This essay identifies an underappreciated side-effect of the increasing influence of industry associations in the development of transnational law. As the law governing commercial contracts harmonizes across territorial boundaries, it will increasingly split along boundaries between industry sectors, a phenomenon I call “sectoral differentiation.” Sectoral differentiation is largely a by-product of the growth of transnational legal orders in an environment where state laws and networks may be unable to keep pace with commercial globalization. Industry associations are not the sole drivers of sectoral differentiation, but their activities often promote it, either directly through rulemaking activities related to their particular industries, or indirectly through influence on treaty drafting and other national and international rulemaking processes.

In this essay I discuss the rise in industry's participation in transnational standard setting, which implicates transnational legal ordering, and address the risks such participation generates: Economic globalization has led to increased demand for transnational standards. Yet regulators lack the expertise needed to write increasingly complex and rapidly changing standards, and turn to those that hold the expertise: industry. Thus, industry engagement in standard setting has clear benefits. Such engagement introduces, however, a problem well known from the national context: the risk of capture. In the context of standard setting, two kinds of capture are of particular importance: (i) information and (ii) representational capture. The consequence of such capture, in the transnational context, is that it may (i) undermine the global public interest, (ii) lead to unfair competitive advantages, and (iii) undermine the public interest in developing countries. I illustrate these risks with examples from health law and policy. While states have national laws to manage capture (albeit not effectively at times), at the transnational level, organizations are largely free of such legal constraints. As the “new frontier” of standard setting, transnational bodies should introduce reforms for balancing the benefits and risks of industry engagement, otherwise, they risk impairing the public interest and undermining trust in their integrity.

The standard approach of international organizations (IOs) makes no formal distinctions between nonprofit private sector associations, known as trade or industry groups, and public interest groups like Amnesty International or Greenpeace. After all, these groups are all organized as nonprofits; they may all be characterized as nongovernmental organizations representing the interests of their memberships; and the groups all seek to advance the agendas of members by offering ideas and expertise to international officials or bodies—classic lobbying activity. Thus, most IOs offer accreditation and access to both private sector and public interest groups on equal terms, without differentiating between them. I will call this approach “interest blind” and use this essay to examine its origins and consequences.

This essay describes the normative dynamics within industry associations that affect their contributions to private transnational legal ordering. It asserts that even the most powerful associations possess characteristics that undermine their autonomy to rulemake for their industries, and so, their ability to govern. Examining the relationships between associations and their members helps us identify the forces that impede the effectiveness of associational governance, an important source of transnational private regulation.

A transnational legal order (TLO) is emerging regarding the role of businesses in respecting human rights. This legal order includes multistakeholder initiatives, international organization recommendations and guidelines, NGO certifications, and other voluntary instruments. Many of the norms within this TLO are nonbinding and therefore lack mandatory compliance; what they may possess is persuasive power, particularly when the norms are developed, endorsed, and managed by reputable organizations. It is that reputational, or legitimacy, advantage that matters for encouraging industry associations to comply with the nonbinding norms associated with these organizations. Industry associations and other business actors will gravitate more towards legitimacy enhancing organizations when their own legitimacy is at stake. They pivot towards public organizations such as the United Nations or private NGO initiatives like the Rainforest Alliance, seeking to associate themselves publicly with these organizations that enjoy more perceived legitimacy. These business relationships with legitimizing bodies can take the form of partnerships, certifications, or other arrangements where an industry association adopts and incorporates nonbinding norms when it otherwise might not. In this essay, I discuss three transnational legal processes that encourage industry associations, their members, and other business actors to abide by nonbinding transnational legal norms concerning business and human rights.

Part I of this symposium on framing global migration law introduced broad conceptual parameters of a new field, looking back to its international law roots and forward to a new orientation beyond the strictures of refugee law. Part II looks to situate global migration law along a range of theoretical dimensions. Jacqueline Bhabha establishes the continuities of human movement in a historical context, modern and premodern. Far from representing a radical departure, the current migration “crisis” is consistent with massive migrations over the ages. Tendayi Achiume considers migration through the lens of colonization and decolonization. Out-migration from Europe was a core economic element of the colonization project; Achiume suggests that contemporary migration from former dependencies to metropolitan powers will correct co-dependencies that continue to advantage postcolonial powers. Focusing Achiume's lens on the problem of human trafficking, Janie Chuang complicates the binary depictions of economic migration that underpin contemporary international law. She suggests that global migration law's grounding in a migrant-centered perspective could help state actors to understand the structural causes of modern-day exploitation, enabling a shift from a crime control approach to a human mobility paradigm.

