Migration and international trade policy: parallel worlds?

Jan Niessen
14 November 2003

Raffaele Marchetti continues openDemocracy’s discussion of People Flow with a striking defense of free movement based on ideas of “cosmopolitan citizenship”. Here I wish to propose a different model for European migration policy, though one equally based on a conception of fundamental rights.

European trade policy is based on the belief that the liberalisation of trade, accompanied by appropriate measures to protect the integrity of the European social model, will ‘work’ for Europe as an actor in the global economy. The European Union’s trade policies are thus designed to make the most of the deepening integration of global markets and the growing mobility of goods and services. This, at least in theory, should benefit not only the European Union, but since the Doha Development Agenda developing countries also.

But is a position ideologically tenable which seeks to liberalise the movement of goods, capital and services, but not that of persons? Inversely: can one plead for freedom of movement of persons and oppose the freedom of movement of goods, services and capital? Apart from ideology and, for that matter, policy consistency, is it really possible to open borders for goods, capital and services and, at the same time, close them for people?

Migration as a global phenomenon

Around 175 million persons, or 3% of the world population, currently reside in a country other than the one they were born in. However, migration does not affect all regions of the world equally: the magnitude, direction and make-up of migratory flows vary, as do the policy responses developed by governments. In Europe, the migrant population increased by 8 million (16%) during the 1990s. During this period, net immigrants represented 89% of population increase on the continent.

In the Americas, migration to the United States and Canada and intra-regional migration in Central and South America create a complex picture of flows, marked by the volatile political and economic situation in many states. Africa has a high volume of refugees as well as skilled professionals moving to find better opportunities either on the continent (often in South Africa) or elsewhere. In Asia, there is significant intra-regional migration as well as rural-urban migration: by the late 1990s, China had a ‘floating population’ of internal migrants that numbered some 70-80 million persons. Overall, most migration takes place within regional settings.

There is no global agreement on the issues that need to be tackled when talking about migration, and states have not so far come together to create strong global frameworks in this area. Instead, the acceleration of regional economic integration during the 1990s and the presence of specific migration issues of regional concern have encouraged the development of regional treaties, agreements and consultative processes regarding migration. Involving governments and at times civil society, they range from far-reaching free movement regimes to informal dialogue.

Some structures, such as the Budapest or Manila processes, mainly concentrate on irregular migration, whereas others such as the Regional Conference on Migration (Puebla Process) address a range of issues including human rights, migrant children, and migration and development.

All regional processes start from a limited number of topics in which there is a shared interest. Governments succeed in identifying these common challenges because their environment confronts them with specific migration trends and management issues. Even so, there is not always agreement on the agenda, and years of dialogue are often needed to prepare the ground for further cooperation.

Complex processes, diverse agreements

At the global level, the Cairo Programme of Action was adopted at the 1994 International Conference on Population and Development, but this was not followed by the adoption of a common agenda or the creation of a global migration agency. Instead, a number of UN agencies deal with various aspects of migration from protecting the rights of migrants, refugees and displaced persons to addressing causes of forced migration.

Various pleas have been made for increasing inter-agency cooperation and designating a lead bureau, but also for creating a new UN agency for migration or bringing the existing International Organisation for Migration (IMO) into the UN system. Yet another idea is to create a Commission, which would mobilise the international policy community and raise public awareness of migration issues. The UN General Secretary acknowledges that the prospect for developing a comprehensive response to migration, for instance through a Global Conference, remains uncertain.

The UN now sees itself as playing a limited role concentrating on ‘data collection, research, coordination of activities among concerned organisations, the provision of advisory services and technical assistance, advocacy, and the promotion of the ratification of existing international instruments related to international migration’. Indeed, the ratification and promotion of international legal instruments has been a focus of ‘global’ activity on migration, and advances have included the entry into force of the 1990 UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families on 1 July 2003.

Advocates of a legal codification of rights seek to extend the strong normative force of the 1951 Geneva Convention on Refugees to other migrant populations. However, these debates often neglect the differences between migrants and refugees and tend to apply a narrow legal and protection approach to an area where economic, social and political dynamics interact in different ways. While protection is the overriding concern for refugees (and such groups as the internally displaced persons), migration issues in their diversity and complexity cannot be subsumed under this concept.

