Transnational Migration Contesting Borders of Responsibility for Justice

Introduction

Migration is a topic that resonates today in public debates and is high on a global agenda. However, what is often omitted in these debates as well as in much of the research on migration are the structural causes of migration – transnational conflicts, proxy wars, geo-strategic resource rivalries, global economic architecture and inequalities, etc. – and their broader theoretical analysis. The proposed solutions thus stay on the surface. Although one can rely on international conventions guaranteeing human rights and social security for people regardless of their citizenship, the migrants’ lived experience shows significant gaps in their access to these rights. Transnational migration sheds light not only on the malfunctioning of the global political regime but as a starting point of social analysis it also helps us challenge some of the widely accepted assumptions of the social sciences and normative claims derived from them. Analysis of transnational migration thus opens a broader issue of global justice.

In this article, first I focus on structural causes of transnational migration resulting from the contradictions of global capitalism, against the backdrop of which I discuss the problematic construction of categories of political migrants/refugees (deserving of admission and legal protection) and those of economic migrants (not deserving of admission). ¹ In the second part, I analyze the methodological and practical limits of the current dual approach: on the one hand, borderless in relation to the market and trade; and on the other, border-restricted when it comes to responsibility for global justice and realization of human rights. I argue that the analysis of structural injustice in relation to migration shows that the current nation-state defined framework of responsibility for global justice fails. The critical analysis of structural causes of transnational migration and a critique of an inadequate approach rooted in methodological nationalism is a necessary first step in articulating normative requirements of appropriate solutions. I focus on the possibilities of extraterritorial obligations partly embedded in current international law, which are already politically acknowledged in relation to issues such as gender equity, although not yet realized, and will also point out their limitations. Finally, I outline an argument for a differentiated responsibility for global justice.

The Sources of Structural Injustice and Transnational Migration

According to the latest United Nations International Migration Report (UN, 2017), there were 258 million transnational migrants worldwide in 2017, representing 3.4% of the world’s population. Towards the end of 2016, the number of refugees and asylum seekers was estimated at 25.9 million, i.e. 10.1% of transnational migrants. Although the number of migrants is rising (173 million transnational migrants globally in 2000, 220 million in 2010, and 248 million migrants worldwide in 2015), about half of all transnational migrants remain in the same macro-region they come from, and 85% of the world’s refugees are hosted in developing countries, with Turkey, Uganda and Pakistan hosting the highest number of refugees who come most often from Syria, South Sudan and Afghanistan. ² The transnational migration statistics thus show that migration is distributed among the world macro-regions more evenly than is commonly assumed and presented in most alarmist media coverage.

Today, intensifying global interactions make social relations and global risks more interconnected, with processes and actions in one part of the world having a significant impact elsewhere (Beck, 2009). Migration and unstable transnational financial markets are an illuminating example of this social dynamics. Leslie Sklair (2002) argues that it is important to make a distinction between generic globalization and capitalist globalization. While capitalist globalization represents one particular historical form of globalization, which is associated with a whole array of negative consequences, in general some global interactions are needed in order to address global structural injustices created by global capitalism. This also implies that nostalgic anti-globalization nationalist tendencies relying on the naturalized idea of the nation state ³ are hitting the wrong target with their simplified criticism of globalization. The scope of a more progressive form of social organization and political institutions needs to correspond to the levels at which today’s conflicts and injustice are generated.

William Robinson (2004, 2012, 2014) defines capitalist globalization as the fourth stage in the development of the capitalist system. ⁴ In his view, global capitalism is a qualitatively new stage where transnational circuits of production and accumulation are formed, and so is a transnational capitalist class, which is no longer aligned with any particular state. In contrast to the world system theory, which sees globalization as a quantitative process of integrating national economies into the world economy, Robinson formulates a theory of global capitalism that interprets contemporary global interactions as a qualitative change accompanied by the disruption of national accumulation circuits and their reintegration into a new global accumulation circuit. This important analytical step allows Robinson to overcome methodological nationalism which prevails not only in the social sciences, in general, but also in research on migration (Sager, 2018; Wimmer and Schiller, 2002) and which overshadows the structural causes of transnational migration. The current slowdown in global trade growth after the 2008 economic crisis or the call of some political actors to protect local economies do not reverse the dominant long-term tendencies of the global economic system, which passes through globalizing and deglobalizing stages and is shaped by competing groups within the transnational capitalist class (Harris, 2016; Hrubec, 2013; Robinson, 2012, 2014; Sklair, 2016).

