Facilitating the temporary movement of natural persons: economic partnership agreements versus bilateral migration agreements and Mobility Partnerships

Abstract

Introduction The issue of the TMNP is fraught with political sensitivities in both labour sending and recipient countries. Labour receiving countries have faced increasing public opposition to the movement of labour while source countries have experienced a number of both positive and negative social and economic impacts. Nevertheless, the potential economic benefits for facilitating TMNP have been well established. It has been estimated that an increase of industrial countries’ quotas of the inward movement of skilled and unskilled labour equivalent to 3 per cent of their workforce would generate an estimated increase in world welfare of US$150 billion a year (Winters 2003: 59). From the developing country – typically the sending country – perspective, labour mobility is a particularly important issue. The traditional migration and development debates have moved from an emphasis on the negative effects of outward migration on the country of origin to embrace the concept of brain circulation, which suggests that temporary outward migration may give the country of origin increased access to newly acquired skills, business contacts, and capital on the temporary workers’ return. This chapter seeks to examine some of the instruments that facilitate TMNP, the type of TMNP permitted, and the conditions under which such instruments allow TMNP. The focus is on instruments such as agreements, treaties, and joint declarations that formalize TMNP between two or more countries, as opposed to non-binding memoranda of understanding or unilateral immigration laws. A number of studies have compared services’ provisions – including TMNP – within preferential trade agreements (PTAs) and between PTAs and the General Agreement on Trade in Services (GATS) of the World Trade Organization (WTO) (Bertola and Mola 2010; Fink and Molinuevo 2008; Horn, Mavroidis and Sapir 2009; Roy et al. 2006; Mattoo and Sauve 2008; Sauve and Ward 2009a, b). However, only a few studies provide a cross-comparison between trade agreements and other treaty tools which liberalize TMNP (Chanda 2008, 2009; Friedman and Zafar 2008; Panizzon 2010a; Puri 2007). This study is intended to add to the literature through a closer examination of instrumentsranging from the EPAs – specifically their provisions on TMNP – to MPs and bilateral migration agreements with individual EU Member States. Drawing parallels between such drastically different agreements may seem like comparing apples and oranges as Carzaniga has cautioned (2009: 500); however, in terms of the policy options available both to source and recipient countries seeking to control the movement of natural persons, it is important to gain insights into which labour mobility instruments are likely to facilitate brain circulation. The EU has been selected as the focal point for discussion as its policy responses to the movement of natural persons range from its ‘blue card’ directive,4 to comprehensive EU MPs, to PTAs providing for the liberalization of trade in services through the temporary movement of service providers, and bilateral migration agreements concluded by certain EU Member States, notably those experiencing higher levels of immigration such as France, Spain, and Italy. Given its pervasive global reach as the regional integration area with the most diversified panoply of instruments for liberalizing and regularizing TMNP, the EU offers rich material as a case study of the formal instruments for liberalizing TMNP (Koeb and Hohmeister 2009: 5). The EU has concluded a comprehensive EPA with the CARIFORUM-EU states5 and has initialled interim EPAs with the five other regions of the African, Caribbean, Pacific (ACP) group as well as some individual states within the ACP grouping. However, given that these interim EPAs do not contain a pact on trade in services (which would include the temporary movement of natural persons), this chapter will focus solely on the CARIFORUM-EU EPA. In addition, the EU has concluded MPs with Cape Verde, Moldova, and Georgia (Carrera and Hernandez, Lavenex and Stucky, and Betts in this volume). Further, a few EU Member states – namely France and Spain – have concluded bilateral migration agreements with a number of countries including some in Africa, Asia, and Latin America (Panizzon in this volume). On the question of the TMNP, the CARIFORUM-EU EPA offers some advances over the GATS, as well as over the EU MPs concluded to date. Yet, in terms of mechanisms to facilitate the temporary movement of professionals and personnel, the bilateral migration agreements may offer some advances over the CARIFORUM-EU EPA as well as the other EPAs projected or concluded as interim agreements thus far.