Toward international order in migration and trade?

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 10:45 a.m., Friday, March 30, by its moderator, Joel Trachtman of the Fletcher School of Law and Diplomacy, who introduced the panelists: Tomer Broude of Hebrew University, Jerusalem; Howard Chang of the University of Pennsylvania; Bimal Ghosh of the International Organization of Migration; and Susan Martin of the Institute for the Study of International Migration, Georgetown University.

INTRODUCTION

By Joel P. Trachtman **

The late nineteenth century was a period of liberal policies toward migration. The United States, which to a great extent remains a nation of immigrants, only began to restrict immigration in the 1870s. While global society during the past century has made important strides toward free movement of goods, money, and even some types of services, human migration for economic and non-economic reasons remains broadly constrained. In the European Union, the drive toward free trade and economic integration has been defined in terms of four freedoms: free movement of goods, services, money, and labor. The European Union has made important progress in achieving free movement of labor. The U.S.-Mexican border, by comparison, is formally restricted, but informally rather porous. It imposes informal costs and dangers on illegal immigrants.

The dual pressures of globalization and demographic imbalance call for greater legal structure to facilitate and regulate economic migration. Wealthier states such as Germany, Japan, and the United States are anticipating labor shortages that will have substantial adverse consequences for their prosperity and for their ability to fund social welfare programs. In some states these shortages arise from fertility rates that are below replacement levels. While the global workforce is expected to increase substantially in this decade, the vast majority of the increase will take place in developing countries. Therefore, wealthy states need to join with poor states to manage and regularize, and even to encourage, flows of immigrant labor. While this need will be reflected in part in unilateral policy measures, it will become important, for a variety of reasons addressed in this work, to enter into international agreements to manage flows of immigrant labor.

There are great gains in welfare to be made in freeing up international economic migration, just as there are great gains to be made in freeing up international trade in goods, services, and money. It is estimated that a modest increase in industrial countries' quotas on incoming temporary workers equal to 3% of their current work forces would result in increased world welfare of more than US$150 billion a year. (1) These gains would be shared by developed and developing countries. But perhaps more importantly, under certain circumstances, emigration can help to raise the living standards in poor countries. In order to achieve these gains, it is necessary to overcome obstacles to bargaining, and to assist political processes in realizing the magnitude of the potential gains. With so much welfare improvement to be gained, states will endeavor to overcome these obstacles to bargaining.

In economic terms, migration is a result of demand and supply. Demand to migrate is increased by conditions in departure countries, compared to conditions in destination countries. Poverty, human rights abuses, insecurity, disease, and other negative factors in the departure countries, combined with their opposites in the destination countries, increase demand for migration. Supply of migration opportunities depends on the costs of travel and information, the ease of obtaining legal permission for migration to the destination country, and the ease of evading enforcement of legal restrictions. Supply and demand will adjust towards equilibrium. Occasionally, shocks will occur changing some of these parameters, thereby increasing or reducing demand or supply.

Pressure to emigrate from poor countries is increasing. (2) Obvious causes include poverty, widening income inequality, unemployment, insecurity, and human rights violations. Perhaps less obvious is greater information and education, and increasing awareness of better conditions abroad. "Despite the public announcements by policy-makers in numerous regional and international fora for a concerted use of aid, trade, and foreign investment to reduce emigration pressure in labour-abundant countries, there is little evidence that the strategy is being consistently applied or that it is making a real impact at the global level." (3) Source countries are often ambivalent, as migration can reduce pressure on domestic employment markets, and can produce remittances, which are an important source of foreign exchange.

As these demand and supply factors change, there is no particular reason for the law to remain static. "With respect to migration, national regulatory regimes and municipal law in general simply must accommodate the development of international markets for skilled and unskilled workers." (4) In fact, all law is to some extent dynamic, as it responds to changed conditions and aspirations.

Thus, the international law that presently exists, whereby states generally hold untrammeled authority to limit immigration, need not be the international law of the future. States have found it useful to exchange authority with others: this is the role of international law. While the world has found it useful to establish rules regarding the entry of foreign goods, services, and investment, there is a remarkable scarcity of international law establishing commitments of states to admit foreigners to work in their markets. (5) In 1992 Louis Sohn and Thomas Buergenthal wrote:

The preoccupation of many governments with international trade in goods and services across national borders has resulted in an elaborate set of international rules on that commercially important subject. Less attention has been paid to the development of the rules governing the movement of human beings across national borders. (6) Fifteen years later, this statement remains true. Yet there are signs that the demand for international law of migration is increasing. This panel brings together four leading experts on the law of migration, in order to assess the need for, and possible structures of, international law in this field.

MANAGING MIGRATION: WHITHER THE MISSING REGIME? HOW RELEVANT IS TRADE LAW TO SUCH A REGIME?

By Bimal Ghosh ***

BACKGROUND

Human mobility, in terms of the number of persons involved and the intensity of movement, has never been as high as it is today. Every minute of the day, at a minimum, ten migrants are crossing borders. Many more are in the queue, willing and anxious to move. Paradoxically, we are also living in a time when more and more countries, both rich and poor, inadequately equipped to constructively manage these flows, are becoming less and less willing to admit new migrants. In 1976 only 7 percent of the United Nations' 150 member states were keen on reducing immigration. By 2003, nearly one third of all countries had policies to do the same. These trends have since been accentuated by the terrorist attacks of September 11, 2001, and the events that followed.

The consequent mismatch is placing a heavy strain on the world migration system, carrying with it enormous human, social, economic, and political costs. Mostly reactive and inward-looking, and with a focus on unilateral immigration control rather than on migration management through cooperative action, existing migration policies are proving inadequate to address the new challenges and opportunities. Indeed, often they produce perverse results. An ever-increasing number of people are now crossing borders in defiance of existing national laws and practices. In the United States, for example, the number of irregular migrants hovers around 12 million: unless the trend is arrested, the annual inflow may soon comprise as many irregular migrants as regular ones. Worldwide, between US$ 30 and 40 billion are sucked into human trafficking every year. Loss of human life--whether on the Mediterranean, or at the US-Mexico border, or elsewhere--has become a daily occurrence. Tensions between, and often within, nations are rising.

A NEW GLOBAL MIGRATION REGIME

It is time for nations to get together and agree on a new, cooperative global arrangement to make movement of persons more predictable and orderly, and thus more manageable. (1a) The new arrangement should help to restrain countries' knee-jerk reactions to rising emigration pressures and should seek instead to bring the growing migration mismatch into a dynamic and sustainable harmony by following a two-fold approach. It would encourage and help reduce pressures for irregular and disorderly migration; it would, at the same time, allow increased opportunities for legal entry in keeping with the labor market, social security, and demographic needs of the receiving countries and their social absorptive capacity.

Based on the principle of regulated openness, the regime would:

* help industrial countries meet their real labor market and demographic needs through increased and orderly intakes of immigrants and through more effective integration policies and fuller use of immigrants' resources;

* encourage and actively help the sending countries to reduce pressures for disorderly migration through broad-based development, combining job creation, and economic growth, alongside a fair distribution of income;

* ensure better coherence between migration policies and those in other related fields such as trade, aid, and investment, and the environment in both groups of countries;

* ensure better protection of human and labor rights on both ethical grounds and as an essential condition of effective migration management.

It would embrace and complement, but not supplant, the two existing migration sub-regimes--the one governing refugee flows (embodied in the 1951 United...

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