With regard to the development of the global capitalist system, Leslie Sklair (2003) redefines the classical definition of the capitalist class. He argues that “globalization of capitalism can only be adequately understood when ownership and control of money capital is augmented with ownership and control of other types of capital, notably political, organizational, cultural, and knowledge capital” (Sklair, 2003: 17). According to him, the transnational capitalist class today is composed of four fractions: the corporate fraction that includes the owners of the major corporations and managers who run and supervise them, the state fraction composed of global bureaucrats and politicians at international, national and local levels aligning with global capital, the technical fraction made up of professionals in global labor markets, and the consumerist fraction, which consists, in particular, of actors controlling the media (Sklair, 2003: 17–23). Sklair shows that the economic interests of the transnational capitalist class are increasingly global. The main actors include transnational corporations and international and supranational institutions (World Bank, International Monetary Fund, World Trade Organization, etc.) as well as the major state powers which promote, in a concerted effort with all fractions of the transnational capitalist class, a global capitalist project through free trade agreements, neoliberal development projects and policies and/or by inciting war conflicts. The state fraction of the transnational capitalist class allows transnational corporations to promote their interests on the internationally organized political scene (including UN) through the major state powers. Thus, the nation-state institution still plays an important role here, and following the 2008 crisis, the transnational capitalist class has used it to a great extent in some respects. In a number of cases, Western states contribute to and enable with their actions the negative workings of transnational corporations, while making use of the colonial history and the ensuing geopolitical hierarchy to maintain their influential position. On the other hand, the possibilities of smaller and poorer states, in particular, to act against the largest transnational corporations are quite limited. In the current globally interconnected world, nation states cannot always guarantee human rights of people within their territory.

From a long-term historical perspective, the development of capitalism is coupled with conquest, and this military aspect is now undergoing transnational transformation, too – the spatial conquest of new markets has been replaced by the creation of new markets, which are connected to military interventions and repressive measures. Jerry Harris (2008) insightfully analyzes the rivalry of the national and transnational components of the capitalist class within the military-industrial complex in the United States in the wake of September 11, 2001. Given the fact that the military-industrial complex is aligned with the political institutions of the great superpowers, with the US wielding a hegemonic position, militarized accumulation, as Robinson (2014) puts it, becomes part of the global economy in which it patches the problem of excessive accumulation. Robinson argues that militarized accumulation does not foreshadow a new era of imperialism,

militarized accumulation now is not the same as previous “military Keynesianism,” since much of warfare itself and the related processes of social control and repression have been privatized or semiprivatized. […] militarized accumulation now ranges from the replacement of state soldiers by mercenary armies (“private security firms”), to the subcontracting of reconstruction projects, military engineering, the contraction of military and conflict-related installations, the supplying of food, consumer items, and services to occupation armies, the construction of private prisons and “security walls,” and even the subcontracting of torture and interrogation. (Robinson, 2014: 151)

Repressive practices against undocumented migrants, border security and control, detention facilities and other related migrant business are part of this militarized accumulation (Trujillo-Pagán, 2014). ⁵ Conflicts and wars which spark displacement and migration are often falsely interpreted as if they are exclusively the result of civil conflicts between local ethic groups and/or a failed state controlled by corrupted government. However, causes of such political violence are historically embedded in global geopolitics and exacerbated within global capitalism. Alison J. Ayers (2010) supports this argument through the case of Sudan. Daniel Robicheau (2014) analyzes the embeddedness of the Syrian conflict within global capitalism. In general, analyses of transnational practices of global capitalism show that they bring about consequences such as increasing global inequalities and poverty, transnational conflicts and wars, deterioration of public services and governance, global risks, including environmental risks, which constitute structural causes of transnational migration.

Transnational practices of global capitalism contribute to rising migration from poorer countries and to the retaliatory closing of borders and criminalization of migration in richer countries. In 2017, 64% of 258 million transnational migrants lived in high-income countries (UN, 2017). However, intra-continental migration is dominant; for example, 67% of transnational migrants in Europe come from Europe, in Asia it amounts to 60%, and in Africa to 53%. Regarding the growth rate, the number of migrants in Africa rose fastest between 2000 and 2017 – 3% per year on average. Nevertheless, most transnational migrants come from Asia (106 million) followed by migrants from Europe (61 million). Women account for about half of the migrants crossing borders worldwide (48.4% in 2017), but slightly more women than men come to Europe, for example (52% in 2017). Transnational migrants are among the most vulnerable groups, for whom it is difficult to enjoy internationally recognized human rights that they are formally guaranteed, such as the right to health care, the right to education, the right to a family, etc. Migration entails an increased risk of life, violence and abuse. Gender-based violence poses a significant risk for women, in particular. The working conditions of migrants, including wages, are generally worse than those of the domestic population; they more often face discrimination, violation of labor rights and exploitation. Practices in detention centers and the criminalization of migrants systematically reproduce their disadvantaged position and allow for their human rights to be violated. Irregular migrants find themselves in a particularly vulnerable position (De Genova, 2002; Estévez, 2012; Schierup and Jørgensen, 2016; ; Schierup et al., 2015; UN, 2017).

