THE INTERNATIONAL ORGANIZATIONFOR MIGRATION IS COMMITTED TOTHE PRINCIPLE THAT HUMANE No. 7AND ORDERLY INTERNATIONALMIGRATION DIALOGUE BENEFITSMIGRANTS AND ON MIGRATIONSOCIETY IOM ASSISTS IN MEETINGTHE GROWING OPERATIONAL CHALLENGES OF MIGRATIONMANAGEMENT MANAGING THEADVANCES MOVEMENT OF PEOPLE:UNDERSTANDING WHAT CAN BE OFMIGRATION LEARNED FOR ISSUESENCOURAGES MODE 4 OF THE GATSSOCIAL AND ECONOMIC DEVELOP-MENT THROUGH MIGRATIONUPHOLDS THE HUMAN DIGNITY AND WELL-BEING OF MIGRANTS

THE WORLD BANK

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MANAGING THE

DIALOGUEINTERNATIONAL

ON MIGRATION

MOVEMENT OF PEOPLE:WHAT CAN BE

LEARNED FORMODE 4 OF THE GATS

The World Bank

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This book is published by the Migration Policy, Research andCommunications Department (MPRC) of the International Organizationfor Migration. The purpose of MPRC is to contribute to an enhancedunderstanding of migration and to strengthen the capacity ofgovernments to manage migration more effectively and cooperatively.

Opinions expressed in the chapters of this book by named contributorsare those expressed by the contributors and do not necessarily reflectthe views of IOM.

Publisher: International Organization for MigrationMigration Policy, Research and Communications17, route des Morillons1211 Geneva 19SwitzerlandTel: + 41 22 717 91 11Fax: + 41 22 798 61 50E-mail: hq@iom.intInternet: http://www.iom.int

ISSN-1726-2224

© 2005 International Organization for Migration (IOM)

All rights reserved. No part of this publication may be reproduced,stored in a retrieval system, or transmitted in any form or by any means,electronic, mechanical, photocopying, recording, or otherwise withoutthe prior written permission of the publisher.

110-05

mprcIOM - Migration Policy, Research and Communications

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The governance of international migration should be enhancedby improved coherence and strengthened capacity at thenational level; greater consultation and cooperation betweenstates at the regional level, and more effective dialogue andcooperation among governments and between internationalorganizations at the global level. Such efforts must be basedon a better appreciation of the close linkages that exist betweeninternational migration and development and other key policyissues, including trade, aid, state security, human securityand human rights (GCIM, Migration in an interconnectedworld, 2005).

IOM launched its International Dialogue on Migration at the50th anniversary session of the IOM Council in 2001. TheInternational Dialogue on Migration works through the IOMCouncil and regional dialogues and pursues cooperation andpartnership with UN and other international and regionalorganizations and stakeholders.

The purpose of the International Dialogue on Migration is toprovide a forum for Member States and Observers to identifyand discuss key issues and challenges in the field of internationalmigration, to contribute to a better understanding of migrationand to strengthen cooperative mechanisms between governmentsto comprehensively and effectively address migration issues. Thisinitiative is designed ultimately to enhance the capacity ofgovernments to ensure the orderly management of migration,promote the positive aspects of migration, and reduce irregularmigration. Other policy domains, such as trade, labour,development and health, are increasingly relevant to migrationmanagement and therefore are bringing migration onto theinternational agendas of other sectoral fora. The InternationalDialogue on Migration encourages exploration of the linksbetween international migration and these other sectors.

Through working together in the selection of guiding themes,each year the International Dialogue on Migration and itsaccompanying activities have built upon the ideas andperspectives brought out in previous sessions. The open, inclusiveand constructive dialogue that has developed, supported bytargeted research and policy analysis, has indeed fostered a better

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understanding of contemporary migration issues. It has alsofacilitated the identification of effective practices and approachesthrough the sharing of practical experiences, perspectives andpriorities. As important, the International Dialogue on Migrationhas helped create a more open climate for migration policy debateand has served to build confidence between and among thevarious stakeholders in migration.

International Dialogue on Migration (or the Red Book) seriesis designed to capture and review the results of the events andresearch carried out within the framework of the Dialogue.

The Red Book Series is prepared and coordinated by IOM’sMigration Policy, Research and Communications Department(MPRC).

This report was prepared under the oversight of Michele KleinSolomon, Deputy Director of MPRC. It was coordinated withAaditya Mattoo and Julia Nielson of the World Bank, and HamidMamdouh and Carlo Gamberale of the World TradeOrganization. Special thanks are owed to Alina Narusova, theprincipal author, and to Cynthia Bryant and SophieNonnenmacher. It is published on the responsibility of IOM.

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TABLE OF CONTENTS

Executive Summary 9

PART I: REPORT OF THE SEMINAR

What Can We Learn from Existing Schemes for Managingthe Movement and Temporary Stay of Foreign Workersthat is Relevant to Mode 4 of the GATS?

Objectives and Structure of the Meeting 19

Session I: Trade and Migration Contexts:Setting the Scene 23

Session II: National Level Unilateral Approachesto Managing Movement and Temporary Stayof Workers 37

Session III: Bilateral Approaches to Managingthe Movement and Temporary Stay of Workers 53

Session IV: Regional Arrangements forManaging the Movement and Temporary Stayof Workers 71

Session V: National Implementationof International Obligations 85

Session VI: A View from the Constituents 101

Session VII: Where do we go from Here? 113Implications for Mode 4

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Closing Remarks 125

PART II: WHERE NEXT? 131

PART III: AGENDA OF THE IOM/WB/WTO SEMINARON MANAGING THE MOVEMENT OF PEOPLE:WHAT CAN BE LEARNED FOR MODE 4OF THE GATS? 139

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MANAGING THEMOVEMENT OF PEOPLE:

WHAT CAN BELEARNED FOR

MODE 4 OF THE GATS

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EXECUTIVE SUMMARY

What can we learn from the actual experiences of governmentsin managing the movement of people that may be of relevancefor ongoing efforts to reduce barriers to trade in services? Globaltrade liberalization negotiations have resulted in substantialreduction of barriers to trade in goods and capital, resulting insubstantial global economic gains. Barriers to the movement ofpeople, however, have been identified as a continuing andsubstantial impediment to further global economic gains fromtrade liberalization, gains which are predicted both to exceedgains from further liberalization in other sectors and to benefitdeveloping and developed economies alike. Against the backdropof increasing international movement of people precipitated bytransportation and communication revolutions, and demographicprojections forecasting aging and declining populations in muchof the developed world, global attention is focused on whetherand how the global trading system can contribute to progressivelyfacilitating the movement of people in an orderly, predictable,safe and mutually beneficial manner. The key first step to realizingthe potential that the movement of people might bring to globaleconomic growth is to bring together trade and migrationpolicymakers and practitioners to explore the links between tradeand migration and identify ways to improve the effectiveness ofexisting trade commitments regarding the movement of personsas providers of services and possibilities for further liberalizationof trade in this field.

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The seminar, held in Geneva on 4-5 October 2004, was a follow-up to the 12-14 November 2003 trade and migration seminarorganized by the Organisation for Economic Co-operation andDevelopment (OECD), the International Organization forMigration (IOM) and the World Bank. The 2003 seminar broughttogether for the first time trade and migration officials from98 countries and from a wide range of international organizations,as well as representatives of business and civil society, for aninformal exchange of views in a non-negotiating environmenton the relationship between migration and trade. The 2003seminar focused on the relationship between migration and thesupply of services via the temporary cross-border movement ofnatural persons, or “Mode 4” of the WTO General Agreement onTrade in Services (GATS). Although the GATS is not a migrationagreement, but rather an agreement concerned with trade inservices, implementation of Mode 4 trade commitments occurswithin the regulatory framework governing migration. The2003 seminar provided an important opportunity to beginbuilding greater understanding between the trade and migrationpolicy communities of the issues, opportunities and challengesrelated to Mode 4 movement.

The 2004 seminar, jointly sponsored by IOM, the World Bankand the World Trade Organization (WTO), brought together tradeand migration officials from 89 countries and numerousinternational organizations in addition to representatives ofbusiness and civil society, to explore in greater depth and detailsome of the key issues identified in the 2003 seminar as requiringfurther collaborative work. The main objective of the 2004 seminarwas to continue the dialogue between trade and migrationstakeholders and further explore the intersection of the trade andmigration worlds though consideration of the actual, practicalexperiences of governments in managing the temporarymovement of persons. For IOM’s membership of 109 states, plus24 observer states and numerous observer intergovernmental andnon-governmental organizations in 2004, the second seminar wasthe fourth intersessional meeting of IOM’s International Dialogueon Migration and contributed to the dialogue’s goal of enhancingunderstanding of migration and facilitating internationalcooperation in its management.

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The primary focus of the 2004 seminar was the examinationof existing unilateral, bilateral and regional schemes for managingthe movement and temporary stay of foreign workers todetermine what can be learned from these schemes that is ofrelevance to GATS Mode 4. The agenda began with an overviewof Mode 4, including the current status of Mode 4 negotiationsand implementation issues relating to Mode 4 commitments. Thiswas followed by an examination of national unilateral approachesto managing the movement and temporary stay of workers.Practices for managing the movement and temporary stay offoreign workers under existing bilateral labour agreements werethen explored, followed by an exploration of practices underexisting regional arrangements, including preferential tradeagreements. Next the national implementation of internationaltrade obligations undertaken by states at the regional and globallevel was considered. Afterward, employer and trade unionrepresentatives presented the perspectives of these importantconstituent groups on labour migration generally and Mode 4migration specifically. Finally, the focus turned to a synopsis ofthe seminar discussions and an exploration of the implicationsfor Mode 4 of what had been learned from the practicalexperiences conveyed over the course of the seminar.

Labour migration is a subset of overall migratory flows,covering only a percentage of the annual cross-border movementof people. Labour migration under Mode 4 is an even smallersubset of annual migratory flows as it concerns only thetemporary movement of certain categories of natural persons whomove in connection with the supply of a service, and does notapply to jobseekers or to measures related to citizenship, residenceor permanent employment. But despite the relatively smallnumber of persons implicated in Mode 4 movement, liberalizationof Mode 4 trade has the potential to deliver significant financialbenefits for both developed and developing countries.

Pursuant to the GATS, WTO members may undertake bindingcommitments on the movement of natural persons in connectionwith the supply of a service. However, those Mode 4 com-mitments that have been undertaken are to date limited – theypredominantly cover highly skilled employees, in particular intra-

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corporate transferees and business visitors, and are largelyhorizontal (i.e. applying to all sectors listed in the member’sschedule). During the course of the seminar, a number of reasonsfor the restrictive nature of Mode 4 commitments were identified,including the lack of coherence between GATS definitions andconcepts and those of migration regimes, the desire of states toremain flexible in matters involving migration, the need toguarantee the return of temporary migrants to their homecountries and the lack of balance resulting from the fact thatMode 4 obligations currently only extend to host countries. Withthe hope of finding solutions to these and other barriers to makingand implementing Mode 4 commitments, the seminar looked atexisting unilateral, bilateral and regional schemes for managingthe movement and temporary stay of foreign workers todetermine what can be learned from these schemes that is relevantto GATS Mode 4.

In examining national unilateral approaches, it was found thatsuch approaches have a number of clear advantages over bilateral,regional and multilateral approaches, including the flexibility toadjust to changed circumstances and the ability to protectdomestic labour markets and the working conditions of domesticworkers. The objectives of countries of destination and originoften differ, with the varying approaches taken by countriesreflecting these differing objectives. In the United Kingdom,where both highly and lower-skilled foreign workers arerecruited, various types of work permit arrangements exist. Workpermits are granted through a scheme which balances thesometimes competing interests in enabling employers to recruitor transfer skilled people from abroad, on the one hand, andsafeguarding the welfare of the domestic workforce, on the otherhand.

In contrast to the United Kingdom’s work permit scheme,which facilitates the inflow of foreign workers, the Philippineshas developed a comprehensive overseas employmentprogramme, which facilitates the outflow of Filipino workers.The Filipino programme includes elements aimed at three mainobjectives: enhancing the competitiveness of labour, empoweringlabour, and ensuring workers’ welfare and protection. Elements

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of the programme include a variety of welfare programmes foroverseas workers (helping to ensure returns), pre-departure skillstraining and testing (targeted at labour demands in destinationcountries) and employer accreditation.

The bilateral labour agreements discussed in the seminargenerally give countries the ability to manage temporary workermigration with a degree of flexibility that is absent frommultilateral agreements, although the flexibility is not as greatas that found in most unilateral approaches. For instance, statesare often able to build flexible mechanisms into bilateralagreements that serve to protect their domestic labour markets,such as the requirement that there be a verified domestic labourshortage before migration can occur pursuant to the agreement(e.g. Canadian and Jamaican seasonal labour agreements). Twointeresting protective mechanisms used by Germany include aquota adjustment clause, making quotas adjustable as a result ofchanges in the level of unemployment, and a regional marketprotection clause, which prevents labour migration into certainareas of Germany with very high unemployment rates.

The bilateral arrangements that were explored generallyestablish obligations for monitoring and managing migrationflows for the country of origin as well as the country ofdestination. For example, many countries of origin are responsiblefor pre-departure screening (e.g. checking the qualifications andcriminal record of potential employees and the reliability ofemployers). In addition, bilateral arrangements often includemeasures to ensure that both employers and workers have aninterest in seeing workers return to their countries of origin afterthe expiry of their contracts. For example, employers may besanctioned for the non-return of workers, providing employerswith the incentive to facilitate and encourage return (and perhapsalso providing workers with the incentive to return to avoidjeopardizing the future employment of other temporary migrantworkers by that employer); or a particular worker may alsobecome ineligible for future employment possibilities because ofhis/her failure to return. As a result of these mechanisms, therecord of return of migrants moving under bilateral agreementsis generally very good. Finally, both sending and receiving

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countries often take measures relating to the protection of migrantworkers in connection with bilateral agreements, such asdesignating liaison officers in destination countries to assistmigrants and providing migrants with information on their legalrights.