The long history of human migration sets the stage for a probing engagement with current migration law and the challenges of bringing it into alignment with contemporary needs and rights. If very large scale movements of people are a constant element of life on earth, should we reconsider the migration panic that has gripped political leaders and their publics, and should we reassess the responses that are being advanced? Instead of crisis should we be talking of continuum, instead of restrictions on foreigner entry should we be considering support for human ingenuity and opportunity? Despite its scale, should we consider ways to extend to distress-migration the facilitatory infrastructure we routinely apply to business or service related human mobility?

The European colonial project involved the out-migration of at least sixty-two million Europeans to colonies across the world between the Nineteenth and first half of the Twentieth Century alone. It also involved movement in the reverse direction of human and natural resources, overwhelmingly for the benefit of Europe and Europeans. By connecting certain forms of migration in the present century to this mobility of people and goods in prior centuries, I seek to shift some of the fundamental commitments at the core of the international law, norms and discourse around global migration.

Our understanding of human trafficking has changed significantly since 2000, when the international community adopted the first modern antitrafficking treaty—the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol). Policy attention has expanded beyond a near-exclusive focus on sex trafficking to bring long-overdue attention to nonsexual labor trafficking. That attention has helped surface how the lack of international laws and institutions pertaining to labor migration can enable—if not encourage—the exploitation of migrant workers. Many migrant workers throughout the world labor under conditions that do not qualify as trafficking yet suffer significant rights violations for which access to protection and redress is limited. Failing to attend to these “lesser” abuses creates and sustains vulnerability to trafficking.

There is no corpus of law that is global in nature. Rather, “global” migration law is a collection of legal instruments situated at levels ascending from the subnational to the international levels. International law instruments contribute to the global governance of international migration at the international and regional levels. Two issues arise with respect to the effectiveness of these instruments: voluntary state accession and subsequent enforcement, even when states are parties to them. Domestic law regulates issues of international migration at the national and subnational levels. Enforcement is assumed to be more effective here. But this effectiveness varies according to the power of states, their levels of development and their capacities.

The field of global migration law looks beyond international law to incorporate all levels of the law, including the regional. This essay explores the regional regulation of mobility, which has indeed become a central subject of discussion and academic analysis. The expansion of human rights law coupled with the explosion of regional processes of integration are the two most important phenomena that have limited the state's capacity to restrict the entry of foreigners and their rights. It should come as no surprise that regional agreements facilitating mobility have proliferated and now involve around 120 countries, either at a bilateral or multilateral level. For one thing, most global migration is regional, whether in Europe, Africa, Asia, or Southern and Central America. In addition, regional instruments can be agreed on more rapidly and, in principle, introduce higher standards of protection and rights due to the more limited number of actors involved in the negotiations. There is, of course, huge variation across regions as to the degree of development of the various agreements, the categories of individuals entitled to mobility and equal treatment and their effective application and enforcement mechanism devices.

As a relatively well-defined subset of global migration law, refugee law and policy present important sites for contestation, agenda setting, normative pronouncements, and symbolic action. They are also an effective test of whether formal state obligations—in this case those outlined in the 1951 UN Refugee Convention—translate to protection in the weakly legalized environments in which most of the world's refugees reside. This essay asserts that they do not. Building on research and public engagement across African cities, this short contribution makes a three-part argument to that end. First, it considers categories by highlighting the narrow practical and analytical value of focusing on legal reforms and formal “refugee” policy as determinants of protection; given that legal status and documentation have only limited practical protection effects. Moreover, it points to the potential dangers and dysfunctions of a protection regime premised on people “performing” or “representing” refugeeness. Second, in considering areas for intervention in improving the protection of migrants, it calls for rescaling the legal approaches to migrant and refugee protection. Given the micro and translocal (often transnational or diasporic) processes informing refugees’ experiences, approaches need to be both more and less geographically targeted. Lastly, it calls for an intersectional approach to law and advocacy that more holistically and politically situates refugees and migrants within their social and regulatory environments. If nothing else, it asks analysts and advocates to take more seriously subnational political formations—formal and informal—as sites of policy formation and practice. In doing so it suggests that the most effective tools for addressing migrant and refugee vulnerability are often more political than legal. Moreover, within the realm of international and domestic law, jurisprudence in fields other than migration and asylum (e.g. environment, labor, or trade) may offer the most effective inroads into processes producing displacement or imperiling people on the move or on arrival. Given the confines of space, data is sparingly used for illustrative purposes.