While most of the restrictive measures of migration policies are institutionalized at the level of nation states, their driving force and causes are transnational and global, hence these actions, too, are part of the dynamics of global interactions. ⁶ Although global interactions and conflicts, which are co-shaped by influential actors within global capitalism – ranging from transnational corporations, international institutions, to transnational and national politicians – form structural causes of inequality and migration, economic and social reasons for migration are not perceived as legitimate in political debates. Moreover, much of the research within migration studies when dealing with causes of migration and economic factors focuses on push and pull factors to which individual migrants or individuals considering needs of their family and community (which is already a corrective to an excessive individualism of neoclassical rational choice theories) react. Even much of research which problematizes the straightforward supply and demand analysis by including historical and cultural factors, social networks and transnational ties, fails to systematically link the issue of migration to the broader social theory of global economy and transformations (Castles, 2010). ⁷ As a result, a bulk of migration research in fact supports migration policies which implicitly define people’s mobility owing to the above-stated reasons as a free choice or a result of a failed state (and hence an internal matter of that state). The international human rights regime defined by Seyla Benhabib as “a set of interrelated and overlapping global and regional regimes that encompass human rights treaties as well as customary international law or international soft law” (Benhabib, 2006: 27) excludes individuals who migrate for non-political reasons (i.e. other reasons apart from persecution on the grounds of race, religion, nationality, membership of a particular social group, or political opinion) from the international protection of refugees. Since the adoption of the 1951 Refugee Convention and its 1967 Protocol, this definition has been the subject of critical debates, as it is obvious that it does not meet the needs of individuals whose lives are endangered due to war conflicts, other humanitarian disasters and economic and social hardship. Ariadna Estévez summarizes that

the universal legislation concerning refugees […] continues to exclude many modern migrants […] – in particular those people fleeing as a result of the structural properties of globalization in general (i.e., those people fleeing for economic or environmental reasons, or for reasons of persecution by nonstate agents such as guerrillas, paramilitary organizations, or organized crime). (2012: 30)

Although the Universal Declaration of Human Rights guarantees everyone the right to emigration, it does not specify the obligation on the part of States to accept migrants in their territory. Benhabib thus concludes that this leads to “a series of internal contradictions between universal human rights and territorial sovereignty” (Benhabib, 2006: 30). However, even proposals to extend the definition of refugees do not go far enough with regard to the transformation of global capitalism and interconnection of social relations.

Given the fact that economic and social reasons are dismissed as legitimate reasons for migration, many migrants end up in the receiving country without a valid permit as so-called irregular migrants. Nicolas De Genova (2002: 438) argues that the construction of the “illegality” of migrants and the threat of deportation “has historically rendered undocumented migrant labor a distinctly disposable commodity”. According to him, there exists structurally exploited labor created as a result of the threat of deportation of migrants without a permit (and indirectly of regular migrants as well). This structural exploitation is the product of immigration law of the nation state, which is applied through “an active process of inclusion through ‘illegalization’” (De Genova, 2002: 439). The phenomenon of economic and social migration shed light on the functioning of the global economic system and the complicit role of the institutions of the nation state. The migrants’ lived experience shows that these factors not only strongly affect quality of life, the possibility to develop in a meaningful manner their own capacities and to make plans for the future, but they also dramatically restrict an individual’s possibility to control and predict the results of their actions. People’s decision to migrate is their active choice, but it is not a free choice because it is fundamentally influenced by structural constraints.

I interpret economic reasons for migration as fundamental material hardship resulting in struggles to meet basic needs for survival. In contrast, I interpret social reasons as less urgent from an existential point of view, although they are closely related to the economic situation. Moreover, this is a conceptual distinction because in reality different reasons for migration are intertwined and cannot be sharply separated. Social reasons include efforts to ensure basic social needs and ability to make plans for the future, to shape one’s own life in a meaningful direction. These have to do with responsibility towards one’s own children, relatives, or with plans to have children that one cannot accomplish under given social and economic conditions in the country of origin. In other words, social reasons are not about mere survival, but rather about having opportunities for self-realization. Economic and social migration is an active expression of the struggle against misrecognition in everyday life. To some extent, it is a paradox then that life in migration represents yet another phase of confrontation with misrecognition (Uhde, 2018).

