Abstract There is something missing in existing discussions of domination. While republican theory, antisubordination theory, and critical legal theory each have contributed significantly to our understanding of domination, their focus on structural relationships and group subordination can leave out of focus the individual wrongs that make up domination, each of which is an unjustified exercise of power by one person over another. Private law (supported by private law theory) plays an important role in filling out our pictures of domination and the role of the state in limiting it. Private law allows us to recognize domination in wrongs by one person against another, and it has the potential to articulate the state-enforced boundaries on domination as well as a framework for thinking through inevitable compromises between the aspiration to nondomination and other basic interests of a liberal state. We can understand employment law as continuous with private law, that is, attempting to vindicate a nondomination principle in the context of employment by regulating specific acts of employers. Alternatively, we might understand employment relationships to define group membership, commonly recognized along class lines. In that case, employment law is not about individual nondomination but about mitigating class subordination. It might do this in service of the antisubordination principle, or in order to ensure that employees are capable and ready to exercise the responsibilities of democratic citizenship. While these various purposes largely coincide, there are points of normative divergence which sometimes require that we prioritize one or other function of employment law over the others.
{"title":"Nondomination and the ambitions of employment law","authors":"Aditi Bagchi","doi":"10.2139/ssrn.4121768","DOIUrl":"https://doi.org/10.2139/ssrn.4121768","url":null,"abstract":"Abstract There is something missing in existing discussions of domination. While republican theory, antisubordination theory, and critical legal theory each have contributed significantly to our understanding of domination, their focus on structural relationships and group subordination can leave out of focus the individual wrongs that make up domination, each of which is an unjustified exercise of power by one person over another. Private law (supported by private law theory) plays an important role in filling out our pictures of domination and the role of the state in limiting it. Private law allows us to recognize domination in wrongs by one person against another, and it has the potential to articulate the state-enforced boundaries on domination as well as a framework for thinking through inevitable compromises between the aspiration to nondomination and other basic interests of a liberal state. We can understand employment law as continuous with private law, that is, attempting to vindicate a nondomination principle in the context of employment by regulating specific acts of employers. Alternatively, we might understand employment relationships to define group membership, commonly recognized along class lines. In that case, employment law is not about individual nondomination but about mitigating class subordination. It might do this in service of the antisubordination principle, or in order to ensure that employees are capable and ready to exercise the responsibilities of democratic citizenship. While these various purposes largely coincide, there are points of normative divergence which sometimes require that we prioritize one or other function of employment law over the others.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"25 4 1","pages":"1 - 25"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91062811","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This Article explores the idea that the moral standards of relational or interpersonal justice can be used to lay the foundations for a theory of justice in work, rather than relying on principles of justice developed for society as a whole in philosophical theories of distributive justice. It is argued that a rich and distinctive scheme of interpersonal justice can be developed by using a method of internal critique and by focusing on two distinctive features of contracts of employment. Because they are incomplete by design, like other relational contracts, contracts of employment depend for their success on a broad obligation of performance in good faith. Contracts of employment also usually function within organizations which provide the source of customary norms of associational justice that govern relations between members of the firm. These principles of associational justice include rewards based on desert, a strong egalitarian principle, protection from unjustified exclusion, and a right to have a voice in the affairs and the direction of the organization.
{"title":"Relational and associational justice in work","authors":"Hugh Collins","doi":"10.1515/til-2023-0004","DOIUrl":"https://doi.org/10.1515/til-2023-0004","url":null,"abstract":"Abstract This Article explores the idea that the moral standards of relational or interpersonal justice can be used to lay the foundations for a theory of justice in work, rather than relying on principles of justice developed for society as a whole in philosophical theories of distributive justice. It is argued that a rich and distinctive scheme of interpersonal justice can be developed by using a method of internal critique and by focusing on two distinctive features of contracts of employment. Because they are incomplete by design, like other relational contracts, contracts of employment depend for their success on a broad obligation of performance in good faith. Contracts of employment also usually function within organizations which provide the source of customary norms of associational justice that govern relations between members of the firm. These principles of associational justice include rewards based on desert, a strong egalitarian principle, protection from unjustified exclusion, and a right to have a voice in the affairs and the direction of the organization.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"1 1","pages":"26 - 48"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74406884","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grants rights of redress. Two non-instrumentalist conceptions of tort law appear to dominate how we are supposed to understand and discharge these tasks. One conception takes tort law to be the law of wrongs, whereas the other conception identifies tort law with the law of victim recourse. I argue that both conceptions (including a combination of both) mischaracterize what tort law does and what it should be doing. By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law to be identifying the value of the conflict to which it responds (or which it shapes). In fact, there are three types of conflicts: inherently valuable, tolerably valuable, and valueless. Each type of conflict calls for a qualitatively different response by the law of torts. The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law. I demonstrate this claim in connection with the tort of battery and then extend the analysis to capture the tort law of workplace and, in particular, trespass law as it applies to nonconsensual access to the workplace by organizers and by workers.
