The Non-Legal Role of Human Rights Law in Addressing Immigration

Current domestic and international law relating to immigration tends to favor law enforcement over human rights approaches. Despite these tendencies, international law has helped develop a human rights framework applicable to migrants. In particular, this paper hypothesizes that international human rights treaties that deal specifically with migrants' rights may provide some small but meaningful gains for migrants by: (1) influencing non-binding regional processes; (2) contributing to the development and dissemination of best practices; and (3) producing and codifying a human rights discourse. If such an account is correct, the emphasis on whether states formally adopt international law obscures some of the less obvious benefits of developing immigration human rights treaties and their related regimes.

First, the article suggests that treaties can be agenda-setting for non-binding regional processes. While political science scholars have begun looking at the effects of such processes more generally, few international law scholars address this phenomenon. This paper hopes to spur some interdisciplinary discourse by suggesting that non-binding regional processes create a pathway by which international law may reach and influence even those states skeptical about joining international treaty regimes. Second, the article investigates the way in which immigration human rights treaties may contribute to the development and dissemination of best practices. Third, this paper conjectures that treaties assist in the production and codification of a human rights discourse. It relies on insights from psychology to demonstrate why language and rhetoric might guide state and individual behavior.

Finally, this paper concludes with a snapshot of Italian immigration policy as a case study. Italy provides a discrete example of how international treaties can influence domestic legislation as well as highlights some of the difficulties in promoting and enforcing migrants' human rights.