in Europe before 1951.154 The
combination of these restrictions in effect excluded nonwhite persons from pro-
tection through the regime. Although the Protocol to the Convention lifted these
restrictions, James Hathaway has explained how the “Eurocentric” definition of a
refugee in international law, as well as the international refugee system’s alloca-
tion of direct control of refugee status determination, has still resulted in “a two-
tiered protection scheme that shields Western states from most Third World
asylum seekers.”155 Recent nationality bans on refugees, such as European and
U.S. bans on Syrian refugees,156 as well as asylum doctrine further tailored to
exclude refugees from predominantly nonwhite countries and regions,157 have

151. See Convention Relating to the Status of Refugees, supra note 150, 189 U.N.T.S. at 164, 166,
170 (establishing requirements related to gainful employment (Chapter III), welfare (Chapter IV), and
administrative measures, including naturalization (Chapter V)). These provisions also bind signatories
to the Protocol to the Convention according to Article 1(1) of the Protocol. Protocol Relating to the
Status of Refugees art. 1(1), Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267. For analysis of how,
under the Convention “all refugees benefit from a number of core rights, [and] additional entitlements
accrue as a function of the nature and duration of the attachment to the asylum state,” see JAMES C.
HATHAWAY, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW 154–228 (2005).
152. See generally Achiume, Race, Refugees, and International Law, supra note 4 (examining the
racialized nature of the global refugee regime).
153. For salient examples, see generally Christopher Kyriakides, Dina Taha, Carlo Handy Charles &
Rodolfo D. Torres, Introduction: The Racialized Refugee Regime, REFUGE, no.1, 2019, at 3 (introducing
the special issue of the Refuge journal and summarizing its contributions).
154. Convention and Protocol Relating to the Status of Refugees, UNHCR 2, [Link]
protection/basic/3b66c2aa10/[Link] [[Link]
C7DG-CKMG] (last visited Dec. 29, 2021).
155. Hathaway, supra note 4, at 144.
156. See, e.g., Tally Kritzman-Amir & Jaya Ramji-Nogales, Nationality Bans, 2019 U. ILL. L. REV.
563, 567; Achiume, Governing Xenophobia, supra note 4, at 381–82.
157. For example, the Trump Administration’s curtailment of asylum for victims of private violence,
such as gang violence or domestic violence, was targeted at Central American asylum seekers. In the
year after Attorney General Jeff Sessions instituted this policy, “rates of asylum granted to people from
El Salvador, Guatemala and Honduras plunged 38 percent.” Katie Benner & Miriam Jordan, U.S. Ends
478 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

only enhanced the racialized mobility and migration that is the baseline of the
global refugee regime. The racialization of borders for refugees and asylum
seekers has been compounded by national security discourses that range from the
explicit equation of nonwhite migrants and refugees with security threats, espe-
cially those from Muslim-majority countries,158 to more facially neutral-seeming,
sovereignty-based logics that nonetheless facilitate racialized exclusion.
A significant literature exists on the securitization of international migration,
and several flashpoints related to terrorist attacks in First World countries have re-
inforced racialized exclusion.
For the many Third World nationals—including refugees—who are unable to
overcome the hurdles presented by the Schengen, there are only two options:
unauthorized entry and the European Union’s asylum regime—accessed via
Europe’s physical frontiers.159 Apart from racially exclusive doctrine, the interna-
tional refugee regime has evolved to impose greater immobility on refugees from
the Third World through policies designed to make it impossible for these refu-
gees to territorially access the First World.160 The policies, often referred to as the
non-entrée regime, include visa controls, airline carrier sanctions, safe third-
country agreements, and other facially race-neutral policies that do the work of

Trump Policy Limiting Asylum for Gang and Domestic Violence Survivors, N.Y. TIMES (June 16, 2021),
[Link] .
These restrictions were later reversed by the Biden Administration. Id.
158. A significant literature exists on the securitization of international migration, and several
flashpoints related to terrorist attacks in First World countries have reinforced racialized exclusion. For
examples from the United States, see Susan M. Akram & Maritza Karmely, Immigration and
Constitutional Consequences of Post-9/11 Policies Involving Arabs and Muslims in the United States: Is
Alienage a Distinction Without a Difference?, 38 U.C. DAVIS L. REV. 609, 611 (2005) (reviewing
“evidence indicating that U.S. government targeting of Arabs and Muslims, both aliens and citizens,
began long before September 11, 2001,” and examining “the full range of post-9/11 government
actions” targeting Arabs and Muslims) and Sameer M. Ashar, Immigration Enforcement and
Subordination: The Consequences of Racial Profiling After September 11, 34 CONN. L. REV. 1185,
1992–96 (2002) (reviewing the United States’ selective immigration enforcement targeting Arab and
South Asian Muslims using racial profiling). For an analysis of sovereignty-based national security
justifications of migration restrictions among EU countries, see, for example, João Estevens, Migration
Crisis in the EU: Developing a Framework for Analysis of National Security and Defence Strategies,
COMP. MIGRATION STUD. (Oct. 1, 2018), [Link]
[Link] [[Link] For analysis of how emergency as the perceived threat to
the nation reinforces racial exclusion through international and European law, see generally Reynolds,
supra note 4.
159. See, e.g., MORENO-LAX, supra note 96, at 115 (“The role of visa requirements in creating risk
for protection seekers before they reach the external border [of Schengen] is fundamental, as they render
access unsafe and travel only feasible through irregular channels.”). A similar dynamic operates at the
borders between the United States and the nations imperially bound to it in the Americas and the
Caribbean. See Stephanie Leutert & Caitlyn Yates, What Are the Legal Pathways for Central Americans
to Enter the U.S.?, LAWFARE (July 17, 2018, 11:00 AM), [Link]
pathways-central-americans-enter-us [[Link] (examining legal options for
Central American migrants entering the United States); Matthew Lorenzen, The Mixed Motives of
Unaccompanied Child Migrants from Central America’s Northern Triangle, 5 J. ON MIGRATION & HUM.
SEC. 744, 764 (2017) (finding a prevalence of “mixed-motive” migration that entangles violence with
economic need and arguing for a “more flexible policy approach to properly address mixed-motive
migration”).
160. See Chimni, supra note 4, at 363.
2022] RACIAL BORDERS 479

cooperative racialized exclusion.161 First World nation-states have also perfected

migrant and refugee interdiction techniques, which disproportionately target
Third World refugees and asylum seekers attempting to access First World
shores. They have also pursued third-country agreements relying on countries
outside of the First World to prevent refugees and asylum seekers from ever
reaching First World land frontiers. These mechanisms for geographically con-
taining nonwhite migrants in the Third World are ever-evolving, as First World
states develop new strategies for evading international refugee-protection obliga-
tions without technically violating international law.162
For European countries, border externalization or the extraterritorial projection
of their borders remains central in their arsenal for governing Third World migra-
tion including that by refugees.163 According to the European Border and Coast
Guard Agency (Frontex), “there are roughly a dozen non-EU countries through
which the vast majority of irregular migrants pass before being detected at the
external borders of the EU,” and as a result, bilateral and multilateral agreements
with these countries where possible, figure significantly in border control.164 In
2019, for example, the European Union experienced a decrease in detected illegal
border crossings, which it attributed to “determined prevention efforts by
Northern African countries.”165 This externalization imposes European preroga-
tives on the borders of sovereign Third World countries, resulting in racialized
forms of exclusion even from Third World territories to keep Black African
migrants and refugees as far away from Europe as possible.166
For First World citizens, whether they are motivated to move by economic, po-
litical, or humanitarian concerns, permissive visa regimes render much of the
First World open to them without the need to resort to asylum regimes. For white

161. For overview of the non-entrée regime and scholarship analyzing it, see generally Gammeltoft-
Hansen & Tan, supra note 144 and GAMMELTOFT-HANSEN, supra note 144. For a more recent exposition
of First World exclusion of Third World asylum seekers, see generally DAVID SCOTT FITZGERALD,
REFUGE BEYOND REACH: HOW RICH DEMOCRACIES REPEL ASYLUM SEEKERS (2019).
162. See generally Gammeltoft-Hansen & Hathaway, supra note 4 (describing the development of
non-entrée policies).
163. See, e.g., FRONTEX, RISK ANALYSIS FOR 2020, at 18 (2020), [Link]
Publications/Risk_Analysis/Risk_Analysis/Annual_Risk_Analysis_2020.pdf [[Link]
MCYJ] (“[M]ulti- or bilateral agreements [with third countries] can alleviate migratory pressure on
select border sections with almost immediate effect.”).
164. Id. These countries are Turkey, Ukraine, Belarus, Serbia, Morocco, Albania, Russia, Libya,
Bosnia and Herzegovina, Tunisia, Algeria, Moldova, Northern Macedonia, Montenegro, and Senegal.
Id. at 18–19.
165. Id. at 22.
166. Libya is a prime example of the externalization of European borders. Libya has historically
served as a nexus of migration through sub-Saharan Africa and into Europe and as a destination for
migrants. During and after the Qadaffi regime, a racialized backlash against sub-Saharan African
migrants enabled the creation of migration regimes, which sporadically expelled Black migrants from
the country and worked to prevent Black migration to Europe. These efforts, triggered by both Libyan
imperial histories and the direct interventions of European authorities, were achieved through racially
neutral language, but the result was deeply racialized enforcement. In the aftermath of the North
Atlantic Treaty Organization intervention, Europe has continued its “racialized regional containment
project,” using Libya as a migration buffer. See Achiume & Bâli, supra note 4, at 1423, 1428–29.
480 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

Third World citizens, jus sanguinis regimes similarly open the First World for
access. But for many nonwhite Third World citizens, it is the racialized and rap-
idly shrinking institution of asylum that serves as the only option for First World
access.167 This means that even when First World countries make facially neutral
moves to restrict asylum, for example through refugee resettlement and reunifica-
tion caps, these restrictions are de facto racially exclusive of nonwhite people.
B. RACE AS BORDER

My discussion thus far highlights the racialized bordering effect that results
from the interplay of nationality-based law and policy with geography and racial
demography. But race also operates more directly as territorial border infrastruc-
ture. In other words, race forms part of the institutional and physical apparatus
determining access to territory, where territory is geographical space that triggers
rights in virtue of physical presence in that space. In some respects, to say race is
a border is to name a function and meaning of race that is acknowledged and
demonstrated through the vast literatures inside and outside legal scholarship on
the caste-like properties of race, the ways in which it structurally subordinates
groups through their systemically diminished status as human beings.168 Within
U.S. legal scholarship specifically, critical race theorists have articulated the role
of law in the operation of race as a means and site of inclusion, exclusion, subor-
dination, and privilege, and much of this work implicitly tracks race as a bor-
der.169 I have highlighted above the racialized bordering of racial proxies in

167. Note that most Third World migration is within the Third World, and the Third World hosts
most refugees, notwithstanding First World complicity in generating some of the biggest and most
protracted refugee displacements. See E. Tendayi Achiume, The Fact of Xenophobia and the Fiction of
State Sovereignty: A Reply to Blocher & Gulati, 1 COLUM. HUM. RTS. L. REV. ONLINE 1, 12–13 (2017).
Third World citizens seek First World access for myriad reasons ranging from protection from extreme
human rights abuses to leisure and vacation travel. For the many who, in popular discourse, are
described as “economic migrants”—people who move in search of a better life, especially in relation to
economic opportunities—I have argued that they are political agents seeking greater capacity and more
equal opportunities for self-determination in the neocolonial metropoles (First World nation-states) that
profit from and are complicit in generating Third World economic migration. Achiume, supra note 1, at
1567–70.
168. Critical race theorists have long explored this facet of race and law’s role in it, as one of the
earliest critical race theory primers illustrates. See generally CRITICAL RACE THEORY: THE KEY
WRITINGS THAT FORMED THE MOVEMENT (Kimberlé Crenshaw et al. eds., 1995). My aim here is not to
conflate race with caste. As a recent debate on the relationship between the two illustrates, this
relationship is a complex one. See, e.g., Charisse Burden-Stelly, Caste Does Not Explain Race, BOS.
REV. (Dec. 14, 2020), [Link] [[Link]
D5T2-KQ7W]; Panashe Chigumadzi, Who Is Afraid of Race, BOS. REV. (Mar. 10, 2021), https://
[Link]/articles/panashe-chigumadzi-caste-review-2/ [[Link] Rather,
my point is that race and caste have functional similarities even if they cannot be collapsed into one
another. I consider my theorization of race as a border here as introductory and deserving of more
nuanced elaboration than is possible within the confines of this Article.
169. Devon Carbado’s work on what he terms “racial naturalization” in the U.S. national context is
especially illuminating on race as a mechanism of subordinate political inclusion. Carbado, supra note
6, at 637. He elaborates a theory of racial naturalization—the process through which racism naturalizes
or produces American subjects, a process structured by law and one that is simultaneously a process of
exclusion and inclusion. Id. at 637, 651 (stating that “racism [is] itself . . . a technology of
2022] RACIAL BORDERS 481