The institutionalized structures of global capitalism produce global structural injustices. Iris M. Young emphasizes that structural injustices are not the result of deliberate action by individual actors or state institutions. Structural injustice, as Young puts it, is

a kind of moral wrong distinct from the wrongful action of an individual agent or the willfully repressive policies of a state. Structural injustice occurs as a consequence of many individuals and institutions acting in pursuit of their particular goals and interests, within given institutional rules and accepted norms. (Young, 2006: 114)

Young, therefore, does not reify structures; she points out that social structures exist only in the actions of people reproducing or transforming these structures through their actions, but these structures represent also a scope of possibilities and limitations of people’s future actions. Structural injustices are thus the result of intersubjective interactions over the course of the long-term historical development of power relations, institutionalized marginalization, exploitation and violence, and the intended and unintended consequences of collective action and institutional interactions. In order to be able to denote a group of people exposed to structural injustices, the collective subject must also be defined in relation to social structures. Young defines a structural social group in juxtaposition to a cultural group as a group of people who occupy a similar position within social structures regardless of whether they identify themselves as a group (Young, 2000). For instance, women are an example of a structural group. Despite the fact that the status and possibilities of individual women differ as a result of other socially ascribed characteristics, and even though they do not form a social group with a shared identity, they do find themselves in a similar position – in relation to the gendered structures of division of labor, normative heteronormativity and gender power hierarchies – that has material consequences for the potential development of their life opportunities and self-realization (Young, 2005).

While migration is often associated with issues of intercultural interactions, differences in cultural norms and migrants’ practices in comparison to the majority, and with the confrontation between the politics of assimilation and inclusion, this aspect appears to be secondary. According to Young (2000), cultural differences become the subject of politics once they are linked, as they often are, with structural inequalities. Many conflicts that are presented as cultural (or ethnic) ones are not cultural per se; rather they are socio-political conflicts, since they arise from struggles over territory, resources, profit, labor market participation and decision-making. While acknowledging the cultural and social differences between different groups of migrants, if we are to unveil structural injustices, migrants need to be understood as a structural social group. That is, a group of people who share a specific position in relation to social structures and institutionalized relationships which restrict their possibilities to develop their capacities, express their opinions, voice their experience, and take part in defining the conditions of their lives. Migrants thus represent a transnational collective subject even when they do not form a collectively organized political subject. Due to structural constraints, migrants can afford to stage traditional forms of protest only to a very limited extent. Structural barriers notwithstanding, migrants do enact their own stories and, in their everyday lives, they struggle against global poverty, geopolitical and institutional violence, their misrecognition as equal moral beings, and lack of recognition of their work performance. Despite the significant structural constraints, we need to acknowledge that migrants develop strategies through which they actively seek to shape their own lives, and in their everyday struggles they target the current system that systematically harms them. In their lived critique they challenge the state institutions which discriminate against them in a situation they see is beyond their control. To a significant extent it is also beyond the control of the country of their origin because the structures and actions that make up the causes and conditions of migration transcend the nation-state framework. Many countries from which migrants come are in a weak negotiating position towards large transnational corporations or global superpowers. This is the reason why we can argue that migrants in their everyday struggles express their lived critique of the nation-state centered institutional framework in which they are caught up. ⁸ I suggest that although marginalized transnational migrants do not necessarily internalize cosmopolitan consciousness, understanding marginalized migrants as a structural group allows us to capture their lived critique as an expression of their critique of legitimacy of present-day global order and internationally defined framework of politics and law and as a source of cosmopolitan claims from below without romanticizing migrants as being inherently cosmopolitan. ⁹