{"title":"The work of tort law: Why nonconsensual access to the workplace matters?","authors":"Avihay Dorfman","doi":"10.1515/til-2023-0006","DOIUrl":"https://doi.org/10.1515/til-2023-0006","url":null,"abstract":"Abstract Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grants rights of redress. Two non-instrumentalist conceptions of tort law appear to dominate how we are supposed to understand and discharge these tasks. One conception takes tort law to be the law of wrongs, whereas the other conception identifies tort law with the law of victim recourse. I argue that both conceptions (including a combination of both) mischaracterize what tort law does and what it should be doing. By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law to be identifying the value of the conflict to which it responds (or which it shapes). In fact, there are three types of conflicts: inherently valuable, tolerably valuable, and valueless. Each type of conflict calls for a qualitatively different response by the law of torts. The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law. I demonstrate this claim in connection with the tort of battery and then extend the analysis to capture the tort law of workplace and, in particular, trespass law as it applies to nonconsensual access to the workplace by organizers and by workers.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"50 1","pages":"74 - 96"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76224058","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This Article contrasts two views of the relationship between the fields of work law and private law. The “internal” view, propounded by Hanoch Dagan, would bring work law into the domain of private law by recentering the latter, including property law, around liberal values of reciprocal respect for autonomy. The “external” view locates the law of work in an overlapping but distinct domain that we might call “social law,” where it operates as a set of externally imposed conditions on the activity of employing others. When workers’ rights and interests come into conflict with those of owner-employers, the two views face off on the constitutional terrain of takings. In principle, the internal view might afford a better defense against takings challenges to laws that constrain property owners’ entitlements in the interest of those who work there, for it would redefine the former to reflect the latter. The external view relies more on takings law than property law to accommodate others’ interests when they conflict with traditional property rights. Unfortunately, the U.S. Supreme Court’s recent decision in Cedar Point Nurseries v. Hassid deals a heavy blow to both views. Its neo-Blackstonian conception of property rights rejects the notion that property law itself recognizes workers’ interests and entrenches that conception of property rights within the constitutional law of takings, sharpening the takings sword against social law’s regulation of property rights in the interest of others, including workers. Cedar Point thus underscores and magnifies the challenges that modern U.S. takings law, with its constitutional definition of property rights, poses to the advancement of workers’ rights, whether those are understood as internal or external to property law.
摘要本文比较了劳动法领域与私法领域关系的两种观点。Hanoch Dagan提出的“内部”观点，将工作法带入私法领域，将后者(包括财产法)重新纳入私法领域，围绕相互尊重自治的自由价值观。“外部”观点将工作法则定位在一个重叠但不同的领域，我们可以称之为“社会法”，它作为一组外部强加的条件，对雇佣他人的活动起作用。当工人的权利和利益与业主雇主的权利和利益发生冲突时，这两种观点就会在征收的宪法领域发生冲突。原则上，内部观点可能会提供更好的辩护，以应对那些为了在那里工作的人的利益而限制财产所有者权利的法律对征收的挑战，因为它将重新定义前者，以反映后者。当他人的利益与传统产权发生冲突时，外部观点更多地依赖于征用法而不是物权法来适应他人的利益。不幸的是，美国最高法院最近在Cedar Point Nurseries v. Hassid一案中的判决对这两种观点都造成了沉重打击。其新布莱克斯通式的财产权概念拒绝了物权法本身承认工人利益的概念，并将财产权概念置于宪法征收法中，使征收之剑变得锋利，反对社会法律对包括工人在内的其他人利益的财产权规定。因此，雪松点突显并放大了现代美国征收法及其对财产权的宪法定义对工人权利的进步所构成的挑战，无论这些权利是被理解为物权法的内部还是外部。
{"title":"Is labor law internal or external to private law? The view from Cedar point","authors":"C. Estlund","doi":"10.1515/til-2023-0008","DOIUrl":"https://doi.org/10.1515/til-2023-0008","url":null,"abstract":"Abstract This Article contrasts two views of the relationship between the fields of work law and private law. The “internal” view, propounded by Hanoch Dagan, would bring work law into the domain of private law by recentering the latter, including property law, around liberal values of reciprocal respect for autonomy. The “external” view locates the law of work in an overlapping but distinct domain that we might call “social law,” where it operates as a set of externally imposed conditions on the activity of employing others. When workers’ rights and interests come into conflict with those of owner-employers, the two views face off on the constitutional terrain of takings. In principle, the internal view might afford a better defense against takings challenges to laws that constrain property owners’ entitlements in the interest of those who work there, for it would redefine the former to reflect the latter. The external view relies more on takings law than property law to accommodate others’ interests when they conflict with traditional property rights. Unfortunately, the U.S. Supreme Court’s recent decision in Cedar Point Nurseries v. Hassid deals a heavy blow to both views. Its neo-Blackstonian conception of property rights rejects the notion that property law itself recognizes workers’ interests and entrenches that conception of property rights within the constitutional law of takings, sharpening the takings sword against social law’s regulation of property rights in the interest of others, including workers. Cedar Point thus underscores and magnifies the challenges that modern U.S. takings law, with its constitutional definition of property rights, poses to the advancement of workers’ rights, whether those are understood as internal or external to property law.