Regime Entanglement in the Emergence of Interstitial Legal Fields: Denmark and the Uneasy Marriage of Human Rights and Migration Law

Abstract

This article examines the political and legal processes through which human rights and migration law have become confounded – what we in this article more generally refer to as regime entanglement. Regime entanglement implies that different areas of law not only interact but are more fundamentally entwined and mutually impacted. Human rights and migration have historically had distinct trajectories in European law and politics, but the recent coupling of the two, we argue, have transformed both. Migration law has gained legal momentum and judicial empowerment from increasingly engaging human rights law and institutions; human rights law has gained legitimacy for its universalist aspirations by developing, albeit slowly, a jurisprudence on non-nationals’ rights. Yet, the coupling has also been politically contentious – at times even explosive – which has in turn challenged both fields of law. Although the entanglement of migration law and human rights law is a general European development, the article applies a more situated approach, using Denmark as a case for understanding how these two legal regimes have been implemented and interacted in national law and politics.

Keywords: Migration, human rights, regime entanglement, international law, Denmark