Extraterritorial Obligations for Justice

Global interactions create not only inequalities and conflicts, but they also open windows of opportunities for actors to extend the scope of their social struggles beyond the nation state’s borders. I argue that the critical analysis of capitalist globalization which produces structural sources of transnational migration and against which marginalized migrants struggle in their everyday lives is a first step in articulating normative proposals. However, the analysis of transnational and global structural injustices and the formulation of responses to them require a revisiting of the current prevailing view of the world seen exclusively through its division into nation states. Given the transformed transnational capitalist class and the use of the nation-state apparatus by major economic actors, we ought to redefine our analytical tools and to choose an adequate analytical measure to capture transnational causes and consequences of individual phenomena, including migration. According to Ulrich Beck (2006), one of the main critics of methodological nationalism, we need to adopt a cosmopolitan perspective. From the cosmopolitan perspective, which does not delineate the subject matter of research interest, but rather analytical starting points from which a particular issue is explored, one has to then analyze different levels – ranging from global and transnational, through macro-regional to national and local. Methodological nationalism refers to the approach that analyzes social processes and phenomena exclusively from the perspective of nation states and their mutual relations. It represents an often hidden assumption of the social sciences that ahistorically treats the nation state as a self-evident unit of analysis of processes and phenomena. Methodological nationalism reflects and at once legitimizes a similarly inadequate practice of real politics, characterized by a dual approach of the current global political economy, which promotes transnational trade and markets without borders while simultaneously placing the responsibility for global justice within the borders of nation states.

From the point of view of methodological nationalism, migration appears to be a problematic deviation from the norm. Alex Sager argues that political theories (specifically Anglo-American tradition) when dealing with migration have for the most part adopted the cognitive bias of methodological nationalism and as a result the predominant focus is on immigration. I do not need to replicate his in-depth discussion and critique of leading political theorists of migration and individual streams of thought (see Sager, 2018). He summarizes that the “paradigm of ‘methodological nationalism’ ignores transnational networks, associations, and organizations and global social and economic structures. This in turn, blinds political theorists to questions of agency and structure and to causal relations that entail moral responsibilities” (Sager, 2013: 1). Categories such as citizen, immigrant, emigrant, tourist, or brain drain respectively are, according to him, embedded in the paradigm of methodological nationalism without this being reflected in political theories. The distinction between migrants and expats then includes a symbolic distinction between the undesirable migration from poorer countries to the richer ones, and the desirable migration of experts from richer nations. Although methodological nationalism is presented as a neutral approach, it is based on concealed ideological assumptions linked to the territorial sovereignty of nation states and the conceptualization of society as a social unit which naturally overlaps with the territory of the modern nation state (Beck and Sznaider, 2006; Wimmer and Schiller, 2002).

Beck suggests that we need to elaborate a different analytical approach, which he calls methodological cosmopolitanism (Beck, 2006). ¹⁰ In his social theory, he develops the position of cosmopolitan realism, which focuses on emerging cosmopolitan tendencies in transnational forms of life, norms and institutions. Methodological cosmopolitanism guides social analyses to focus on the really-existing processes of cosmopolitanization, which is a necessary first step for the formulation of normative proposals. The goal is not to articulate a fully-fledged blueprint of global justice but to embed normative proposals in critical diagnosis and actors’ claims. Life in migration is an illustrative example of the transnationalization of forms of life; however, people who do not migrate also participate in global interactions by way of global consumer practices and indirectly through the global consequences of their actions. At the same time, changes in global markets and the activities of transnational corporations impact on the lives of people in local contexts. Methodological cosmopolitanism in the social sciences zeroes in on global interactions that bring about new forms of sociability, the transformation of the role of nation states as well as transnational economic, political and cultural practices, their unintended consequences and associated risks. However, from the perspective of methodological cosmopolitanism, one can also examine the local and national dynamics in its social complexity. This approach works with the definition of a cosmopolitan society in which the universal concept of humanity is consistent with partial solidarities and national and local ties (Beck, 2006; Fine, 2007; Sager, 2018). In this framework, one can thus approach migration as a legitimate movement of people who respond, according to resources they have, to the external conditions, the influencing of which is beyond the possibilities of their individual actions. These external conditions are the product of the actions of many individual and collective actors in a globally interconnected world, and the unintended consequences of those actions, which implies shared political responsibility for dealing with the consequences that have materialized in other parts of the world. ¹¹ However, Beck points out that the really-existing processes of cosmopolitanization are not identical to the mobile and consumerist lifestyle of the transnational capitalist class and global elites that only make use of cosmopolitan arguments in an instrumental fashion in order to reproduce the existing unjust global order.