migration governance, and here, I foreground territorial bordering through

embodied race, which includes morphology and ancestry.170 I begin with a histor-
ical example before returning to the contemporary.
On July 27, 1919, a Black teenager named Eugene Williams was swimming in
Lake Michigan, Chicago—a city that at the time was fraught with racial tension
between Black and white people as a result of the Great Migration of African-
Americans fleeing the inhumanity of the Jim Crow South.171 During his swim,
Williams inadvertently drifted into a part of the water that was unofficially con-
sidered to be a “whites only” part of the lake. Chicago was not formally segre-
gated, but its territory was without a doubt racial—space and rights were
informally but effectively demarcated on a racial basis.172 A white beachgoer out-
raged by Williams’s act of trespass began throwing rocks at Williams.173 We
might think of this as an act of punishment.174 But it was also an act of border
enforcement. Williams drowned that day. One rumor was that he died from a
blow to the head, and another account was that the rock-throwing prevented him
from reaching the shore and that this is what ultimately caused his death.175 The

naturalization,” and racial naturalization is “a process or experience through which people enter the
imagined American community as cognizable racial subjects”); see also Jon E. Fox & Magda
Mogilnicka, Pathological Integration, or, How East Europeans Use Racism to Become British, 70 BRIT.
J. SOCIO. 5, 19 (2019) (“Racism was one tool that East Europeans drew upon to improve the perception,
if not the reality, of their integration into the UK.”). Carbado helpfully distinguishes legal incorporation
into the nation as distinct from racial incorporation therein and offers a way of understanding how the
two relate. He posits that “[t]o racially belong to America as a nonwhite is to experience racial
inequality.” Carbado, supra note 6, at 639. He highlights how race operates as a means of designating or
effecting subordinate status within the political hierarchy of the United States. See, e.g., id. at 654–55.
Carbado states:
Conceptualizing the color line as an internal border (or a series of borders) pro-
vides a way of highlighting the fact that racial identification is a form of documen-
tation. How we cross the borders of the color line and where socially we end up are
functions of the racial identification we carry.

Id. at 653.
170. For more on embodied race and migration, see Alana Lentin, Race, in 2 THE SAGE HANDBOOK
OF POLITICAL SOCIOLOGY 860, 866 (William Outhwaite & Stephen P. Turner eds., 2018) (“The most
unavoidable dimension of race is its attachment to particular bodies. However, . . . these are not arbitrary
bodies: the reason Black and non-white (brown) bodies are coded as racially inferior has everything to
do with the fact that Black and Brown people were to be found in the territories invaded by Europe from
which slaves were also taken. And, as the history of immigration to the ‘West’ reveals, this initial
linking of ‘color, hair and bone’ to relative power status endures: Black and Brown migrants continue to
be those either locked out of the world’s wealthy countries or occupying positions of relative domination
and exploitation within them.” (citation omitted)).
171. Robert Loerzel, Blood in the Streets, CHI. MAG. (July 23, 2019, 7:00 AM), [Link]
[Link]/chicago-magazine/august-2019/1919-race-riot/ [[Link]
172. See id.
173. Id.
174. Wisseman, supra note 73, at 53.
175. Loerzel, supra note 171. In the aftermath, several Black witnesses urged a white police officer
who was present to arrest the white man responsible for Williams’s death. He refused to do so, and
according to one report: “Tensions on the beach escalated and a skirmish ensued when the officer
arrested a black man instead.” Claire Barrett, The Chicago Race Riot of 1919: How the Death of Eugene
Williams Shook America, HISTORYNET (June 2, 2020), [Link]
482 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

death of Eugene Williams makes vivid the ways in which race operates as spatial
and indeed territorial border infrastructure. Even in the absence of any external
physical barrier, and in the absence of any individualized assessment of who he
was and what rights he might have had in Lake Michigan—his Blackness—the
specific social, political, and legal construction inscribed in the color of his skin
operated as a border.176 His Blackness marked him as a presumptive territorial in-
terloper and operationalized his personal exclusion, which in this case, was
achieved through a fatal stoning.
In the contemporary migration context, the embodied race of migrants—the
color of their skin, the texture of their hair, and so on—still functions as infra-
structure for their territorial exclusion from and subordinate inclusion within the
First World. Put differently, setting aside the subordinate status of Third World
nationality, nonwhiteness as a neocolonial racial category has territorial border-
ing properties that are evinced by racial profiling as a cornerstone in immigration
enforcement including in the enforcement of First World borders. My examples
below are drawn from Europe, but the United States might just as easily be the
focus.177

[Link] [[Link]
This event triggered six days of protest and racial violence, sometimes referred to as the Chicago Race
Riot of 1919—the biggest massacre of Black people by white supremacists across the United States
during the Red Summer. See id.; Loerzel, supra note 171.
176. Ian Haney López has helpfully defined race as “the historically contingent social systems of
meaning that attach to elements of morphology and ancestry,” a system that operates along physical,
social, and material dimensions. LÓPEZ, supra note 20. López stated:
First, race turns on physical features and lines of descent, not because features or
lineage themselves are a function of racial variation, but because society has
invested these with racial meanings. Second, because the meanings given to cer-
tain features and ancestries denote race, it is the social processes of ascribing
racialized meanings to faces and forbearers that lie at the heart of racial fabrica-
tion. Third, these meaning-systems, while originally only ideas, gain force as they
are reproduced in the material conditions of society. The distribution of wealth and
poverty turns in part on the actions of social and legal actors who have accepted
ideas of race, with the resulting material conditions becoming part of and rein-
forcement for the contingent meanings understood as race.

Id.
177. For example, Devon Carbado notes that immigration raids “within the [United States’] interior
. . . suggest that the color line operates both as a fixed checkpoint (at the physical borders of the United
States) and as a roving patrol (within the interior).” Carbado, supra note 6, at 654. As I discuss in more
detail in the text that follows, racial profiling in immigration enforcement is an especially vivid
illustration of embodied race as territorial border infrastructure. See infra notes 178–91 and
accompanying text. U.S. race and immigration scholars have produced a literature spotlighting this
example of race as a border, and how U.S. courts have repeatedly upheld the use of race and ethnicity as
a means of criminal and immigration law enforcement. For examples of such scholarship, see generally
Ashar, supra note 158; Gabriel J. Chin & Charles J. Vernon, Reasonable but Unconstitutional: Racial
Profiling and the Radical Objectivity of Whren v. United States, 83 GEO. WASH. L. REV. 882 (2015);
Kristin Connor, Updating Brignoni-Ponce: A Critical Analysis of Race-Based Immigration
Enforcement, 11 N.Y.U. J. LEGIS. & PUB. POL’Y 567 (2008); Kevin R. Johnson, The Case Against Race
Profiling in Immigration Enforcement, 78 WASH. U. L.Q. 675 (2000); Kevin R. Johnson, How Racial
Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v.
2022] RACIAL BORDERS 483

Even though possession of a Schengen visa in principle confers permission to

travel within the entire region, researchers note that “skin colour” is among the most
powerful border control triggers within Schengen.178 A rare study of racial profiling
in immigration enforcement from within the European Union—focusing on the
Dutch agency responsible for intra-Schengen border enforcement within the
Netherlands179—helps illuminate the concept of race as territorial border infrastruc-
ture. In the context of highway stops in the Netherlands, studies have found that
among the leading heuristics deployed by immigration enforcement officials to iden-
tify potential irregular immigrants is whether, in the officials’ eyes, the individuals
driving by “look[ed] Dutch.”180 Officials in one study equated looking Dutch with
whiteness, on the basis that although the Netherlands is a racially and ethnically
diverse country,181 it is predominantly white.182 This conflation of Dutchness and
whiteness is noteworthy given that the nation-state that currently comprises the
Kingdom of the Netherlands includes three Caribbean national territories—Aruba,
Curaçao, and Sint Maartin—that are predominantly nonwhite.183 Officers in the
study were cognizant of possible allegations of discrimination and racial or ethnic
profiling but perceived it as a necessary evil because, as they told the author of the
study, “how else would you recognise an irregular immigrant?”184 As the author of
the study notes, appearance—race specifically—functions as a proxy for nationality
among immigration officials, and it does so even though the data collected by these
enforcement agencies shows that the greatest proportion of drivers stopped were
actually Dutch: “[W]hile these individuals were Dutch, most did not fit the officers’
description of a Dutch person, that is, they were not white.”185
I mention this study because it offers a granular view of how race as a structure
of exclusion operates as a territorial border that attaches to individual bodies,

United States and the Need for Truly Rebellious Lawyering, 98 GEO. L.J. 1005 (2010); and McKanders,
supra note 87.
178. Bigo & Guild, supra note 96, at 240.
179. Tim (T.J.M.) Dekkers, Selection in Border Areas: Profiling Immigrants or Crimmigrants?, 58
HOW. J. CRIME & JUST. 25, 29–30 (2019) (describing the study).
180. Id. at 35.
181. Almost a quarter of the Dutch population is “people who were born abroad or who were born in
the Netherlands and have at least one parent who was born abroad.” Achiume, supra note 24, ¶ 6.
182. Dekkers, supra note 179, at 35. In a different study on Dutch immigration enforcement, the
authors note that “almost all [immigration enforcement] officers we met were white males and perceived
non-whiteness as an important indicator of foreignness. In practice this meant that during our
observations primarily black or Arab-looking people were stopped.” Jelmer Brouwer, Maartje van der
Woude & Joanne van der Leun, (Cr)immigrant Framing in Border Areas: Decision-Making Processes
of Dutch Border Police Officers, 28 POLICING & SOC’Y 448, 452 (2018).
183. The Kingdom comprises the following countries: the Netherlands, Aruba, Curaçao, and Sint
Maarten. The Netherlands, in addition to its European municipalities, also includes three special
municipalities in the Caribbean—Bonaire, Sint Eustatius, and Saba. See One Kingdom—Four
Countries, KINGDOM NETH., [Link]
countries [[Link] (last visited Dec. 30, 2021).
184. Dekkers, supra note 179, at 37.
185. Id. at 35. Dekkers notes that “[o]fficers used national stereotypes based on skin colour, facial
features, or race, to identify ‘high-risk nationalities’ to combat the crimes associated with those
nationalities.” Id. at 37.
484 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

even in places that self-conceptualize as post-racial liberal bastions.186 The words

of a different Dutch immigration enforcement officer make the point succinctly:
“When people ask if we select on the basis of skin colour, then we have to readily
admit that. Somebody’s skin colour is for us the first sign of possible
illegality.”187
Morocco is part of the frontline of the European Union’s extraterritorialized
border, and Frontex boasts that in 2019 “Morocco detected more than [27,000]
irregular migrants.”188 How are irregular migrants detected? In practice,
European pressure precipitates detection methods and bordering practices that
rely heavily on embodied race to “border” effectively. I had the experience of
traveling across Morocco from the south of the country to the north on an official
United Nations (U.N.) mission and witnessed a vivid manifestation of the border-
ing function performed by an individual’s embodiment of race.189 In the south of
the country, Black African migrants and refugees had relative freedom of move-
ment. As I traveled north and approached Europe, there were progressively fewer
Black Africans in public spaces. Tangiers, the city closest to Europe, exemplified
this dynamic, where even Black lawful permanent residents felt unsafe in public.
I soon learned of the intensive immigration enforcement operation in place that

