Can the Law create discrimination? Migration, Territorial Sovereignty, and the Search for Equality

In the history of modern thought, the right to migrate is theorised as a prerogative belonging to every individual. The ius migranti is originally a right of Westerners, while it developed in later times within the framework of the primacy of state sovereignty in deciding the forms and limits of its exercise. These premises are reflected in the issues that need to be addressed when we consider the right to migrate as a human right, while experiencing the different regulatory regime concerning emigration and immigration. With a view to the realisation of global justice and equality goals, the contemporary debate on migration has privileged its consideration in terms of freedom of cross boarding movement, as well as its quality as a moral right. The right to migrate would thus only be a human right if it were set as a prerogative that cannot be compressed by states and the exclusionary power of citizenship. After a brief historical analysis, this chapter focuses on the possibility of pursuing goals of global justice and equality for migrants regardless of the prerogative of states to govern their entry, also through the recognition of citizenship rights capable of guaranteeing primary goods of a social nature.