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The International Law of Economic Migration: Toward the Fourth Freedom Upjohn Press Upjohn Research home page 9-30-2009 The International Law of Economic Migration: Toward the Fourth Freedom Joel P. Trachtman Tufts University Follow this and additional works at: https://research.upjohn.org/up_press Part of the Immigration Law Commons, and the International Economics Commons Citation Trachtman, Joel P. 2009. The International Law of Economic Migration: Toward the Fourth Freedom. Kalamazoo, MI: W.E. Upjohn Institute for Employment Research. https://doi.org/10.17848/ 9781446319789 This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 4.0 License. This title is brought to you by the Upjohn Institute. For more information, please contact [email protected]. Job Name: -- /309724t The International Law of Economic Migration Job Name: -- /309724t Job Name: -- /309724t The International Law of Economic Migration Toward the Fourth Freedom Joel P. Trachtman 2009 W.E. Upjohn Institute for Employment Research Kalamazoo, Michigan Job Name: -- /309724t Library of Congress Cataloging-in-Publication Data Trachtman, Joel P. The international law of economic migration : toward the fourth freedom / Joel P. Trachtman. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-88099-348-7 (pbk. : alk. paper) ISBN-10: 0-88099-348-0 (pbk. : alk. paper) ISBN-13: 978-0-88099-349-4 (hardcover : alk. paper) ISBN-10: 0-88099-349-9 (hardcover : alk. paper) 1. Emigration and immigration law. 2. Emigration and immigration—Economic aspects. I. Title. K3275.T73 2009 342.08'2—dc22 2009013407 © 2009 Joel P. Trachtman The facts presented in this study and the observations and viewpoints expressed are the sole responsibility of the author. They do not necessarily represent positions of the W.E. Upjohn Institute for Employment Research. Cover design by Alcorn Publication Design Index prepared by Diane Worden Printed in the United States of America. Printed on recycled paper. Job Name: -- /309724t Dedicated to the memory of my grandparents, brave and fortunate pioneers. Job Name: -- /309724t Job Name: -- /309724t Contents Acknowledgments xiii Foreword xv 1 Introduction: Toward the Fourth Freedom 1 Migration, the State, and International Law 3 Four Freedoms 4 Forces behind the Law of Migration 7 Global Commission on International Migration Report: 15 Migration in an Interconnected World Berne Initiative 17 UN General Assembly’s High-Level Dialogue 19 The International Organization for Migration (IOM) 20 International Labor Organization 22 World Trade Organization 22 The Global Migration Group 23 Plan of the Book 23 Part 1: Normative Analysis of International Migration 2 Welfare Economics of Migration 33 Theory 36 Global Effects 48 Home State Effects 53 Destination State Effects 61 Temporary and Permanent Migration 71 Skilled and Unskilled Migration 74 Legal and Illegal Migration 75 Fiscal Effects 77 Migration Restrictions and a Bhagwati Tax 80 Fiscal Competition and the Tiebout Model 85 Conclusion 90 3 Ethics of Migration 95 The Right to Be a Migrant 96 Crossing Imaginary Borders: A Critique of Territorial 97 Borders in the Law of Peoples Conclusion 108 vii Job Name: -- /309724t 4 International Political Economy of Migration 115 Trade Politics and Migration Politics: A Dual Policy Paradox? 121 Endogenous Policy Models of Trade and Immigration 127 Mapping the Destination State Political Economy of Migration 134 Symmetric Labor Markets: A Coordination (Stag Hunt) Game 137 Other Factors Influencing Destination Country Politics 152 Home Country Politics 159 Toward a Rationale for International Law of Migration 163 Part 2: Existing International Law of Migration, Labor Migration, and Trade in Services 5 Customary International Law, Human Rights Law, and 169 Multilateral Migration Conventions Customary International Law and Human Rights Law 171 International Labor Organization (ILO) Conventions 176 UN Convention on the Rights of Migrant Workers 178 Conclusion 180 6 Europe 183 Free Movement of Workers 185 Discrimination 189 Nondiscriminatory (Indistinctly Applicable) Regulation 191 and Professional Qualification Public Policy Exceptions, Expulsion, and Public 194 Service Exceptions Border Controls and Schengen 195 Summary 197 International Migration to the EU 197 EU Blue Card Proposal 199 The EU and Turkey 201 7 Other Bilateral, Regional, and Plurilateral Arrangements 205 Bilateral Labor Agreements 206 Free Trade Areas and Customs Unions 209 NAFTA 225 Conclusion 238 viii Job Name: -- /309724t 8 Mode 4 of the General Agreement on Trade in Services 241 The MONP Annex 243 GATS Commitments 247 Doha Negotiations 251 MFN Obligations and Exceptions Relating to Economic Integration, 253 Labor Markets Integration, and Recognition National Treatment under Article XVII 255 Qualification