186. In a U.N. report on racial equality in the Kingdom of the Netherlands, I describe a Dutch
paradox. The Netherlands has a strong formalized commitment to equality, nondiscrimination, and
tolerance, and it identifies itself as a racially inclusive nation. At the same time, Dutch political
discourse contains deeply entrenched notions of racialized citizenship that excise people of African and
Asian descent from national belonging. In other words, the Dutch paradox is that “insistence that
equality and tolerance already exist operates as a barrier to achieving this equality and tolerance in fact,
because the insistence makes it difficult to mobilize the resources and action necessary to ensure
equality, non-discrimination and inclusion for all.” End of Mission Statement of the Special Rapporteur
on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance at the
Conclusion of Her Mission to the Kingdom of the Netherlands, The Hague (7 October 2019), UHCHR,
[Link] [https://
[Link]/WAB9-SJZ7]. Gloria Wekker provides a powerful exposition of Dutch colonial amnesia and
postcolonial legacies of race in the Kingdom that is crucial for understanding contemporary racial
discrimination and injustice there. See generally GLORIA WEKKER, WHITE INNOCENCE: PARADOXES OF
COLONIALISM AND RACE (2016).
187. Brouwer et al., supra note 182, at 453. In the United States, the intersection of anti-Black racial
criminalization and immigration enforcement reinforces the bordering properties of race. Karla
McKanders describes how when Black immigrants enter the United States, it is their Blackness that
functions as their primary identifier, subjecting them to racialized policing practices that mean that
“immigrants of African descent are more likely to be detained and deported than other immigrants,”
including Latinx immigrants, according to studies based on Department of Homeland Security statistics.
McKanders, supra note 87, at 1145. On the urgency and complexity of multiracial immigrants rights
advocacy, see generally Kevin R. Johnson, The Case for African American and Latina/o Cooperation in
Challenging Racial Profiling in Law Enforcement, 55 FLA. L. REV. 341 (2003).
188. FRONTEX, supra note 163, at 21.
189. I conducted this visit in my capacity as U.N. Special Rapporteur on Contemporary Forms of
Racism, Racial Discrimination, Xenophobia and Related Intolerance. For a summary of my findings,
including in relation to racial discrimination in border enforcement, see generally End of Mission
Statement of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination,
Xenophobia and Related Intolerance at the Conclusion of Her Mission to the Kingdom of Morocco,
OHCHR (Dec. 21, 2018), [Link]
24043&LangID=E [[Link]
2022] RACIAL BORDERS 485

relied on racial profiling as its means of identifying (and in many cases determin-
ing) migrants who were unlawfully present and presumed to be journeying to
Europe.190
Documented and undocumented Black Africans alike were subject to interior
immigration enforcement actions that sometimes involved their forceable trans-
portation to the southern border of the country—hundreds of kilometers from
their homes in the north. Testimonies of migrants subject to this treatment made
plain how their race, and their Blackness specifically—the meaning of the color
of their skin, texture of their hair, and so on—marked them as interlopers in
spaces and territories designated as white or for white benefit. And in some cases,
even legal documentation could not override the presumption of illegality
encoded in their Blackness.191 Among the priorities of Frontex is combatting ille-
gal migration, and as the agency itself concedes, any picture of the extent of ille-
gal migration in the European Union at any given time is the product of both the
actual numbers of unlawfully present persons and the amount and nature of the
resources deployed to detect these persons.192 Race emerges as an illegality detec-
tion and production mechanism, as border infrastructure relied upon to presump-
tively exclude, subordinate, and immobilize through nonwhiteness, while
presumptively including and facilitating the mobility through whiteness.
Across the European Union, nonwhiteness, which includes religious racializa-
tion of Muslims or people perceived as Muslim, is conflated with presumed ille-
gality or outsider status.193 Garner notes that “people often visually identify

190. As I noted in my official report on this visit, whereas Morocco has been able to impressively
steer clear of measures such as routine or prolonged immigration detention, pressure from the European
Union has intensified border racialization. Id.
191. Another example is racialized migration governance in Libya centrally implicating the
European Union. See Achiume & Bâli, supra note 4, at 1428–29.
192. See FRONTEX, supra note 163, at 13, 20 (providing the example that “[b]etween 1 January and
30 November 2019, Turkey reportedly prevented roughly 84[,]000 seaborne, and over 41[,]000 land-
borne departures of migrants towards the EU”).
193. Discrimination on the basis of Muslim identity or perceived Muslim identity is increasingly
understood as a form of racism. See Muneer I. Ahmad, A Rage Shared by Law: Post-September 11
Racial Violence as Crimes of Passion, 92 CALIF. L. REV. 1259, 1278 (2004) (“[T]he ‘Muslim-looking’
construct is neither religion- nor conduct-based.”); Stephanie E. Berry, Bringing Muslim Minorities
Within the International Convention on the Elimination of All Forms of Racial Discrimination—Square
Peg in a Round Hole?, 11 HUM. RTS. L. REV. 423, 443, 446 (2011) (pointing out the “clear connection”
between religion and ethnic identity vis-à-vis discrimination against Muslims in Europe); Emmanuel
Mauleón, Black Twice: Policing Black Muslim Identities, 65 UCLA L. REV. 1326, 1332 (2018)
(exploring how the intersectional experiences of Black Muslims illustrate “the inherent racialization of
religion, and the antiblack origins of American Islamophobia”); Steve Garner & Saher Selod, The
Racialization of Muslims: Empirical Studies of Islamophobia, 41 CRITICAL SOCIO. 9, 17 (2015)
(“[R]egardless of physical appearance, country of origin and economic situation, Muslims are
homogenized and degraded by Islamophobic discourse and practices in their everyday lives. In a set of
social interactions, they are ‘interpellated’, to use Althusser’s term, solely as Muslims. This
interpellation relates dress to visible physical markers, transforming their bodies into racialized Others:
Muslims.” (citation omitted)). See generally Saher Selod & David G. Embrick, Racialization and
Muslims: Situating the Muslim Experience in Race Scholarship, 7 SOCIO. COMPASS 644 (2013) (tracing
the racialization of Arabs and of Muslims more broadly). In 2018, the All-Party Parliamentary Group on
British Muslims defined Islamophobia as “rooted in racism” and “a type of racism that targets
486 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

people of color as ‘asylum-seekers’ or ‘illegal immigrants,’” resulting in even EU

citizens who are nonwhite being conflated with outsiders.194 For nonwhite EU
citizens, the operation of race as a border—a means of enforcement of political
and even territorial exclusion (or subordinate inclusion)—is especially vivid.
They are disproportionately targeted in immigration enforcement through racial
profiling195 and subject to the racialized presumption of illegality and outsider
status that is fed by the restricted pathways for legal migration of nonwhite peo-
ple, and “the constant deployment of symbolic actions [in the European Union
that] generates its own ideological and material ‘autonomy.’”196 In the United
Kingdom, where private individuals have gradually been deputized by law as im-
migration enforcers,197 these private individuals—at risk of legal penalties—also
deploy race as a border. For example, in England, landlords are required to deny
rentals to noncitizens not in possession of proof of legal immigration status, and
failure to do so can result in a civil penalty198 and perhaps imprisonment of the
landlord.199 A study found that twenty-seven percent of landlords surveyed
reported being reluctant to providing accommodation to people with “foreign
accents or names” and that right to rent checks were not being undertaken uni-
formly but were instead “directed at individuals who appear ‘foreign’.”200 This
sort of racial bordering would affect nonwhite British citizens and noncitizens
alike.
Embodied whiteness, by way of contrast, functions as a mechanism of presump-
tive inclusion rather than exclusion and as a mechanism of mobility facilitation on

expressions of Muslimness or perceived Muslimness.” ALL PARTY PARLIAMENTARY GRP. ON BRIT.

MUSLIMS, ISLAMOPHOBIA DEFINED: THE INQUIRY INTO A WORKING DEFINITION OF ISLAMOPHOBIA 11
(2018), [Link]
ceee/1543315109493/Islamophobiaþ[Link] [[Link]
194. Garner, supra note 125, at 69.
195. See id. at 69–70, 76.
196. Id. at 76.
197. See E. Tendayi Achiume (Special Rapporteur), Rep. of the Special Rapporteur on
Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance on Her
Visit to the United Kingdom of Great Britain and Northern Ireland, ¶ 53, U.N. Doc. A/HRC/41/54/
Add.2, annex (May 27, 2019).
198. HOME OFF., RIGHT TO RENT: LANDLORDS’ PENALTIES 6–7 (2020), [Link]
[Link]/government/uploads/system/uploads/attachment_data/file/934469/right-to-rent-land lords-
[Link] [[Link]
199. Right to Rent Resources, NAT’L RESIDENTIAL LANDLORDS ASS’N, [Link]
resources/pre-tenancy/right-to-rent [[Link] (last updated Aug. 26, 2021).
200. SAIRA GRANT & CHARLOTTE PEEL, JOINT COUNCIL FOR THE WELFARE OF IMMIGRANTS, “NO
PASSPORT EQUALS NO HOME”: AN INDEPENDENT EVALUATION OF THE ‘RIGHT TO RENT’ SCHEME 11
(2015), [Link]
20Right%20to%20Rent%20Independent%20Evaluation_0.pdf [[Link]
2022] RACIAL BORDERS 487

the international stage.201 For white people not in possession of immigration au-
thorization, their whiteness can override their “illegality.”202 The Dutch racial
profiling examples above, although highlighting nonwhiteness as a mechanism of
territorial bordering, also implicitly reveal whiteness as embodied presumptive
territorial access. The privileges of whiteness are by no means absolute—it is not
an impenetrable shield from exclusion or exploitation. Indeed, the meaning of
whiteness is not itself uncontested within Europe, and where economic exploita-
tion is structurally facilitated through immigration regimes either by conferring
illegality that results in precarious labor conditions or through exploitative visa
categories, it has a blurring effect on who counts as white. Nationalities and indi-
viduals subject to the structural economic exploitation through immigration law
are racially produced as nonwhite or at least as questionably white in Europe,
even if they are unquestionably European.203 That said, there can be no doubt that

201. Max Andrucki, for example, contends that “we cannot speak of ‘whiteness’ without reference to
the actual bodies of white people and how, in particular, those bodies are shaped through spatial
practice.” Max J. Andrucki, The Visa Whiteness Machine: Transnational Motility in Post-Apartheid
South Africa, 10 ETHNICITIES 358, 360 (2010). He describes whiteness as “an embodied and material
accomplishment” and argues that a characteristic of embodied whiteness today is the “capacity to move
across borders,” which “is linked both to earlier histories of movement and the current globalizing era.”
Id.
202. For example, in her study, Elzbieta Gozdziak notes: “Europeans constitute a considerable
number of undocumented migrants seeking better life and opportunities in the United States.” Elzbieta
M. Gozdziak, Illegal Europeans: Transient Between Two Societies, in ILLEGAL IMMIGRATION IN
AMERICA: A REFERENCE HANDBOOK 254, 254 (David W. Haines & Karen E. Rosenblum eds., 1999).
She notes that the figure was approximately 234,300 at that time, with the most represented nationalities
being Polish and Irish. Id. She explains the exploitation and precarity these migrants experience as a
result of their undocumented status, but she notes that “inconspicuousness enables undocumented
Europeans to carry on reasonably satisfactorily” and clarifies that this inconspicuousness is a product of
their whiteness. Id. at 254, 261. Contrast the experiences of white undocumented migrants to that of
Black and Latinx migrants in the United States whose race magnifies their likelihood of deportation. See
McKanders, supra note 87, at 1145.
203. See Angéla Kóczé, Race, Migration and Neoliberalism: Distorted Notions of Romani Migration
in European Public Discourses, 24 SOC. IDENTITIES 459, 470 (2018) (linking anti-Roma migration
policies to neoliberal structures, particularly neoliberal capitalism, which reify the “binary between the
ideal neoliberal citizen and those abject ‘non-citizens’ who inhabit the illegalized ‘nomad camp’” with
particular emphasis on how Romani migrants are racialized as inherently threatening to white citizens);
Nira Yuval-Davis, Georgie Wemyss & Kathryn Cassidy, Introduction to the Special Issue: Racialized
Bordering Discourses on European Roma, 40 ETHNIC & RACIAL STUD. 1047, 1047–49, 1051–54 (2017)
(illustrating how both macro-level political processes and micro-level discursive practices operated as
“borderings,” which reified Roma people’s status as racially distinct “Others”); Jon E Fox, Laura
Moros �anu & Eszter Szilassy, The Racialization of the New European Migration to the UK, 46 SOCIO.
680, 691 (2012) (comparing the discursive racialization of Romanians and Hungarians in the United
Kingdom and concluding that the more stringent immigration restrictions on Romanians facilitated their
racialization and their alienation from whiteness to an extent unexperienced by Hungarian migrants);
Anikó Imre, Whiteness in Post-Socialist Eastern Europe: The Time of the Gypsies, the End of Race, in
POSTCOLONIAL WHITENESS: A CRITICAL READER ON RACE AND EMPIRE 79, 80 (Alfred J. López ed.,
2005) (arguing first that discourses of colonization, race, and whiteness are ingrained in East European
societies, despite their purported distance from colonialism, and second that the racialization of Roma
through cultural stereotypes is one mechanism whereby racism and imperialism has influenced the
fabric of East European nations).
488 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

whiteness is a presumptively superior status to nonwhiteness where most, even if

not all, international migration and mobility is concerned.
Through the persisting salience of bloodline in calibrating the borders between
the First and the Third World through visa regimes, we see a different facet of
race as territorial border infrastructure. Again, the United Kingdom is vividly il-
lustrative. U.K. visa restrictions do not affect all African nationals equally.
Africans of European ancestry, who are at this stage almost entirely de facto
white, can use their bloodlines to circumvent restrictions that apply to their Black
conationals. For example, a 2010 study mapped the visa regimes that “facilitate
access of white South Africans to the UK and Europe.”204 The author of this study
identified a number of visa categories available to South Africans based on the
historical colonial relationship between South Africa and the United Kingdom.205
One example is the U.K. Ancestry Visa that is available to South Africans with a
grandparent, and in some cases a great-grandparent, born in the United Kingdom,
which grants the bearer five years of work authorization with a pathway to citi-
zenship.206 Further, under this visa, British nationality is available to South
Africans with at least one British parent.207 The U.K. Ancestry Visa remains re-
stricted to Commonwealth citizens who can prove that one of their grandparents
was born in the United Kingdom, the Channel Islands, or the Isle of Man.208
Africa’s formerly settled British colonies including South Africa, Zimbabwe, and
Kenya all have citizens with grandparents and great-grandparents born in the
United Kingdom, and almost all of these qualifying citizens are likely to be
white.209 This means, in effect, that the benefit of the Ancestral Visa is allocated
on a racial basis. The justification of this differential access to the United
Kingdom can be divorced neither from empire (past and present) nor from the
meaning of race as a structure of imperial privilege, as I expand upon in Part III.
C. RACIAL BORDER DOCTRINE IN INTERNATIONAL LAW

