Direito cosmopolítico e direito à imigração: virtudes e defeitos da margem nacional de apreciação

Abstract

The study deals with migration, as an event of great legal and social importance in the world context, the result of several factors, including globalization, which remove or mitigate the migratory rights of people in their human condition; therefore, how to implement the legal right to migrate around the world, applying the theoretical and legal bases of cosmopolitical law as a foundation for national policies in international texts protecting human rights and thus reducing the extent of the use of the instrument of the national margin of appreciation by countries to avoid setbacks in legal rights already consolidated in the International Courts of Human Rights? Therefore, if there is no full protection of this right through the application of International Human Rights Treaties and the internal law of each nation, then with the use of the theoretical and practical bases of cosmopolitical law guided by the universalism of principles and the ethics of contexts , it becomes possible to enforce the legal rights of migrants around the world through national policies based on the restricted use of the instrument of the national margin, based on the jurisprudence of the Regional Courts of Human Rights. In this sense, the research aims, through the national margin of appreciation - with the initial base in cosmopolitan law -, to carry out a bibliographical re-reading through doctrine, laws, secondary sources and jurisprudence, combined with the use of monographic and comparative methods, to demonstrate that the right to migrate effectively is possible. Therefore, a legislative and doctrinal investigation was necessary to strengthen the social and legal equality between the migrant and the national, seeking to present from the migratory motivation, under the sociological, economic and legal bias, to human dignity as a fundamental precept, in addition to of the social foundations of national and global justice, without forgetting the need to reframe state sovereignty and its conceptual evolution. In the same way, grant everyone the elevation of the human being as a subject of rights before nations. Due to the internationalization of fundamental rights, after the Second World War, and the creation of the United Nations protection system and its regionalization in Europe, the Americas and Africa, especially the migratory right of asylum, statelessness and refuge, it was possible to visualize the normalization of these rights and their application in international human rights courts, through their decisions, which aim to try to balance the national norm in relation to regional treaties. The national margin of appreciation, despite its virtues and defects, and its wide or narrow application, has proven to be an adequate legal instrument to harmonize the rights of displaced people, however, it is being used indirectly and transversally in jurisprudential research raised in the courts of the three continents mentioned. Finally, the management of this legal instrument, initially based on a legal hermeneutics capable of uniting the values of jus cosmopolitanism, of equality among all in a mitigated and solidary sovereignty, both in the internal and external bosom of nations, makes it possible to implement the right to migrate from asylum seekers, stateless persons and refugees.