Brief description of the project

This research project aims to explore the slow appearance, within the international Euro-Mediterranean community, of an articulated transnational model of ius migrandi, and to point to the potential development of this model.

The exceptional stream of foreigners landing on the European Mediterranean frontiers calls for a re-thinking of the basic categories underlying the sociological and legal analysis of migrations. Such a re-thinking must move from the semantic, legal and procedural symmetries and asymmetries which have defined migrants as foreigners, vagabonds or refugees. Such definitions are currently undergoing continuous re-elaborations due to the inevitable “irritations” they determine within the involved legal systems.

The historical and sociological analysis will investigate the evolution of the manifold concept of migrant, which is pregnant of practical and symbolic implications for the understanding of the current phenomenon of migrations. The current state of the conceptual tools for prevision and removal of the concept of migrant is indeed affected by a secular process, which has defined migrants in Europe as people who are typically in search of a legal status, in the various circumstances of its transition.

The European approach has confined migrants on the margins of society as “irregular” (i.e. out of the rules) persons. Such a concept has been gradually constructed through processes of inclusion and exclusion, which have worked (and still work) in an ambiguous way and appear to be based upon both paternalistic, securitarian and humanitarian views.

The construction of a legal transnational model of ius migrandi, here assumed as an interdisciplinary research proposal, must take into account such a long and articulated legal formalization and must consequently embody a complex of rules and of procedural and substantial remedies stemming from the integration of the traditional views of general international law (protection of foreigners, equality and non-discrimination, non-refoulement), from the discourse on human rights (currently summarized by the formula “migrants’ rights are human rights”), from EU law, and from domestic law with regard to national law of both EU member States and of non-EU Mediterranean countries. In this perspective, the research will assess the extent to which Mediterranean legal systems actually comply with international obligations and will study the multidisciplinary tools for legal and institutional coordination which are currently in force.

The construction of a unitary legal status for migrants would then stem from the convergence of rights and liberties which currently show an uncertain legal relevance because they appear to be obscured by the crisis of the European legal pluralism and by the fragmentation of sources, jurisdictions and procedures aimed at the governance of migratory streams, notably: individual freedom to leave any country, to return one’s own mother-country, the right to family unity and reunion, the right of children to acquire a nationality, due process guarantees governing expulsions, , the prohibition of torture and degrading and inhuman treatments, the prohibition of arbitrary detention and of collective expulsions, the enforcement of the right of asylum-seekers and the protection against refoulement, the regulation of entrance and stay of migrant workers, the controversial protection of their economic, social and cultural rights.

Within this attempt to systematize a uniform ius migrandi, the research will also take into account, as “counter-limits” to the demand of protection, the problems relating to criminal control and human trafficking, which cannot be adequately faced through the traditional notions of “territory” and “jurisdiction” and the ordinary means of judicial cooperation.

The research will pay specific attention to comparative law and private international law, in order to assess possible interactions between different legal systems in the legal treatment of the condition of people living “in-between laws”. Indeed, the proposed legal transnational model cannot ignore a further perspective which looks at migrations as a structural factor which affects European countries and thus triggers specific re-arrangements of the legal systems of European destination countries, with particular respect to matters relating to personal and family statuses.

The team aims to establish a permanent “laboratory” focused on transnational and domestic relevant practices (legislation and case law) on migrants’ human rights. This will provide students and other qualified local actors with a specialized training on the transnational dimension of the law of migrations.

http://www.mattiainsolera.net/land

Thami e Faizal, due migranti minorenni marocchini osservano la nave che connette Melilla con la Spagna europea, Melilla, 2010