Labor and migration in international law: challenges of protection, specialization, and bilateralism.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 1:00 p.m., Friday, March 25, by its moderator, Regan Ralph of the Global Fund for Human Rights, who kindly stepped in on behalf of its convenor, Marion Panizzon of the University of Bern Law School. Panelists included Jurgen Bast of the Max Planck Institute for Comparative Public Law and International Law; Tomer Broude of Hebrew University, Faculty of Law; Ayelet Shachar of Toronto Law School; and Nisha Varia of Human Rights Watch.

INTRODUCTORY REMARKS BY MARION PANIZZON

Globalization has often been described as the process of integrating markets, which occurs through lowering restrictions to trade and removing barriers to the mobility of production factors--capital and labor. (1) In the wake of globalization, the cross-border migration of workers has increased, while in the global labor market, the division of labor has sharpened the trend toward specialization in terms of jobs, occupations, and skills. Meanwhile, a certain backlash against the open-border paradigm of economic globalization has driven certain domestic worker lobbies to oppose the recruitment of migrant workers. (2) As a result, the immigration laws of many industrialized countries are becoming increasingly skill-selective. This selectivity plays out with highly skilled workers--for whom there is a global competition--facing fewer hurdles to admission and enjoying more post-admission benefits (free housing, spousal sponsorship, access to stipends, scholarships), while the semi-and lower-skilled migrant workers must overcome highly restrictive and often abusive screening and hiring procedures prior to admission on a foreign market, and are exposed to what are often exploitative practices during their stay abroad.

International law mirrors this market-driven dualism by a self-construed duality of its own: WTO trade law and the global network of free trade agreements increasingly capture the mobility of highly skilled service suppliers, whereas bilateral migration agreements, for the most part, deal with migratory movements of the low-skilled. At a more fundamental level, the duality has repercussions for the treatment of the migrant worker. Whereas international trade law defers most of migration regulation, except for the liberalization of market access, to national immigration law, bilateral migration agreements comprehensively address the entire migration life cycle, spanning entry, stay, and residence, to voluntary return and forceful repatriation. Coupled with the tendency of trade agreements to cater to the mobility of the highly skilled, which leaves the regulation of migratory movement of the lower-skilled to bilateral migration agreements, the result is an over-regulated migration of the lower-skilled facing off with an under-regulated migration of the highly skilled. (3) The result is a dissonance in the international legal responses over managing economic migration with clear and present discriminatory effects, which go beyond nationality-based discrimination. Adding to the complexity is the fact that this split of legal fields along a skill divide reverberates against the human rights protection of migrant workers, yet another sub-field of law affecting the governance of work-related migration. While the brain drain effects of high-skilled labor migration and its implications for poverty levels, public spending on education, and economic growth have been well-described in the economics and humanities literature, this new divide weighs more heavily when viewed in the light of human rights protection and questions of citizenship. (4)

This panel conceptualizes labor, migration, and trade around the questions of multilateralism versus bilateralism. It brings together three international law scholars, specializing in comparative immigration issues, with a practitioner active in the field of migrants' workers human rights. The remarks that follow my introduction approach from a variety of angles the issue of how the avenues of bilateralism and multilateralism interplay when international law treats of labor migration. Yet they all converge on the extent to which post-9/11 international legal responses tend to dissociate the migrant worker from questions of nationality, and instead rely on skill levels and talents. In light of these paradigm shifts, preferential access to markets, which bilateral migration agreements continue to offer against the principle of most-favored nation treatment of the WTO/GATS, seem almost negligible. Instead, the low-versus-high skill dichotomy has created a new form of discrimination among migrant workers, which hinges on the skill level of an individual migrant worker, rather than his or her nationality. The initial question this panel has thus posed is: To what extent is the face-off between high-skilled mobility being governed by the multilateral services trade rules under the WTO/ GATS regime, and the migration of lower-skilled being reduced to regulation at bilateral levels, a desirable "dissonance" within public international law?

