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.

Shortcomings and/or Missed Opportunities of the Global Compacts for the Protection of Forced Migrants

“…an ex parte principe approach to migration, instead of an ex parte populi, that would focus on the people who create and are the protagonists of the phenomenon, i.e. the migrants (Jubilut and Lopes, ).…”

“…28). Moreover, regional solutions may be better tailored to specific displacement (of refugees or other forced migrants for instance) and may entice more willingness by neighbouring or nearby States to address them (Jubilut and Ramos, ; Jubilut and Lopes, ). In this regard, it is relevant to recall that 85 per cent of refugees are in developing countries (UNHCR, 2018a) many (if not all) of which are in the region of the displacement itself, which means that “proximity to crisis de facto define State responsibility” (Betts, ).…”

Trabalhador migrante indocumentado:

“…São reconhecidos os diferentes níveis de vulnerabilidade dos migrantes, como no caso dos indocumentados, que apresentam uma condição precária especial. Seria preciso, então, definir novas estratégias para enfrentar essa problemática, estabelecendo o migrante como centro das atenções das políticas migratórias e garantindo a importância que lhe deve ser atribuída nessa relação -a nova configuração permitiria enxergar melhor as situações de vulnerabilidade em que essas pessoas estão inseridas, revelando diferentes possibilidades de proteção para elas, o que é coerente em meio a uma conjuntura complexa (Jubilut & Lopes, 2017).…”

International norm development: cyclic model of norm change and self-determination

“…As Jubilut and Lopes (2017) rightly pointed out, IL should "coexist and be in sync with international relations so as to benefit from the exchange of analytical structures and to not exist in a vacuum, jeopardizing its applicability." The same is true for IR.…”

“…With the same logic, Anjos and Klein (2014) also argue that self-determination and territorial integrity are not contradictory, nor opposite, and mutual respect is required. As Jubilut and Lopes (2017) argue, "the 109 diversity or fragmentation of International Law needs to coexist with the search for its cohesiveness and dialogue with all relevant norms. "…”