What does this absence of a comprehensive agenda and a global governance strategy on migration mean for Europe as a region? The challenge for Europe in addressing this truly global issue, is the incorporation of migration into its economic, social and foreign policy agendas in a way which could do justice to its diverse aspects, while enabling the use of the strongest policy instruments to tackle migration at the appropriate levels.

It means taking the external relations agenda as a starting point to explore how migration can best be addressed within existing policy mechanisms. Three foreign policy areas come to mind most readily: human rights, development and trade. While migration is regularly discussed in international human rights, population and development forums, it is rarely a key topic in trade forums.

GATS as a model?

GATS, the General Agreement on Trade in Services, has not to date attracted much attention from the migration policy community. This is not surprising given that GATS is a comprehensive treaty on trade in services – only dealing in one area explicitly, and in another indirectly, with one form of migration out of many: the temporary movement of ‘natural persons providing services’.

A topic of lengthy and prolonged debates in the Uruguay Round, it was primarily the concern of trade ministries and not so much of ministries responsible for migration. Non-governmental actors and academics were more engaged in general debates on the pros and cons of the new trade system than in making assessments of the agreement’s consequences for migratory movements and migration policies. This situation is changing now that GATS’s relative importance for migration is gradually becoming apparent.

While GATS may never become a vehicle for the management or liberalisation of international migration, it has much to offer as a possible model for the global governance of migration. Trade and migration are, after all, comparable in terms of complexity and the sensitivity of issues involved in both national and international policy-making. They are both situated squarely in environments of competition and conflicting interests which are to be moderated by negotiations and consultations.

However, they do not compare in one immensely important respect. Trade is about goods, services and capital, but migration is about people. Both can be the subject of negotiations, but the fundamental human rights of migrants are non-negotiable and for this reason migration policies must be human-rights-based. Consequently, not all principles underpinning trade policies and not all methods of international trade treaties can be transposed to migration. Nevertheless, significant principles and methods apply to both.

In the European Union’s own history the freedom of movement of goods, of capital and of services was completed by the fourth freedom, namely the freedom of movement of persons. That made and still makes a good deal of sense. People also move and they often move together with capital, goods and services. Therefore, migration was integrated into the Union’s policies to establish the Common Market. It will become increasingly difficult to argue that this should not apply to the EU’s foreign policies.

As is the case with trade, migration is most beneficial when it is managed in an orderly process. The need for a rule-based migration regime does not mean that all countries should simply open their borders or that governments should not have scope for limiting and shaping flows. However, migration can only ‘work’ to the advantage of both source and destination countries where it is not hampered by excessive restrictions and barriers which run counter to the economic, demographic and social interests of these countries. The philosophy of both trade and migration therefore consists in developing a framework that can strike a balance between liberalisation and regulation.

Not only the extent of liberalisation but also its timing is important here. This becomes most apparent when looking at the situation of developing countries. Progressive liberalisation can lead to lasting successes, but sudden liberalisation without safety nets, institutions and legal structures will mean failure in most cases. If trade policies take into account the diverse stages of development and particular needs of all partners, they can play a crucial role in the economic growth of developing countries. Similarly, migration can contribute to development if the comparative advantages and the requirements of both sending and receiving countries are taken seriously.

GATS: from method to process

What kind of system can meet the challenge of achieving the right degree and timing of liberalisation? GATS, as a rule-based trade regime and regulatory framework, can serve as an important methodological example. Most important here are the non-discrimination provisions, the market access principle and the request-offer process of negotiation.

The non-discrimination provisions in GATS consist of the Most Favoured Nation (MFN) and the national treatment principles. The former principle states that all foreign services and service suppliers have to be treated alike. This obligation guarantees that every time a member state improves the benefits that it gives to one trading partner, it has to give the same “best” treatment to all other trading partners as well, so that they remain equal.

