Migrants Can Make International Law

By Ama Francis

Migrants have the power to make international law as norm creators. The nation-state enjoys a monopoly on violence in domestic jurisgenesis, but international law’s constraint on the use of force provides non-state actors the opportunity to participate in the formation of international legal doctrine without the threat of violence. Scholars have overlooked this non state jurisgenerative potential, bound by a state-centric conception of law. This Article applies the claim that non-state actors have the power to influence international law to the transnational issue of climate-induced migration. Climate change intensifies slow- and sudden-onset events, and sudden-onset disasters already displace millions annually. Yet international law grants nation-states the right to largely exclude foreigners such that climate migrants have no right to enter another country, resettle, or be protected against forcible return when they are displaced across borders. While liberal scholars defend this right to exclude as necessary for the preservation of sovereignty, the majority of nation-states participate in free movement agreements—regional trade agreements that promote migration—demonstrating that sovereignty and exclusion are not mutually constitutive.

Ultimately, I leverage the challenge of climate-induced migration to ask who has the power to change international law. My response proceeds in two parts. First, the Article challenges the state-centric focus of international law to call attention to non-state actors’ ability to create legal norms. Second, I draw on diasporic theory to argue that the Global South diaspora—Global Southerners living in the Global North—should leverage their hybrid positionally to create legal norms that reconstitute sovereignty through admission. International migration theorists reproduce the paradigmatic image of a Global North and Global South border contest, and foreclose the possibility of migrant’s jurisgenerative capacity. This Article intentionally shifts the frame to highlight the power that a territorially-unbounded Global South people have to shape international legal norms.