Право и политика в сфере миграционного регулирования

Abstract

The paper is focused on the contradiction between legal and political rationales in the field of migration regulation on national and international levels. The fundamental norms laid down in the corpus of law may conflict with the politicians’ views on the viability of various courses of action. This opens the door to serious collisions between agents motivated by divergent rationales. In practice, however, the subject matter is not so much the difference in rationales but rather differences in interpretation of legal arguments by various actors. They resort to these arguments to the extent that one or another of legal provisions helps legitimizing their political position and actions. Discrepancy in attitudes towards migratory issues creates a number of conflicts which can be classified as follows. (a) The collision of priorities (namely, protection of human rights versus concerns on national security); (b) the collision between proclaimed values and pragmatic rationales; (c) the collision between public rhetoric of the right populists and the game rules set up by liberal-conservative consensus of the political mainstream. The first collision is illustrated by the controversy between American judiciary and D. Trump administration around the travel ban imposed on citizens of Muslim countries as well as the conflict between Executives and the Legislative power on Trump’s project to build a wall on Mexican border. The second collision is being played out in the European Union after the refugee crisis (2015): mainstream politicians have to balance between their agenda and pressure from the far-right, so they tend to combine liberal rhetoric with restrictive policies. The example for the third collision is the behaviour of the Italian governing coalition 2018–2019, when Matteo Salvini and his adherents turned out to be less resolute in implementing anti-immigration measures than they promised during election campaign.