This obligation covers all liberalisation steps, whether they are negotiated bilaterally or applied unilaterally. Exemptions must be listed specifically and are limited in time. While the MFN covers access, the national treatment principle means that once foreign companies have been permitted to enter a country, they must be treated in the same way as domestic ones. Measures that put a foreign supplier at a disadvantage are not allowed.

GATS’s non-discrimination principles have meaningful analogies in the migration domain. Following the logic of the MFN, immigration policies based on national, racial and ethnic preferences would not be allowed (these were and still are practiced); the national treatment principle would imply that once in the country, foreigners would enjoy the same rights as nationals. Equal treatment is a goal of immigrant advocates in Europe and elsewhere, but is still far from being achieved across the board with regard to access to employment, services, civic rights and freedom of movement amongst others.

Another important element of the GATS model is the market access principle, allowing foreign companies to provide cross-border services in a country. A country can significantly restrict such access by limiting the number of suppliers, operations or employees in a specific sector; the value of transactions or assets; the legal form of the supplier (for instance, limiting it to a branch or joint venture); or the participation of foreign capital. Translated to the migration domain, ‘market access’ gives governments scope to shape their admissions policies according to the development of the economy, the number and profile of workers needed, and the socio-economic priorities they set in consultation with stakeholders. In the migration field this is known as a quota system.

While it is important that governments have the possibility to express its trade or migration interests, a balanced outcome should also take into account the interests of other affected parties. Under GATS, this process takes place through the request-offer method of negotiation. Within the overall framework agreement, parties engage in ongoing negotiations to moderate their conflicts of interest. Requests can be addressed to a group of countries or to an individual country. Once the requests are received participants start consulting with each other. Countries then submit an offer in response to all the requests received. This offer is circulated multilaterally and is then open to consultations and negotiation by all partners. The final objective is to arrive at one clean revised schedule for each country.

The ‘lesson’ for migration here is that where interests conflict, negotiations are in order, and that the most constructive way of arriving at a compromise is by putting concerns on the table and expressing them in a clear and unambiguous fashion (through requests and negotiating papers). On migration, as on trade, countries often have diverse interests. However, governmental as well as non-governmental actors in the migration field have not yet learned that many of these interests are negotiable. Socio-economic goals are open to question and preferences should be subject to discussion and compromise: for instance, the categories of migrants that are admitted, the mechanisms for selection, the duration of work permits and the timelines for liberalisation.

Negotiations on this issue are likely to be controversial, but communities of interest will evolve according to shared characteristics and may well cut across ‘traditional’ divisions between developed and developing countries. In trade as in migration, the negotiating process should be as transparent as possible. While the GATS system of requests and offers lends itself to transparent policy-making, in practice not all relevant documents have been made public and there are concerns that the negotiations are exclusive and impenetrable. If the process was applied to migration, improvements would have to be made on transparency and consultation in particular would have to be given a higher standing.

A vehicle, not a destination

For various reasons, it is unlikely that GATS in its current form will represent a major breakthrough for migration governance at the global level. While modest progress may be reinforced by demographic and labour market changes in developed countries, definitive solutions to the migration management challenges facing Europe and other countries will not be found in this framework.

This is partly because GATS as a whole is a multi-package agreement covering many aspects of service trade. It is at once too broad and too narrow for the migration agenda. On the other hand, it only covers services provided commercially, whereas labour migrants can also find work in other sectors or in public services. As a vehicle, GATS will take us only so far.

As a model, however, it contains many elements that could be used as stepping-stones towards a global governance of migration. These elements will have to be modified, grounded in a rights-based framework, and perhaps taken into a separate institution. But it may well come to pass that a global system will emerge from a regional approach, concluding association and cooperation treaties between regional blocs and individual countries, as practised by the European Union. Thus, migration specialists seeking to design a global migration regime could do worse than look to GATS for inspiration.

This is an edited version of the paper “Negotiating the liberalization of migration – is GATS a vehicle or a model for global migration governance?”, given at a conference on “Global Governance of Migration – Challenges for the EU”, hosted by the European Policy Centre (EPC) and the King Baudouin Foundation on 28 October 2003. For the full version, see EPC Issue Paper No. 6

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