In addition to exploring national and bilateral schemes, theseminar also explored approaches to facilitating mobility takenin regional trade arrangements, which often include labourmobility provisions connected with the supply of services and/or with other forms of movement directly related to trade andinvestment. Regional trade agreements on one end of thespectrum allow for mobility of people in general (i.e. beyondtemporary labour migrants), while agreements on the other endof the spectrum are limited to facilitating certain kinds ofmovement related to trade or investment. The seminar specificallyexamined the Asia-Pacific Economic Cooperation (APEC)Business Travel Card (ABTC), which facilitates entry but doesnot confer any rights of access, and the NAFTA scheme, whichconfers rights of temporary entry to certain business persons.These successful methods of facilitating mobility provide ideasfor facilitating mobility under Mode 4.

Through an exploration of the implementation at the nationallevel of international trade obligations undertaken at the bilateral,regional and multilateral level, it became clear that bilateral andregional instruments are often more easily implemented than aremultilateral agreements, primarily because domestic policies andframeworks frequently share definitions and concepts withbilateral and regional instruments. These shared features are oftenthe result of bilateral and regional instruments shaping domesticmigration policies and frameworks, and vice versa.Representatives from Mexico, Canada and Colombia each gaveexamples of experiences where regulations and/or administrativeprocedures were modified in connection with the implementationof international obligations. The case studies helped to illuminateobstacles to the effective implementation of Mode 4 commitments;in particular, it became increasingly clear throughout the courseof the seminar that while effective implementation of Mode 4commitments are not likely to be addressed through regulatory

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uniformity across all countries, Mode 4 concepts and definitionsmust be better integrated into national regulatory schemes forsuccessful implementation of Mode 4 commitments.

The seminar provided a forum for representatives ofemployers and workers to share their perspectives on labourmigration generally and Mode 4 movement specifically.Employers generally support liberalized rules for the admissionof foreign workers, both because they are interested in havingaccess to a larger pool of labour from which they can selectemployees and because they are interested in having the abilityto quickly and efficiently transfer workers to other locations.Employers often become frustrated with the time-intensiveprocess involved in hiring foreign workers and transferringemployees, as well as the lack of transparency in most states’migration policies and the lack of consistency between themigration policies of various states. From the perspective ofemployers, the distinction made in Mode 4 between the servicesand manufacturing sectors is senseless, because employers havean interest in liberalizing the movement of persons working inboth sectors. The exclusive focus on temporary movement underMode 4 is also frustrating to employers, who are often interestedin longer-term involvement with foreign workers, especially inthe case of highly skilled workers.

Trade unions are generally focused on protecting the interestsof their members and workers in their countries. They areparticularly concerned with protecting lower-skilled workers,who they view as being less well protected by economic and socialarrangements than highly skilled workers. Accordingly, whilecurrent commitments under Mode 4 ordinarily do not raiseconcerns for trade unions as they primarily involve highly skilledworkers, trade unions remain interested in Mode 4 discussionsbecause an expansion of Mode 4 commitments to newoccupations and sectors would likely implicate lower-skilledworkers, which would raise concerns for trade unions. Concernsof trade unions with respect to temporary lower-skilled migrantworkers include their payment into social security schemes fromwhich they are unlikely to benefit and the lack of protection oftheir rights, especially in light of their frequent ineligibility to

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join trade unions and the hesitancy of sending countries to pursuethe enforcement of their citizens’ rights for fear of host countryreprisals.

The constructive dialogue at the seminar highlighted thepotential for greater understanding between the trade andmigration policy communities of the issues, opportunities andchallenges related to Mode 4 movement. As importantly, theseminar served to build confidence between these communitiesin their ability to work together to achieve mutual and/orcomplementary goals. The seminar also demonstrated that anexploration of national, bilateral and regional experiences inlabour migration management can yield valuable lessons for themore effective implementation of Mode 4 commitments. Overthe course of the seminar, a range of conceptual tools and policyoptions were identified that can be utilized to advance Mode 4objectives, including cooperation between sending and receivingcountries on matters such as screening workers pre-departure(to establish qualifications as well as to verify identity), trainingworkers in the sending country and ensuring the return ofworkers to their home countries; and building flexibility intoMode 4 commitments (for example, linking Mode 4 quotas withthe unemployment rate). As evidence of this, participantssuggested that a template approach be considered to capture therelevant successful components of bilateral and regionalarrangements for possible introduction into the multilateralcontext, including commitments under Mode 4.

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PART IREPORT OF THE SEMINAR

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WHAT CAN WE LEARNFROM EXISTING SCHEMESFOR MANAGING THEMOVEMENT AND TEMPORARYSTAY OF FOREIGN WORKERSTHAT IS RELEVANT FORMODE 4 OF THE GATS?1

Objectives and Structure of the Meeting

Brunson McKinley, Director General, IOMAaditya Mattoo, Lead Economist, World Bank

In an increasingly interconnected world, the movement ofpersons is a key policy issue, as was underlined by the high turnout and the quality of the speakers who participated in theseminar on Trade and Migration 2004. The meeting representeda great opportunity to work in a cooperative spirit and to clarifythe possibilities and challenges ahead with the benefit of theexpertise of trade, labour and migration officials, and many IOMpartner organizations.

1 All speakers participated in their personal capacity. The views expressedare thus not necessarily those of their governments or employers.

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The 2004 workshop on Trade and Migration was the thirdseminar on the subject of Mode 4 in recent years. In previousseminars, some progress had been made: a genuine dialoguebetween different stakeholders, migration and trade specialists,had been created and a deeper understanding of the subject hadbeen achieved. The main objective of the 2004 seminar was tocontinue this process and to explore further the intersection oftrade and migration worlds – the movement of natural personsto provide services under GATS Mode 4 – with a view toeventually finding solutions.

A second objective was to evaluate certain unilateral, bilateraland regional schemes in comparison to the multilateral agreementGATS in terms of their scope and the extent of liberalization theyenabled. The purpose was to identify whether the progress madein these agreements can be attributed to departures from, orreaching beyond, what was done multilaterally. In particular,three types of distinctions were of central concern in terms ofdeparture from the GATS:

• Selective liberalization as opposed to the principle of mostfavoured nation (MFN);

• Softer forms of cooperation as opposed to binding commit-ments; and

• Establishing mutual obligations as opposed to obligationssolely for the receiving countries.

A third objective was to analyse the experiences of constituentsand labour negotiators involved with existing unilateral, bilateraland regional agreements in order to gain insight into what canbe learned for the GATS context in terms of realizing the largegains that can be achieved through labour mobility. It wasimportant to identify whether provisions of these agreementscould be usefully incorporated into the GATS and whetheraspects of these agreements could continue in parallel to, andoutside of, the GATS and yet facilitate liberalization within theGATS.

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A final objective was to consider whether some criticalliberalizing elements of these agreements are intrinsically distinctfrom what can be accomplished within the GATS and, if so,recognizing the limitations of the multilateral agreement, toconsider alternative ways to deliver liberalization.

The structure of the seminar corresponded to these objectives,and covered the following topics:

• Trade and Migration context:Outline of the main features of GATS Mode 4 and thecurrent state of affairs in GATS Mode 4 negotiations inrelation to temporary labour migration.

Introduction to the management, by governments, of themovement and temporary stay of labour migrants with afocus on the broad policy orientations adopted and theprincipal administrative mechanisms used towards theirimplementation.

• Unilateral, bilateral and regional approaches to managing themovement and temporary stay of workers: scope, aims, struc-ture and mechanisms of managing the movement and tempor-ary stay of workers applied at the national, bilateral andregional levels; strengths and weaknesses of these approachesin comparison to other types of agreements, including GATSMode 4.

• National implementation of international obligations: per-spectives of both recruiting and resource countries on ways ofimplementing at the national level the international tradeobligations undertaken at the regional and multilateral levels.

• Perspectives of the business and labour communities onissues, practical impediments and concerns that arise in rela-tion to temporary labour migration.

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• The GATS and beyond: identification of the main concerns ofthe migration community with regard to Mode 4 and ways ofaddressing them; overview of the elements of existing unilat-eral, bilateral and regional schemes which can be brought intothe Mode 4 framework; ways to build confidence and improveaccess through increasing the transparency of national policiesand administrative procedures; the significance of the mostfavoured nation (MFN) principle and its impact on labourliberalization under Mode 4.

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SESSION I: TRADE ANDMIGRATION CONTEXTS:SETTING THE SCENE

Chair: Lakshmi Puri, Director, Division on International Tradein Goods and Services, and Commodities, UNCTAD

This session was dedicated to analysing the trade andmigration context. Trade and migration used to be seen as entirelyseparate and conducted with different mindsets until GATSMode 4 brought these phenomena together. The aim of thismeeting was to bring about an awareness of some of the valuesdriving trade and those driving migration management.However, it was also considered important to keep in focuscertain distinctions to enable trade liberalization to progressunhampered by some of the specific considerations that underlinemigration management.

Trade: Update on Mode 4

Brief presentation on the state of play in GATS Mode 4negotiations, including on offers submitted thus far and the mainissues of discussion in the negotiations.

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Hamid Mamdouh, Director, Trade in Services, WTOSecretariat

The GATS is an agreement that is concerned with trade inservices. The concept of trade in services is alien to non-tradenegotiators; it is also entirely different from any other form oftrade. It can be defined as any transaction that involves the supplyof services through any of the four modes. Mode 1 comprisescross-border supply (e.g. in telecommunications industry), wherethe service crosses the border in a way analogous to the trade ingoods. Mode 2 involves cross-border consumption, where theconsumer goes to the country of the supplier (e.g. tourist). InMode 3, a service is supplied through commercial presence inanother member country (e.g. establishment of a branch orsubsidiary). Mode 4 encompasses the movement of naturalpersons, as in this case, a service supplier moves to anothermember country to provide a service (e.g. lawyer or doctor).Modes 3 and 4 involve the cross-border movement of factors ofproduction, which is the revolutionary element in the GATSdefinition of trade in services. Mode 3 covers cross-bordermovement of capital, and is consequently linked to investmentregulations and investment policies. Mode 4 involves the cross-border movement of people, and thus, relates to immigrationpolicies. However, the GATS is concerned with these two factorsof production incidentally, only to the extent that such movementrelates to the supply of services.

Mode 4 is described as “the supply of a service …. by a servicesupplier of one Member, through presence of natural persons ofa Member in the territory of any other Member”. The naturalperson concerned can be self-employed, a contractual servicesupplier or an employee of a service supplier.

Due to the complexity of immigration regulations and thenecessity to deal with a broader range of concern than exclusivelytrade issues when addressing matters involving people, it wasimportant to define more clearly what is included in the GATS.Such clarification is made in an Annex to the GATS, which definesthe outer limits of this agreement. The GATS only covers specificcases of natural persons who are involved in supplying services.

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It does not apply to jobseekers or to measures related tocitizenship and permanent stay. Governments can regulate theentry and temporary stay of natural persons on their territory aslong as this does not impair their GATS commitments. Inparticular, as is mentioned in Footnote 1 of the Annex, differentialvisa requirements are not regarded as inconsistent with the GATS.

It is often claimed that Mode 4 commitments are notsatisfactory. One of the specific weaknesses of Mode 4 is thelimited range of categories of workers covered by itscommitments. Mode 4 commitments are largely horizontal (i.e.apply to all sectors listed in the member’s schedule) andpredominantly cover highly skilled employees of juridicalpersons, in particular intra-corporate transferees, and businessvisitors. Consequently, a large part of commitments relate to thethird Mode of supply, the establishment of commercial presence(60%). Contractual service providers that are employees of servicesuppliers represent a further 13 per cent and only 6 per cent ofhorizontal commitments concern independent service providers.

There are a number of reasons that can explain the restrictivenature of Mode 4 commitments. As liberalization of Mode 4 tradewould raise issues related to migration and labour market policy,in the presence of a conceptual gap between GATS definitionsand migration regimes, political and regulatory considerationsprofoundly affect levels of commitments under this agreement.

Although GATS commitments are made on a most favourednation (MFN) basis, there is a possibility to give preferentialtreatment to those members who claimed exemptions from MFNwhen joining the GATS. There are a plethora of such exemptions,which tend to make guarantees of the commitments unclear andconsequently contribute to more limited concessions on the partof the members. A predominant way of limiting access underMode 4 is economic needs or labour market tests (ENTs/LMTs).The concept of ENTs in the GATS is about limiting access on apredetermined set of criteria. However, the ENTs in memberschedules do not contain any defined criteria but carry a greatdegree of discretion, thereby negatively impacting on thecertainty and predictability of commitments. Other exemptions

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related to Mode 4 are: limited scope, pre-employmentrequirements, quotas, nationality and residency requirements,training or education qualification, etc.

Another ambiguity related to GATS commitments is the issueof duration of stay. Mode 4 applies to service suppliers enteringa member country on a temporary basis. However, no standarddefinition of “temporary” is provided; the only clarification is ofa negative nature: the stay should be “non-permanent”. As aresult, each member is free to interpret the term “temporary” asit wishes. In most cases, the length of stay for intra-corporatetransferees varies between three to five years, while the periodof stay for contractual service suppliers is usually shorter: fromthree months to one year, and in rare cases up to two years.

Enforcement concerns and the issue of returns-guarantee areadditional causes for limited concessions with respect to Mode 4.

In the current negotiations there are some signs of progress:seven new proposals addressing many of the above issues arebeing reviewed. Three proposals have been submitted bydeveloping economies (i.e. India, Colombia and Kenya), and fourby developed economies (i.e. the EC, the United States, Japanand Canada). A number of other sector-specific proposalscontaining Mode 4-related aspects have been submitted.

The proposals identify the necessity of enhancing clarity ofdefinitions and introducing finer classification of categoriescovered in members’ GATS schedules, as well as developmentof sector-specific commitments. WTO members have alsoindicated their willingness to remove some of the barriers, inparticular, to develop multilateral criteria for the economic needstest with the aim of achieving higher specificity, transparencyand equivalent treatment of this controversial instrument.Similarly, efforts are directed towards increasing transparencywith respect to migration regulations, as some domestic rules inthis area affect trade in services. Another initiative currentlyexamined is the possibility of developing a specific set ofadministrative procedures that would apply to Mode 4. There issome indication that more attention will be given to independentservice suppliers, as is the case in the EC proposal.