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"34 1","pages":"124 - 146"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88293445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This Article offers an integrated analysis of the combined effect of the presence of migration bans and the absence of BLAs in domestic work in the emigration regime of Nepal. It identifies, acknowledges, critiques, and contributes to the critical literature highlighting entrapment processes in labor relations and immigration regimes by demonstrating the presence of such in the emigration regime. Drawing on the empirical findings of a participatory action research (PAR) project conducted in Nepal, the Article demonstrates how restrictive emigration policies and practices entail entrapment processes constitutive of the existing historical, cultural, gendered, racialized, and classed constraints impacting the lives of Nepalese citizens. The Article contributes to the critical literature that seeks to advance migrants’ rights, arguing that experiencing, encountering and escaping entrapment processes in the emigration regime impacts their agency when navigating immigration regimes and labor relations. This contribution advances the existing efforts to establish oft-ignored emigration regimes as important epistemological sites of research, theorization, and intervention.
{"title":"Entrapment processes in the emigration regime: The presence of migration bans and the absence of bilateral labor agreements in domestic work in Nepal","authors":"Ayushman Bhagat","doi":"10.1515/til-2022-0017","DOIUrl":"https://doi.org/10.1515/til-2022-0017","url":null,"abstract":"Abstract This Article offers an integrated analysis of the combined effect of the presence of migration bans and the absence of BLAs in domestic work in the emigration regime of Nepal. It identifies, acknowledges, critiques, and contributes to the critical literature highlighting entrapment processes in labor relations and immigration regimes by demonstrating the presence of such in the emigration regime. Drawing on the empirical findings of a participatory action research (PAR) project conducted in Nepal, the Article demonstrates how restrictive emigration policies and practices entail entrapment processes constitutive of the existing historical, cultural, gendered, racialized, and classed constraints impacting the lives of Nepalese citizens. The Article contributes to the critical literature that seeks to advance migrants’ rights, arguing that experiencing, encountering and escaping entrapment processes in the emigration regime impacts their agency when navigating immigration regimes and labor relations. This contribution advances the existing efforts to establish oft-ignored emigration regimes as important epistemological sites of research, theorization, and intervention.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"23 1","pages":"222 - 245"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78699780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In this Article we seek to shift the focus from the texts of bilateral labor agreements (BLAs) to the context of their emergence and materialization. We argue that to study BLAs and evaluate their consequences and potential relevance, they must be read from the perspective of processes of institutionalization that shape the paths of different agreements. In Israel, a cross-sectoral comparison of the agricultural and construction sectors reveals that different agreements did not follow the same path and institutionalization process. The Israel-Thailand agreements for the agricultural sector and the agreements regulating migration to the construction sector did not generate similar dynamics of institutionalization. In both sectors, BLAs transformed recruitment practices and led to a sharp decrease of illicit migration costs extracted in the process. Yet due to differences in the structure of the sectors and the expected skill level of workers, significant variations remain, most notably in the effect of BLAs on the permit and quota system and in the rise of paths to import labor outside BLAs. Based on this cross-sectoral comparison, we offer in this Article a grounded analytical perspective for examining and evaluating BLAs in context. In discussing our suggestions, we will project our analysis to the more recent agreement covering the live-in care sector that is currently the largest employing sector of guest-workers in Israel.
