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A Review of the Formation of an International System for Protecting People’s Rights to Move between Countries and the Problems of Immigration Policy

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2024, 12(4), pp.323-380
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : October 30, 2024
  • Accepted : November 24, 2024
  • Published : November 30, 2024

Jongho Kim 1

1호서대학교

Accredited

ABSTRACT

In the future, when the movement of people crossing borders is expected to further expand and accelerate, the state will remain a central entity that exerts a certain level of coercive power over the phenomenon. Therefore, in this study, I classify the currently forming international system on the rights of migrants into two types, the regulatory restriction system and the rights protection system, and then explain the possibility that the regulatory restriction system will be stricter on the rights of migrants than the migration policy at the national level. In addition, it can be expected that the regulatory system will be further strengthened in the future due to the strengthening of each country’s immigration policy and security policy. In response, it was also explained that although the formation of a rights protection system was significantly late, it has only emerged in the form of an international NGO network since the late 1990s through the ratification movement of the ICMW. The discretion of the government of the host country of immigrants is by no means small. As summarized in this paper, the government is attempting to regulate the vector and scale of people’s cross-border movement and the form of their settlement, through a variety of regulations, purposefully and selectively. However, judging that the government of a country accepts a person with certain characteristics from the perspective of national interest, developing and implementing a policy in accordance with that policy, and further realizing the original intention are two different things. For immigrants with a weak political position in the society hosting them, the existence of an international rights protection system is absolutely necessary both in terms of putting pressure on the host country’s government and in opposing the international regulatory and restriction system. However, compared to the regulatory restriction system, the incentives of each country’s government to form a rights protection system are significantly low. Therefore, the boomerang effect from above through international organizations and the boomerang effect from below through NGO networks are essential for the development of the rights protection system. Additionally, in the case of immigrants residing outside their country of nationality, only by taking advantage of this two-way boomerang effect can they become political subjects in the international community who claim their rights. How are the effectiveness and limits of policy management for human migration between countries defined? As mentioned in this paper, several factors make the effectiveness of immigration policy uncertain. For example, for stakeholders involved in the cross-border movement of people, it is difficult for the government’s goals to be achieved if the policies and legal systems for bringing in people from abroad are not valuable enough to utilize. Future research tasks should examine the situation in which the international decision on the number of human smuggling concluded by the UN and EU in the late 1990s is promoting the expansion of the regulatory restriction system and at the same time interfering with the migrant rights protection system. Although it is related to the migrants themselves, the pressure of population movement to their home country is an external factor that cannot be ignored in whether the policy’s intentions are realized. This point will be clear even in the Korean case discussed in the text. The size and nature of potential migration determines the performance of policies, including their misreading by host governments. However, as explained in the main text, difficulties remain regarding the method of evaluating performance. As reviewed in the main text, the system of regulatory restrictions on immigration is expected to continue to develop in the future, and its content will inevitably become more restrictive on the rights of immigrants than domestic immigration policy. If we open the door to bring in people from overseas and set up several hurdles, it would be no wonder that the number of immigrants does not increase. It is fully predictable that the movement of people across borders will become more active in the future and that patterns will become more complex. Therefore, there is a demand for a representative for the protection of migration rights comparable to that of domestic judicial institutions to be active in the international community. In order to protect the right to migrate, it is necessary to examine the possibility of an institution that can support a transnational citizenship mindset before discussing the existence or absence of transnational citizenship, which is being formed as seen in the debate between transnationality and the state. First of all, I believe that establishing such a system will lead to the protection of migrants’ rights and, furthermore, to the protection of human rights beyond borders. Meanwhile, there remains much room for systematic verification of the effectiveness of policies aimed at controlling the movement of people between countries from both theoretical research and empirical analysis, including methods for measuring their effectiveness. Therefore, in the future, it will be more necessary to deepen the understanding of the effectiveness and limitations of policy management of population movement between countries by accumulating detailed case analysis and comparative consideration between multiple cases.

Citation status

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