From the rejection of the racial equality clause from the treaty of the League of
Nations to the present day, international law has granted states capacious discre-
tion to engage in racialized national exclusion and migration and mobility con-
trol. Historically, the evolution of sovereignty doctrine toward a more absolutist
conception of the right to exclude non-nationals was driven by racist colonial
ambitions, as canvassed in Part I. Today, sovereignty-based justifications remain

204. Andrucki, supra note 201, at 359 (“I draw on interview data to argue that whiteness can be
understood as a material racial formation through its contingent co-constitution, at a variety of scales,
with mobilities both past and present, or what I call the ‘visa whiteness machine.’”).
205. Id. at 363.
206. Id.
207. Id. at 363–64. Andrucki estimates that this category applies to about 600,000 South Africans. Id.
208. UK Ancestry Visa, [Link], [Link] [[Link]
(last visited Dec. 31, 2021).
209. See EL-ENANY, supra note 4, at 4. (“In 1971 a person born in Britain was most likely (98%) to
be white.”).
2022] RACIAL BORDERS 489

legal shields that enable racial conduct and policy210 that would, in many jurisdic-
tions, amount to prohibited discrimination if the conduct or policy were not laun-
dered through the categories of nationality.211 The provisions of the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
make this plain.212
ICERD offers the most comprehensive antiracial discrimination framework at
the international level. It defines prohibited racial discrimination broadly to
include:

[A]ny distinction, exclusion, restriction or preference based on race, colour,

descent, or national or ethnic origin which has the purpose or effect of nullify-
ing or impairing the recognition, enjoyment or exercise, on an equal footing,
of human rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life.213

But subsequent provisions narrow this definition in two important respects.

First, ICERD does not apply to “distinctions, exclusions, restrictions or preferen-
ces made by a State Party . . . between citizens and non-citizens.”214 Second, noth-
ing in ICERD “may be interpreted as affecting in any way the legal provisions of

210. See, e.g., LESTER, supra note 43, at 15, 19 (“[K]ey international human rights instruments have,
with Australia’s insistence, integrated many of the same legitimising assumptions that are embodied in
the idea of ‘absolute sovereignty[,]’ [which came out of the white Australia policy].”).
211. Although the concepts of nationality and citizenship are often used interchangeably, the two are
technically distinct (if overlapping) under international law. Although the difference between the two is
now “vanishingly small,” nationality refers to the link tying an individual to a state for international
purposes, and citizenship is a concept oriented inwardly, defined by national or municipal law and
denoting the rights of political membership. Peter J. Spiro, A New International Law of Citizenship, 105
AM. J. INT’L L. 694, 695 n.6 (2011). Traditionally, international law has typically reserved the regulation
of nationality and citizenship to the domestic jurisdiction of states, and although international law has
increasingly placed some constraints on this regulation, the extent to which it prohibits racial
discrimination, let alone racial injustice, in the conferral and withdrawal of citizenship and nationality
remains heavily contested. For a review of international regulation of nationality and citizenship
historically and the shifts in public international legal doctrine toward a nascent international law of
citizenship, see generally id. On the application of international law to racial discrimination in
nationality laws, and on the scope of Article 1(3) of the International Convention on the Elimination of
All Forms of Racial Discrimination (ICERD), see generally Foster & Baker, supra note 4. There is a fair
amount of consensus that international law prohibits arbitrary deprivation of nationality, where arbitrary
deprivation includes deprivation on the basis race or ethnicity. Id. at 100–02; see also INST. ON
STATELESSNESS & INCLUSION, supra note 91, at 156 (emphasizing that the “[a]rbitrary deprivation of
nationality is prohibited in international law”). But although the right to a nationality is characterized in
legal scholarship as an ascendant international norm, international doctrine and the regional human
rights doctrine prohibiting racial discrimination has preserved wide latitude for racialized exclusion
from and through nationality (and citizenship) status. See Spiro, supra, at 694–95; Foster & Baker, supra
note 4, at 99.
212. International Convention on the Elimination of All Forms of Racial Discrimination, adopted
Dec. 21, 1965, 660 U.N.T.S. 195 [hereinafter ICERD].
213. Id. at art. 1(1), 660 U.N.T.S. at 216 (emphasis added). Article 5 also requires states to prohibit
and eliminate racial discrimination in enjoyment of the right to nationality, “without distinction as to
race, colour, or national or ethnic origin.” Id. at art. 5, 660 U.N.T.S. at 220.
214. Id. at art. 1(2), 660 U.N.T.S. at 216. The Committee on the Elimination of Racial Discrimination
(CERD) has articulated firm constraints on the citizenship carveout, CERD General Recommendation
490 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

States Parties concerning nationality, citizenship or naturalization, provided that

such provisions do not discriminate against any particular nationality.”215 The cit-
izenship and nationality carveouts to the otherwise robust prohibition on racial
discrimination were advanced by First and Third World countries but for differ-
ent reasons.216 For First World countries, for example the United Kingdom,
France, and Italy, concerns included retaining special means of naturalization for
former nationals and their descendants.217 Such exceptions would be especially
valuable for preserving the means of naturalizing returning colonial and coloniz-
ing migrants and their descendants alongside restrictions for formerly colonized
persons with advancing decolonization. Third World states feared restrictions
that would prevent them from undoing the dominance of nationals of former co-
lonial powers in their territories.218 First World nation-states sought to use sover-
eignty to preserve the racially segregated colonial order on their own terms, and
Third World nation-states sought to use sovereignty to undo colonial relations in
their newly independent states.219
By reserving the regulation of nationality primarily to the domestic jurisdiction
of nation-states and maintaining ambiguities in the extent to which states’ racial-
ized exclusion of non-nationals is prohibited, states have crafted international law
to serve as a permissive doctrinal baseline for national legal schemes of racialized
exclusion of non-nationals. Within domestic liberal-democratic legal frame-
works, nationality within immigration regimes remains a mostly bulletproof

30, but these constraints remain controversial among states. See Comm. on the Elimination of Racial
Discrimination, Off. of the High Comm’r for Hum. Rts., CERD General Recommendation XXX on
Discrimination Against Non-Citizens (Oct. 1, 2002), [Link]
[[Link] Elsewhere, I have argued for a narrow interpretation of the citizenship
carveout, but my point here is that ICERD nonetheless forms a part of the canon of liberal sheltering of
racial injustice through border and migration regimes. See Achiume, Governing Xenophobia, supra note
4, at 357 & n.81; E. Tendayi Achiume, Beyond Prejudice: Structural Xenophobic Discrimination
Against Refugees, 45 GEO. J. INT’L L. 323, 327–28, 354 n.141 (2014).
215. ICERD, supra note 212, at art. 1(3), 660 U.N.T.S. at 216. Foster and Baker use the peremptory
norm of racial discrimination to support a narrow reading of Article 1(3). See Foster & Baker, supra
note 4, at 140.
216. Notwithstanding this alignment, the drafting history of ICERD Articles 1(2) and 1(3) is fairly
convoluted and reveals a diversity of perspectives on whether and how to address nationality,
citizenship, and national origin in the treaty. And although a number of First and Third World states
supported the citizenship and nationality carveouts, others did not. In fact, a mixture of First and Third
World states also variously opposed and supported inclusion of national origin in Article 1(1). The
relevant debates occurred first in the U.N. Sub-Commission on Prevention of Discrimination and
Protection of Minorities, E/CN.4/Sub.2/SR.406–07, 410–12, 414, 425, 427; then in the Commission on
Human Rights, E/CN.4/874, E/CN.4/SR.784–86, E/CN.4/SR.802–05,807–10; and finally in the U.N.
Third Committee of the General Assembly, A/C.3/SR.1299, 1301, 1304–07. See Memorandum from
Rob Viano to E. Tendayi Achiume, Alicia Mi~ nana Chair in Law, UCLA Sch. of L. (July 6, 2021) (on file
with author) (listing the sources to the U.N. documents).
217. See Foster & Baker, supra note 4, at 111–12.
218. See id. at 111.
219. For an illuminating analysis of the travaux préparatoire of ICERD Article 1(3), see id. at 107–
14.
2022] RACIAL BORDERS 491

mechanism for racialized exclusion and differentiation.220 The U.K. Equality

Act, for example, prohibits direct and indirect discrimination based on race,
which it defines broadly to include color, nationality, ethnic, or national origin.221
Indirect discrimination includes a provision, criterion, or practice that “puts, or
would put, persons with whom [a person] shares [a protected characteristic] at a
particular disadvantage when compared with persons with whom [they do] not
share it.”222 On its face, such a provision would seem to offer a starting point for
legally challenging immigration and naturalization regimes that via nationality or
national origin result in racialized exclusion. But the Equality Act includes a
clause that shields race discrimination on the bases of nationality, ethnic, or
national origin when the conduct or provision is pursuant to the U.K.’s immigra-
tion acts.223
The Race Equality Directive—which applies to “all persons, as regards both
the public and the private sectors” within the European Union—prohibits direct
and indirect discrimination based on racial or ethnic origin.224 But the Directive
also explicitly states:

[It] does not cover difference of treatment based on nationality and is without
prejudice to provisions and conditions relating to the entry into and residence
of third-country [non-EU] nationals and stateless persons on the territory of
Member States, and to any treatment which arises from the legal status of the
third-country nationals and stateless persons concerned.225

Notably, nationality discrimination is prohibited in relation to EU Member

States’ nationals,226 but this prohibition does not extend to treatment of non-EU
nationals.227

220. For references to immigration scholarship that has mapped this dynamic in the laws of the
United States, see supra note 87. The pioneering work of scholars such as Kevin R. Johnson makes it
difficult to deny that immigration law, policy, and enforcement in the United States are both
fundamentally racialized and deeply insulated from legal challenges. Other scholars have highlighted
the insidious effects of “immigration exceptionalism” or “border exceptionalism” and have noted that
official law, policy, and conduct governing immigrants have been insulated from fundamental liberal
constitutional protections, including equality, on sovereignty grounds. See, e.g., Kerry Abrams, Essay,
Plenary Power Preemption, 99 VA. L. REV. 601, 615, 640 (2013); Jennifer M. Chacón, Border
Exceptionalism in the Era of Moving Borders, 38 FORDHAM URB. L.J. 129, 129 (2010); Gabriel J. Chin,
Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46
UCLA L. REV. 1, 3–4 (1998); Kevin R. Johnson, Keynote to Immigration in the Trump Era Symposium:
Judicial Review and the Immigration Laws, 48 SW. L. REV. 463, 465 (2019).
221. Equality Act 2010, c. 15, §§ 4, 9(1), 13, 19 (UK).
222. Id. § 19(2)(b).
223. See id. § 17, sch. 3.
224. Council Directive 2000/43, Implementing the Principle of Equal Treatment Between Persons
Irrespective of Racial or Ethnic Origin, arts. 2(1), 3(1), 2000 O.J. (L 180) 24 (EC).
225. Id. art. 3(2).
226. See Consolidated Version of the Treaty on the Functioning of the European Union art. 18, Oct.
26, 2012, 2012 O.J. (C 326) 56 (EU).
227. See, e.g., Joined Cases C-22/08 & C-23/08, Vatsouras v. Arbeitsgemeinschaft (ARGE) Nürnberg
900, 2009 E.C.R. I-4609, I-4627.
492 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