Methodological nationalism in the social sciences and real politics overrates the responsibility for the elimination of social inequalities and the fulfillment of human rights on the part of individual states in relation to their political citizens and within their territory, while it sidelines the responsibility on the part of transnational corporations and other non-state actors. Social conflicts are misinterpreted as conflicts within nation states, with the transnational causes and contexts of these conflicts being overshadowed. Although the definition of the Universal Declaration of Human Rights is universal, for migrants access to human rights is in practice significantly limited. With respect to responsibility for implementation of migrants’ rights, Branka Likić-Brborić and Carl-Ulrik Schierup who analyze the accountability in the emerging global governance of migration conclude that,

powerful actors, like TNCs, national, state, and regional governance bodies have mostly pursued fair trade initiatives, while being less enthusiastic about promoting DWA [Decent Work Agenda] through sanction-based regulatory frameworks that promote migrant workers’ rights and assure the realization of human and labour rights. Many governments support the agenda formally. Yet, we have maintained, the responsibility for implementation has shifted away from governments towards an open social dialogue and rests on broader civil society mobilization. (Likić-Brborić and Schierup, 2015: 240)

It shows that transnational corporations are able to incorporate moral responsibility supported by liberal cosmopolitan political theories but are resistant to adopt a more demanding political responsibility which requires a substantial restructuring of transnational economic relations. It is also noteworthy that while Western countries support the removal of border barriers to global trade, ¹² they apply restrictive measures towards migrants. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which entered into force in 2003, has not yet been signed by a single Western country. ¹³ People who migrate for economic and social reasons have brought these contradictions to light; while the global poor and the victims of war conflicts die in remote corners of the world, migrants – with their act of migration – express their critique of the current global arrangement and claims for recognition and respect for their human rights. The migrants’ lived critique challenges the legitimacy of the current internationally defined institutional and legal framework, in which they are not able to access their rights. Hence from their lived critique derive normative claims for a cosmopolitan arrangement that would restrict the transnational capitalist class. Although migrants’ everyday social struggles are seemingly individual, if we understand migrants as a structural group, one can address the collective feature of these struggles and their generalizable claims for global justice. Thus far I have presented a critical analysis of the structural sources of transnational migration while highlighting the overlooked lived critique of migrants. I now turn my attention to normative implications arising from this critical diagnosis. By pointing out what measures are already acknowledged, for example, in relation to gender equity by the CEDAW (Convention on the Elimination of all Forms of Discrimination Against Women) Commission, I support my argument for possible and legitimate action also with regard to responding to causes of transnational migration.

The transition from an international legal framework to its inclusion into a future cosmopolitan arrangement represents extraterritorial obligations, which are already partly institutionally embedded in the current international legal order (Hrubec, 2013). In recent years, increasingly more attention has been paid to transnational responsibility for justice, and emphasis has been placed on extraterritorial obligations of both state and non-state actors. These obligations were laid out in the Maastricht Principles of Extraterritorial Obligations in the Field of Economic, Social and Cultural Rights published by the Extraterritorial Obligations Consortium in 2011. These Maastricht principles do not introduce new legal norms, they only seek to “clarify extraterritorial obligations of States on the basis of standing international law” (ETO Consortium, 2013: 3). According to the Consortium, nation states have obligations to protect and fulfill social and economic rights not only on the territory of the state but also outside their territory. This obligation includes responsibility for the activities of non-state actors (e.g. transnational corporations) in situations when these corporations enjoy support of state institutions or legal norms in the country where they are registered. Furthermore, extraterritorial obligations are not only about the commitment to avoid damaging activities but also include the positive obligations to create an international legal environment respecting environmental protection and human rights in bilateral and multilateral trade, investment, taxation, and to ensure remedy if rights are violated.

The fulfillment of extraterritorial obligations means that individual states have to instigate legislation regulating the activity of companies registered in their territory in relation to their activities abroad. In 2016, the CEDAW Commission issued recommendations calling for Canada to meet its extraterritorial obligations with regard to the mining industry, Sweden with regard to arms export, and Switzerland regarding tax havens (Adams and Judd, 2017). In 2017, the CEDAW Commission called on Norway to comply with its extraterritorial obligations and to re-evaluate its Arctic oil and gas practices and extraction plans with regard to the environmental consequences and their negative impact on the fulfillment of human rights, in this case specifically of women as a group more affected by the environmental destruction of the land. ¹⁴

