Labor Migration in a Globalized World: the Human Journey's Challenges for International Law and Policy

• Citation: Vol. 31 No. 1
• Publication year: 2016
• topic: Labor Law

Labor Migration in a Globalized World: The Human Journey's Challenges for International Law and Policy

Julien Chaisse

Lloyd Meng

LABOR MIGRATION IN A GLOBALIZED WORLD

THE HUMAN JOURNEY'S CHALLENGES FOR INTERNATIONAL LAW AND POLICY

Julien Chaisse^* Lloyd Meng^**

ABSTRACT

This Article covers the most recent developments in the field of international economic migration, including the latest WTO Ministerial Conference of December 2015 and the conclusion of the Trans-Pacific Partnership (TPP) in November 2015. The existing standards pertaining to international economic migration are discussed with reference to international organizations such as the International Organization for Migration and the International Labour Organization, as well as trends in global migration governance generally. The development of international economic migration over past years is examined by critical analysis of frameworks found in Preferential Trade Agreements between a number of countries, most notably with the United States, Canada, and Chile. In particular, market access and the standard of treatment afforded to temporary migrants is critically analyzed in light of trends and patterns that have developed over time. Recent European developments in the area of focused bilateral migration agreements are also discussed in the context of international economic migration. Finally, this Article will conclude by analyzing the effect of the TPP, the practices it imposed under the TPP, and the similarities and differences between those practices and the recent practices that have developed through the PTAs.

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INTRODUCTION: LIVING IN AN AGE OF MIGRATIONS......................................51

I. THE EMERGING INTERNATIONAL REGIME OF MIGRATIONS ................. 54

A. Complexity of Global Migration Governance: An Overview ...... 55

1. Global Migration Governance .............................................. 55
2. Protecting Migrant Rights..................................................... 57

B. Exploring the Economic Dimension: Regulating Flows of Workers over National Borders ................................................................. 59

II. THE MULTILATERAL FRAMEWORK ON THE MOVEMENT OF NATURAL PERSONS...............................................................................................61

A. Regulating the Movement of Natural Persons as a Mode of Service Supply .......................................................................................... 63

1. The Principle of Most Favored Nation Treatment ................ 65
2. Market Access and the Principle of National Treatment....... 66

B. Liberalizing the Temporary Movement of Highly Skilled Workers ....................................................................................... 68

1. Schedules of Commitments and Progressive Liberalization .. 68
2. The Practice of Mode 4 ......................................................... 69

III. THE REGULATORY INNOVATIONS PROMOTED BY MODERN PREFERENTIAL TRADE AGREEMENTS...................................................71

A. The U.S. Law and Practice .......................................................... 73

Table 1: U.S. PTAs ...................................................................... 75

B. The Canadian Practice ................................................................ 79

Table 2: Canadian PTAs ............................................................. 80

C. The Chilean Practice ................................................................... 81

Table 3: Chilean PTAs ................................................................ 82

D. The Trans-Pacific Partnership: The Harmonization of the Chilean, Canadian, and U.S. Practices ..................................................... 84

IV. THE PARALLEL DEVELOPMENT OF FOCUSED BILATERAL MIGRATION AGREEMENTS........................................................................................86

A. France ......................................................................................... 87
B. Canada ........................................................................................ 91
C. United States ................................................................................ 93

CONCLUDING REMARKS..................................................................................94

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Introduction: Living in An Age of Migrations

International migrations are widely perceived in developed countries as a new "problem," which is unprecedented, uncontrollable, and often undesirable.¹ These facts provide the foundation for this Article. Indeed, the United Nations (U.N.) estimated the number of international migrants and refugees in the world in the early 1990s to be about 120-130 million, up from seventy-five million in the early 1960s.² This number could now be about 150 million, double that of the early 1960s. The world's population, however, also doubled from three billion in 1960 to six billion in 2000. Thus, the proportion of international migrants and refugees has remained in the range of 2.5% of the world's population. Furthermore, the movements of this magnitude, in absolute and relative terms, are not new. Between the mid-nineteenth century and the 1930s, emigration from Europe to America and that of Asian workers to the plantations and large yards in America, Africa, and, Asia had already affected one hundred million people. This was in a world in 1900 with a population that was a fourth of what it is today.³

The real novelty lies in the explosion in the number of refugees and in the development of South-South flows, i.e., migration from one developing country to another. The number of migrants, according to the Office of the

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U.N. High Commissioner for Refugees (UNHCR),⁴ has increased from about 1.5 million (early 1960s) to twelve million (late 1990s), of whom nearly five million are in Asia and 3.5 million are in Africa.⁵ The available data suggests that the majority of new migrants and refugees are now moving towards other countries—whether neighboring ones or in the wider region—and not to the North, as is generally believed. Various factors explain this trend, such as conflict and the global economic crisis, as well as the needs of the new workforce in emerging countries. This fact is often overlooked: most of these movements are now South-South movements (least developed countries to middle-income countries), whereas in the 1960's, eighty percent of the movements were North-North and south-North.

What is not new, but should still raise questions, is that economic migrations (concerning "migrant workers") remain, in the current period of globalization, very low in terms of relative and absolute volume. In fact, international trade in goods and services has increased considerably over recent years.⁶ Equally important, foreign direct investments have also significantly increased during the last decade.⁷ Foreign direct investments include international movements of capital made to create, develop, or maintain an overseas subsidiary or exercise control (or significant influence) on the management of a foreign company.⁸ In other words, goods, services, and capital are moving without much restriction while individuals remain stuck at borders or are subject to cumbersome rules.⁹

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This is not only a matter of trivial interrogation but also a true economic problem.¹⁰ The aging and shrinking of the labor force in Japan or Europe in the next fifty years could have a significant impact on international migration. The latest projections by the United Nations indicate that by 2050 the proportion of people over sixty years will be nearly 35-40% in most parts of Europe, and persons eighty and over will be about ten percent of the population.¹¹ Does this unprecedented situation result in a reliance on foreign immigration? Do we observe instead a marked increase in the age of retirement, deteriorating pension levels, or other scenarios? A recent U.N. study, "Replacement Migration" shows, for instance, in the case of France, that continued immigration of around 100,000 people per year would be required to maintain a constant force at the current level, but a tripled immigration rate would be necessary to limit the degradation of population ratio of fifteen to sixty years to population aged sixty-five and over, which is now 3.5:1.¹²

This Article addresses the transnational regulatory framework that constitutes an impediment to the labor mobility of legal migrant workers. If international economic migrants are not greater in number it is because either migration cannot be reduced to its economic dimension or the restrictive laws and policies that hinder the mobility of migrants have been somewhat effective. However, the political border controls have high costs from a financial perspective. Detecting the hundreds of millions of people crossing borders each year, even those crossing for reasons that have nothing to do with migration (a few thousand "fake tourists" and "potential illegal immigrants"), is a difficult task.¹³ Controls hinder the mobility of workers and discourage many potential migrants, but the "out of control" situation is also generating unnecessary frustrations and humiliations. The dilemma is that if freedom of movement is too restricted, it negatively affects exchanges of all kinds between

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countries and limits the training opportunities for young northern elites in developing countries. These two harmful consequences affect the North as well as the south.

In order to answer this problem we provide a mapping of the applicable international economic treaties. In Part I we look at the emerging international regime of migration. We then turn in Part II to the role of the World Trade Organization (WTO). subsequently, we analyze the regulatory innovations promoted by Preferential Trade Agreements (PTAs) in Part III. Finally, we analyze the role of the bilateral...