INTERNATIONAL SOFT LAW IN REGULATING MIGRATION PROCESSES: ASSISTANCE OR ALTERNATIVE?

Abstract

The article attempts to deal with the role and place of international soft law in the source base of international migration law. The analysis of the infl uence of soft law norms on the international regulation of migration processes is made and the conclusion is made about the auxiliary role of soft law and the prospects for the interaction of these two forms of international regulation are determined.International soft law is not a source of international law per se, but it is instrumental in three of the following areas: it provides evidence of the existence of international custom; it is an instruction on the application of an international treaty; it can also be used as a privileged way of facilitating interstate cooperation. International migration law is also governed by international soft law, which refers to non-binding instruments adopted by States and international organizations.Soft law interacts with custom in three main ways: 1) it can encode a pre-existing custom in writing, which in turn provides greater accuracy for its content; 2) it can consolidate the process of customary law and crystallize the formation of this rule, giving the fi nal impetus to its approval; 3) it can be the starting point of a common law process that can ultimately create a new binding rule of conduct. In all these three scenarios, soft law does not operate in isolation.The fi rst and main systemic function of soft law is to uphold hard law, to strengthen its legal status and importance within the international legal system. In such a complex and delicate legislative process, soft law and hard law are sometimes so mixed that an optional document may be binding as a result of its association with custom or treaty. Indeed, soft law has become an important catalyst for customary international law.The article attempts to address the problematic issues that arise in the regulation of international migration processes due to the uncertainty of the source base of international migration law.It is concluded that sometimes alternative regulation of migration processes is by soft law, which in this case is of instrumental value.