This is a significant step towards recognition of the extraterritorial obligations of states and their accountability for the violation of human rights outside their territories caused by the activities of transnational corporations registered in their territory when they enjoy benefits of the given state’s legislation. The CEDAW Commission concluded that the practices of transnational corporations supported by state policies, the tax dodging and tax evasion contribute to the violation of women’s rights in those regions where corporations from the above countries operate, and called on them to take responsibility for remedying the negative consequences. The Shadow Report on Switzerland, submitted by a group of non-governmental organizations to the CEDAW Commission, states that the financial losses in public budgets due to tax evasion contribute significantly to the underfinancing of public institutions and services on which women depend more often than men because of the gendered responsibility for care and unpaid work. The report also states that Switzerland is responsible for allowing large-scale cross-border tax evasion that strips other states of public resources, which negatively affects fulfillment of women’s rights and their access to economic resources (Alliance Sud et al., 2016: 1–2). This, of course, does not apply to just Switzerland. According to the Tax Justice Network, several states offer various offshore packages. On the 2018 Financial Secrecy Index, ¹⁵ Switzerland ranks first followed by the USA, Cayman Island, Hong Kong, Singapore, Luxembourg, Germany and Taiwan. The argument can be extrapolated in relation to structural causes of transnational migration. The practices of transnational corporations in many industrial fields, in particular the transnational extractive industry and arms industry, as well as tax dodging and tax evasion enabled by offshore practices and tax havens, contribute significantly to social and economic deterioration in countries from which many transnational migrants come. Countries where these TNCs are registered have extraterritorial obligations to adopt policies which prevent these activities and remedy their negative consequences.

Differentiated Responsibility for Global Justice

Fulfillment of extraterritorial obligations, especially of wealthy states, is the first step to address the structural causes of transnational migration, which nonetheless still operates within the national framework delineating responsibility for global justice. At the same time, it heralds a more ambitious step than the liberal cosmopolitan theory proposals that merely require a redistribution of unequally shared wealth without changing the structures of global capitalism (e.g. Pogge’s [2002] proposal for global resources dividend). If there is a strong pressure on individual states to fulfill their extraterritorial obligations with respect to the consequences of the activities of transnational corporations registered in their territory, the state parties would be more inclined to adopt cosmopolitan legally binding rules that would regulate the activities of transnational corporations with respect to human rights. Today, the majority of Western countries under the political and economic influence from TNCs are resistant to implement such measures. The pressure can initiate the change of the current global economy, not just a retroactive compensation of its unfair elements. ¹⁶ However, nation states cannot be the only actors to be held accountable for global justice and the fulfillment of human rights. Many non-state actors co-shape the current global arrangement, setting into motion causal chains from which follow their differentiated responsibility for global justice. This responsibility is not only moral depending on a benevolence of more powerful actors. It is a sociopolitical responsibility which is based on causal links, albeit complex and indirect, and which requires systemic material remedies.

Iris Young (2006, 2011) uses her concept of structural injustice to analyze global injustices. Transnational and global economic structures and the institutions of trade, production and financial flows establish the grounds for global justice obligations and the need for political institutions that would regulate them at a level higher than that of the nation states. As Young puts it, global injustice is not a result of direct and deliberate consequences of the activities of individuals or specific government or non-state actors, global injustice is a consequence of structural social processes that connect institutions and people across borders. She further argues that this nature of global injustices establishes grounds for political responsibility for remedying the unjust consequences of global capitalism:

Political responsibility in relation to structural injustice, then, certainly should involve making demands on state and international institutions to develop policies that limit the ability of powerful and privileged actors to do what they want without much regard to its cumulative effects on others, and to promote the well-being of less powerful and privileged actors. (Young, 2011: 151)

Drawing from these arguments, Young proposes a social connection model of responsibility, which is based on the structural interconnection of social relations, actions and their unintended consequences (Young, 2006, 2011: esp. Chapters 4 and 5). Such global responsibility is, in her view, not isolating – it allows us to point to the sources of global structural injustice and to define the associated responsibilities without necessarily assuming that there is a specific causal agent or culprit behind them whose identification strips others of their responsibility. Global responsibility critically assesses the conditions which can be seen as correct in the given legal environment; it does not necessary presuppose the violation of an accepted norm or rules. Furthermore, it is future-oriented – focused on remedying the institutions and processes producing unjust consequences, and its fulfillment requires collective action. Last but not least, it is shared and contextually distributed (in contrast to collective responsibility) according to the position within power relations and material and social conditions. Specifically, Young highlights four parameters of this contextual distribution of responsibility: power, privilege, interest, and collective ability to implement a change.

