“Beyond Prejudice: An Antisubordination Approach to Xenophobic Discrimination Against Refugees” by TENDAYI ACHIUME
“Beyond Prejudice: An Antisubordination Approach to Xenophobic Discrimination Against Refugees” Georgetown Journal of International Law, Vol. 45, No. 3, 2014TENDAYI ACHIUME, UCLA School of Law
ABSTRACT: Xenophobic harm, or harm on account of one’s status as a “foreigner” is among the greatest contemporary challenges to the protection of refugees globally. In the absence of a definition of xenophobic discrimination under international law, the world’s most influential refugee protection actor, the United Nations High Commissioner for Human Rights (UNHCR) has had to confront the question: what constitutes wrongful discrimination against refugees? This article argues that two theories developed in U.S. antidiscrimination legal scholarship — namely anticlassification and antisubordination — powerfully lay bare what is at stake in how UNHCR answers this question. It also demonstrates that UNHCR currently embraces an anticlassification theory of what constitutes unlawful xenophobic discrimination. Under this approach anti-foreigner prejudice is quintessential to wrongful discrimination, which obscures the fundamentally structural nature of much of the xenophobic discrimination that refugees face globally. This Article’s crucial intervention is instead to advance an antisubordination approach that recognizes structural forms of xenophobic harm as unlawful discrimination. Importantly, it argues that such an antisubordination approach is readily available under existing international human rights law.
KJ