First Approaches to Human Right ‘Not to Emigrate’

Abstract

With the words that the title anticipates, this paper postulates the theoretical formulation of the human right to emigrate as the core of an adequate solution to the migration crisis faced by the European Union, especially in the Mediterranean Sea. The last episode of the 21st century refugee catastrophe put in serious contradiction fundamental principles of traditional positive law with basic human rights that require a fair and not merely utilitarian harmonization in order to provide satisfactory legal answers to the socio-political problem at hand. The Global Pact on Migration of 2018 establishes a regular, orderly and safe migration, but the legal response based on national sovereignty leads many States (some with nationalist governments of a neo-fascist nature of the extreme right) to promote and practice xenophobia, racism and aporophobia with a notable increase in deportation, judicialization of migration, expulsion, confinement, construction of walls, extortion, kidnapping, disappearances, rape, torture, death (20.014 in the period from 2014 to date on the Mediterranean routes), degrading inhumation and human trafficking (close to the reduction to slavery by criminal organizations). For these reasons, the legal response of the human right to emigrate constitutes a proposal of our discipline that is adequate and, until now, not very developed, to harmonize, with justice, the basic human rights in the international community that consecrates humanism and the supreme principle of Law, which is to allow the human dignity of the free choice of the life project of each person, regardless of place of birth, beliefs, gender or skin color.