The European Court of Human Rights case, Abdulaziz v. United Kingdom,

offers a striking example of the excessive tolerance of the European human rights
system for nationality and national origin discrimination, even when the underly-
ing racialized and colonial motivations of immigration law and policy are part of
the judicial record and the racialized and colonial outcomes of the law are simi-
larly uncontested.228 The Abdulaziz judgment combined the cases of three women
who challenged British immigration law that imposed greater restrictions on non-
patrial women seeking to have their foreign-national husbands migrate to the
United Kingdom than it did on patrials and nonpatrial men seeking to have their
foreign-national wives migrate to the United Kingdom.229 The complainants
alleged that this differential treatment between, on the one hand, nonpatrial
women and, on the other hand, patrial women and nonpatrial men constituted
racial and sex discrimination respectively.230 The U.K. government justified its
differential treatment on the basis that it sought to protect the domestic labor mar-
ket from competition from nonpatrial men.231
The court ruled that the restrictions constituted sex discrimination because “the
advancement of the equality of the sexes is . . . a major goal in the member States
of the Council of Europe,” and the government had failed to provide sufficiently
compelling reasons for the differentiation between sexes.232 But it reached a dif-
ferent conclusion with respect to race discrimination. A minority of the commis-
sion that adjudicated the case prior to the court’s determination highlighted that
the legislative history of the respective immigration provisions showed that they
had been intended to “lower the number of coloured immigrants” by imposing
restrictions that targeted the predominantly nonwhite, “New Commonwealth.”233
But notwithstanding this legislative history and that the British government’s os-
tensible efforts to protect the domestic labor market favored persons of white
racial or ethnic origin (patrials) over nonwhite people (non-patrials), the court
found no race discrimination.234 It did so on the grounds that it regarded the
exceptions that benefitted patrials “as being exceptions designed for the benefit of
persons having close links with the United Kingdom.”235

228. Abdulaziz v. United Kingdom, App. Nos. 9214/80, 9473/81, 9474/81 (May 28, 1985), http://
[Link]/eng?i=001-57416 [[Link] For a discussion of the
nationality-based discrimination case law of the European Court of Human Rights, see generally de
Vries & Spijkerboer, supra note 4. On the low success rate of international human rights and
European human rights nondiscrimination claims involving migration control, see generally Colm
´ Cinnéide, Why Challenging Discrimination at Borders Is Challenging (and Often Futile), 115
O
AJIL UNBOUND 362 (2021).
229. See Abdulaziz, App. Nos. 9214/80, 9473/81 & 9474/81, ¶¶ 1, 10, 14. Recall that the “patrial”
category was established under the Immigration Act 1971 and comprised citizens of the British Islands
by birth or those who were children or grandchildren of such citizens, a category that as mentioned
above was predominantly white. Id. ¶ 14.
230. See id. ¶ 10.
231. See id. ¶ 75.
232. Id. ¶¶ 78–79, 83.
233. Id. ¶ 84.
234. Id. ¶ 85.
235. Id. (emphasis added).
2022] RACIAL BORDERS 493

Implicit in the court’s reasoning is that the blood ties of ancestry are legally
legitimate and worthy of protection, irrespective of their racial motives or effects.
Also implicit here is that colonial or imperial links not underwritten by blood ties
(those of nonpatrials) do not meet the threshold required for legal protection.236
Mrs. Abdulaziz, for example, was subject to British empire her entire life: she
was of Indian origin but born in Malawi in 1948 (when it was a part of the British
colonial empire); and she moved to the United Kingdom in 1977, where she was
lawfully admitted and granted residence as nonpatrial, British Commonwealth
citizen.237 Colonial British subjection, however, was deemed an insufficiently
“close link,” just as, for that matter, racial equality was implicitly deemed by the
court as not qualifying a “major goal” of the Council of Europe in the way that
sex equality was.238
As Spijkerboer notes, those denied access to the global mobility infrastructure
have no means of holding excluding states accountable for their exclusion, such
as through visa denials, and related consequences, including as a result of the lim-
ited reach of jurisdiction in applicable international human rights and refugee
doctrine.239 For example, European human rights law seems not to apply to the
those subject to the EU–Turkey deal,240 through which Europe ensures that
Syrian refugee access to Europe is severely restricted, even at the cost of Syrian
lives. As a more general matter, access to the global mobility infrastructure
comes with international legal and other protections that are simply not available
to those denied access. Legal international mobility and migration—which are
accessible on a differential basis including based on race—grant access to quali-
tatively stronger substantive legal and procedural protections within the First
World241 than the protections available to those who are foreclosed from the

236. In her analysis of European Court of Justice jurisprudence that challenged the patrial category
under the Immigration Act 1971, Nadine El-Enany similarly highlights that “the court accepted
partiality, that is, a connection to whiteness, as being the legitimate basis for belonging in Britain, and by
implication, in the [European Economic Community].” EL-ENANY, supra note 4, at 196. El-Enany
correctly identifies European courts as complicit in legitimizing the colonially appropriative effects of
immigration and nationality laws. See id.
237. Abdulaziz, App. Nos. 9214/80, 9473/81 & 9474/81, ¶ 39. Nonpatrial Commonwealth citizens
required special leave to enter and reside in the United Kingdom, whereas patrial Commonwealth
citizens were free from immigration controls because, according to the court citing the underlying
legislation, “[t]he status of ‘patrial’ was intended to designate Commonwealth citizens who ‘belonged’
to the United Kingdom.” Id. ¶ 14.
238. Note that following the Biao v. Denmark decision, in which the European Court of Human
Rights found a Danish family reunification policy to be prohibited indirect racial discrimination, at least
one scholar has speculated that this case raises the possibility for a different jurisprudential trajectory
that would tackle certain forms of structural racial discrimination in European immigration regimes. See
Biao v. Denmark, App. No. 38590/10 (May 24, 2016), [Link]
[[Link] Mathias Möschel, The Strasbourg Court and Indirect Race
Discrimination: Going Beyond the Education Domain, 80 MOD. L. REV. 121, 131 (2017).
239. See Spijkerboer, supra note 135, at 464–65. See generally GAMMELTOFT-HANSEN, supra note
144.
240. See Spijkerboer, supra note 135, at 465.
241. See id. at 465–66.
494 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

global mobility infrastructure but are nonetheless subject to the military, political,
and economic coercive power of the First World.
Cumulatively, then, the liberal bunkers for racial discrimination within border
and migration regimes seem to suggest racialized exclusion and subordinate
inclusion are at best tolerable and at worst necessary features of First World bor-
ders and the broader liberal international order. The various international and re-
gional antiracial discrimination legal instruments, with their citizenship and
nationality carveouts, might essentially be seen as liberal confessions that racial
discrimination and racial subordination in empire will reside in borders with min-
imal interference.242
III. NEOCOLONIAL RACIAL BORDER INJUSTICE
Part II mapped the racially disparate allocation of migration and mobility,
including through legal and policy regimes widely presumed to be race-neutral.
In this Part, my aim is to provide an account of the nature of the injustice perpe-
trated by what I have termed the contemporary system of racial borders. Few will
disagree that contemporary mobility and migration regimes produce racially dif-
ferentiated outcomes in effect, but as the legal analysis above reflects, the official
liberal legal position broadly accommodates racial borders. Furthermore,
although the explicit ethnonationalist border policies of right-wing regimes typi-
cally garner broad condemnation, visa policies and other more mundane features
of the contemporary system of racial borders are defended as legitimate and even
existential entitlements of sovereign nation-states.243
A common means of describing and justifying the geographic patterns of
exclusion that characterize visa regimes such as the Schengen regime is that the
exclusion is economic rather than racial, where economic and racial divisions are
treated as independent and severable. On this view, visa restrictions are about
wealthy countries’ legitimate interests in protecting their national wealth by
excluding citizens of poorer nations, and any racial patterning that may result
from this logic of exclusion is incidental and maybe even unfortunate but

242. Thanks are due to Karin de Vries, who shared this astute observation during a workshop on race,
migration, and international law.
243. I would argue that the predominant liberal view, for example, of the Schengen regime as race-
neutral is captured in an article by Maarten den Heijer. See Maarten den Heijer, Visas and Non-
Discrimination, 20 EUR. J. MIGRATION & L. 470, 474 (2018) (arguing that “the EU’s current rules and
decision-making on issuing or lifting a visa obligation for a particular group of nationals displays neither
direct nor indirect signs of discrimination”). Den Heijer primarily focuses on how the subsequent
amendments to the “white” and “black” lists have proceeded according to “a system of review that is
based on non-discriminatory benchmarks and objective data and statistics,” though he concedes that the
opaque initial creation of the visa list could have been based on impermissible discrimination. Id. at 480,
488. Under his view, den Heijer asserts that visa decisions are properly made based on “geopolitical and
economic self-interest” and concludes that, although racial or religious discriminatory effect is
impermissible, “[t]hat does not mean, however, that immigration policy may not be organised on the
basis of nationality.” Id. at 486, 488.
2022] RACIAL BORDERS 495

ultimately justifiable.244 A positivist and even liberal international legal account

of the borders of European countries within the European Union and African
countries within the African Union, for example, is that each regional bloc com-
prises equally independent nation-states, each with unilateral control over its bor-
ders and migration policy, control anchored in the sovereign right to collective
self-determination accorded to all nation-states equally. This right to exclude
includes the right to exclude for reasons to do with economic protection or other
legitimate facets of protecting the rights of collective self-determination held by
all nation-states.245
But liberal accounts such as these are ethically and politically misleading, even
if they correctly articulate extant international sovereignty doctrine. They belie
that EU countries (and the First World) remain “neocolonially” bound to African
countries (and the Third World more broadly) in ways that mean that the struc-
tural racialized exclusion of the contemporary system of racial borders produces
unethical racialized political inequality. The contemporary system of racial bor-
ders also facilitates racialized economic exploitation and political subordination,
and thus, remains a cornerstone of maintaining neocolonial interconnection. That
is, borders not only perpetuate political inequality on a racial basis but are also
essential technology for preserving racialized neocolonial interconnection, which
benefits the First World at the expense of the Third. And finally, racial borders
are also the site of unremedied historic injustice that warrants corrective justice
intervention.

244. I focus on economic self-preservation justifications for maintaining mobility and migration
regimes that are racial in effect, because I view these as currently enjoying greater legitimacy than
arguments that posit cultural preservation arguments. Concerns that Third World migrants are
“overwhelming the system” and collapsing the capacities of First World nations to adhere to the
economic dimensions of their social contracts with their own citizens have greater liberal traction than
arguments that Third World migrants are existential cultural pollutants of some kind. This is not to say
that cultural preservation arguments are neither salient nor powerful, and in Europe, for example, they
continue to justify some of the most outrageous forms of racial governance and exclusion, especially of
Muslims. See, e.g., E. Tendayi Achiume, Balakrishnan Rajagopal & Fernand de Varennes (Special
Rapporteurs), Mandates of the Special Rapporteur on Contemporary Forms of Racism, Racial
Discrimination, Xenophobia and Related Intolerance; the Special Rapporteur on Adequate Housing as a
Component of the Right to an Adequate Standard of Living, and on the Right to Non-Discrimination in
this Context; and the Special Rapporteur on Minority Issues, at 1–2, 4 U.N. Doc. UA DNK 3/2020 (Oct.
16, 2020) (drawing attention to the Danish government’s “[g]hetto [p]ackage” laws, which target
neighborhoods with predominantly “non-Western” residents with discriminatory measures such as
enhanced criminal penalties). As Etienne Balibar has noted, for example, contemporary First World
racism has centered on immigration, becoming a “racism without races” in which the “dominant theme
is not biological heredity but the insurmountability of cultural differences, a racism which, at first sight,
does not postulate the superiority of certain groups or peoples in relation to others but ‘only’ the
harmfulness of abolishing frontiers, the incompatibility of life-styles and traditions.” Etienne Balibar, Is
There a ‘Neo-Racism’?, in RACE, NATION, CLASS: AMBIGUOUS IDENTITIES 17, 21 (Chris Turner trans.,
Verso Books 1991) (1988).
245. See Achiume, supra note 1, at 1524.
496 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

