Hospitality, Politics of Mobility, and the Movement of Service Suppliers under the GATS

By Kordvani, Amir | Melbourne Journal of International Law, May 2006 | Go to article overview

Hospitality, Politics of Mobility, and the Movement of Service Suppliers under the GATS


Kordvani, Amir, Melbourne Journal of International Law


[The movement of natural persons constitutes one of the modes of supply for services identified under the General Agreement on Trade in Services ('GATS'). However, entry regulations have been recognised as a major barrier to such movement. Proponents of strict visa requirements often justify their position by invoking the sovereign right of states to adjudicate the entry of foreigners into their territory. Highlighting the cumbersome nature of procedures for the application and processing of these visas, this article argues that the real barrier to the movement of persons is not created by states exercising their right to regulate cross-border movement but rather by the administration of that right in an unreasonable, subjective and discriminatory manner. Such conduct is inconsistent with art VI(1) of the CATS. A case study of Australian business visa requirements will be offered to give an account of the administration of the said right at the moment of the encounter between the foreigner (be it the foreign business person, tourist, or asylum seeker) and the host. The host (ab)uses his or her authority to interrogate the foreigner to establish the foreigner's 'genuineness', by asking questions for which honest answers are not easy to provide. This encounter will be discussed through engaging with Jacques Derrida's reading of Immanuel Kant's right to hospitality.]

CONTENTS

  I Introduction
 II The General Agreement on Trade in Services
    A Principles of Non-Discrimination, Horizontal Commitments and
      National Immigration Policies
    B States' Right to Regulate Cross-Border Movement
      1 The Scope of the Right
      2 National Security Exceptions
III The Right to Hospitality and the CATS
    A Kant's Cosmopolitan Right to Hospitality
    B From Kant to Derrida
 IV The Paradox of Hospitality and Australian Business Visa
    Requirements
    A The Form
    B Language
    C Name as Border
    D The Right to Lie
    E Questions that Are Impossible to Answer 'Truthfully'.
      1 The Twilight Zone: Crime and Punishment
      2 The Fearsome Image of the Foreigner
  V Conclusion

I INTRODUCTION

I think you either invite someone to your country to stay as a permanent resident or a citizen, or you don't. (1)

Is the relationship with the foreigner a matter of law? Is it only the would-be permanent resident or citizen to whom our request to come may be extended? In other words, is hospitality conditional upon available legal taxonomies? Or should the laws of hospitality determine the character of rules that regulate the movement of people across borders?

It might not be appealing to speak of hospitality towards unknown (2) foreigners in the presence of the circulating phobia of phantom security threats that allegedly 'come from outside'. (3) Under current circumstances, one might question the soundness of the argument that advocates a policy of openness towards foreigners who cannot be classified as permanent residents or citizens.

Despite this gloomy situation, this article examines the tradition, as well as the ethics, of hospitality in a hitherto largely unexplored context--international economic law. The aim is to explore the possibility of hospitality towards the foreigner who does not fall into one of the 'conventional categories' of aliens, namely 'immigrant' and 'refugee'. It will be shown that hospitality becomes timely and urgent in relation to visitors who do not fall under established juridical categories, and not only when 'unlawful' aliens, migrants, asylum seekers, refugees, stateless persons, would-be permanent residents and citizens are encountered.

This article asserts that the General Agreement on Trade in Services (4) offers a new locus for hospitality by regulating the movement of 'natural persons supplying services' and by stressing the importance of the 'orderly movement' of persons across national borders. (5) However, an examination of business visa regimes will demonstrate that domestic law is anything but close to realising this ideal 'order'. …

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