Nisha Varia, Senior Researcher, Women's Rights Division, Human Rights Watch, will discuss vulnerabilities of domestic workers who have migrated from southeast Asian countries to the Gulf states, including the lack of weekly rest days, the indebtedness of the worker to the recruitment agency, the below-minimum-wage pay, the visa being tied to the employer, and the fact that oversight has been exercised by the Ministry of Home Affairs or Immigration, rather than the Ministry of Labor. In Ms. Varia's view, a regional solution holds more promise for regulating labor migration than the bilateral setting, as it is, alongside multilateralism, the only avenue to prevent a race-to-the-bottom on standards of protection.

Jurgen Bast, Senior Researcher at the Max Planck Institute for Comparative Public Law and International Law, takes issue with the GATS falling short as a framework agreement for regulating international labor migration. His criticism is the GATS' econocentric bias, which precludes it from balancing market access considerations against the other public interests associated with the immigration process, notably cultural identity, national security, and foreign policy. He will argue in favor of bilateral migration agreements, which allow for a balancing of immigration's multiple perspectives, even if such privileged partnerships come at the cost of preferentialism and may run counter to the MFN clause of GATS.

Ayelet Shachar, Canada Research Chair in Citizenship and Multiculturalism, and Professor of Law, Political Science, and Global Affairs at the University of Toronto, will discuss how receiving countries have flexibilized the concept of citizenship to attract foreign highly skilled and talented workforces and how this process is transforming the boundaries of state sovereignty more than certain other regulatory issues linked to low-skilled labor migration. Shachar's remarks will focus on the search for international standards to prevent a rise of competitive immigration regimes (outside the U.S.) and the economic-centered, human-capital vision of the "good migrant" that they reflect. Shachar and Broude converge when both call for international law to be less uncritically biased in favor of a market-based liberalization ideology of free movement. Instead, both suggest introducing safeguards or standards for regulating such movement, not so much for securitarian but rather for developmental concerns and for ensuring equal treatment. (5)

Tomer Broude, the Sylvan M. Cohen Chair in Law and Senior Lecturer at the Faculty of Law and Department of International Relations at Hebrew University will offer an in-depth account of why the multilateral trade regime of the WTO's General Agreement on Trade in Services (GATS) is inadequate for regulating labor migration. He takes issue with the flexibility, which the GATS leaves to WTO members to discriminate in terms of national treatment, since it fails to protect migrant workers sufficiently. In his view, the GATS fails to appease industrialized countries' concerns with lower-skilled labor migration. He will argue in favor of reconceptualizing multilateralism as a migration steering tool, as others have also proposed.

The panelists diverge over the role to give either bilateralism or multilateralism in managing migration, but converge on the finding that we see a move toward the hardening of soft law on migration regulation, even if unilateralism remains the rule rather than the exception in governance of migration. Varia and Bast agree on bilateralism being a first step at formalizing the international law of migration, but for different reasons: Bast argues in favor of bilateralism as a tool for balancing the multiple interests associated with migration, while to Varia bilateral migration agreements, if binding, serve to curb the unilateral, often power-based politics of migrant labor recruitment by bringing these out into transparency, rule of law, and good governance. Both agree that bilateral agreements serve to move the migrant worker out of the grip of the econocentricity of the market (and the employer) and into the realm of the law. Unlike Shachar, who proposes a multilateral agreement to prevent the brain drain of the highly skilled, Broude's motives for preferring multilateralism are rooted in the quest to avoid discrimination and promote pre- and post-admission equal treatment of all migrant workers. In his view, a multilateral migration agreement would be stricter on entry rights than many existing frameworks, including certain WTO members' GATS commitments in Mode 4, but this would come at the benefit of ensuring equal admission for all migrant workers, regardless of their nationalities or skill levels. Whether prioritizing a multilateral agreement over bilateral agreements or vice versa is the more promising pathway remains unresolved, but there may be a greater role for human...

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