Dialectic of Transnationalism: Unauthorized Migration and Human Rights, 1993–2013
\\jciprod01\productn\H\HLI\54-2\HLI201.txt unknown Seq: 1 11-JUL-13 11:47 Volume 54, Number 2, Summer 2013 Dialectic of Transnationalism: Unauthorized Migration and Human Rights, 1993–2013 Itamar Mann* 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 judi- cial 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). Introduction Too many lives have already been lost. Too many others are in danger of being lost. —Houston Expert Panel Report, Australia1 Since the 1990s, the dominant theory of international law has been trans- national legal theory, or “transnationalism.”2 This theory combines a descrip- * J.S.D. candidate, Yale Law School. I am indebted to Tendayi Achiume, Dennis Curtis, Tom Dan- nenbaum, Owen Fiss, David Singh Grewal, Julie Hunter, Paul Kahn, Darryl Li, Samuel Moyn, Judith Resnik, Shira Shmuely, and Patrick Weil for their invaluable comments on various drafts of this paper.
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