Convergences and Divergences in International Legal Norms on Migrant Labor

Abstract

This essay will argue that even where disparate treaties converge doctrinally, they may diverge normatively and that normative divergence may be significant in its own right. Section I of this essay seeks to chart out an initial such analysis, conducting a concise comparison of particular rules affecting migrant workers from different realms of international law. Section I concludes with both a graphic representation of doctrinal convergences and divergences, and a further discussion the doctrinal relationships among treaties as elucidated through consideration of hypothetical legal disputes.Section II considers the normative implications of divergent rule systems. In particular, Section II raises the question of whether the rise of international criminal law, combating forms of illegal migration such as migrant smuggling and trafficking in persons, may support a normative divergence in international migration law between the primacy of the rights of individuals, on the one hand, and the primacy of states, on the other. This normative tension in turn marks a rift still greater than those between trade and labor, or labor and human rights: it represents the polarities of liberal legalism as a jurisprudential framework ultimately transcending sovereignty, or one that protects and legitimates sovereignty.This kind of normative analysis is, of course, highly stylized. Legal regimes do not stand for only one set of norms, but rather reflect contested and complicated histories. International labor law, for example, harbors tensions between the “economic and the social,” that is to say, an emphasis on particular industrial and workplace contexts versus broader aspirations toward justice. Moreover, even where particular principles predominate, this should not be taken to discount the importance of political economy, self-interested bargaining, and historical contingency in allowing those norms to prevail or in influencing the particular ways in which norms continue to develop and change over time.Finally, a consideration of norms explicitly articulated by the treaties or laws in question does not begin to describe their full effect, and formal principles often create substantive effects sharply at odds with their own terms. The treaty regimes analyzed in this article should be studied not only in terms of their internal complexities but also in their external “realworld” impact. Such an analysis is beyond the scope of this essay. Nevertheless, by mapping the array of international legal regimes across human rights, trade, labor, and crime that affect migration, and in describing some of their prevalent doctrinal and normative characteristics, it is hoped that the article might contribute to emerging scholarship on this topic.