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At present, although a number of challenges remain, theMode 4 debate has succeeded in focusing on specific issues. Thenegotiators are currently pursuing two main objectives: higherlevels of liberalization and clarification of administrativeprocedures, particularly in relation to the implementation ofexisting commitments. The major obstacle to achieving these aimsis the lack of adequate reflection of Mode 4 concepts in domesticimmigration regulatory frameworks. As Mode 4 is a tradeconcept, it has not been a focus of immigration officials. However,it is important to recognize that Mode 4 is a part of a much broadermigration picture involving a wide range of issues, includingsecurity concerns and social and cultural considerations. It isnecessary to bridge this conceptual and regulatory gap betweentrade and migration by providing Mode 4 with an identity withinthe domestic migration regulatory systems in order to acceleratethe progress of Mode 4 negotiations.

Because security concerns are currently of particularsignificance, it is important to note that the GATS is structuredto take account of such considerations. Within the GATS, nationalsecurity concerns have priority over all commitments: there isno necessity test or legal constraint that would restrain thesovereign right to self-defence. Consequently, security concernsshould not be an obstacle to advancing GATS negotiations.

Migration: Managing Movement and Temporary Stay ofLabour Migrants: Policy and Implementation

Gervais Appave, Director, Migration Policy and Research,IOM

In trying to bridge the conceptual gap between trade andmigration it is useful to identify what is at stake. On the one handare important economic considerations: it is estimated that evenmodest liberalization of the movement of natural persons willyield between 150 and 200 billion US dollars annually. On theother hand are serious concerns of migration policymakers relatedto sovereignty, security, social cohesion and access to welfare

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and social services. Underlying these considerations, there is anunresolved debate regarding the impact of labour migration ondomestic labour markets. The inflow of labour migrants may exertpressure on wage levels or levels of employment among localcitizens, especially at the lower end of the market. If we are toresolve these concerns, we must bring together practitioners whohave, until now, addressed each set of issues separately.

Migratory flows are driven by a complex interplay of factors,chief among which are demographic trends and per capita incomevariations between countries. It is estimated that growth of theworld population will persist until 2050, while the population ofthe developed world will continue ageing and declining. Thetrend of rising income disparities between countries will alsopersist. These factors suggest that new generations of workers inemerging economies will seek opportunities abroad, while in theindustrialized world there will be an increased demand forlabour, especially in such sectors as healthcare and informationtechnology. However, estimates also show that the supply oflabour in developing countries will considerably exceed thedemand in the developed world.

Locating Mode 4 within this overall flow of populationmobility is a difficult task. Currently there are 185 millionmigrants worldwide, 85 million of whom are labour migrants.Yet there are no migration statistics concerning temporarymigration generally or Mode 4 migration specifically, whichconstitutes part of the overall migratory flow. The difficulty ofplacing Mode 4 within the general migration picture is related tothe lack of uniform or even comparable definitions. First, thedefinition of “temporary” varies between different countries. Insome cases, temporary workers are not classified as migrants atall because of the shortness of their stay. Secondly, since Mode 4is external to migration regulations, migration statistics are notcompiled to capture this category. Nevertheless, it is clear that inpractice Mode 4 concerns a relatively small number ofpredominantly highly skilled workers. Therefore liberalizationof Mode 4 trade should not be seen as a backdoor for liberalizingcross-border movement of people in general.

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Despite covering a relatively small number of persons, Mode 4has the potential to deliver significant financial benefits for bothdeveloped and developing countries. This fact underlines theimportance of thoroughly understanding the nature of therelationship between the spheres of governmental policies andpractices in the field of migration management and Mode 4.Mode 4 and migration regulations represent two sets of realitiesthat have evolved along separate but parallel tracks. Mode 4 isnot a migration agreement; it is concerned with trade in services.However, its implementation occurs within the regulatoryframework governing migration, and consequently practitionersin both fields need to understand the language and instrumentsemployed in order to make progress possible. In pursuing thisobjective, the essential features of migration regulatoryframeworks at the national and multilateral levels need to beunderstood.

Migration management begins first and foremost at thenational level. National systems determine the categories ofpersons allowed to enter the country, duration of stay, permissionto work, as well as ability to access social services. In the labourmigration sector, national systems are increasingly involved inmarketing labour migrants and preparing them for work and lifeabroad.

In analysing migration policies, a distinction betweenperspectives of countries of destination and origin needs to bemade. Countries of destination have a broad range of objectives,including meeting demand for labour while protecting domesticjobs and wages, managing intra-corporate transferees, providingdomestic business access to services and generally promotingbusiness and investment. Among the instruments used to pursuethese goals are admission policies, quotas and ceilings, labourmarket assessments and economic needs tests, employmentpermits, visas and skills recognition procedures.

The objectives of countries of origin partially differ from theaims of recipient countries and incorporate placement of excesslabour overseas, acquisition of new skills and resources andfacilitation of the flow of remittances from abroad. Increasingly

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sophisticated tool kits are being developed and utilized to achievethese objectives, an excellent example of which is the operationof the Philippines Overseas Employment Agency (POEA). ThePOEA has developed and implemented a comprehensive strategycovering the recruitment, screening and preparation of workersas well as provision of support and advice to them while workingoverseas.

There is a growing recognition that migration, as a trans-national phenomenon, cannot be effectively dealt with withouttransnational cooperation. Emergence of an increasinglyglobalized labour market is another reason for complementingnational efforts with interstate cooperation. As a consequence,migration appears today to be an established feature on theinternational affairs agenda. It is most evident at the consultativelevel, where a significant increase in the number of consultativeprocesses has been recently taking place. All consultative circlesinvolved share a desire to identify common interests andchallenges. The need for consultation is illustrated by the growthof IOM membership in recent years. Note should also be takenof broader multilateral efforts, for example the IOM InternationalDialogue on Migration, the Berne Initiative, the ILO effort todevelop a non-binding framework on labour migration and theGlobal Commission on International Migration.

However, interstate cooperation mostly takes place in aninformal setting. Despite some progress, efforts towards genuine,practical collaboration lag behind, as confidence building betweenstates still requires careful nurturing. Nevertheless, governmentsare increasingly employing bilateral agreements as effectiveinstruments for the management of labour migration. No idealmodel of such agreements has emerged so far. A variety ofapproaches are currently in use, covering all skill levels andapplying not only to the movement of migrant workers, but alsoto issues of integration, protection of rights and social security.Furthermore, a number of initiatives have been taken at theregional or subregional level, although here the progress isslower.

In conclusion, a better understanding of the relationshipbetween trends in international migration and government

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policies and practices can help to identify their impact on Mode 4and to find ways for improving the effectiveness of liberalizingMode 4 trade. More specifically, it ought to lead to a more efficientimplementation of current Mode 4 commitments and mayfacilitate exploration of possibilities for further liberalization.

Lakshmi Puri, Director, Division on International Trade inGoods and Services, and Commodities, UNCTAD

This session provides a clear exposition of the ways in whichtrade and migration contexts are brought together in theconsideration of GATS Mode 4. In the course of the session, themain issues and challenges surrounding the movement of peoplein the context of Mode 4 and migration policy, which are deemedto be complex, sensitive and multidisciplinary, are addressed.

While trade and migration may be seen as representing twodistinct universes, the presence of foreign nationals supplyingservices under the GATS abroad, though part of trade policy,also involves issues of immigration law, leading to some overlapand potentially to confusion. Being at the intersection betweentrade, development and globalization, trade and migrationdeserve deeper empirical analysis and proper synthesis. Hence,by its very nature, deliberation of these matters calls for the jointefforts of experts in the fields of migration and trade. Trade isgenerally recognized as one of the most progressive forces drivingchange, economic growth and development, with Mode 4forming a part of this dynamic process. On the other hand,migration policy continues to be perceived as having a defensivefunction and as incapable of responding in a flexible manner tothe dynamics of the markets. These two seemingly very differentapproaches and cultures need to be reconciled to make progressin the area of Mode 4 commitments and their implementation.To achieve progress, it is not enough for trade experts to seek tounderstand the migration context. It is equally important torecognize that Mode 4 represents one of the key negotiatinginterests of developing countries under the GATS – a fact whichhas been reflected in the WTO July framework agreement on theDoha Work Programme.

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In the context of the multilateral services trade negotiations,Mode 4 has been singled out in the July framework for itsparticular importance to developing countries and as the area inwhich negotiations should aim to achieve progressively higherlevels of liberalization. In overall terms, further progress in theGATS negotiations and the degree to which developing countriesare likely to make specific commitments regarding marketopening will be determined by the extent to which commerciallymeaningful market access in Mode 4 is granted. Thus, it isnecessary to bring together two communities – trade andmigration – in order to raise awareness of the importance of thisissue. While engaging in this dialogue, it is important, in the firstplace, to discern where the differences between Mode 4 conceptsand migration policy lie. In this context, it would be helpful toestablish areas where migration and labour policy improvementscould help facilitate Mode 4 movement and, thereby, also helpprogress in the broader framework of the GATS and Dohanegotiations.

It is important to be aware of the development context of tradein services in relation to Mode 4 and to the driving forces behindthe related movement of people. In the work of UNCTAD, it hasbeen stressed that trade-related movement of people is connectedwith both trade and poverty, and trade and gender, while thenecessary development and human dimensions are provided bylinking Mode 4 with the achievements of the MillenniumDevelopment Goals. The notion of mutually beneficial migrationis gaining broader recognition and the so-called “major receivingcountries” are more cognizant of the significance of migrationnot just as a transitory phenomenon but also as an important factthat requires a sustainable and balanced approach. It should berecognized that Mode 4 provides for orderly and rationaleconomic migration and is the most effective tool and the bestguarantee against irregular and illegal migration.

Effective liberalization has not brought equal outcome acrossall modes and factors of production. So far, the GATScommitments have been aiming at facilitating access for peoplewith the highest skills, and have been linked to investment. Goodsand capital are moving freely as barriers are being removed inthe name of globalization; GATS-related movement of labour is

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curbed by myriad restrictions. Progress in liberalization ofMode 4 trade is as much a matter of fairness as of seeing it as apositive sum game for all – developed and developing countries.This is the area where trade liberalization stands to bring themost gain to all parties involved. In his statement during theUNCTAD Commission on Trade in Goods and Services andCommodities, Professor Dani Rodrik stressed that removal ofrestrictions in markets for goods and financial assets hasnarrowed the scope of price differentials so that they rarely exceedthe ratio of two to one. At the same time, wages of comparableindividuals across markets differ by a factor of ten or more.Consequently, liberalization of Mode 4 labour movement couldyield benefits that are up to 25 times larger than those that couldbe derived from focusing on traditional areas of negotiations.

Another issue often brought up in Mode 4 discussions is itsrelation to some highly sensitive matters in a variety of areas –political, cultural, ethnic, etc. One concern is the effect of labourmigration on domestic labour markets. It should be taken intoaccount however, that a certain degree of dislocation andadjustment in the labour market is an unavoidable effect ofliberalization, which is not unique to Mode 4, but also occurs asa result of industry or trade deregulation. In many developingcountries, liberalization of trade in goods has necessitatedadjustment, which at times was painful and produced wagedepression, social displacement and other negative societaleffects. Liberalization of many services sectors is seen aschallenging the very fabric of societies in developing countries.For example, liberalization of the financial sector, which is oneof the most sensitive areas in developing countries, has beenpursued despite considerable costs. In addition, these structuralreforms are taking place in developing countries in the absenceof social security nets which rich countries could afford to providefor their citizens. Without confronting these problems and risingto the challenges that changes bring, no liberalization effortswould have taken place to date.

Experience has amply demonstrated that individual countriesacting on a unilateral basis cannot address the issues andproblems associated with Mode 4. There is a need for a dialogueamong countries at the multilateral level, especially since a

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significant proportion of labour flows under Mode 4 areinterregional. The immigration community, trade policymakersand labour market regulators need to assess this issue from abroader perspective, delving beyond immigration and labourmarket concerns and linking them with potential gains. Indisentangling immigration and labour market concerns andidentifying the underlying factors, this session and the seminarin general could help to bring progress and decrease tensions inthe area of Mode 4-related mobility of persons. The UNCTADExpert meeting on Mode 4 concluded that Mode 4 is the areawhere market forces should be allowed to operate more fully,thus recognizing that liberalization of Mode 4 trade in services isgood both for the market and for development. Achieving freercross-border movement of information, consumers and factorsof production lies at the heart of the multilateral trading system.It is important to strengthen the multilateral framework byensuring that commitments resulting from the ongoingnegotiations would be development oriented.

General Discussion

Many participants highlighted the importance of imposingobligations on both host and source countries in order to establishpredictable regimes.

In the course of the discussion, the appropriateness of Mode 4as a tool for addressing structural labour shortages related topopulation ageing in the OECD countries was questioned. Inresponse, it was pointed out that the purpose of Mode 4 is toallow supply of services through a particular type of movementof natural persons rather than to fill labour shortages. Butalthough such an effect is incidental, Mode 4 is well suited foralleviating problems related to an ageing population. First of all,Mode 4 offers a good means for satisfying the growing demandfor health and personal care workers. Secondly, it can provide asteady inflow of youthful population without imposing theburden of pension payments onto the host country at a later stage,since all migration under this scheme is temporary. It was also

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noted that it might be interesting to look at the relationshipbetween the broader development of labour migration andMode 4 from another perspective: whether migration growth cansatisfy the needs of Mode 4.

One of the questions concerned the scope of Mode 4-specificcommitments in relation to service providers. It was clarified thatfor the purposes of the GATS, the service supplier of anothermember might be either an individual or an entity, of which thenatural person is an employee. It was underlined, however, thatthe GATS is focused on the nationality of the service suppler, noton the nationality of a natural person involved. For example,when an expatriate is working for a national service supplyingentity, the service provider is domestic. Consequently, this casewould not be covered by GATS obligations, although theindividual concerned is a foreigner.

