International migration is a defining problem of our time, and central to this problem are the ethical intuitions that dominate thinking on migration and its governance. This Article challenges existing approaches to one particularly contentious form of international migration, as an important first step toward a novel and more ethical way of approaching problems of the movement of people across national borders.
The prevailing doctrine of state sovereignty under international law today is that it entails the right to exclude nonnationals, with only limited exceptions. Whatever the scope of these exceptions, so-called economic migrants—those whose movement is motivated primarily by a desire for a better life—are typically beyond them. Whereas international refugee law and international human rights law impose restrictions on states’ right to exclude nonnationals whose lives are endangered by the risk of certain forms of persecution in their countries of origin, no similar protections exist for economic migrants. International legal theorists have not fundamentally challenged this formulation of state sovereignty, which justifies the assertion of a largely unfettered right to exclude economic migrants.
This Article looks to the history and legacy of the European colonial project to challenge this status quo. It argues for a different theory of sovereignty that makes clear why, in fact, economic migrants of a certain kind have compelling claims to national admission and inclusion in countries that today unethically insist on a right to exclude them. European colonialism entailed the emigration of tens of millions of Europeans and the flow of natural and human resources across the globe, for the benefit of Europe and Europeans. This Article details how global interconnection and political subordination, initiated over the course of this history, generate a theory of sovereignty that obligates former colonial powers to open their borders to former colonial subjects. Insofar as certain forms of international migration today are responsive to political subordination rooted in colonial and neocolonial structures, a different conceptualization of such migration is necessary: one that treats economic migrants as political agents exercising equality rights when they engage in “decolonial” migration.
* Assistant Professor of Law, UCLA School of Law. I would like to thank the following individuals for their valuable insights on earlier drafts: Amna Akbar, José Alvarez, Asli Bâli, Laurie Benton, Gabriella Blum, Devon Carbado, Justin Desautels-Stein, Laurel Fletcher, Gabriel Greenberg, Oona Hathaway, Loren Landau, Itamar Mann, Emmanuel Mauleón, Jon Michaels, Saira Mohamed, Hiroshi Motomura, Sam Moyn, K-Sue Park, Matiangai Sirleaf, and Olúfẹ́mi O. Táíwò. Just as instrumental were participants in the following workshops: the American Society of International Law’s Migration Law Interest Group Bellagio Workshop (especially Jaya Ramji-Nogales and Peter Spiro for creating an intellectual environment conducive to radical reimagining), the Berkeley International and Comparative Law Colloquium, the Duke and Stanford Culp Colloquium, the Southern California International Law Scholars Workshop, the UCLA Political Sociology and the Global South Working Group, the UCLA Law School Summer Faculty Colloquium, the UCLA Law School Junior Faculty Colloquium, the Spring 2018 UCLA Advanced Critical Race Theory Seminar, the Vanderbilt International Legal Studies Program Works-in-Progress Roundtable, the Women in International Law Workshop, and the Yale-Stanford-Harvard Junior Faculty Forum. I thank the following individuals for outstanding research assistance and fruitful intellectual provocation: Rebecca Fordon, Erin French, Zachary Heinselman, Marc Jacome, Kabita Parajuli, and the stellar UCLA Law reference librarian team. And finally, I am grateful to the Hellman Fellows Fund at UCLA for its research support. All mistakes are my own.