Migration and Trade: Prospects for Bilateralism in the Face of Skill-Selective Mobility Laws

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CONTENTS  I Introduction II Globalisation, Labour Market Segmentation    and the Skill Divide III The 'Global Hunt for Talent' and Skill-Selective     Immigration Law IV Multilateral GATS Mode 4 and Free Trade Agreements:    Liberalising the Mobility of the Highly Skilled      A Architectural and Jurisdictional Limitations of GATS as        a Global Migration Institution      B The Added-Value of Trade Agreements: Bypassing Immigration        Law Constraints V Prospects for Bilateral Migration Agreements: Correcting   Skill-Selectivity      A The French 2006/07 Bilateral Migration Agreements      B Corrective 'Migration Partnerships'      C Sovereignty-Delegating Public-Private Partnerships      D Multifunctional, but Asymmetric, 'Migration Partnerships'      E Preliminary Conclusion: Prospects for Bilateralism VI Duplicities within Agreement Duality      A Overlapping Competencies: Promotion of Education-Specific Migration      B Negative Conflict of Competencies: Absence of Individual        Rights Protection VII Conclusions: Towards Agreement Dualism 

I INTRODUCTION

Migration is a 'universal experience' which affects the lives and well-being of far more persons than those actually crossing borders in search of better opportunities, (1) As a cosmopolitan phenomenon, migration touches upon many other opportunities and problems of humankind, including the welfare of states, the productivity of markets, poverty, development, trade, human rights, and the environment. (2) Unlike trade liberalisation and its related 'linkage' issues, (3) however, migration lacks a normative and institutional response that might address the universality of migration with sufficient unity. The 'missing regime' for international migration, in particular, the absence of an international architecture by which to enforce the substantial body of norms, (4) has been repeatedly deplored. (5) With the exception of a 'thin layer of multilateralism' addressing highly specialised issue areas, including asylum, refugees, travel, trafficking and the temporary movement of service providers, (6) no single international organisation has been able to bring under a single umbrella the various strands of this 'global phenomenon'. (7) Even within the United Nations system, responsibility and capacity for managing migration is 'diffused' among different institutions. (8) There is no one treaty that comprehensively covers each step of the migratory process, spanning across departure, transit, admission, stay and return. Key areas of migration policymaking fall outside the mandates of the International Labour Organization ('ILO'), the International Organization for Migration ('IOM') and the World Trade Organization, even if these organisations 'could be understood to include significantly broader activities in this field'. (9)

Migration has often been viewed as the 'last bastion of sovereignty'. (10) It therefore comes as no surprise that selecting the appropriate forum and level of rule-making primes the desire to mainstream the entire spectrum of migration norms (whether based on political, economic, environmental or family motivations) towards a single international normative framework. Nascent international soft law, including the common understandings of the Global Commission on International Migration, the guidelines of the International Agenda on Migration Management, the resolutions of the UN High-Level Dialogue on Migration and Development and the output of the Global Forum on Migration and Development, identify efficient practices which account for a first and inductive step towards bringing about normative, even if not institutional, coherence. (11) In contrast, international legal scholars suggest a deductive, top-down approach to unify the fragmented state of migration law by proposing to replicate, for the field of migration, the WTO experience of multilateralising trade liberalisation. (12) Thomas Straubhaar suggests a General Agreement on Movements of People, (13) Bimal Ghosh a New International Regime for Orderly Movements of People, (14) Jagdish Bhagwati a World Migration Organisation, (15) and Joel Trachtman has sketched a first draft of a General Agreement on Labour Migration. …