Dialectic of Transnationalism: Unauthorized Migration and Human Rights, 1993-2013

78 Pages Posted: 11 Aug 2013

See all articles by Itamar Mann

Itamar Mann

University of Haifa - Faculty of Law

Date Written: August 1, 2013

Abstract

Systematic violations of the rights of unauthorized migrants on the fault lines between developed and developing countries expose the dialectic of transnationalism, a dynamic that occurs when both policy and judicial review go transnational. Three concurrent patterns define the dialectic: First, executive and judicial networks are bifurcated from each other, producing significant policies beyond the reach of judiciaries. Second, judiciaries exacerbate their bifurcation from policymaking through transnational decisions. Third, transnational law replaces absolute legal rules with pragmatic problem solving, eroding the normative basis of human rights. Although these patterns seem to show that the violations are an intractable feature of contemporary international law, this Article proposes countering them with “critical absolutism.” This approach identifies opportunities in which the dialectic can be challenged by presenting states with an existential dilemma: either treat people as humans and risk changing who you are (in terms of the composition of your population), or give up human rights and risk changing who you are (in terms of your constitutive commitments).

Suggested Citation

Mann, Itamar, Dialectic of Transnationalism: Unauthorized Migration and Human Rights, 1993-2013 (August 1, 2013). Harvard International Law Journal, Vol. 54, No. 2, Summer 2013. Available at SSRN: https://ssrn.com/abstract=2308108

Itamar Mann (Contact Author)

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

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