Her model of responsibility for global justice applies the perspective of methodological cosmopolitanism, even if she herself does not use this term; she ascribes differentiated responsibility at distinct levels to respective actors, both state and non-state ones (transnational corporations, transnational organizations, etc.), but also in a differentiated way to individuals as consumers and citizens. Institutionalized extraterritorial obligation mechanisms provide citizens of democratic states with a formal instrument through which they can demand that their political representation comply with the obligations of global justice. But also the political community of citizens is differentiated according to power, privilege and ability to enforce a political change. Not everyone bears the same degree of responsibility. Although, she also argues that victims of structural injustice are neither exempted from their share of political responsibility which distinguishes this kind of responsibility from the liability model. Because they have interest in structural transformation, they also have responsibility to act together towards this change (Young, 2006: 123, 128). At the same time, one must keep in mind that most citizens in richer countries enjoy, in a differentiated way, material benefits arising from the unfair set-up of global trade in the form of a higher consumer standard, and are therefore not too keen on enforcing extraterritorial obligations. And even the least privileged groups of citizens generally enjoy some privileges over migrants, although this seems to be true only from a short-term perspective as it is a race to the bottom. Moreover, since transnational corporations are not necessarily attached to just one country, there is also a need to define a cosmopolitan framework that will set the legal constraints and outline responsibilities of influential global economic actors. In the current international regime this must be pushed through by state parties. Nevertheless, the released Panama Papers and Paradise Papers documents on offshore practices point to the extent to which transnational corporations influence “democratic” political representations and prevent the enforcement of mechanisms for controlling transnational corporations and the enforcement of their responsibility for human rights violations.

Young substantiates her model of responsibility in reference to social structures. Unlike the liberal cosmopolitan moral abstract reasoning, her argument is based on material and contextual grounds. The former characteristics are precisely why Ariadna Estévez convincingly criticizes liberal cosmopolitan theorists, namely Thomas Pogge, Charles Beitz, and Martha Nussbaum. ¹⁷ Young criticizes the workings of global capitalism by tracing indirect and unintended consequences and cumulative effects of actions of many individual and collective actors in a historical context. Today’s context of global capitalism incorporates the nation states into a broader framework of transnational and supranational institutions and the institutionalized workings of global capitalism (see Robinson, 2012, 2014), which builds on but also transforms effects of the cumulative injustices of colonial history. At the same time, as Iris Young points out, in the case of global structural injustice, one cannot always trace a specific culprit for specific harm. Although particular states are directly or indirectly (on account of their extraterritorial obligations) responsible for some injustices in the current globally interconnected world, it does not cover the roots of the current transnational migration – ranging from environmental changes, to global inequalities and the consequences of unjust global geopolitical and economic arrangements, to war conflicts over resources. When the causes of current migration are transnational and global, not exclusively inter-national, the response to them requires the institutionalization of political and legal solutions at the same level, from which they arise. The current efforts to address the fundamental violations of human rights of migrants on an international level are not integrally linked to efforts to eliminate the causes of transnational migration. This is also the case with the Global Compact for Safe, Orderly and Regular Migration that is currently being negotiated within the UN. These efforts are thus continuing to reproduce the main problems of the current dual approach – borderless in relation to the main economic actors and border-restricted in relation to responsibility for justice and the fulfillment of human rights. While the detailed development of the concrete distribution and implementation of the differentiated responsibility for global justice requires a further analysis, my aim has been to put forward an argument which lies at the beginning of such normative analysis – an acknowledgment that to deal with the causes of transnational migration requires moving beyond the current nation-state centered framework for defining responsibility for global justice. Migration justice needs to be inevitably part of a broader global justice if it is to be more than an assistance to those already “at our borders”.

Conclusion

The international human rights regime formulates a relatively ambitious set of individual and collective rights. The realization of those rights, however, is only limited within the current nation-state defined framework of responsibility for global justice. Transnational migrants represent a structural group of people who are in practice often denied access to these rights. Moreover, the unjust political economy of global capitalism will continue to generate cross-border movements of persons in spite of the current tendencies to tighten border controls and restrict migration. Migration research needs to focus on structural causes of migration in order to generate solutions beyond the mere assistance and quick fix to those already on the move. This also inherently implies the need to connect discussions about migrants’ rights to a broader discussion of global structural injustice and its remedies. The internal contradictions of the international human rights regime – the universal validity of human rights and the formal sovereignty of nation states with regard to their implementation – are reproduced by the dual approach – borderless for market and border-restricted for responsibilities for justice. In order to counteract global inequalities and fulfill human rights commitments, it is necessary to institutionalize an egalitarian, cosmopolitan order in which the world’s wealth is shared equitably and which sets out the enforceable cross-border obligations of non-state actors, states and individuals. Migrants, in their everyday struggles, bring into question the legitimacy of the current internationally-established legal framework wherein they are unable to exercise and access their guaranteed rights. Their lived critique challenges current borders of responsibility for justice. While the fulfillment of extraterritorial obligations is the first step towards overcoming current borders of responsibility for justice, migrants’ lived critique legitimizes a normative claim for a cosmopolitan redefinition of law that would enact differentiated responsibility for global justice.