One of the participants enquired about the definition of theboundary between Mode 4 and immigration policy and, inparticular, whether the boundary is determined by each countryin its specific commitments. It was explained that although someof the elements that define this boundary are included in themembers’ schedules, the GATS itself draws some clear lines interms of the scope of its application – notably, the GATSexclusively covers the temporary movement of people, and onlywhere the temporary movement is related to the supply ofservices. Therefore, the boundaries between Mode 4 andimmigration policy are to be found in the totality of both theGATS content and the individual schedules of the member states.

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SESSION II: NATIONAL LEVELUNILATERAL APPROACHES TOMANAGING MOVEMENT ANDTEMPORARY STAY OF WORKERS

What approaches have countries taken at the national level tomanage unilaterally the movement and temporary stay ofworkers? What has been their purpose and what types ofmovement (e.g. skill level, sector, duration of stay and type ofcontractual arrangements) do they cover and how does thiscompare with bilateral, regional and multilateral mechanisms,including GATS Mode 4? What have been the strengths andweaknesses of these initiatives? What lessons can we learn?

Chair: G. Joseph, Director, Department of Home Affairs, SouthAfrica

Introduction

Frank Laczko, Director of Research, IOM

There is no global system for managing labour migration. Forthe most part, temporary labour migration today takes place

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within national schemes and outside of interstate labouragreements.

Countries employ a variety of temporary channels to managethe movement of labour. Understanding national frameworkswithin which labour migration is currently managed is of greatuse for GATS discussions, as their experience, strengths andweaknesses can provide valuable lessons for initiatives regardingMode 4 movement. Moreover, by analysing current temporarylabour migration arrangements, it is possible to understand howschemes more focused on Mode 4 categories can mesh withexisting regimes.

With the aim of acquiring more comprehensive informationregarding current temporary labour migration policies andpractices across the globe, a survey was carried out in preparationfor this conference. Questions included in the survey concernedbilateral and regional agreements and the extent to which statescurrently collect data on temporary labour migration. Thisquestionnaire represents one of the most comprehensive attemptsto collect information on these subjects and the first attempt tocollect such a wide range of data from such a broad spectrum ofcountries. The questionnaire was sent to 181 countries, WTO andIOM members and observers. At the time of the seminar,31 replies were already received, covering most regions of theworld.

A number of challenges for the analysis of temporary labourmigration can be identified from the responses collected. First ofall, it has become evident that many states do not collect data ontemporary movements of people, and either do not make anydistinction between temporary and permanent entrants or thisdistinction is not clear-cut. In cases where a clear differentiationis made, definitions of temporary migrants, categories they aredivided into, and periods of stay to which these categories arelinked, vary greatly between countries. Finally, it needs to berecognized that an assessment of the number of people enteringa country through temporary channels does not provide anaccurate indicator of the quantity of temporary migrants, as astay can be extended and the status of a migrant can be eventually

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changed to permanent. Nevertheless, responses to the surveyreveal a considerable increase in the number of foreign workersas well as the efforts of labour-importing countries to introducemeasures facilitating the cross-border movement of workers.

Analysis of the types of domestic regulations for themanagement of temporary entry of workers shows thattemporary programmes frequently share a number of specificrestrictions, such as:

• fixed-term employment contracts;• restrictions on changing employer or job market sector and

geographical area;• requirement to leave country on expiry of contract if contract

not renewed;• restrictions on changing employment;• restrictions on family reunion.

It is also evident that national temporary schemes arebecoming increasingly selective (i.e. oriented towards recruitingparticular workers for particular needs in different segments ofthe labour market). States apply a variety of entry regulationsusually oriented either towards protecting their national labourforce or testing the suitability of migrants for the employmentconditions in the country, such as:

• quotas/ceilings (country, regional or company)• labour Market Tests• use of economically oriented fees• individual labour market tests• regional/state level labour market tests.

In terms of selection procedures regarding foreign labour, twosystems can be identified: demand and supply driven. In ademand-driven system, migrants are admitted at the request ofthe employer. In supply-driven systems, the migrant initiates theprocess but has to meet the criteria set by the state.

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Despite diversity, there is some convergence between systemsof different states. Most countries favour highly skilled workers,especially in the IT and healthcare sectors. However, indeveloping countries, especially in Asia and the Gulf States,temporary workers are mainly semi- or low-skilled (e.g. in Kuwait500,000 of 700,000 foreign workers are semi/low-skilled). In theOECD countries there has also been a rise in the number ofseasonal lower-skilled workers (e.g. the United States, Spain, Italy,the United Kingdom). Within Mode 4 movements, the fastestgrowth has been taking place in the mobility of intra-corporatetransferees.

Such convergence between different regulatory regimes canbe explained by a number of factors, including the developmentof information and computer technology; free flow of goods andcapital, which increases demand for employment and provisionof training, expertise and services abroad; slow labour marketadjustments, which cause labour shortages especially in lower-skilled occupations; and finally, population ageing in some OECDcountries.

National unilateral approaches have a number of clearadvantages, notably flexibility to adjust to economic cycles; abilityto protect nationally important economic sectors and workingconditions of domestic workers; and higher public acceptabilitycompared to policies of free movement. Weaknesses includedifficulty in selecting migrant workers in a cost-effective manner;lack of predictability and transparency regarding regulations;numerous restrictions placed on temporary migrants whichreduce availability of human capital resources and limit trade-led growth; limited ability of sending states to protect citizensabroad; difficulty to enforce temporary stay of workers; andavailability of relatively few channels for temporary migrantsleading to a growing volume of irregular migration.

Thus, as factors driving the growth of migration are likely topersist, governments are faced with a challenge to find means tomanage increasing temporary migration in the most expedientway and to create appropriate temporary entry channels.

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Case Study 1: Philippines

Danilo P. Cruz, Under Secretary for Employment, Departmentof Labour and Employment, the Philippines

The Philippines is one of the major suppliers of migrantworkers in the world with over 8 million Filipinos living orworking abroad. It is recognized that Filipinos overseas continueto play a critical role in the economic and social stability of thecountry. Philippine foreign policy makes it imperative to provideprotection and assistance to the overseas Filipino workers(OFWs), as was illustrated by the decision taken by thegovernment in the case of Angelo de la Cruz, the truck driver ofSaudi National Establishment who was taken hostage by Islamicmilitants in Iraq.

Philippine government regulation of overseas employmentstarted to be developed at the beginning of the twentieth century.At first, it included only the licensing system provided for in Act2486 of 1915 and orders issued by the Department of Labour,which spelled out minimum contract conditions, dollarremittances policy for salaries earned abroad, and proceduralrules and regulations. However, in 1974 the Philippineinternational employment programme was institutionalized asa response to the surge of demand for Filipino workers in theMiddle East. This programme was originally envisaged as atemporary measure aimed at easing the unemployment problemand generating foreign exchange, but the increasing number ofFilipinos overseas and growing competition has lead to thedevelopment of a comprehensive overseas employmentprogramme, which now includes elements aimed at three mainobjectives: enhancing the competitiveness of labour, empoweringlabour, and ensuring workers’ welfare and protection.

Currently, there are two agencies attached to the Departmentof Labour and Employment, specifically catering to the needs ofOFWs, namely, the Philippine Overseas EmploymentAdministration (POEA) and the Overseas Workers WelfareAdministration (OWWA). Acting on the principle that the bestemployment mechanism is the provision of a good welfare

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system, the Philippine government has developed a variety ofwelfare programmes for OFWs and their families for the periodbefore their departure up to their reintegration into the domesticlabour market.

In order to provide a high degree of protection of OFWs, thegovernment uses a system of employer accreditation and a set ofprovisions regarding the licensing and regulation of recruitmentand manning agencies. Such licensing is carried out by the POEA,which is also responsible for monitoring the performance of therecruiting agencies, prosecuting illegal recruiters and regulatingplacement fees. The POEA maintains a policy of joint liability ofrecruitment agencies and foreign employers for the claims ofOFWs and adjudicates contractual conflicts between Filipinoworkers and their employers in accordance with this principle.

Foreign employers are only able to recruit Filipino workersonce their accreditation documents are verified by labour officersposted abroad and authenticated by embassy officials.Recruitment is then carried out by the employment agenciespursuant to the terms of a recruitment agreement with theemployer. Every OFW’s employment contract has to be approvedby the POEA. Model employment contracts have been developedon the basis of internationally accepted principles of labour andemployment administration and in compliance with the laws ofthe Philippines and host government laws.

To prepare Filipino citizens for work abroad and ensure theircompetitiveness on the global labour market, intensified skillstraining and development training programmes whichcorrespond to the demands of the labour market, as well as skillstesting, are carried out. Prior to departure, all OFWs are providedwith mandatory life and personal accident protection at noadditional cost. They also join an OFW Flexi-Fund Programme,which acts as a retirement protection scheme. The LabourDepartment issues a permanent identification card, the OFWE-card, to all Filipino citizens departing to work abroad. TheE-card serves a number of purposes: it provides a proof of aworker’s legal status as an OFW and a member of the OWWA,facilitates travel tax exemptions, and acts as an international ATM

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card. Other services available to OFWs include two types ofinformation services, the POEA SMS service and interactivedatabases, which provide information on licensed recruitmentagencies, job vacancies, pending adjudication cases, seafarers’certification and other details on overseas employment.

The overseas employment programme incorporates policiesaimed at catering to the needs of Filipino workers while in thereceiving countries. Labour attachés, doctors, and welfare andsocial officers are deployed in host countries in order to providejuridical, medical and psychological assistance to Filipino workersand their families. A network of resource centres was developedwith the aim of promoting and protecting workers’ interests aswell as preparing them for reintegration on return home. As aresult of the OFW Family Congress held last year, a network ofOFW families was established and now serves as a mutualsupport group assisting its members to access government socialservices. Family circles help to facilitate faster repatriation ofOFWs when required and act as a vehicle in providingpsychosocial services for a smoother reunion of Filipino workerswith their families.

Reintegration preparation constitutes an important elementof the Philippine employment management programme.Reintegration programmes help to maximize gains of overseasemployment and cover both social and economic aspects,including counselling for OFWs and their families, skills training,educational assistance for children, micro-credit assistance andinvestment advice.

Comprehensive and fully integrated welfare services providedby the Philippine government benefit not only its citizens butalso the host countries. The regulatory system in place ensuresthat Filipino workers return home at the end of their contracts,thus saving the receiving countries the costs of integrating andassimilating them into the local culture, the labour market andsocial security arrangements.

At present, the Philippine government is working onimproving the overseas employment programme, which is seen

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as a strategy for economic development. Currently, efforts areaimed at enhancing the competitiveness of Filipino workers boththrough improving their quality by providing necessary trainingand technical education, and by exploring more and bettermarkets for overseas employment to understand their labourdemands.

The Philippine government is also working on forging orupgrading bilateral and multilateral agreements with hostcountries. Experience has shown that overseas migration canbecome truly protective and effective only if managed throughcollective, rather than exclusively unilateral channels. It isparticularly important that international migration be viewed notonly from the perspective of receiving countries, but equally sofrom the standpoint of sending states. It should be acknowledgedthat sending and receiving countries have significant commoninterests related to migration, but lack the capacity to jointlymanage these issues for mutual benefit.

Case Study 2: Bahrain

Ausamah Al-Absi, Director of Employment, Ministry ofLabour and Social Affairs, Bahrain

The Gulf represents a unique case with regard to migrantlabour policy: expatriates constitute over 60 per cent of the labourforce and, consequently, regulations which in most countries areintroduced as an exception are a rule in the region.

The Gulf economies discovered oil in the 1930s-1940s, whichnecessitated fast infrastructural development and required a largesupply of labour. The domestic population was not able to satisfythe workforce demand and consequently borders were openedto foreign workers.

However, 50 years after the adoption of this policy, thesituation in Bahrain has changed. Over the last 20 years therewas a 16 per cent reduction in wage level. The current unemploy-

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ment rate is at 20 per cent and 65 per cent of the population isunder 25 years of age. A 95 per cent increase in the labour forcein Bahrain is expected by 2013 and a serious unemploymentproblem is imminent.

There is no closed border policy in Bahrain in the sense thatlocal companies are allowed to bring workers from abroad whenneed arises, but at the same time, the labour market is highlyregulated. Expatriates are not allowed to change employers and,as a result, the secondary market for labour is very limited. Thereare also strict “Bahranization” policies, which require companiesto employ a certain percentage of local people.

Such regulations led to the emergence of two distinct labourmarkets with different working environments: one market forexpatriates and one for domestic employees. Typically, jobs nottaken by locals are given to expatriates. One problem is that themajority of the local population wish to work for the public sector.But as a result of having access to an inexpensive imported labourforce, the economy is dependent on labour-intensive industries,and the rate of “desirable” jobs created is considerably lower thanthe population growth rate.

In order to alleviate these unemployment-related problems, acomprehensive reform was devised covering the economic,education and labour market sectors. The labour market reformaims to eliminate market distortions in order to make educationand economic reforms effective. The objective of the economicreform is to stimulate private sector job creation, especially inthe medium and high wage segments. The education and trainingreform is intended to improve skills of the domestic labour forcein order to better meet job market demand.

The first step in developing the reform process was diagnostic:McKinsey and Co. was commissioned to do research for theKingdom of Bahrain. Then a consultation process with socialpartners was carried out and in September 2004 a total reformpackage was announced and a social dialogue was started. Thenext stage will commence in 2005, when implementation will beprepared and, finally, a three-year gradual reform process will

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begin. The reform process was initiated by H.H. the Crown Princeof the Kingdom of Bahrain, which means that it carries a strongpolitical commitment.

The labour market reform, as the most challenging, waslaunched first, and will be followed by economic and educationreforms in the first quarter of 2005. The main objectives of thelabour market reform include: deregulation of the market,equalization of the cost differential between domestic and foreignworkers, upgrading of working standards through competition,and provision of equal rights and choices to both the employersand the employees (for instance, by eliminating the mobilityconstraint for expatriates).