The UN General Assembly decided in September 2016 that it would

By laboring underneath the radar of formal law, using a diverse array of conceptual tools and working from material disregarded by mainstream legal scholarship, Fleur Johns’ research has consistently opened up novel ways of grappling with international legal problems. The article at the focal point of this symposium continues to push the envelope of international legal studies. It sheds light on how the rise of Big Data and algorithmic decisionmaking is transforming international authority. It also speaks to the increasing deformalization of international law. Examining the mundane practices of global governance may sound unrevealing to some. But Johns shows how this approach can yield important insights into international law's operations and effects.

In the last century, international law expanded to new domains that had traditionally fallen under exclusive governmental authority—such as human rights, environmental law, nonproliferation law, trade law, etc. This expansion of international rules coalesced into transnational legal fields, which not only include norms, rules, and procedures, but also monitoring systems designed to ensure compliance by member states and private actors. By assuming that all levels of a legal regime (from norms to rules and procedures, and then to monitoring systems and sanctioning mechanisms in case of observed violations) function in a harmonious and complementary way—as the apparatus of international law is supposed to—, some international law scholars may be tempted to avoid spending time analyzing the technical operations of monitoring agencies. The perusal of inspection and compliance manuals is less rewarding and more taxing than the analysis of preambles of treaties and conventions, where norms of good conduct, allocation of rights, and formal authority between institutions are usually delineated.

Fleur Johns' thesis about the increasing role of data in the verification of the condition of the world and how this impacts on international law is stimulating and bears reflection. This is an extremely interesting and innovative approach to the issue of data and its role in state engagement with mass migration. From the perspective of a scholar on international refugee law, a number of issues arise as a result of the analysis. One of the contested aspects of mass migration and refugee protection is the inherent inconsistency between two ways of thinking about human rights—the first is the duty of (some) international organizations to protect human rights in a manner which elides human rights and humanitarian law, and the second is the right of the individual to dignity, the basis of all human rights according to the UN's Universal Declaration of Human Rights of 1949. The first enhances the claims of states to sovereign right to control their borders (mediated through some international organizations), while the second recognizes the international human rights duties of states and international organizations to respect the dignity of people as individuals (including refugees). Fleur is completely correct that human rights abuses are at the core of refugee movements. While there are always many people in a country who will stay and fight human rights abuses even when this results in their sacrifice, others will flee danger trying to get themselves and their families to places of safety; we are not all heroes. Yet, when people flee in more than very small numbers, state authorities have a tendency to begin the language of mass migration. The right to be a refugee becomes buried under the threat of mass migration to the detriment of international obligations. Insofar as mass migration is a matter for management, the right of a refugee is an individual right to international protection which states have bound themselves to offer.

One of the great strengths of Fleur Johns’ approach is her conceptual starting point: that sensing and knowing are intimately connected but distinct, and that therefore “sensing practice … encompasses those ways of knowing, or claims to knowledge, that are mobilized in the course of perception.” To borrow John Berger’s phrase, sensing practice is a “way of seeing” and whether we are viewing European oil paintings or the human-readable rendering of an algorithmic reading of data from a satellite, it is only possible to fully understand this process by recognizing that “sights” cannot be understood separately from society. Johns’ exploration of the questions of power and agency that are posed by an investigation into the implications of adopting new sensing technologies by the International Atomic Energy Agency (IAEA) and the UN High Commissioner for Refugees (UNHCR) is important and timely because it opens up a wider discussion about the role played by Machine Learning (ML) in a wide range of social contexts, prompting us to ask about the social relations through which the technology itself is produced and used.

Fleur Johns raises the alarm regarding the potential for algorithmic analysis of big data to change fundamentally the way international lawyers and their allies gather and interpret facts to which international law is applied. Johns invites her readers to join her in seeking ways to save the aspirations of law on the “global plane” from these disruptive forces. In what follows I take up Johns’ invitation, in the spirit of its advancing claims “in a speculative or polemical mode,” asking the reader to withhold for a moment demands for completeness, instead joining in exploration of how the world of international law might be viewed differently if a larger version of Johns’ argument holds.