Requirements, Licensing Requirements and 258 Procedures, Technical Regulations, and Transparency Part 3: Evaluating Possible Institutional Structures 9 Negotiating Global Disciplines on Migration 271 Bilateral, Regional, Plurilateral, and Multilateral Negotiations 271 The Need for Global Rules 277 International Public Goods and International Regimes 279 MFN and Negotiation Dynamics Revisited 281 Linkage Politics and Institutional Linkage 284 Brain Drain versus Low-Skill Acceptance 287 Taxation and Formula Apportionment 287 Adjustment 288 Safeguards 293 Legal Limits and Natural Limits 295 10 Toward Specific Global Disciplines to P omote Migration 297 Prohibition of Restrictions on Emigration 298 Quotas versus Tariffs versus Auctioned Access 301 Taxation 303 Commitments to Immigration Liberalization under a Positive 304 List Approach Temporariness and Permanence 306 Illegal Immigration 307 Discrimination (MFN) 307 Exceptions to MFN 308 Discrimination (National Treatment) 309 Regulation and Licensing 310 Accompanying Family Members 311 Access of Immigrants to Public Services 312 Social Security and Health Insurance Continuity 313 Citizenship, National Service, and Draft Obligations 313 Transparency and Regular Procedures 314 ix Job Name: -- /309724t Loyalty, Demagoguery, and Public Relations 315 Safeguards and Compensation 315 National Security and Criminality 316 Health Exceptions 317 Cultural Integrity, Irredentism, and Ethnic Conflic 317 11 Organizational Structures 319 Would an International Organization Be Useful? 320 How Should an International Organization Addressing Migration 324 Be Designed? What Should Be the Role of the IOM, ILO, and WTO? 330 Coherence and the Regime Complex for International 333 Labor Migration Which Organization? 334 12 Conclusion 337 Appendix A: Illustrative Draft General Agreement on 347 Labor Migration References 363 The Author 397 Index 399 About the Institute 417 x Job Name: -- /309724t Figures 2.1 Gains and Losses from Immigration and Emigration 38 4.1 A Trade Prisoner’s Dilemma Game without International 133 Legal Rules 4.2 A Trade Prisoner’s Dilemma Game plus International Legal Rules 133 Imposing Penalties for Defection (no longer a Prisoner’s Dilemma) 4.3 A Stag Hunt Game 142 4.4 A “Bully” Game with Asymmetric Payoffs 150 Tables 4.1 Symmetric Labor Markets with Equal Productivity 138 4.2 Asymmetric Labor Markets with Equal Productivity 144 4.3 Asymmetric Labor Markets, with Mobile Capital/Offshoring or 148 Illegal Immigration (Position of Country of Immigration) 4.4 Asymmetric One-Way Flow: Unequal Productivity (Position of 149 Country of Immigration) 6.1 European Migration Instruments 198 xi Job Name: -- /309724t Job Name: -- /309724t Acknowledgments The research for this book would not have been possible without the generous support of the Upjohn Institute and the Fletcher School of Law and Diplomacy. I came to the field of migration without experience, only with a set of analytical tools gained from the study of international trade law, and the relationship among economics, politics, and law in that field. There were many who gave kindly of their time to guide me as I entered this new field. These included Gervais Appave, Ibrahim Awad, Jagdish Bhagwati, Anu Brad- ford, Rachel Brewster, Tomer Broude, Marc Busch, Katrina Burgess, Antonia Carzaniga, Vincent Chetail, Ryszard Cholewinski, Slobodan Djajic, Asif Efrat, Bimal Ghosh, Michael Klein, Katarina Linos, Lisa Lynch, Hamid Mamdouh, Gabrielle Marceau, Daniel Markovits, Mina Mashayekhi, Aaditya Mattoo, Anna Maria Mayda, Pietro Mona, Gerald Neuman, Marilyn O’Rourke, Marion Pan- izzon, Joost Pauwelyn, Lakshmi Puri, Pierre Sauvé, Michele Klein Solomon, Alec Stone Sweet, Michael Trebilcock, Friedl Weiss, Piyasiri Wikramasekara, and three anonymous referees. However, it is important to emphasize that re- sponsibility for this work rests with me alone. I also benefited greatly from opportunities to present and discuss my work with other interested scholars and officials in seminars at the 2008 WTO Public Forum, the 2008 Meeting of the Society of International Economic Law, the American Law and Economics Association 2008 Annual Meeting, the 2007 Annual Meeting of the American Society of International Law, the Geneva Institute of International Affairs and Development, the Fletcher School Panel on Economic Migration, the Harvard Seminar on International Relations and International Law, the World Trade Institute at the University of Berne, and the Yale Seminar on Globalization. I am grateful for the excellent advice and support of Allison Colosky, Ran- dall Eberts, and Kevin Hollenbeck at the Upjohn Institute. My work on this book also benefited greatly from research assistance by several highly skilled migrant workers, Dinesh Gopalakrishnan,
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