A. RACIALIZED POLITICAL INEQUALITY

In Migration as Decolonization, I argue that contemporary national borders are

neocolonial borders, a critique I targeted especially at the borders of First World
nation-states.246 I briefly recapitulate the core of that argument and its basis
here247 because my account of the nature of injustice perpetrated by the contem-
porary system of racial borders builds upon my earlier critique of borders in that
article. The ethical legitimacy of the primarily unilateral right of nation-states to
exclude non-nationals is to a great extent premised on the right to collective self-
determination, and this right is most powerfully held by nation-states, which
international law declares to be formally independent and equal. Third World
Approaches to International Law scholars and other critical scholars have long
maintained that formal decolonization, where it occurred, failed to lay the foun-
dation for the genuine political and economic autonomy that is necessary for
effective sovereignty. The result is that the contemporary “postcolonial” order is
in fact one characterized by neocolonial empire. Neocolonial empire keeps for-
mer colonies as a group (the Third World) politically and economically bound to
former colonial powers (the First World) in ways that generate cosovereign bonds
among Third and First World persons. In other words, the demos of neocolonial
empire are Third and First World persons, and democratic legitimacy considera-
tions require that all members of this demos have an equal right to a say in the
governance of their shared vehicle(s) of collective self-determination.248 In neo-
colonial empires, these vehicles are mainly First World nation-states, and as a
matter of ethics then, First World nation-states have no right to unilaterally
exclude Third World citizens from their political or territorial borders. This
account renders the extant border and migration regimes of First World nation-
states sites of neocolonial injustice because they enforce the political inequality
of empire.
A fundamental claim of Migration as Decolonization is thus the political in-
equality of First World nation-state borders. The contemporary system of racial
borders renders this political inequality a racialized injustice, which is to say, one
that is experienced on a racial basis. Consider, for example, the racialized politi-
cal inequality achieved through passport privilege as a function of citizenship.
Citizenship acquisition in the vast majority of nation-states is primarily transmit-
ted at birth either through parentage (jus sanguinis) or one’s territorial location at
time of birth (jus soli).249 Intervening in global justice debates, Ayelet Shachar
has focused attention on the birthright citizenship as a legal and political institu-
tion that functions as “a state-sponsored apparatus for handing down from genera-
tion to generation the invaluable security and opportunity that attach to [national]

246. See id. at 1547–66. For a scathing neocolonial critique of Third World national borders in Africa
specifically, see generally Makau wa Mutua, Why Redraw the Map of Africa: A Moral and Legal
Inquiry, 16 MICH. J. INT’L L. 1113 (1995).
247. For a more detailed version of this argument, see Achiume, supra note 1, at 1547–73.
248. For an elaboration of and support for this argument, see id.
249. AYELET SHACHAR, THE BIRTHRIGHT LOTTERY: CITIZENSHIP AND GLOBAL INEQUALITY 4 (2009).
2022] RACIAL BORDERS 497

membership . . . . It also allows members of well-off polities an enclave in which

to preserve their accumulated wealth and power through time.”250 Citizenship is a
property regime that determines access to resources, benefits, decisionmaking
processes, and other things for property rights bearers (or citizens).251 Shachar
notes that across much of the world, nation-states rely “on birthright transmission
of entitlement in the assignment of the valuable good of political membership”
such that “citizenship laws assigning political membership by birthright play a
crucial role in the distribution of basic social conditions and life opportunities on
a global scale.”252 Shachar’s motivating concern is the moral arbitrariness of the
basis on which the vast majority of the global population (ninety-seven percent)
acquires political membership or citizenship—the leading mechanism of inter-
generational national wealth transfer—which is by circumstances of birth.253
Consider also that “more than two thirds of total inequality is due to [or deter-
mined by] location,” which is in turn heavily determined by citizenship254 as well
as the immigration possibilities it entails. As noted by Branko Milanovic, “the re-
markable thing is that a very large chunk of our income will be determined by
only one variable, which generally we acquire at birth: citizenship.”255 Milanovic
further notes, as Shachar does, that citizenship is a mechanism through which
rich countries transmit accumulated wealth from one generation to another.256
Whereas most countries place restrictions in the form of various redistributive
taxes on the intergenerational family-wealth transfers of their own citizens, the
transmission of collectively acquired wealth of nations is transmitted intergenera-
tionally among citizens to the exclusion of noncitizens with no similar restrictions
or redistributive considerations.257
Shachar’s concern is a valid one. I supplement it with another, which is the co-
lonial and neocolonial racial inequality and injustice that arises from birthright
transmission of entitlement to political membership and the access to accumu-
lated national wealth that comes along with it. Alongside its global effects as a
“distributor, or denier, of security and opportunity,”258 First World citizenship is
a racialized distributor of the benefits of collective self-determination and

250. Id. at 2. Shachar calls attention to “the crucial role played by existing legal regimes for
allocating entitlement to political membership (according to birthright) in restricting access to well off
polities and sustaining the privilege of inherited entitlement.” Id. at 3; see also id. at 10 (elaborating the
global distributive justice dimensions of citizenship).
251. See id. at 7.
252. Id. at 3.
253. Id. at 11.
254. Branko Milanovic, Global Income Inequality in Numbers: In History and Now, 4 GLOB. POL’Y
198, 204 (2013) (“[M]ore than 50 per cent of one’s income depends on the average income of the
country where a person lives or was born (the two things being the same for 97 per cent of world
population).”). Milanovic further notes that as a result, migration functions as a significant income
boosting strategy. Id. at 207.
255. Id. at 205.
256. Id. at 207.
257. See id.
258. SHACHAR, supra note 249, at 5.
498 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

neocolonial advantage within neocolonial empire.259 Through the prevalence of

racial border institutions such as jus sanguinis parentage citizenship, the citizen-
ship of First World nation-states is, in effect, predominantly white property.260
Describing First World citizenship as white property fuses the insights of Shachar
(citizenship as property)261 with those of Cheryl Harris (whiteness as property)262
to call attention to the embeddedness of white property interests in the most fun-
damental regime of rights allocation in liberal political order—the nation-state.
If, indeed, First World citizenship is predominantly white property, migration
governance regimes that allocate mobility and incorporation privileges based on
First World passport nationality play a significant role in maintaining and protect-
ing the racialized transmission of First World national wealth. As I highlight
below, such wealth is both colonially and “neocolonially” constituted.
Although there are arguably more cosmopolitan arguments for why de facto
racialized national exclusion is unethical on account of the inherent dignity of all
human beings, here I advance a relational account of justice based principally on
liberal democratic communitarian principles that supply the ethical scaffolding
for contemporary sovereignty doctrine. Racial borders, irrespective of whether
they are underwritten with racist intent, subject politically equal and intercon-
nected persons—Third World and First World citizens—to different structures,
treatment, and possibilities for self-determination on a racial basis. And persisting
neocolonial interconnection means that the contemporary system of racial bor-
ders is as unjust in many of the same ways that rendered Jim Crow in the
American South, apartheid in South Africa, and other colonial regimes of racial
segregation unjust.
It is not enough only to surface the racial nature of the political injustice of neo-
colonial borders. Rather, the contemporary system of racial borders manifests the
crucial role of migration governance in facilitating racial governance. Borders
remain central to racial exploitation and more broadly to the hierarchical ordering
of bodies and territories for purposes of imperial exploitation.263 Critical scholars

259. See Achiume, supra note 1, at 1530–31, 1554–57.

260. I use the qualifying term “predominantly” because there are other mechanisms of citizenship
acquisition that do not directly rely on parentage for access and because there are nontrivial numbers of
First World citizens who are not white.
261. See SHACHAR, supra note 249, at 8 (“As a collectively generated good that creates a complex set
of legal entitlements and obligations among various social actors, citizenship offers an excellent
example of more contemporary interpretations of property as a web of social and political relations
imbued with obligations to promote the public good and not just to satisfy individual preferences.”).
262. In her seminal article, Cheryl Harris explains how “Whiteness — the right to white identity as
embraced by the law — is property if by property one means all of a person’s legal rights.” Cheryl I.
Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1726 (1993). She further explains that “[w]hen
the law recognizes, either implicitly or explicitly, the settled expectations of whites built on the
privileges and benefits produced by white supremacy, it acknowledges and reinforces a property interest
in whiteness that reproduces Black subordination.” Id. at 1731.
263. See Achiume & Bâli, supra note 4, at 1397 (“[R]acial governance refers to the different ways
that race creates a means of ordering bodies and territories on a hierarchy according to which imperial
exploitation can occur.”). According to Justin Desautels-Stein, the right to exclude individuals is the
2022] RACIAL BORDERS 499

have instructively theorized race as imperial technology—a mechanism for

extracting value from bodies and regions on unjust and often fatal terms.264
In Part I, I outlined the ways in which migration governance was central to
racial governance, and the intensity of racialized migration and mobility exclu-
sion and control varied according to the labor and natural resource extraction
needs of these colonial hegemons alongside the racial identities in which these
imperial nation-states and settler colonies were invested. Border institutions and
migration and mobility governance regimes continue to provide legally insulated
and widely accepted cover for racialized exploitation of Third World peoples and
persons for the benefit of First World nation-states, their corporations, and their
citizens.265
Charles Mills theorizes racial privilege as a form of political domination266 and
racism as a political system—“a particular power structure of formal or informal
rule, socioeconomic privilege, and norms for the differential distribution of mate-
rial wealth and opportunities, benefits and burdens, rights and duties.”267
Furthermore, Mills argues that conceptually, “racism (or . . . global white suprem-
acy) is itself a political system.”268 The logic of this system is “the differential
privileging of . . . whites as a group with respect to . . . nonwhites as a group, the
exploitation of their bodies, land, and resources, and the denial of equal socioeco-
nomic opportunities to them.”269 Crucially, Mills articulates white supremacy as
an analytically distinctive global project—a racial project that operates within
and through empire and based on other social categories apart from race270—but

modern site of international law’s racial ideology, through which relations of domination are justified
using race-neutral means. Desautels-Stein, supra note 4.
264. Chantal Thomas, for example, offers an account of race as a technology of global economic
governance. See generally Thomas, Race as a Technology, supra note 133. Thomas also provides a
useful literature review of scholarship establishing “that racial differentiation [has] constituted a
crucially important mechanism for accumulating profit and for structuring global networks of
production, for example by justifying practices of forced labor and by pressing populations and
territories into service in the production of cheap raw materials and of markets.” Id. at 1874.
265. For an analysis and literature review of scholarship on racialized colonial and neocolonial
extraction and exploitation, including through borders, see Carmen G. Gonzalez, Climate Change, Race,
and Migration, 1 J.L. & POL. ECON. 109, 112–15 (2020). For an account of border imperialism that
includes the ways in which “[m]igrant workers provide liberal capitalist interests with cheapened labor
without altering the racial order through permanent immigration,” see HARSHA WALIA, BORDER &
RULE: GLOBAL MIGRATION, CAPITALISM, AND THE RISE OF RACIST NATIONALISM 133 (2021). Further,
immigration restrictions are the most significant legal determinant of what has come to be termed
“modern-day slavery.” Thomas, Immigration Controls, supra note 133, at 214, 218. As Justin Desautels-
Stein argues, “the right to exclude . . . sustain[s] racial hierarchy right up to the present.” Desautels-
Stein, supra note 4, at 1561.
266. CHARLES W. MILLS, THE RACIAL CONTRACT 1–2 (1997).
267. Id. at 3.
268. Id. at 3; see also id. at 7 (arguing that “white supremacy can illuminatingly be theorized as based
on a ‘contract’ between whites, a Racial Contract”).
269. Id. at 11.
270. Id. at 19–21 (arguing that “colonization of the Americas, 1492 to the 1830s, and the occupation
of Asia, Africa, and the Pacific, 1730s to the period after World War II” should be seen as distinct and
interdependent histories during which an us-versus-them opposition plays out through “multiple
overlapping dimensions: Europeans versus non-Europeans (geography), civilized versus wild/savage/
500 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

one that requires independent analysis in part based on the explanatory power of
race. For Mills, global white supremacy is a contemporary “transnational white
polity, a virtual community of people linked by their citizenship in Europe at
home and abroad (Europe proper, the colonial greater Europe, and the ‘frag-
ments’ of Euro-America, Euro-Australia, etc.), and constituted in opposition to
their indigenous subjects.”271
Mills’s theorization of white supremacy as an explanatory and normative
theory, although absent from international legal scholarship on migration gover-
nance, offers an essential perspective for understanding and assessing contempo-
rary migration and border governance dynamics. Mills theorizes white
supremacy as a system that, irrespective of “the ill will/good will, racist/antiracist
feelings of particular individuals,” continues to achieve a “globally color-coded
distribution of wealth and poverty.”272 First World borders remain pivotal white
supremacist institutions, in the structural and political meaning that Charles Mills
attributes to white supremacy. They are central to sustaining the globally color-
coded distribution to which Mills refers.
B. UNREMEDIED HISTORIC RACIAL INJUSTICE

