A Commentary on American Legal Scholarship Concerning the Admission of Migrants

The following essay will focus attention on American legal scholarship concerning the admission of migrants. This topic is instructive and practical because of its impact on both municipal and global law. An eminent international jurist observed that greater foresight by scholars twenty-five years ago could have averted many current problems of migration. Today, these problems arise from such sources as the population explosion, periodic droughts, the pull factor of opportunities in advanced economies, and massive political unrest in the Horn of Africa, Afghanistan, Southeast Asia, Central America, and elsewhere. Migrants are knocking at the gates of sovereignty, even crashing some of them down. Until recently, every fifth person in Somalia and every tenth person in Djibouti was a refugee. Even under less extreme circumstances, migration provokes sensitive issues in the domestic politics of recipient countries. International legal scholars need more than ever to respond creatively and systematically to the serious problems that result from the basic human need of migration.

Unfortunately, American legal scholarship concerning the admission of migrants has two questionable tendencies. First, some writers assume that the state has a sovereign right to deny entry to any or all aliens. Second, there is a tendency to limit the status of “refugees” to victims of specific forms of governmental persecution. This Article explains these tendencies and suggests alternatives. Part I examines the international legal framework within which American legal scholarship can be of some help. Part II explores the tendencies of American legal scholars to assume that states may deny admission to all aliens and to view narrowly the definition of refugees. Part III posits a tentative explanation for these tendencies. Part IV concludes that international legal scholars can and should have a more significant role in shaping immigration policy.