De-Territorializing Labor Law

In: Law & ethics of human rights, Band 3, Heft 2, S. 189-222

Abstract

Labor law was traditionally a domestic project, defined on the basis of a geographic territory or a synthetic community; its norms were determined by the state and applied to employers and workers who resided within the state. Commonly, labor law is administered on a territorial basis, applies to incoming workers, and stops at the borders in respect of other states' sovereignty when capital migrates. Globalization affects the background in which labor law operates, including the increased interdependence of markets, the constitution of communities that transcend national borders, and the development of institutions outside and within the nation-state, which displace the locus of regulation from the traditional state level. De-territoriality claims that territory and sovereignty should be understated within the dominion of labor law in order to correct a deep structural imbalance in labor markets. This imbalance was not created by globalization, and as long as it appeared in a consistent yet bounded manner in each and every state, labor law's project was rendered possible by territorial arrangements. With the process of globalization, the territorial solutions previously created within labor law are no longer adequate. When territoriality is adhered to, migrating workers receive partial protection, while migrating capital can easily choose its most convenient forum as a means, inter alia, of undermining labor law's protection to workers. De-territorialization seeks to restore the original intent of labor law's project, which is to level off the distinct strategies that are available to labor and capital in a globalized labor market.