{"title":"Blas as sites for the meso-level dynamics of institutionalization: A cross-sectoral comparison","authors":"Yahel Kurlander, A. Cohen","doi":"10.1515/til-2022-0018","DOIUrl":"https://doi.org/10.1515/til-2022-0018","url":null,"abstract":"Abstract In this Article we seek to shift the focus from the texts of bilateral labor agreements (BLAs) to the context of their emergence and materialization. We argue that to study BLAs and evaluate their consequences and potential relevance, they must be read from the perspective of processes of institutionalization that shape the paths of different agreements. In Israel, a cross-sectoral comparison of the agricultural and construction sectors reveals that different agreements did not follow the same path and institutionalization process. The Israel-Thailand agreements for the agricultural sector and the agreements regulating migration to the construction sector did not generate similar dynamics of institutionalization. In both sectors, BLAs transformed recruitment practices and led to a sharp decrease of illicit migration costs extracted in the process. Yet due to differences in the structure of the sectors and the expected skill level of workers, significant variations remain, most notably in the effect of BLAs on the permit and quota system and in the rise of paths to import labor outside BLAs. Based on this cross-sectoral comparison, we offer in this Article a grounded analytical perspective for examining and evaluating BLAs in context. In discussing our suggestions, we will project our analysis to the more recent agreement covering the live-in care sector that is currently the largest employing sector of guest-workers in Israel.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"87 1","pages":"246 - 265"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77389519","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Labor migration is often regulated internationally through bilateral treaties signed between states, determining the conditions under which migrants from one state (or both) may travel to the other state and reside there in order to work. These instruments are sometimes designated as memoranda of understanding and regarded as nonbinding agreements. Many remain unpublished and undisclosed. This Article assesses these design choices critically. It considers the interaction between bilateralism, obscurity and nonbindingness. It evaluates and rejects possible justifications for obscurity and nonbindingness. Finally, it argues that these design choices should be resisted. Since bilateral labor agreements do not regulate strictly the bilateral relationship between two states, but rather create rights and obligations for various third-party individuals, they should be required to meet a rule of law requirement of transparency.
{"title":"Obscurity and nonbindingness in the regulation of labor migration","authors":"Tamar Megiddo","doi":"10.1515/til-2022-0012","DOIUrl":"https://doi.org/10.1515/til-2022-0012","url":null,"abstract":"Abstract Labor migration is often regulated internationally through bilateral treaties signed between states, determining the conditions under which migrants from one state (or both) may travel to the other state and reside there in order to work. These instruments are sometimes designated as memoranda of understanding and regarded as nonbinding agreements. Many remain unpublished and undisclosed. This Article assesses these design choices critically. It considers the interaction between bilateralism, obscurity and nonbindingness. It evaluates and rejects possible justifications for obscurity and nonbindingness. Finally, it argues that these design choices should be resisted. Since bilateral labor agreements do not regulate strictly the bilateral relationship between two states, but rather create rights and obligations for various third-party individuals, they should be required to meet a rule of law requirement of transparency.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"88 1","pages":"95 - 112"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91038964","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This Article discusses BLAs as tools of global labor migration governance, with a specific focus on gender. Drawing on our global database of 582 bilateral labor migration agreements (BLAs), we investigate the extent to which these governing instruments connect and align with relevant international normative frameworks, in particular the extent to which they represent gains, gaps or gaffs in terms of gender equality and the human and labor rights protection of women migrants. In the context of the Global Compact for Safe, Orderly and Regular Migration (GCM), which stresses a gender-responsive approach to migration governance as one of its guiding principles, we ask: Do the BLAs which are increasingly being used as instruments to govern labor migration contribute toward sustainable gender equality, decent work and reduced inequalities for women and gender-diverse migrants?
{"title":"Bilateral labor agreements as migration governance tools: An analysis from a gender lens","authors":"J. Hennebry, N. Piper, Harish Kc, Kira Williams","doi":"10.1515/til-2022-0015","DOIUrl":"https://doi.org/10.1515/til-2022-0015","url":null,"abstract":"Abstract This Article discusses BLAs as tools of global labor migration governance, with a specific focus on gender. Drawing on our global database of 582 bilateral labor migration agreements (BLAs), we investigate the extent to which these governing instruments connect and align with relevant international normative frameworks, in particular the extent to which they represent gains, gaps or gaffs in terms of gender equality and the human and labor rights protection of women migrants. In the context of the Global Compact for Safe, Orderly and Regular Migration (GCM), which stresses a gender-responsive approach to migration governance as one of its guiding principles, we ask: Do the BLAs which are increasingly being used as instruments to govern labor migration contribute toward sustainable gender equality, decent work and reduced inequalities for women and gender-diverse migrants?","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"159 1","pages":"184 - 204"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88013839","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract ASEAN agricultural workers represent one of the most vulnerable groups of workers regardless of citizenship. While bilateral agreements focus on general migration governance mechanisms, the specifics of agricultural workers’ rights and protections fall outside their scope. Due to the seasonal nature of cross-border agriculture, these are flexible precarious workers readily available to employers in the borderlands that often do not invest in worker health and social security. The Article reveals how foreign migrant agricultural workers with and without work permits continue to fall between the gaps of national labor protection laws, due to both legal structural exclusions as well as the particular vulnerabilities of being noncitizen workers in remote, unsafe workplaces. This Article documents some of the developments during 20172019 in migrant employment in export cash crops. The next challenge for the future is developing mechanisms for bilateralism to lower migration costs, with a commitment to genuinely safe migration, as well as the establishment of long-term equitable working conditions for all migrant workers. The major findings demonstrate how the two main reasons for the discrepancies between the BLA and labor protections have to do with the noninterventionist approach of ASEAN and a series of technical exclusions in Thailand’s labor law and regulation.