The racialized political inequality argument above emphasizes ongoing politi-

cal interconnection and subordination. A related injustice of the contemporary
system of racial borders is that it perpetuates a historic injustice rooted in the con-
stitutive debt that First World nation-states owe Third World persons—a debt
that is racial in nature and that is sustained in part by migration and mobility con-
trols. By constitutive debt, I mean that the culture, politics, and economic wealth
of First World nations were consolidated or built to a significant extent based
on colonial extraction.273 This colonial extraction relied significantly on

barbarians (culture), Christians versus heathens (religion). But they all eventually coalesced into the
basic opposition of white versus nonwhite”); see also id. at 21–31 (supporting this analysis).
271. Id. at 29.
272. Id. at 36. The systems operate transnationally, but also intranationally. See id. at 37. And as
Mills emphasizes, the claim is not that “all whites are better off than all nonwhites, but that, as a
statistical generalization, the objective life chances of whites are significantly better.” Id.
273. For more on the constitutive debt owed to Africans, see generally RODNEY, supra note 5
(arguing that Africa developed Europe while Europe exploited and underdeveloped Africa); JOSEPH E.
INIKORI, AFRICANS AND THE INDUSTRIAL REVOLUTION IN ENGLAND: A STUDY IN INTERNATIONAL TRADE
AND ECONOMIC DEVELOPMENT 362–404 (2002) (tracing how the provision of raw materials from Africa
and by African laborers in the Americas facilitated England’s industrial growth); John H. Morrow Jr.,
Black Africans in World War II: The Soldiers’ Stories, 632 ANNALS AM. ACAD. POL. & SOC. SCI. 12, 13
(2010) (noting the extensive contribution of African colonial subjects to European military campaigns
during World War II); Pascal Blanchard, Sandrine Lemaire, Nicolas Bancel & Dominic Thomas,
Introduction: The Creation of a Colonial Culture in France, from the Colonial Era to the “Memory
Wars,” in COLONIAL CULTURE IN FRANCE SINCE THE REVOLUTION 1 (Pascal Blanchard et al. eds., 2014)
(surveying the development of French colonial culture, with particular focus on how French colonialism
in Africa shaped French identity, daily life, politics, and discourse); Matthew G. Stanard, “Made in
Congo?”: On the Question of Colonial Culture in Belgium, 88 REVUE BELGE DE PHILOLOGIE ET
D’HISTOIRE 1301, 1301–02 (2010) (surveying literature regarding colonialism in Congo and its influence
on Belgian culture); and Peo Hansen & Stefan Jonsson, Another Colonialism: Africa in the History of
European Integration, 27 J. HIST. SOCIO. 442, 454 (2014) (arguing that “most of the visions, movements
2022] RACIAL BORDERS 501

racialization, which is to say that constructing the Third World as nonwhite was
essential to its underdevelopment, and constructing the First World as white was
key to securing its development.274 When pressed on the basis for using race as a
proxy for nationality in immigration enforcement, a Dutch immigration enforce-
ment official explained:

Look, we did not invent the visa requirement for Africa. That by chance it is
black people that come from there is not our fault, that is what we have to con-
trol, if there had been living only white people that had visa requirements we
would have been checking white people.275

But I argue here that so-called poorer nations, including the African nations
that Europe and other parts of the First World seek to exclude, are not coinciden-
tally nonwhite. Their racialization as nonwhite was central to their colonial
impoverishment and remains central to their neocolonial impoverishment.
Although countries on the Schengen Black lists are low-income countries, with
many experiencing political instability, their low-income status and politically
instability causally implicate many of the core Schengen countries and the United
Kingdom.276 Furthermore, such low-income status and political instability was
achieved through their racialization as nonwhite.277

and concrete institutional arrangements working toward European integration in the postwar period
placed Africa’s incorporation into the European enterprise as a central objective”).
274. Using the work of Franz Fanon, for example, Robert Knox explains the connection between
race and class under colonialism, which recalls the discussion of race as structure above: “‘[I]n the
colonial context’, race served a role in structuring the distribution of the political and economic benefits
of imperialist exploitation. It was by virtue of their race that white settlers gained access to the material
benefits of colonial capitalism.” Robert Knox, Valuing Race? Stretched Marxism and the Logic of
Imperialism, 4 LONDON REV. INT’L L. 81, 104 (2016) (footnote omitted); see also Gurmnider K.
Bhambra, Brexit, Trump, and ‘Methodological Whiteness’: On the Misrecognition of Race and Class, 68
BRIT. J. SOCIO. S214, S277 (2017) (“Class is not the operation of a race-neutral economic system, but
part of an economic system which is deeply racialized. . . . The problem, for the most part, rests in an
association of class with structural inequality embedded in the economic system and race as merely
pointing to social divisions. As such, class is presumed to be more significant than race and to provide a
universal category for inclusive action, in contrast to a supposedly divisive focus on race. However, this
analysis fails to acknowledge the ways in which race has been fundamental to the configuration of the
modern world and is integral to the very configuration of socio-economic inequalities in the present.”).
275. Brouwer et al., supra note 182, at 453.
276. See Anghie, supra note 5, at 748–49; Daron Acemoglu & James A. Robinson, The Economic
Impact of Colonialism, in 1 THE LONG ECONOMIC AND POLITICAL SHADOW OF HISTORY 81 (Stelios
Michalopoulos & Elias Papaioannou eds., 2017); Mutua, supra note 246, at 1126–34. See generally
RODNEY, supra note 5.
277. See Quijano, supra note 23, at 534–35; Mutua, supra note 246, at 1127–30; Thomas, Race as a
Technology, supra note 133, at 1863 (“The process has remained an ongoing one, as generations of
scholars have sought to articulate a global paradigm of race relations at once starkly visible—one need
only look at the plain correlation between skin pigmentation and economic inequality both within and
across societies—and at the same time endlessly protean, internally contradictory, and everchanging in
its particular manifestations.”); Tayyab Mahmud, Colonialism and Modern Constructions of Race: A
Preliminary Inquiry, 53 U. MIA. L. REV. 1219, 1219–20 (1999) (“Traces of racialized discursive
structures and institutional practices forged in the context of Europe’s colonial encounter remain visible
in post-colonial terrains, where many a public policy and legal regime are animated by racialized
categories and classifications.”).
502 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

Decolonization included no meaningful reparations for colonial exploitation

and brutality (in addition to failing to fully sever the channels of Third World ex-
ploitation that defined colonialism).278 Instead, decolonization included racialized
First World border closures, as the neocolonial evolution of Britain’s borders
illustrates.279 Prior to 1962, British subjects were free from British immigration
control irrespective of where in the British Empire they were born.280 This policy
was partly sustained by a Commonwealth ideology according to which all British
subjects were formally equal irrespective of race, and this doctrine of solidarity
held for as long as free movement to metropolitan Britain was from its “old” or
“white” dominions (Australia, New Zealand, and Canada).281 With the changing
racial composition of Commonwealth migrants came racialized border closure.282
After World War II, migration from the Third to the First World increased in part
due to labor shortages. Britain addressed its labor shortages with immigrant labor
from Poland, European Volunteer Workers, and the “new” Commonwealth terri-
tories in the Caribbean, Indian subcontinent, and Africa.283 New Commonwealth
migration to metropolitan Britain outpaced the rest and precipitated much debate
and controversy regarding who ought to be a considered a citizen and what rights
and privileges this citizenship would entail.284 The result was a series of laws that
“placed strict limitations on non-white, non-European immigration from the new
Commonwealth (former colonies other than Australia, New Zealand, and
Canada).”285
This “rising tide” of “colored” immigration produced anti-immigrant rhetoric
in Britain (that is pervasive again today) regarding the socioeconomic strain that
limited restrictions on immigration would impose on the nation.286 This rhetoric
bolstered the adoption of the Commonwealth Immigrants Act 1962,287 which lim-
ited immigration by Commonwealth passport holders to skilled individuals or
those tied to specific employers who had secured approval for their employment
and, for the first time, made Commonwealth citizens deportable.288 Parliamentary

278. See Achiume, supra note 1, at 1543–44. See generally SIBA N’ZATIOULA GROVOGUI,
SOVEREIGNS, QUASI SOVEREIGNS, AND AFRICANS: RACE AND SELF-DETERMINATION IN INTERNATIONAL
LAW (1996) (describing the failure of international law to adequately ensure African self-determination
during decolonization).
279. Nadine El-Enany’s recent book incisively details this racialized evolution. See generally EL-
ENANY, supra note 4.
280. Roxanne Lynn Doty, Sovereignty and the Nation: Constructing the Boundaries of National
Identity, in STATE SOVEREIGNTY AS SOCIAL CONSTRUCT 121, 131 (Thomas J. Biersteker & Cynthia
Weber eds., 1996).
281. Id.
282. See id. at 131–33. See generally RANDALL HANSEN, CITIZENSHIP AND IMMIGRATION IN POST-
WAR BRITAIN: THE INSTITUTIONAL ORIGINS OF A MULTICULTURAL NATION (2000) (arguing that
Britain’s postwar migration policy was racist in effect).
283. Doty, supra note 280, at 130.
284. Id. at 130–31.
285. Id. at 131.
286. See id. See generally HANSEN, supra note 282.
287. Commonwealth Immigrants Act 1962, 10 & 11 Eliz. 2 c. 21 (UK).
288. Doty, supra note 280, at 131–32.
2022] RACIAL BORDERS 503

opposition maintained that the Act was evidently, though not explicitly, racist.289
One Labor Party member described the Act as “bare-faced, open race discrimina-
tion” and noted that “the net effect of the Bill [was] that a negligible number of
white people [would] be kept out and almost all those kept out by the Bill [would]
be coloured people.”290 It is worth highlighting that at this historical juncture, the
blanket imposition of visa restrictions targeted at specific nationalities was under-
stood and named for what it actually was—a means of racialized exclusion
through a facially neutral category (nationality) that disparately affected non-
white people, even if it applied in principle to white people as well. Furthermore,
the imposition of visa restrictions with employment-related exemptions was also
understood as an expression of racialized anxiety, not as an expression of race-
neutral, economic, or class anxiety.291
Initially, the 1962 Act did not affect the United Kingdom and its colonies (as it
did former colonies forming part of the Commonwealth). But, this too changed
with the emerging concern that Asians in Kenya holding British passports would
flee to Britain in large numbers.292 This concern led to the Commonwealth
Immigrants Act 1968,293 which stripped British passport holders in East Africa
“of the automatic right to enter and settle in Britain unless they had a connection
to Britain by birth, naturalization, or descent.”294 The Immigration Act 1971295
imposed further restrictions on Commonwealth migration along mostly racial
lines. The 1971 Act ended the distinction between “alien[s]” and Commonwealth
citizens created by earlier legislation.296 Additionally, the 1971 Act imposed fur-
ther restrictions on Commonwealth citizens but permitted the entry of people in a
category termed “patrials”—those whose parents or grandparents were born in
the United Kingdom.297 Patrials were eligible for U.K. passports, could vote, run
for office, and were entitled to the same benefits to the European Community (an
EU predecessor) as U.K. nationals.298 Crucially, “[t]he vast majority who fell
within [the partial] category were white.”299 The 1971 Act introduced geographic
and nationality-based exclusion that principally kept out nonwhite people from

289. See id. at 137–39 (explaining that right-wing anti-immigrant discourse fixated on three aspects
of immigration: the perceived overwhelming scale of an immigrant influx, immigrants as a public health
risk, and immigrants as a wellspring of criminality).
290. Doty, supra note 280, at 132.
291. Id. (“[T]he coded language was recognized by the opposition Labour Party. ‘To use the words
we hear so often, ‘the social strains and stresses,’ in simpler and rather cruder language, that phrase
really means colour prejudice.’”).
292. See, e.g., 1968: More Kenyan Asians Flee to Britain, BBC, [Link]
dates/stories/february/4/newsid_2738000/[Link] [[Link] (last visited Jan.
1, 2022).
293. Commonwealth Immigrants Act 1968, c. 9 (UK).
294. Doty, supra note 280, at 132.
295. Immigration Act 1971, c. 77 (UK).
296. Doty, supra note 280, at 132–33.
297. HANSEN, supra note 282, at 33.
298. Doty, supra note 280, at 133.
299. Id.
504 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

Britain’s former colonial empire and also instituted a descent exception300—an

overwhelmingly racialized escape valve that secured the rights and privileges of
mobility and migration to persons of British ancestry, a predominantly white
ancestry. Thus, notwithstanding the history of free and assisted British colonial
emigration described above where metropolitan Britain and its white settler colo-
nies reaped the full benefit of Third World subordination, “[t]oday, the UK oper-
ates one of the strictest migration policies in the Western world.”301 These strict
restrictions on migration were formalized beginning in the 1970s,302 and similar
shifts had already occurred across other Western European states.303
In light of this history, Nadine El-Enany aptly argues that Britain’s borders
“articulated and policed via immigration laws, maintain the global racial order
established by colonialism, whereby colonised peoples are dispossessed of land
and resources.”304 El-Enany conceptualizes the immigration reforms that have
racially bordered Britain as “act[s] of appropriation, a final seizure of the wealth
and infrastructure secured through centuries of colonial conquest.”305 When El-
Enany characterizes British citizenship, immigration, and asylum law as struc-
tures that maintain a racially and colonially ordered Britain, structures that opera-
tionalize racialized access to imperial spoils, I read El-Enany as offering a
compelling and concrete case study of the operation of neocolonial racial borders
and highlighting the historic injustice they implement. Although El-Enany
focuses on the United Kingdom, others have argued the case for permissive