By allowing expatriates to change employers at will andunifying social benefits, the government is hoping to abolishemployer control over expatriate workers and create a secondarymarket for foreign workers. This policy is likely to increaseexpatriate wages to a certain extent. But in order to equalize thecost of recruiting domestic and foreign labour, eliminate unfaircompetition and promote technology penetration, fees onexpatriate work permits paid by the employer will be raised. Therevenue from the work permit fees will be invested in upgradingthe economy and human development.

The reform will eliminate the “Bahranization policy” andderegulate “hiring and firing” procedures, making employmentof a domestic labour force a business decision rather than anobligation.

In general terms, the reform will dramatically reduce the roleof the government in the economy. As the labour market is apart of the economic system, it cannot continue to be highlyregulated while the rest of the economy is being deregulated.Thus, it is essential that open market forces be allowed to takecontrol of the labour market mechanism. A full economic impactassessment of the reform project was also made and reviewed bya group of international experts. The reform builds on theexperience of other countries such as Singapore, and is fullycompatible with ILO and WTO principles.

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Case Study 3: United Kingdom

Lesley Maundrell, Policy Development Manager, HomeOffice, Work Permits (UK), Policy Team, United Kingdom

Work Permits (UK) is a part of the Home Office Immigrationand Nationality Directorate. It is responsible for administeringUK work permit arrangements, which is done based on theprinciple of achieving the right balance between enablingemployers to recruit or transfer skilled people from abroad whilstsafeguarding the interests of the domestic workforce.

To achieve these objectives, the UK government uses thefollowing types of immigration employment documents:

• Business and Commercial• Multiple Entry Work Permit (MEWPS)• Training and Work Experience (TWES)• Sports and Entertainers• Sector-Based Scheme (SBS)• Highly Skilled Migrant Programme (HSMP)• General Agreement on Trade in Services (GATS)

The Business and Commercial category includes two tiers.Tier 1 covers intra-corporate transfers, board level posts, inwardinvestment (i.e. new posts essential to an inward investmentproject), shortage occupations (where there is a very short supplyof suitably qualified people within the UK) and sponsoredresearchers. Tier 2 incorporates all applications not included intier 1. For all cases falling under tier 2, employers are required toconduct an economic needs test (i.e. to demonstrate that the postcould not be filled with a resident worker and give details ofrecruitment methods).

The Multiple Entry Work Permit is designed for employerswishing to bring a particular person to the United Kingdom forshort periods of time on a regular basis. The advantage of thispermit is increased flexibility of the work permit arrangements.

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The MEWPS is used primarily for intra-corporate transferees andentertainers.

The Training and Work Experience scheme enablesindividuals to gain skills and experience through work-basedlearning, building on their previous education and training. TheTWES includes two elements: work-based training for aprofessional or specialist qualification and a period of workexperience. This category covers individuals with an intentionto leave the United Kingdom at the end of the agreed period touse their new skills overseas.

The Sports and Entertainers programme covers well-established sportspeople and entertainers who perform at thehighest level, as well as people and groups who are engaged toperform or undertake work that only they can do. Onlysportspeople whose employment will make a significantcontribution to the development of sport in the United Kingdomand entertainers with a reputation in their profession are grantedthis type of permit.

Sector-Based Scheme arrangements allow UK-basedemployers to recruit overseas workers into specific posts forspecific sectors. The SBS is intended for workers whose skill orqualification level does not meet Business and Commercial permitrequirements and currently includes hospitality and foodmanufacturing sectors. This scheme operates on the basis of aquota, which is reviewed annually.

The aim of the Highly Skilled Migrant Programme is to allowpeople of outstanding ability to come or migrate to the UnitedKingdom, to seek or accept work, to develop self-employmentor to pursue other entrepreneurial opportunities. This schemewas revised in October 2003 to attract and retain more highlyskilled migrants to the United Kingdom. One of the advantagesof the HSMP is flexibility: it allows individuals to make anapplication whilst in the United Kingdom.

The General Agreement on Trade in Services permit is aconcessionary arrangement within normal work permit rules. Thearrangement allows individuals whose employer does not have

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a commercial presence in the EU to work in the United Kingdomon a service contract awarded to their employer by a UK-basedorganization. The GATS permit only extends to organizations ofWTO member states which have signed up to the GATS. Thepurpose of the arrangement is to facilitate access to UK servicecontracts by non-EU based companies that employ highly skilledpersons.

Compared to the previous period, the number of work permitsapproved in the financial year ending on the thirty-first of March2004 has increased by 1.5 per cent. The top three industry sectorsfor which the United Kingdom has approved work permits arehealth and medical services, hospitality and catering, andcomputer services.

In order to meet the interests of businesses and be aware oftheir needs, sector panels were established in the year 2000 toconsult with the Home Office UK. These panels are comprised ofkey industry representatives and governing bodies and currentlyinclude representatives from engineering, healthcare, hotel andcatering, information technology, teachers and sponsoredresearchers. The aim of the consultations is to ensure that HomeOffice UK’s policy reflects the demands of the labour market andtrends, and to assist employers in recruiting from overseas.

General Discussion

The flexibility and selectiveness of unilateral schemes wasemphasized. In this context, the necessity of exploring the relationbetween the GATS and national provisions was highlighted.

In response to a question from one of the participants, it wasclarified that the national migration regulations of the countriesrepresented in the session do not distinguish persons enteringwith the aim of working in the service sector from those with theaim of working in other sectors of the economy. In some cases,no need for such a distinction was found; in others, it was fearedthat special conditions for a certain sector might become a backdoor to the black market.

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One of the participants enquired about the dynamics oftemporary migration in Bahrain and whether it remainstemporary in practice. It was explained that although expatriatestend to remain in Bahrain over long periods of time (in somecases, for 20-25 years), legally, they retain the status of temporarymigrants. Therefore, most foreign workers are supposed to leavethe country after their employment is terminated (although thereis a provision for higher-skilled persons to retire in Bahrain, itapplies only in very limited cases).

In response to a number of questions, the details of UKimmigration practice concerning highly skilled and lower-skilledprogrammes, the speed of processing applications, and the GATSvisa popularity were presented. There is a demand in the UKlabour market for both highly skilled and lower-skilled workers.While the general work permit arrangements tend to cover allskill levels, there is also a highly skilled migrant programme anda sector-based scheme aimed specifically towards lower-skilledworkers, which currently includes the food manufacturing andhospitality sectors and is quota based. The highly skilled workerprogramme operates on the basis of a point system, wherepotential employees get points based on their qualifications andachievements (e.g. the number of papers published, degreesobtained, etc.). Recently, the criteria for awarding points weremade more flexible and now achievements of the applicants’dependents are also taken into account. As a result of this reform,entries under this category have almost doubled.

The participants were also informed that in the UnitedKingdom, work permit applications are processed within 24 to48 hours. However, the process may take longer if the applicationsare incomplete.

Next, it was mentioned that there were very few applicationsfor the GATS visa, as other UK work permit arrangementsaccommodate the categories of persons eligible for this schemeand are more flexible and beneficial.

A lot of interest was shown regarding the operation of thePhilippine migration system. Questions addressed the monitoringof remittances by the government, the functioning of the bodies

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providing services to expatriates in host countries and trainingprogrammes for future migrant workers. It was clarified that thecentral bank monitors the inflow of remittances coming throughthe banking system; however, funds channelled through non-banking institutions operating both in the Philippines and in someof the host countries cannot be traced. The services provided foroverseas workers in host countries are mainly through Filipinogovernment schemes and are provided by the embassies. AsFilipino labour migration takes place largely on a unilateral basis,the Government of the Philippines is responsible for collectinginformation on labour needs in the international labour marketin order to determine in which sectors to invest in terms oftraining. The strategy for training programmes is derived fromreports made by the Filipino labour attachés located in hostcountries. These reports include information on the present andpotential future labour market requirements of a particularcountry.

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SESSION III: BILATERALAPPROACHES TO MANAGINGTHE MOVEMENT ANDTEMPORARY STAY OF WORKERS

How are bilateral agreements for managing temporary labourmigration designed? What kinds of agreements exist? How dothey address labour market and administrative issues, and whatlessons can we learn, including for Mode 4? What have been thestrengths and weaknesses of such agreements? What has beentheir purpose and what types of movement (e.g. skill level, sector,duration of stay and type of contractual arrangements) do theycover and how does this compare with GATS Mode 4? What havebeen the strengths and weaknesses of these initiatives? Whatlessons can we learn?

Chair: Irena Omelaniuk, Editor-in-Chief, World Migration2005

This session looked at the strengths and weaknesses of bilateralapproaches in order to identify effective ways to bridge gapsbetween trade and migration.

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Introduction

Georges Lemaître, Principal Administrator, Directorate forEmployment, Labour and Social Affairs (DELSA), OECD

Regional labour agreements are relatively common – there aremore than 150 such agreements involving OECD countries.However, the number of workers covered is usually low, withthe exception of treaties between neighbouring countries.

By definition, bilateral agreements accord specific nationalitiesprivileged labour market access. They tend to focus on low-skilledjobs or workers with age limits and are usually restricted byquotas. A useful typology of bilateral labour agreements can bedrawn on the basis of categories of workers covered, such as:guest workers, seasonal workers, cross-border workers, contractor project-linked workers, trainees or working holidaymakers.

States pursue various objectives when concluding bilateralagreements. States bordering each other or located within oneregion may be interested in creating cross-border regional labourmarkets and promoting cultural and political ties and exchanges.It is useful to differentiate between the aims of sending andreceiving countries in establishing bilateral agreements. The mainobjectives of receiving countries are offsetting labour shortagesand encouraging interstate cooperation, while sending countriestypically wish to provide employment for surplus labour, ensureprotection of the rights of their citizens when abroad and enhancedomestic welfare (e.g. through remittances).

Implementation of bilateral labour agreements often involvespromotion and advertising of the programme followed byrecruitment, testing and certification of applicants. Participatingstates engage in information sharing among administrators,intermediaries, employers and migrants. However, the desire tomanage labour movement under bilateral agreements can resultin the development of additional procedures and restrictions thatcomplicate the process, although less bureaucratic bilateralschemes seem to be the most successful ones.

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Recruitment under bilateral labour agreements is carried outby private agencies located in either sending or receivingcountries, public administrations or migrant networks. Theagencies perform either a simple matching function or provide acomprehensive hiring package. When public administrations areinvolved in the process, they offer recruitment services toemployers (receiving countries) or screen potential migrants(sending countries). The role of migrant networks in facilitatingthe process of labour movement has become increasinglyimportant over time.

Return of migrants to their home country after the expiry oftheir contracts is an important issue in temporary labourmigration management. In bilateral agreements, all interestedparties, public administration, intermediaries, employer andworkers, are involved in policies aimed at ensuring returns. As arule, the record of return of immigrants moving under bilateralagreements is very good. The reason for this is, for the employer,the possibility of rehiring the same workers subsequently; forworkers, the possibility of a return to the host country for furtherwork in the future; but especially, the fact that bilateralagreements tend to concern jobs that are by nature temporary.

In sum, the main attraction of bilateral agreements is the abilityof participating states to manage the process of temporary workermigration. Such schemes work best when dealing with labourneeds that are temporary by definition. The main drawback ofbilateral agreements is that the demand by workers for placesunder such agreements tends to outweigh the supply.

Case Study 1: Hispano-Ecuatoriano Bilateral LabourAgreement

Victoria Galvani, Jefe de Coordinación, Subdirección Gral.de Régimen Jurídico, Dirección Gral de Inmigración, Secretaríade Estado de Inmigración y Emigración, Ministerio de Trabajoy Asuntos Sociales, Spain

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Spanish migration policy, as set up by the Spanish government,is based on four fundamental pillars:

• managing migration flows;• coordinating migration agreements with the needs of the

labour market;• fighting irregular migration with adequate border control and

repatriation of migrants in cases of irregular migration, and• social integration of migrants and cooperation with countries

of origin whose citizens constitute a significant proportion ofmigrants in Spain.

The management of labour migration flows has to consolidatetwo mechanisms that already exist in the Spanish regulatorysystem: first, recruitment of foreign workers on a contract basiswhile taking into account the situation of the national job market,and second, the general labour regime (until recently, hiring ofpersons required obtaining a work visa in the country of origin).

The agreement of the Council of Ministers of the twenty-firstof September 2001 approved recruitment of foreign workers,subject to the conditions of the national labour market.

Business organizations, trade unions and various bodies ofpublic administration participate in establishing the number offoreign workers consistent with real occupational demands thatcannot be covered by local workers and permanent migrants.Business organizations estimate the number of vacancies that,according to forecasts, will not be filled by the domestic labourforce, classifying them by sectors of activity and occupation, aswell as by intended duration of contracts. Trade unions makeassessments of the manpower shortage on a regional level, bysectors of activity and occupation. Finally, public administrationoffices are responsible for developing concrete proposals andguiding the procedures, ensuring that the contract workers whowere hired on a contract basis in the countries of origin areincorporated effectively into the new work environment. Thismechanism is adjusted on a continuous basis, through the analysis

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of each sector of the national labour market and the assessmentof the availability of workers who have priority in occupyingavailable positions: nationals and foreigners authorized to takeup employment in Spain.

Spain has signed a number of bilateral agreements withvarious countries (i.e. Poland, Romania, Bulgaria, Ecuador,Colombia, Dominican Republic and Morocco) addressing theissues of management and regulation of migration flows, and, inparticular, the possibility of selecting workers in the countries oforigin. Selection commissions were established in the countriesparticipating in the bilateral agreements with the aim of providingtransparency and efficiency in hiring contract workers. Currently,Spain offers work opportunities predominantly to migrants fromthe countries with which such agreements were concluded.

Selection of workers and signing of work contracts in thecountry of origin solves some of the problems associated withthe management of labour migration. However, thesemechanisms have some drawbacks, such as a lack of flexibility, adegree of disconnectedness in the procedures, lack of informationand direct communication between the organs in charge ofselecting workers and governmental offices responsible for takingdecisions, etc.

