Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Labor and Migration in International Law: Challenges of Protection, Specialization, and Bilateralism

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Labor and Migration in International Law: Challenges of Protection, Specialization, and Bilateralism

Article excerpt

This panel was convened at 1:00 p.m., Friday, March 25, by its moderator, Regan Ralph of the Global Fund for Human Rights, who kindly stepped in on behalf of its convenor, Marion Panizzon of the University of Bern Law School. Panelists included Jurgen Bast of the Max Planck Institute for Comparative Public Law and International Law; Tomer Broude of Hebrew University, Faculty of Law; Ayelet Shachar of Toronto Law School; and Nisha Varia of Human Rights Watch.

INTRODUCTORY REMARKS BY MARION PANIZZON

Globalization has often been described as the process of integrating markets, which occurs through lowering restrictions to trade and removing barriers to the mobility of production factors--capital and labor. (1) In the wake of globalization, the cross-border migration of workers has increased, while in the global labor market, the division of labor has sharpened the trend toward specialization in terms of jobs, occupations, and skills. Meanwhile, a certain backlash against the open-border paradigm of economic globalization has driven certain domestic worker lobbies to oppose the recruitment of migrant workers. (2) As a result, the immigration laws of many industrialized countries are becoming increasingly skill-selective. This selectivity plays out with highly skilled workers--for whom there is a global competition--facing fewer hurdles to admission and enjoying more post-admission benefits (free housing, spousal sponsorship, access to stipends, scholarships), while the semi-and lower-skilled migrant workers must overcome highly restrictive and often abusive screening and hiring procedures prior to admission on a foreign market, and are exposed to what are often exploitative practices during their stay abroad.

International law mirrors this market-driven dualism by a self-construed duality of its own: WTO trade law and the global network of free trade agreements increasingly capture the mobility of highly skilled service suppliers, whereas bilateral migration agreements, for the most part, deal with migratory movements of the low-skilled. At a more fundamental level, the duality has repercussions for the treatment of the migrant worker. Whereas international trade law defers most of migration regulation, except for the liberalization of market access, to national immigration law, bilateral migration agreements comprehensively address the entire migration life cycle, spanning entry, stay, and residence, to voluntary return and forceful repatriation. Coupled with the tendency of trade agreements to cater to the mobility of the highly skilled, which leaves the regulation of migratory movement of the lower-skilled to bilateral migration agreements, the result is an over-regulated migration of the lower-skilled facing off with an under-regulated migration of the highly skilled. (3) The result is a dissonance in the international legal responses over managing economic migration with clear and present discriminatory effects, which go beyond nationality-based discrimination. Adding to the complexity is the fact that this split of legal fields along a skill divide reverberates against the human rights protection of migrant workers, yet another sub-field of law affecting the governance of work-related migration. While the brain drain effects of high-skilled labor migration and its implications for poverty levels, public spending on education, and economic growth have been well-described in the economics and humanities literature, this new divide weighs more heavily when viewed in the light of human rights protection and questions of citizenship. (4)

This panel conceptualizes labor, migration, and trade around the questions of multilateralism versus bilateralism. It brings together three international law scholars, specializing in comparative immigration issues, with a practitioner active in the field of migrants' workers human rights. The remarks that follow my introduction approach from a variety of angles the issue of how the avenues of bilateralism and multilateralism interplay when international law treats of labor migration. …

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