300. See id. at 132–33.

301. HANSEN, supra note 282, at 20.
302. Id. at 23.
303. Id. at 27. Randall Hansen has argued that restriction of Commonwealth migration to Britain did
not occur sooner in part due to an institutionalized commitment within the British government to an
indivisible British subjecthood. But this notion of indivisible subjecthood only lasted as long as
Commonwealth migrants were predominantly European. As non-European Commonwealth migration
to Britain matched and then surpassed European Commonwealth migration to the same, indivisible
subjecthood became untenable, and Third World immigration restrictions tightened. Id. at 29.
304. EL-ENANY, supra note 4, at 3; see id. at 5 (“It is through immigration law’s policing of access to
colonial spoils that the racial project of capitalist accumulation is maintained, a project which I argue is
legitimised through judicial rulings in immigration and asylum cases.”). El-Enany powerfully highlights
how immigration laws maintain colonialism’s global racial order according to which racialized
(nonwhite) populations “are disproportionately deprived of access to resources, healthcare, safety and
opportunity,” through the racialized exclusions from national benefits effected through immigration and
rights restrictions associated with noncitizen status. Id. at 4–5, 13.
305. Id. at 5. El-Enany centers Britain’s status as an imperial nation-state, whose wealth and the
making of its “modern state infrastructure, including its welfare state, was dependent on resources
acquired through colonial conquest” and on profits from the enslavements of Africans. Id. at 1–2. Britain
as the nation-state exists today, then, should be thought of as the spoils of empire, and it is against this
backdrop that its immigration laws and policies (including visa policies and the like), form “part of an
attempt to control access to the spoils of empire which are located in Britain.” Id. at 2. Highlighting the
postcolonial British immigration reforms described above through which Britain privileged whiteness in
its national incorporation and mobility (immigration) governance frameworks, El-Enany notes the role
of borders in maintaining racialized access to imperial spoils, or what I have described as the benefits of
neocolonial empire. El-Enany’s book also outlines how “European colonial powers came together in the
post-war era to create a protectionist bloc to ensure that the spoils of European colonialism remained the
domain of white Europeans.” Id. at 175; see id. at 175–218.
2022] RACIAL BORDERS 505

migration policies as reparations for the imperial debt owed by the United States
to the Central American countries and have highlighted the role of race both in
U.S. imperial exploitation and bordering practices.306
In sum, the historical record surfaces an unremedied historical injustice that
contemporary borders sustain and that ought to be engaged with within the frame-
work of reparative or corrective justice that genuine decolonization entails.307 As
Sherally Munshi insightfully observes:

National boundaries would provide a spatial solution to the problem that

decolonization might have unleashed upon the new world order—the free
movement of peoples from the colonial peripheries to the metropolitan centers.
That is, as empires began to crumble into nation-states, as imperial hierarchies
began to dissolve into the supposed equality among independent nation-states,
the emerging international system of nation-states would play a critical role in
preserving the distributional legacies of European imperialism. . . . [N]ational
independence—defined as the right to self-rule in one’s territory—was hardly
compensation for the material crimes of imperialism—generally the transfer
of wealth from the colonies to Europe. Insofar as the abstract equality among
sovereign nations consisted in the mutual rights of territorial exclusion, the
emerging international system of nation-states would continue to preserve the
inequalities of the imperial era.308

CONCLUSION
[I]t is crucial that we recognize that the hegemony of one experience of travel
can make it impossible to articulate another experience or for it to be heard.
From certain standpoints, to travel is to encounter the terrorizing force of white
supremacy. To tell my “travel” stories, I must name the movement from
racially segregated southern community, from rural black Baptist origin, to

306. Joseph Nevins has made the case for migration as reparations with respect to the “imperial debt”
owed by the United States to Honduras, for example, and highlights the deep and unjust interconnection
that binds the two countries in a relationship that is functionally neocolonial. Joseph Nevins, Migration
as Reparations, in OPEN BORDERS: IN DEFENSE OF FREE MOVEMENT 129, 130 (Reece Jones ed., 2019).
Laura Gómez has made a similar argument for Latin America more broadly, also based on corrective
justice for U.S. colonial and imperial intervention. See GÓMEZ, supra note 87, at 19–61.
307. The historical record also helps denaturalize the neutrality of nationality-based restrictions and
rightfully casts suspicion upon them because of their effect and function, irrespective of ostensible
claims about their intended purpose. Recall the history outlined in the prior Part, showing that
geographic-based immigration restrictions have racially purposed antecedents. Sherally Munshi’s work,
focusing on the United States, traces legislative innovations in the early twentieth century that used
geographic origin as a facially neutral means to achieve the racialized exclusion of Indians. See Munshi,
supra note 64, at 271–81 (analyzing the justifications for and adoption of legislation banning
immigration from the “Asiatic Barred Zone,” which was “defined in terms of geographic coordinates,”
and noting that “[o]nce the law was enacted . . . immigration officials enforced the geographic zone
provisions selectively, re-inscribing distinctions of race”). Munshi astutely points out that the erasure of
the era of Indian exclusion from dominant U.S. immigration narratives “evidences the degree to which
conceptions of nationality and invented notions of territorial belonging have become natural or self-
evident, rendering immigrant exclusion and the relative immobility of racialized populations, in turn, an
apparently natural or neutral phenomenon.” Id. at 250.
308. Munshi, supra note 87, at 69.
506 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

prestigious white university settings. I must be able to speak about what it is

like to be leaving Italy after I have given a talk on racism and feminism, hosted
by the parliament, only to stand for hours while I am interrogated by white
officials who do not have to respond when I enquire as to why the questions
they ask me are different from those asked the white people in line before me.
Thinking only that I must endure this public questioning, the stares of those
around me, because my skin is black, I am startled when I am asked if I speak
Arabic, when I am told that women like me receive presents from men without
knowing what those presents are. Reminded of another time when I was
stripped searched by French officials, who were stopping black people to make
sure we were not illegal immigrants and/or terrorists . . . . To travel, I must
always move through fear, confront terror. It helps to be able to link this indi-
vidual experience to the collective journeying of black people, to the Middle
Passage, to the mass migration of southern black folks to northern cities in the
early part of the 20th century.309

For many people racialized as nonwhite, the experience of racial borders—sys-

tems of racialized exclusion and race itself as a border—is all too familiar. The
epigraph above, in which bell hooks narrates a personal experience with racial
borders, tells a version of a story that might well have been told by one of the
twenty-six Nigerian girls I mention in the Introduction if they had survived their
encounters with racial borders. Indeed, the racialized and gendered terror that
hooks describes is personally resonant. Notwithstanding the nontrivial privilege I
enjoy as an academic at an elite, First World institution (and even during my ten-
ure as an independent expert for the U.N.), I share hooks’s terror because of the
numerous humiliating experiences characteristic of many travels through the
First World in my own Black, bordered body. Certainly, hooks’s formative expe-
riences of race, gender, and borders coming from the American South and from
travel to Europe are markedly different from the experiences and circumstances
of the twenty-six Nigerian girls. Yet, notwithstanding the many differences that
divide bell hooks and the Nigerian girls, my point has been to argue that a
throughline—a transnational system of racial borders that privileges whiteness—
exists that connects their respective experiences.
To recapitulate the core claims of this Article, I have aimed to make the follow-
ing points. I have argued that contemporary international borders, with particular
focus on the borders of First World nation-states, are racial borders. I have
defined racial borders as political and territorial border regimes that disparately
curtail movement (mobility) and political incorporation (membership) on a racial
basis. Racial borders sustain international migration and mobility as racial privi-
leges, especially privileges of whiteness. I identify the infrastructure of the con-
temporary system of racial borders as including migration, mobility, and asylum
legal and policy regimes in which facially neutral institutions, policies, and prac-
tices reliably result in racialized exclusion and border doctrines that entrench rather

309. BELL HOOKS, BLACK LOOKS: RACE AND REPRESENTATION 174 (1992).
2022] RACIAL BORDERS 507

than disrupt this racialized exclusion. Furthermore, the infrastructure of the contem-
porary system of racial borders includes the operation of race itself as territorial and
political border infrastructure. Both dimensions of racial borders—racialized exclu-
sion through facially neutral means and race as border infrastructure—have histori-
cal antecedents. Indeed, the genealogy of contemporary international border
doctrine and practice shows the European colonial origins of racial subordina-
tion and exploitation through border governance. Racialized mobility, immobil-
ity, inclusion, and exclusion were not incidental or unfortunate by-products of
colonial empire. Rather, they were imperially productive technologies for creat-
ing and allocating the benefits of empire, and they remain so today. As Adam
McKeown notes, liberal democratic ideals and practices of self-rule were also
the basis for exclusionary policies such that “[m]odern border controls are not a
remnant of an ‘illiberal’ political tradition, but a product of self-conscious pio-
neers of political freedoms and self-rule.”310
I have also argued that the contemporary system of racial borders effect neoco-
lonial racial injustice in numerous ways. I have previously made the case that
First World nation-states have no right to exclude Third World citizens because
the latter form part of the demos of neocolonial empire and the former constitute
the only real, effective vehicles of collective self-determination in that empire. I
have further argued that racial borders enforce and produce racial, political in-
equality in neocolonial empire, privileging whiteness in the pathways to effective
collective and individual self-determination in neocolonial empire. Put differ-
ently, racialized mobility, migration regimes, and race-as-border infrastructure
are a crucial axis of First World exploitation of Third World citizens. At the same
time, this axis of exploitation effects political inequality between nonwhite and
white people subject to neocolonial empire. Racial borders are thus racist,
whether they are underwritten by racist intent. Furthermore, racial borders are the
site of unremedied historic injustice; they helped create, and they now preserve,
the racialized constitutive debt owed to the Third World by the First.
I do not claim to provide an exhaustive account of the way race operates
through and alongside borders. By focusing on the white supremacy of neocolo-
nial borders, I do not mean to imply that this system of racial ordering and this
imperial formation are the only ones of contemporary salience. I do believe, how-
ever, that they are of unique significance for understanding the borders of our
international orders because of how fundamentally European colonialism and
white supremacy have shaped all contemporary national borders through interna-
tional legal doctrine and governance mechanisms.311
If we think of the concept of race functionally at a high level of abstraction, it
is reasonable to think that any time two or more communities demarcate borders

310. MCKEOWN, supra note 43, at 7.

311. Notwithstanding the salience of other prior and contemporaneous empires, Duncan Bell
reminds us that “[t]he modern architecture of global governance—including international law and
numerous international organisations—was forged in [the European] imperial world system,” which by
1914 in principle controlled eighty-four percent of the planet’s landmass. Bell, supra note 4, at 3.
508 THE GEORGETOWN LAW JOURNAL [Vol. 110:445

that meaningfully allocate rights between or among their members, something

“race”-like will emerge, by which I mean some system for determining and iden-
tifying structurally and at the individual level who is entitled to fundamental
rights and resources. Views will differ on the ethical valence of this “racial” prop-
erty of immigration regimes among those who accept that it is indeed an inherent
feature of immigration regimes. For some, the racial nature of borders is legiti-
mate. For others, it may be a justifiable, or at least tolerable, by-product of a
greater good such as cohesive, self-determining, national, political communities.
Still, the racial nature of borders may be an untenable injustice. My analysis has
aimed to make the case that neocolonial racial borders fall into this last category
—that is, they are racial in a racist sense—because they preserve for the First
World the ill-gotten gains of colonial exploitation for which reparations were
never achieved, and these borders enact contemporary injustices along neocolo-
nial lines.
A significant implication of casting racial borders as functions or products of
empire is that to do so lays bare the level at which intervention is required to
achieve justice. The problem of racial borders is not merely or even fundamen-
tally an immigration law problem. It is a problem that goes to the core of neocolo-
nial empire and its terms of political and economic interconnection. Genuine
border justice may require both the abolition of the extant international liberal
order that entrenches unequal sovereign interconnection at the foundational level
—sovereignty doctrine—and its replacement with an entirely different political
and economic theory of what it means for political communities to interdepend
on equitable terms.312 But it is decidedly not the ambition of this Article to take
on the prescriptive project of radical reimagination. Its diagnostic and analytical
ambitions are sufficient as necessary precursors to any attempts to reimagine and
recreate borders on more racially just and equitable terms. This work is urgent as
international, regional, and national policymakers; institutions; and migrants-
rights activists continue to debate and reform border governance, especially as
they start to do so in contexts that increasingly demand racial reckoning. Such
reckoning must begin from a place that acknowledges that the racial injustice of
borders is embedded at the core of liberal border regimes.

312. See Achiume, supra note 1, at 1551. As Natsu Taylor Saito powerfully argues, racial justice
must be a decolonial project, and this is also true where borders are concerned. See NATSU TAYLOR
SAITO, SETTLER COLONIALISM, RACE, AND THE LAW: WHY STRUCTURAL RACISM PERSISTS 201–14
(2020).