The bilateral agreement between Spain and Ecuador wassigned in 2001 and incorporates the above mechanisms. Thecompetent authorities and the definition of migrant workers arecovered in the preliminary chapter of the Agreement. There arealso six chapters and 22 articles that define the job offers;assessment of the necessary professional qualifications, travel andreception of migrant workers; rights and work and socialconditions of migrant workers; and special provisions regardingtemporary workers and their return. Chapter VI establishesprovisions for application and implementation of the Agreement.

In January 2002, a meeting of the Spanish-Ecuadoriandelegations was held in Quito, Ecuador with the objective offorming a joint committee foreseen in Article 21 of the Agreement.During the meeting, the designated contact mechanisms and

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competent institutions for transactions established by theagreement were discussed. It also addressed issues related to thedevelopment of Ecuadorian residents in Spain, the situation ofthe Spanish community in Ecuador, and the functioning of theselection commission aimed at professional pre-selection ofpotential migrants.

Between the years 2000 and 2004, the number of Ecuadoriancitizens with valid residence permits in Spain increased byapproximately 519 per cent. Currently, 11 per cent of all foreigncitizens legally residing in Spain are from Ecuador. In addition,1,951 persons who were born in Ecuador acquired Spanishcitizenship between 1997 and 2003.

The number of work permits granted by the Spanishauthorities to Ecuadorians has also increased sharply in recentyears: from 19,995 work permits in 2003 to 29,641 just in the periodbetween the first of January and the thirty-first of August 2004.As of the thirty-first of August 2004, 14 per cent of all foreignworkers participating in the Spanish social security system werefrom Ecuador.

These numbers demonstrate the closeness of the cooperativerelationship between the two countries, reflecting thecommitment expressed in the General Agreement of Cooperationand Friendship signed by the King of Spain and the Republic ofEcuador in June 1999.

In terms of broader agreements involving provisions for thefacilitation of international labour mobility, it should be notedthat Spain is a part of the EU-MERCOSUR committee, createdwithin the framework of the general agreement between theEuropean Union and the member countries of MERCOSUR.Politically, Spain shares profound historical ties with theMERCOSUR Member States and, therefore, has a favourabledisposition towards them.

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Case Study 2: Canadian Seasonal Agricultural WorkerProgramme

Elizabeth Ruddick, Director, Strategic Research and Statistics;Priorities, Planning and Research Branch, Citizenship andImmigration Canada

While Canada has fairly liberal policies for the entry ofprofessionals to work on a temporary basis, the ability ofemployers to engage low-skilled foreign temporary workers ismore tightly controlled. The seasonal agricultural workerprogramme (SAWP) is one example of bilateral agreements aimedat facilitating the organized entry of foreign workers to meetspecific skill shortages.

The seasonal agricultural worker programme allows theorganized movement of foreign workers to meet the temporaryseasonal needs of Canadian agricultural producers during peakharvesting and planting periods when there are traditionallyshortages of qualified Canadian workers. The programmeoperates in the context of a national labour market policy thatensures protection of the domestic labour market. Employmentopportunities are made available to qualified and reliableCanadian citizens and permanent residents before recourse ismade to the SAWP (known as the “Canadians first” policy).

The key to the seasonal agricultural worker scheme is theseasonal nature of employment and the organized entry of foreignworkers.

The programme was first introduced in 1966 followingnegotiations between Canada and Jamaica. Trinidad and Tobagoand Barbados became participants in 1967, and in 1974 anagreement was signed with Mexico. In 1976, the scheme wasextended to include the Organisation of East Caribbean States.In other words, the programme is a series of bilateral agreementsoperating under the umbrella or framework of the SAWP.

Over the past 20 years, the flow of workers has increased fromjust under 6,000 in 1980 to 18,700 in 2003. Of these, approximately

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10,000 are from Mexico and 8,000 are from Caribbean States.Within Canada, workers are destined mainly for Ontario andQuebec, although the programme also operates in Alberta,Saskatchewan, Manitoba, New Brunswick, Nova Scotia andPrince Edward Island. Earlier this year an agreement was reachedwith the Province of British Columbia to extend the programmeto that region in order to allow the hire of seasonal agriculturalworkers from Mexico.

The programme is a partnership managed by HumanResources and Skills Development Canada (the federalemployment and labour ministry), Citizenship and ImmigrationCanada, Provincial governments, signatory foreign governments,and employers in Canada.

The SAWP has evolved over time. In Ontario and Quebec, forexample, industry representatives have organized to form theForeign Agricultural Resource Management Services (FARMS)in Ontario, and in Québec, the Foundation des Entreprises deRecruitement de Main-d’Ouevre Agricole Etrangere (FERME).In Ontario, FARMS is a private sector, non-profit federallyincorporated organization. It assists in processing requests forseasonal agricultural workers and communicates these to thegovernments of the supplying countries. FARMS collects a userfee to cover the cost of its administrative services.

Using the Ontario programme as an example, the partnersinvolved in the implementation of the scheme include theemployers and FARMS, the federal employment ministry throughits local and regional offices, Citizenship and Immigration Canadathrough its offices outside Canada, the liaison or consular officerin Canada from the sending country, and the designated travelagency, which arranges the transportation of the workers to andfrom Canada.

The regional employment office develops policy andoperational guidelines and maintains continuous liaison withsenior Mexican and Caribbean government officials andimmigration officers. The industry representative, in this caseFARMS, manages the general administration of the programme,notifies government services of employers’ requests for workers,

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and communicates with the appropriate Canadian embassyregarding these requests. It also provides agricultural andgovernment agencies with updates as required, facilitates themovement of work orders and checks the period of employmentand total entitlement of workers.

The local employment office is responsible for approving theoffer of employment to foreign workers and transmitting theorders to FARMS, obtaining the employer’s signature onemployment contracts and sending them to the liaison office ofthe foreign government. The consular or liaison services of theforeign government recruits workers in conjunction with the localMinistry of Labour, audits pay, attends to problems on site,working together with foreign labour, interior and healthministries, and coordinates movement of workers with the travelagent. The Canadian Embassy or High Commission in thesending country prepares the necessary employmentauthorizations and visas for approved requests received fromFARMS and reviews workers’ medical examinations. Finally, thespecified travel agency arranges the journey for the workers andadvises liaison and consular services of confirmed flights.

The employer must sign a contract specifying roles andresponsibilities, and terms and conditions of employment. Theemployment agreement is signed by the employer, the workerand the foreign government agent.

This agreement specifies the period of employment and hoursof work – typically not less than 240 hours for a period of sixweeks or less and no more than eight months within the peakdemand time frames identified for the approved commoditysectors. The agreement stipulates the obligations of each partywith respect to the provision of free seasonal housing,transportation costs and subsidies, working conditions, wages,meals, and repatriation.

Employers are required to pay the highest of the minimumprovincial agricultural wage, the prevailing wage as determinedby the federal employment ministry, and the rate being paid bythe employer involved to Canadians doing the same work. Thecontracts include stipulations regarding health insurance and

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occupational health and safety. The agreements vary slightly byProvince and sending country.

The importance of remittances is also reflected in some of theagreements – for example, remittances are facilitated for Mexicanworkers through arrangements with Canadian banks, whichestablish accounts for agricultural workers and arrangements tofacilitate access by family to earnings of the worker in Canada.The agreement with the Caribbean countries specifies automaticand formal remittances from the worker’s earnings to his/herhome country.

The liaison officer of the sending country plays a key role inthe implementation of the SAWP. S/he is involved in monitoringthe work conditions and pay of the foreign worker, in resolvingissues on site, etc.

Sanctions may be applied against the employer in the eventof abuse in the area of non-compliance with Canadianimmigration laws. For example, sanctions may be used againstthe employer if foreign workers do not return to their homecountry at the end of their employment contract. Sanctionsinclude termination of further assistance to the employer infacilitating inter-country movement of seasonal foreign workers.In practice, however, the rate of return of workers is high and sois the level of compliance, so sanctions are rarely if ever required.

Canadian immigration and employment legislation andregulations provide flexibility for the development of analogousprogrammes outside of the SAWP. More specifically, the Provinceof Quebec and the Government of Guatemala have engaged in asimilar scheme for agricultural workers from Guatemala to theProvince of Quebec. The objectives and principles of this schemeare the same as for the SAWP, but it is managed in a slightlydifferent manner. The federal employment ministry approves theoffers of employment on an individual basis. IOM providestechnical assistance with respect to the development of a list ofqualified Guatemalan workers, transportation of the workers toCanada and, in conjunction with FERME, the return of theworkers to Guatemala once their contract has ended.

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The SWAP is a highly successful scheme and is often cited asmodel for similar agreements. But in order to see whether thisprogramme can be replicated in other countries, it is importantto understand specific characteristics that contributed to itssuccess, among which are seasonality of the scheme and lack ofalternative sources of labour for employers (i.e. no irregularpopulations). However, the main reason behind the success ofthe SAWP is the fact that all parties have a vested interest in thescheme: foreign countries obtain a stable source of employmentfor their nationals, while being guaranteed their return;employers can continue their farm operations; and workersbenefit from agreements which respect Canadian labourlegislation and wage standards.

Discussants

Veronica Robinson, Deputy Director, Manpower Services(Work Permits, Local Employment and Overseas MigrationProgramme), Ministry of Labour and Social Security, Jamaica

Jamaica has bilateral seasonal labour agreements with theUnited States and Canada. As these agreements are inter-governmental, they are not based on a treaty, and the partiesdetermine the rules for their operation.

Principal reasons for starting both programmes were labourshortages in the recipient countries and labour availability inJamaica. For example, the US programme began in 1946, whenthe United States needed to resuscitate its agricultural sector. Thisscheme has been continuing ever since. Currently, Jamaicans aremainly employed in the United States as fruit and vegetablepickers; however, there is also some demand in the lower-skilledsegment of the tourism sector.

The Canadian programme started in 1966. The agreement withCanada is expressed in a memorandum of understandingbetween the two governments, which provides stability andcontinuity of the programme. Guidelines are set out in the

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memorandum of understanding stipulating the distribution ofresponsibility for the recruitment and selection of workers.

The implementation of the agreements with both the UnitedStates and Canada is fundamentally similar to the way theCanadian Seasonal Agricultural Worker Programme is managed.In particular, the responsibility is shared between sending andreceiving countries and distributed in a way analogous to theSAWP. Also, terms and conditions of employment are specifiedin a worker agreement which includes, for example, arequirement to maintain work records for each employee andmobility limitations.

In order to protect the domestic labour markets of the recipientstates, there is a requirement to verify local labour marketshortages before Jamaican workers are admitted to the UnitedStates or Canada.

The main strength of bilateral labour agreements is the degreeof organization and control they offer: they provide effectiveinstruments for monitoring the movement of workers, as well asensuring their security and protecting their welfare. As a resultof bilateral schemes with Canada and the United States, Jamaicahas reaped considerable economic benefits, both throughremittances and through the improvement of foreign exchangerates.

The US-Jamaica and the Canada-Jamaica agreements bothdiffer from GATS provisions, and it is doubtful whether theycan be developed and brought into the GATS framework. Therewill be practical and administrative difficulties in managing thewide range of workers covered by the GATS, which mayundermine the current success of bilateral schemes.

Dr Torsten Christen, Deputy Head of Division, FederalMinistry of Economics and Labour, Germany

This seminar offers a great opportunity to exchange views andexperiences regarding legal and economic aspects of migration.

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Germany has a variety of bilateral labour agreements withmore than ten countries, mostly central and eastern European.Labour schemes to which Germany has committed can be dividedinto a number of categories. The first group is seasonal workeragreements, which were signed with approximately ten countries.The economic background for signing these agreements is labourshortages following German unification. This scheme mostlyapplies to seasonal workers occupied in agricultural, hotel andrestaurant sectors. Currently workers who enter Germany in thiscategory can be employed in the country for a maximum of fourmonths. In 2003, Germany admitted more than 300,000 seasonalworkers.

Under the next category of programmes, the guest worker ortrainee agreements, entry is allowed for a maximum of 18 months.This scheme was organized with the aim of facilitating theexchange of skilled workers for the purpose of improvinglanguage and other skills. In 2003, approximately 3,500 personsentered Germany as guest workers.

Finally, contract worker agreements were signed by Germanywith 13 countries in order to alleviate labour shortages at thebeginning of the 1990s. Another objective was to enableknowledge exchange and establish closer contact betweenGermany and central and eastern European countries.

In analysing these bilateral agreements, a number of keyelements can be identified which might be significant for theMode 4 discussion. First of all, a bilateral agreement might beeither quota- or economic needs test-based. Secondly, either afixed or adjustable quota can be used. Germany has experiencewith the quota adjustment process, which might be used inMode 4 negotiations. The quota is fixed when the agreement issigned; however, a mechanism for its future alteration is alsoagreed on. For example, in Germany quota adjustments dependon the level of unemployment: the quota is to be raised by 5 percent for each percentage point of decrease of unemployment rate,and vice versa.

Another useful element that might be adopted under Mode 4is the so-called “Regional Labour Market Protection Clause” used

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by Germany in some agreements. This provision safeguards thelabour market in areas with a very high unemployment rate.

Germany also applies a system of sub-quotas for certain sectors– for example, in addition to a general quota for constructionworkers, there is a sub-quota for special businesses within theconstruction sector.

The main advantage of bilateral agreements is flexibility: theyallow for a high level of adaptation and adjustment. But on thenegative side, there are high bureaucratic costs involved.

It is important to remember that labour agreements are partof a very sensitive area between migration and trade, and it iscrucial that labour market circumstances in both destination andsource countries are taken into account. Another point to consideris the background of the national migration law, as every countryhas its own traditions and history.

General Discussion

Questions and comments reflected the interest of theparticipants in the issue of collaboration between sending andreceiving countries in areas such as ensuring returns andprotection of migrant workers.

Participants enquired about the level of success of returnsprovisions and enforcement mechanisms of bilateral agreements.It was stated that existing returns provisions have beensufficiently effective and none of the bilateral agreements havebeen denounced because of problems in this respect. It wasemphasized that essential conditions for the success of returnsprovisions are the temporary nature of employment and theinterest of all parties in ensuring returns. In the guest workerschemes of the 1950s and 1960s for example, returns failed, asthese conditions were absent. In addition, there were manypressures in favour of workers remaining in the host country:guest worker agreements did not deal with employment that is

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temporary by nature, employers wished to maintain existingworkers in order to avoid re-training, workers were interested instaying due to higher salaries, and governments perceived thissituation as contributing to economic growth.