{"title":"Understanding the gaps between the bilateral regularization of migration and workers’ rights: The case of agricultural migrant workers in Thailand","authors":"Sudarat Musikawong","doi":"10.1515/til-2022-0020","DOIUrl":"https://doi.org/10.1515/til-2022-0020","url":null,"abstract":"Abstract ASEAN agricultural workers represent one of the most vulnerable groups of workers regardless of citizenship. While bilateral agreements focus on general migration governance mechanisms, the specifics of agricultural workers’ rights and protections fall outside their scope. Due to the seasonal nature of cross-border agriculture, these are flexible precarious workers readily available to employers in the borderlands that often do not invest in worker health and social security. The Article reveals how foreign migrant agricultural workers with and without work permits continue to fall between the gaps of national labor protection laws, due to both legal structural exclusions as well as the particular vulnerabilities of being noncitizen workers in remote, unsafe workplaces. This Article documents some of the developments during 20172019 in migrant employment in export cash crops. The next challenge for the future is developing mechanisms for bilateralism to lower migration costs, with a commitment to genuinely safe migration, as well as the establishment of long-term equitable working conditions for all migrant workers. The major findings demonstrate how the two main reasons for the discrepancies between the BLA and labor protections have to do with the noninterventionist approach of ASEAN and a series of technical exclusions in Thailand’s labor law and regulation.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"150 1","pages":"289 - 325"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76149659","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Countries increasingly have been entering bilateral labor agreements (BLAs) as a tool for the regulation and governance of short-term temporary labor migration worldwide. However, these are often confidential legal instruments, and consequently we know relatively little about their actual content and impact, and why countries choose to enter them. This Article complements existing explanations in the literature regarding the reasons why countries enter BLAs and their potential to create and improve migrant workers’ rights. Based on a detailed content analysis of 81 recent BLAs signed largely over the last 20 years, and on a wide literature review and interest analysis, we introduce a “control thesis.” According to the control thesis, the popularity, confidentiality and unenforceability of BLAs can be explained, at least partially, by their ability to promote a key shared interest of sending and receiving countries in controlling and policing the mobility and actions of migrant workers and also, at times, aspects of the illicit migration industry that develops around labor migration. We reach this conclusion, and elaborate on its meaning and the potential it may hold for migrant workers and their advocates, in strategically seeking to use BLAs to improve temporary migrant workers’ rights and protections.
{"title":"Gaining control? bilateral labor agreements and the shared interest of sending and receiving countries to control migrant workers and the illicit migration industry","authors":"Yuval Livnat, Hila Shamir","doi":"10.1515/til-2022-0011","DOIUrl":"https://doi.org/10.1515/til-2022-0011","url":null,"abstract":"Abstract Countries increasingly have been entering bilateral labor agreements (BLAs) as a tool for the regulation and governance of short-term temporary labor migration worldwide. However, these are often confidential legal instruments, and consequently we know relatively little about their actual content and impact, and why countries choose to enter them. This Article complements existing explanations in the literature regarding the reasons why countries enter BLAs and their potential to create and improve migrant workers’ rights. Based on a detailed content analysis of 81 recent BLAs signed largely over the last 20 years, and on a wide literature review and interest analysis, we introduce a “control thesis.” According to the control thesis, the popularity, confidentiality and unenforceability of BLAs can be explained, at least partially, by their ability to promote a key shared interest of sending and receiving countries in controlling and policing the mobility and actions of migrant workers and also, at times, aspects of the illicit migration industry that develops around labor migration. We reach this conclusion, and elaborate on its meaning and the potential it may hold for migrant workers and their advocates, in strategically seeking to use BLAs to improve temporary migrant workers’ rights and protections.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"47 1","pages":"65 - 94"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84731264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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