Dialectic of transnationalism: Unauthorized migration and human rights, 1993-2013

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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).

Original languageEnglish
Pages (from-to)315-391
Number of pages77
JournalHarvard International Law Journal
Issue number2
StatePublished - 2013
Externally publishedYes

ASJC Scopus subject areas

  • Political Science and International Relations
  • Law


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