Observations were made with regard to some additionalfeatures of bilateral agreements that might be contributing to thehigh rate of returns. For instance, it was pointed out that thecollective organization of seasonal worker agreements mightinvolve social pressure on individual workers to return to theircountry of origin, as absconding might lead to sanctioning of theemployer and thus, by reducing the number of potentialemployers, jeopardize the possibility of future employment forother workers. It was noted that such a collective arrangementcould also be used in the GATS with respect to contractual serviceproviders. Another element of bilateral agreements that wasmentioned as potentially applicable to Mode 4 was provisionsfor sanctioning employers for non-return of workers. As Mode 4covers cases where the employer is a foreign enterprise, thepossibility of establishing penalties for absconding workers wassuggested. One of the participants proposed that a bond couldbe paid by companies requesting employees from abroad andrepaid to the employer once the expatriate leaves the host country.This mechanism would ensure that the employer is interested inguaranteeing returns of its foreign workers.

It was emphasized that one of the aspects of bilateralagreements potentially most relevant in the GATS context is thatthe source as well as host countries assume certain obligations.In response to an enquiry of one of the participants, it wasreiterated that within the bilateral agreements, obligations ofsource countries usually include the responsibility for verifyingthe qualifications and criminal record of potential employees andthe reliability of the employers. It was also explained that theGATS focuses on the treatment of service suppliers of othermembers by the host country, and although it contains a conceptthat the country of origin is presumed to have certainresponsibilities, this principle is not developed. The possibilityof imposing obligations on source countries that would provideguarantees in a way that would facilitate Mode 4 flows needs tobe further explored in the GATS context.

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Another issue discussed concerned the common interests ofsending and receiving countries. In this context, the possibilityof tying investment in professional training to labour migrationinflows under Mode 4 was suggested. Many participantsconsidered it a highly interesting proposition, as linkinginvestment in education services or training facilities to thetemporary migration of skilled professionals would alleviateconcerns about brain drain, especially in developing countrieswhere subsidized education often leads to the migration ofcitizens. Establishing a connection between training andtemporary migration programmes could lead not only to a moredesirable circular movement of temporary workers, but also toan increase in the level of investment in training programmes ofthe countries of origin, as the destination countries would beeffectively investing in the development of their future labourforce. It was pointed out that these types of mechanisms alreadyexist and are popular in healthcare, as they offer a possibility toovercome the problem of qualification recognition. For example,there are bilateral agreements between regions of northern Italyand Romania providing for the training of Romanian nurses priorto their arrival to Italy, where there is a shortage of healthcareworkers. The question about the existence of such trainingprogrammes within the GATS context was raised. It was clarifiedthat although training in the country of origin is sometimesnecessary in order to develop human skills in workers destinedfor certain markets, there is no obligation in the GATS or in theschedule of commitments to develop such schemes.

A suggestion was also made that professional training in thecountry of origin could be accompanied by the establishment ofdevelopment projects. It was observed that it is a complex andlittle explored issue. While developed countries might find itbeneficial to invest in the training of potential migrants in sourcecountries, there is a question about the aim of such developmentprojects: would it be to stabilize the population and decreasedepartures or to prepare potential migrants for work abroad?

A number of participants expressed concern regarding thevulnerability of temporary migrant workers, who are often notsufficiently familiar with labour legislation concerning their rights

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and possibilities of legal redress and accessing authorities in thehost country. It was requested that mechanisms to protecttemporary migrant workers existing under bilateral agreementsbe clarified. All panellists assured that their governments aremaking extensive efforts to protect temporary migrant workers.In Canada, the liaison officer is a key to providing adequateprotection of the rights of migrant workers; in particular, s/heassists workers in filing complaints in cases of rights violation.Spanish legislation contains comprehensive provisions aimed atprotecting migrant workers, including regulation of the type ofaccommodation that an employer has to provide for temporaryworkers. Working conditions of temporary workers are controlledby the Ministry of Labour, and in case of abuse, expatriates canaccess both Spanish authorities and representatives of theirnational governments. The German authorities publicizeinformation about the legal aspects of employment on theinternet, and require labour agencies to inform foreign employeesabout their rights and possibilities for legal redress. Jamaicanworkers are counselled prior to departure on their rights andsocial and health policies, and are represented by the liaisonofficers once in the destination country. But despite available legalprovisions, many workers do not inform authorities ofmistreatment, fearing sanctions or expulsion from the country.

Interest was expressed with respect to the quota mechanismused in Germany, according to which the number of migrantworkers admitted is dependent on the fluctuations of an economicindicator, for example the level of unemployment. It wasremarked that such a mechanism could be adapted for settingconcessions within Mode 4.

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SESSION IV: REGIONALARRANGEMENTS FORMANAGING THE MOVEMENTAND TEMPORARY STAYOF WORKERS

How do regional trade agreements and other regionalarrangements for managing temporary labour migration actuallywork? What kinds of agreements exist? What has been theirpurpose and what types of movement (e.g. skill level, sector,duration of stay and type of contractual arrangements) do theycover and how does this compare with GATS Mode 4? What havebeen their strengths and weaknesses? What lessons can we learn,including for Mode 4?

Chair: Carlos Primo Braga, Senior Adviser, World Bank

Introduction

Julia Nielson, Trade Directorate, OECD

While the focus of the previous sessions was mainly onagreements concerning labour mobility and facilitation of labour

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movement, the focus of this session was on labour mobilityprovisions within preferential trade agreements. Most of themobility provisions within these agreements are connected withthe supply of services and other forms of movement directlyrelated to trade and investment.

An exceptional group within preferential trade agreements isdeep integration agreements, which aim for the creation of asingle economic space, allowing for broader mobility of people,beyond that related to trade or even employment.

Generally, there is a continuum of approaches to labourmobility in preferential regional trade agreements (RTAs)representing varying degrees of liberalization. Some agreementsallow for mobility of people in general, including permanentmigration and non-workers (e.g. the EU). Others provide for thefree movement of labour, including entry to the local labourmarket, while yet others are limited to facilitating certain kindsof movement related to trade or investment. Finally, a numberof agreements simply follow the GATS model; that is, theyprovide for temporary movement only and only for servicesuppliers. This variety of approaches reflects a wide range offactors: geographical proximity, levels of development andcultural and historical ties between the parties.

There is a symbiotic relationship between RTAs and the GATS:NAFTA provided a model for the GATS, while other regionalagreements use and replicate the GATS model (e.g. EU-Mexico,US-Jordan). RTAs also often provide the model for each other, asis the case, for example, with agreements in Latin America, orprovisions in the US-Chile and US-Singapore agreements thatare similar to NAFTA.

It is essential to be careful when comparing RTAs and thelabour mobility provisions within them, as some RTAs may offerbroad mobility but exclude some sectors, while others might coverall sectors but limit mobility to certain groups. It is also importantto bear in mind that facilitated movement of people does notalways equal a right to provide specific services (e.g. lawyers,accountants). It is necessary to read the labour mobility provisionsin these agreements in conjunction with liberalization

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commitments on particular service sectors; RTAs can also excludecertain sectors from coverage or apply special rules to specificsectors. In any event, national regulations on licensing andqualification requirements governing the right to practiceparticular professions still apply.

RTAs that do not provide full labour mobility tend to useGATS-type exclusions; that is, they exclude permanent migrationor access to the labour market. In almost all cases, all generalmigration conditions continue to apply and parties to RTAs retaindiscretion to grant, refuse and administer residence permits.

RTAs treat labour mobility in a variety of ways: in some cases,the only type of labour mobility covered is Mode 4 under thetrade in services chapter (e.g. MERCOSUR); sometimes allmobility – investment and goods related – is grouped in a separatechapter (e.g. Group of Three or, for services investment and intra-corporate transferees, Japan-Singapore); in other instances,reference to mobility of key personnel is included in investmentprovisions (e.g. ASEAN), or sectoral chapters (e.g. EU-Mexicoon financial services).

Another useful way to categorize RTAs is by the content ofthe agreements. One group of RTAs covers full mobility of labour(e.g. EU, EEA, EFTA). The second broad category featuresagreements allowing market access for certain groups, includingbeyond service suppliers and/or agreements grouping allmobility in a separate chapter (such as CARICOM for the highlyskilled, NAFTA, Japan-Singapore). The next type of RTAs usethe GATS model but also contain some additional elements (e.g.US-Jordan, which provides for special visa arrangements andincludes traders and investors, EU-Mexico, AFTA), while yetanother group basically only use the GATS model (e.g.MERCOSUR). Some agreements provide no market access perse but only facilitate entry for certain kinds of persons related totrade and investment (e.g. APEC, SAARC), and, finally, someagreements remain works in progress (e.g. SADC).

Additionally, some RTAs create special visa schemes or othertypes of managed entry, as in the cases of trade NAFTA visasand the APEC Business Travel Card, whereas others try to give

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access under existing visa schemes. Where existing visa schemesare used, there can be difficult intra-governmental discussionsat the national level about who gets to determine visa policy.Experience of the first type of regional agreements might be veryinteresting for GATS Mode 4; however, administrative capacityis a fundamental issue in this case.

The analysis of RTAs can provide some useful lessons forGATS Mode 4 negotiations. Provisions in RTAs related to labourmobility illustrate a range of options for access, calibrated tonational needs, demonstrate the need for close policycoordination and dialogue between migration and tradeauthorities, and underline the necessity to consider ways ofimplementing commitments and administrative capacityrequired.

Case Study 1: APEC Business Travel Card

What exactly does it provide, how does it work, and whatlessons can we draw from it for Mode 4?

David Watt, Department of Immigration, Multicultural andIndigenous Affairs, Australia

The Asia-Pacific Economic Cooperation (APEC) BusinessTravel Card (ABTC) scheme applies to business visitors, thesecond most popular category under GATS Mode 4. The ABTCserves the needs of the business community for streamlined entryto member economies for trade and investment activities, whilemaintaining border integrity. This programme helps to enhancemember states’ capacity to implement efficient and streamlinedimmigration practices and builds confidence by ensuringtransparency of entry requirements and facilitating dialogue andinformation exchange among members.

The scheme began in 1997, when the importance of themovement of labour for economic development was recognized.

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Having started with three economies (South Korea, Philippinesand Australia), it now includes 16 member countries. Untilrecently, the number of applicants to the programme grewrelatively slowly; however, in the financial year 2003-04, activityin the scheme rose by nearly 190 per cent. Such growth can beattributed to the increase in the number of participating countries,which made the card more attractive to business people (duringthe past 18 months, the number of participating countriesdoubled).

The ABTC success is a result of a number of factors including:a pathfinder approach, which recognizes differing capabilitiesof economies and allows countries to join when they are prepared;validity of the scheme proved by a trial by a limited number ofeconomies at the start of the programme; open and cooperativeapproach applied, which builds confidence and improves ABTCoperational strength; technical assistance provided to developingeconomies to ensure successful implementation of the agreement;and finally, equal treatment of developed and developingcountries.

The key principles and procedures of the programme are setout in the ABTC Operating Framework. It includes provisionson such operational matters as card eligibility criteria, servicestandards and card manufacture standards (i.e. for the basicformat of the card). This document was developed and agreed toby the economies participating in the scheme. As preservation ofnational sovereignty is a key principle underpinning the ABTCOperating Framework, it is not legally binding and allparticipating states agree to abide by its provisions on a “best-endeavours” basis.

The ABTC Operating Framework is a publicly availabledocument and represents an important part of the informationexchange between member economies and the businesscommunity. Economy-specific ABTC information is madeavailable via the “APEC Business Travel Handbook” on thebusiness mobility website (www.businessmobility.org).

Applications for the ABTC card are made to the designatedhome country agency (each state determines which particular

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agency accepts applications). The home country then carries outnecessary vetting procedures in order to select bona fideapplicants: it was agreed that the country of origin is in the bestposition to implement the specific procedures to determine whois eligible for the ABTC, and thereby maintain the integrity ofthe scheme. Although the basic eligibility requirements are setout in the Operating Framework, economies may use additionalcriteria to ensure bona fide applicants. Applications approvedby the country of origin are sent to the participating economiesand, if accepted, are given pre-clearance permission. Memberstates are not required to give reasons for refusing pre-clearanceto any applicants. Finally, the home country can issue the ABTCcard, which allows entry into all economies that have given apre-clearance permission.

The ABTC pre-clearance system ensures that states retain thecontrol over the movement of people through their borders, andover the eligibility of domestic applicants. The ABTC membersalso benefit from the increased integrity of the scheme, whichresults from the double screening procedure, by home anddestination countries. The programme inspires a high degree ofconfidence in both government officials and the businesscommunity: in the history of the ABTC, no instances of fraudhave been discovered.

As the ABTC has substantial crossovers with Mode 4, it is anexcellent example of a development in the migration spherewhich has Mode 4 implications and from which lessons can bedrawn. In particular, the APEC has a lot of resonance in terms ofcooperation between sending and receiving countries, both inworking together on issues of concern, such as security, and incapacity building.

Discussant

Johannes Bernabe, Labour Attaché, Permanent Mission of thePhilippines to the United Nations Office in Geneva

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As far as cooperation between sending and receiving countriesis concerned, the ABTC gives the impression of being a front-loaded provision: most obligations have to be complied with bythe home economy, while the commitment of host countriesappears to be limited to the admission of business visitors alreadyvetted by the countries of origin.

A clarification is also needed on what the crossovers betweenthe ABTC and GATS Mode 4 mentioned in the presentation are.Some elements critical for the operation of the ABTC wereenumerated: transparency and legal and technical infrastructure.However, it is not clear how the gap towards market access canbe bridged once these initial requirements are met. The ABTCappears to be an agreement meant to be purely facilitative: it doesnot address issues which confront GATS negotiators concerns,in particular, relating to market access and regulatory measures.

