Strategies for the Protection of Migrants through International Law

Abstract

Migration is a complex phenomenon: on the one hand, it encompasses economic, political, historical, sociological and legal issues, and, on the other, it entails several dichotomies and a multitude of causes. Such complexity has created a myriad of obstacles to construct a normative system that addresses all aspects of this phenomenon through the adoption of hard international norms. In the current global political scenario, it seems counterproductive to exclusively invest in a pathway that has not been able to achieve much so far and that focuses on the phenomenon of migration rather than on its subjects: the migrants. In light of this, this article proposes four strategies to enhance the architecture of International Law in dealing with migration, so as to allow for its improvement. These are: 1) assuming the protagonism of migrants in migration and, thus, shifting the focus from the regulation of the phenomenon to the protection of its subjects and enhancing a human rights’ approach to migration, 2) enhancing the dialogue between existing international regimes and International Law in the governance of migration with a human rights lens, 3) using less formalistic approaches such as soft law and the participation of stakeholders in the governance of migration with a responsibility-sharing approach, and 4) using regional approaches to facilitate the development of stronger cooperation and regional norms. These strategies should be informed by the principle of complementarity both among themselves and in seeking international hard norms. They ultimately need to be part of a larger international structure for the protection of human dignity and human rights. Presenting this approach and these strategies and assessing whether they would constitute a superior manner in which International Law should engage with issues that arise from migration and enhance the protection of migrants are the aims of this article.