Reactions to the Comments

David Watt, Department of Immigration, Multicultural andIndigenous Affairs, Australia

The ABTC is a scheme that facilitates the movement of businessvisitors and creates a transparent mechanism for access, whichis necessary for trade and investment. It is the case that the ABTCis not concerned with market access, but rather with ensuringthat the travel can happen without refusals and burdensomeadministrative procedures. However, some of the difficulties withproviding market access are related precisely to such issues astrust, security and returns, which the ABTC is working to address.

Julia Nielson, Trade Directorate, OECD

The solutions to such concerns found in schemes like the ABTCand the kinds of relationships that are built in doing so might bethe path to providing market access. In this regard, countriesmight think about how the kinds of trust between regulators and

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solutions to issues of managing movement created in the contextof these and other bilateral arrangements might be, over time,extended on a MFN basis. That is, arrangements for managingmovement at the bilateral or regional level could form thetemplate for arrangements involving a wider set of countries.Thus, a country that had negotiated certain arrangements (e.g.mechanisms to ensure returns and provide worker protection)with a select set of countries could open access to all states capableof meeting these conditions.

Case Study 2: NAFTA

How does NAFTA cover temporary labour movement, howdoes it work, and what lessons can we draw from it for Mode 4?

Luz María Servín Sotres, Director for International Affairs,Ministry of the Interior, National Migration Institute, Mexico

The North American Free Trade Agreement (NAFTA) wasnegotiated among Canada, the United States of America andMexico between 1991 and 1993 with the objective to establishtariff-free trade. Since its entry into force on the first of January1994, the NAFTA has sought to remove most cross-border tradeand investment barriers between its member states by 2005.

Chapter XVI of the NAFTA establishes general principles andobligations in relation to temporary entry for business persons.Provisions of this chapter include the preferential trade relationsbetween the parties, the willingness to facilitate temporary entryon a reciprocal basis and establish transparent criteria andprocedures for temporary entry, and protection of the domesticlabour force. Each party is obliged to apply its own measures toavoid unduly delaying or impairing trade in goods and servicesor conduct of business activities under this agreement. For thepurposes of this chapter, “business person” means a citizen of aParty who is engaged in trade in goods, the provision of servicesor the conduct of investment activities. “Temporary entry” means

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entry into the territory of a Party by a business person of anotherParty without the intent of establishing permanent residence.

A temporary entry working group comprised of therepresentatives of each Party was created in order to considerthe implementation and administration of Chapter XVI; thedevelopment of measures to further facilitate temporary entry ofbusiness persons on a reciprocal basis; the removal/waiver oflabour certification tests or similar procedures for spouses ofbusiness persons who have been granted temporary entry formore than one year; and, finally, to propose modifications oradditions to this chapter.

The working group meets once a year and its activities arecomplementary to internal regulations controlling entry oftemporary migrant workers. The National Migration Institute isresponsible for administering the provisions of this chapter tofacilitate the entry of NAFTA nationals to Mexico and grantingvisa exemptions and working permits for spouses. In this workinggroup, the Mexican government has been encouraging a matchingpolicy by NAFTA states regarding business persons’ mobility inother international forums such as the APEC.

Four migratory modes are distinguished within the businesspersons category. The first group is Business Visitors, whichcovers business persons wishing to perform business activitiesrelated to research and design, agriculture and manufacturing,marketing, sales, distribution, after sales service, general service,and trade and sales.

Traders and Investors is a category applied to personsintending to carry out trade in goods or services or to establish,develop, administer or provide advice or technical services tothe operation of an investment to which the business person’senterprise has committed an amount of capital in a capacity thatis supervisory, executive or involves essential skills.

Intra-Company Transferees represent another category thatcovers business persons who seek to render their services to anenterprise, a subsidiary or an affiliate in a capacity that ismanagerial, executive or involves specialized knowledge.

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Professionals are business persons seeking to engage in abusiness activity at a professional level in categories set out inChapter XVI (the list includes 56 professions).

In order to facilitate the entry of business persons, in April1994, the Mexican government issued a new Migratory Form inaccordance with the General Population Law and its Regulations.The Form is available in Spanish, English and French and isprovided by Mexican consulates abroad, as well as travelagencies, airlines and migration personnel at all points of entry.For transparency purposes, the Migratory Form for tourists,people in transit and business or counsellor visitors, commonlynamed FMTTV, replaced the Migratory Form for Business (FMN).The FMTTV is the only document NAFTA travellers need to fillin in order to enter Mexico, as there is a visa waiver agreementbetween Mexico and other NAFTA parties. This document allowsCanadian and American business persons to stay between 30 to90 days and can be renewed for up to four years.

There is a special visa for Canadian and Mexican professionalswishing to enter the United States, the Trade NAFTA visa (TNvisa). The TN visa has a considerable disadvantage: with amaximum duration of only one year, it requires frequentrenewals. To be eligible for this type of visa, an individual mustbe employed in one of the professions listed in the FederalRegulations and have at least a Bachelors degree unlessalternative credentials are specified. The list includes universityprofessors and researchers in addition to many other professions.For Mexican citizens, the approximate length of the approvalprocess is between six to eight weeks. Mexican citizens applyingfor a TN visa face certain additional requirements that Canadiancitizens may not. For example, a Mexican must obtain a TN visaat an American consulate before s/he can enter the United Statesin the TN status. In order to be issued a TN visa, a Mexican citizenneeds to be a beneficiary of an approved labour-conditionapplication and a petition from a non-immigrant worker.

In terms of migratory movements under NAFTA, statisticsshow that in the period between 2000 and 2001, significantly fewerMexicans entered both the United States and Canada thanCanadians and Americans, respectively.

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From April 1994 to August 2004, Mexico granted a total of2,067,123 FMTTV visas. The annual growth rate of entries inMexico under the NAFTA agreement in the period between 1995and 2003 was 21.6 per cent.

Since the entry into force of NAFTA, American citizens haveconstituted 93.5 per cent, and Canadian citizens only 6.5 per centof all entries under FWTTV format. Between April 1994 andAugust 2004, the following proportions of business personscategories entered Mexico: 82.5 per cent business visitors,14.3 per cent professionals, 2.2 per cent traders and investors,and 1 per cent intra-company transferees.

NAFTA members did not modify their migration proceduresin a substantial way in order to further facilitate the entry ofbusiness persons. Due to the need to strengthen border security,migration regulations have become more rigid in the membercountries. These regulations have negatively affected businesspersons’ mobility.

For Mexico, NAFTA has represented an opportunity forhistorical openness and liberalization. Repeatedly, NAFTA hasbeen used as a basic format for other free trade agreements. Since1994, Mexico has signed similar agreements with Colombia,Venezuela, Costa Rica, Bolivia, Nicaragua, Chile, Salvador,Guatemala, Honduras, Uruguay, Israel, the EU and others.

There has been a strong commitment and a strong will forliberalization and for eliminating protectionist principles. Mexicointends to develop higher quality standards to match Canadaand the United States in such areas as security, transfer of goods,and movement of persons.

Discussant

Johannes Bernabe, Labour Attaché, Permanent Mission of thePhilippines to the United Nations Office in Geneva

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As was discussed earlier, APEC is mainly facilitative of themovement of natural persons engaged in provision of services.On the other hand, NAFTA appears to be more than justfacilitative as it includes some concrete references to liberalizationof market access for Mode 4. If NAFTA does provide for the kindof market access and regulatory reform on Mode 4 that a lot ofdeveloping countries are looking for, then perhaps lessons canbe drawn from its experience.

It is important to identify the elements in NAFTA that allowedmigration authorities to be more comfortable with permittingfreer movement of people. It can be either a consequence ofpolitical considerations that arise out of a free trade arrangement,or perhaps a result of provisions in Chapter XVI, which ensuresthat a sufficient level of comfort is reached among the variousimmigration authorities, particularly given the strictly temporarynature of migration covered by the agreement. In the first case, apolitical signal from higher authorities would be sufficient forthe migration system to be reformed and liberalized. In the secondcase, perhaps certain parts of Chapter XVI should be used as abasis, which negotiators, regulators and migration authoritiescould apply to further liberalize markets.

In any case, it is important to identify elements of regionalagreements that can be used for the liberalization of Mode 4 tradeunder the GATS. One particular example which may be worthfurther consideration is whether there are obligations or criteriawhich could be imposed on or met by sending countries similarto the pre-clearance condition within APEC or the vettingprocedures used in the Philippine system.

General Discussion

The discussion focused on possible ways of bringing theachievements of bilateral and regional agreements into the GATScontext. Several participants emphasized the importance ofpolitical will underlining every legal instrument, treaty ormovement in order to achieve progress in trade liberalization onany issue. Therefore there is a need to find common ground for

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political agreement and work on developing ways of assuagingdoubts or concerns that migration authorities might have. Whileliberalization should not be confused with facilitation, the latteris essential for making market access effective. The participantsstressed the potential for drawing elements from bilateral andregional approaches, which could both provide the level ofcomfort for the trading partners, migration and regulatoryauthorities necessary for liberalizing market access in the contextof Mode 4, and help to facilitate it.

Among the strengths of bilateral and regional agreementshighlighted were their capacity-building aspect, high level of trustbetween regulators and ability to encourage domestic reformsand creative solutions to such problems as brain drain, returnsand labour market impact. One of the participants suggested thata template approach might allow for the harnessing of regulatorypolicies and flanking measures that make mobility successfulwithin the agreements among smaller groups of countries andintroduce them into the multilateral context. Concerns wereexpressed with regard to the possibility of the template approachbeing used as a condition imposed on some countries rather thana tool of liberalization and transparency. In reply, it was notedthat labour mobility is already subject to conditions and thepurpose of templates would be to make them more transparent.Moreover, as some agreements provide better market accesssubject to certain conditions, the template approach would ensurethat more countries are eligible for such arrangements.

Some queries reflected interest in the operation of the APECBusiness Travel Card scheme. The ABTC pre-clearance procedurewas pointed out as a useful instrument, especially in currentconditions of heightened security concerns. One of theparticipants asked whether the ability of every member countryto refuse access to any ABTC applicant without offering anyjustification is essential for the operation of this scheme. Theopinion of the panellists was that the ABTC would not be feasibleif the countries could no longer reject some applications, as suchan alteration would significantly complicate the administrativeprocedures, while the success of the whole scheme is based onprocessing a high volume of applications at a minimum cost.

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In response to a question on the dynamics of the ABTC flows,it was explained that a total of 6,000 APEC Business Travel Cardswere issued in 2004, which, while representing a very smallfraction of overall cross-border labour movement, can beconsidered a good result for a relatively new scheme orientedtowards a very specific group of people. Since the beginning ofthe programme, the number of APEC cards issued doubled everyyear, so further rapid increase in the popularity of the schemecan be expected. So far, almost half of all cards have been grantedto Australians, which is due to the duration of Australianparticipation in the scheme and the amount of publicity devotedto it.

A question of whether trade agreements have to include labourmobility in order to be consistent with the WTO requirementswas raised. It was clarified that within the WTO framework, tradeagreements should be “substantially all trade”, and thereforecannot a priori exclude any mode of supply. Consequently,Mode 4 has to be covered by trade agreements. However, thereis no requirement regarding the comprehensiveness of Mode 4commitments or inclusion of broader labour mobility.

It was observed that in analysing labour mobility betweenCanada and the United States, it is important to consider flowswithin a variety of entry categories rather than exclusively withinNAFTA. For example, more Americans enter Canada undergeneral provisions than under NAFTA, as these provisions aremore liberal and offer better conditions. However, the reverse istrue with regard to the American general provisions incomparison to the NAFTA conditions. As a result, significantlymore Canadians are using the NAFTA TN visa rather than theH-1B visa to enter the United States.

In response to a query, it was explained that within NAFTA,a negative list approach is used: there is a general rule to whichall countries agree and all schedules that are not included arelisted in the annex of the agreement. However, Chapter XVI ofNAFTA is a positive list, as it covers only certain categories.

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SESSION V: NATIONALIMPLEMENTATION OFINTERNATIONAL OBLIGATIONS

How do states implement at the national level the internationaltrade obligations they undertake at the regional and multilaterallevel with respect to movement of persons?

Chair: Alejandro Jara, Ambassador of Chile to the WTO andChair of the Services Negotiations

Introduction

Carlo Gamberale, Trade in Services, WTO

The theme of this session is the relationship between theinternational treaty obligations undertaken by states at thebilateral, regional and multilateral levels and the domesticimplementation of such obligations. This subject is central to theseminar as a whole.

In the preceding sessions, national management of thetemporary movement of natural persons through bilateral andregional agreements and the place of such schemes within

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domestic regulatory frameworks were analysed. The GATS is theonly multilateral agreement that allows states to undertakebinding commitments on the movement of certain categories ofnatural persons and, as such, raises some very specific issuesrelating to its national implementation.

In discussing national implementation, a general distinctionmust be made between the implementation of bilateral and deepregional integration agreements as opposed to the imple-mentation of multilateral instruments (i.e. Mode 4 commitments).Preferential trade agreements, unlike deep integrationagreements, generally present implementation problems similarto Mode 4.

As bilateral and regional instruments are in some cases usedto shape domestic policies and regulatory frameworks and viceversa, they often share most definitions and, consequently, arebetter accommodated within domestic provisions thanmultilateral agreements.

Ideally, Mode 4 should be brought into domestic laws usingad hoc – that is to say, Mode 4-specific – instruments reflectingdefinitions and concepts of these multilateral provisions.However, there is no close relationship between Mode 4 and theformation of domestic regulatory policies and frameworks. It isprobably unrealistic to expect Mode 4 to shape the migrationregulations of almost 150 WTO members, although it isunderstandable why bilateral and regional instruments aresometimes used for this purpose, taking into account such factorsas geographical proximity, level of development and cultural andhistorical ties. Indeed, the closeness between domestic regulatoryframeworks and some bilateral and regional agreements isjustified by the implementation of migration and trade policiesdictated by concerns and interests shared by the membercountries.

Moreover, regional and especially bilateral agreements aregenerally much broader in their coverage than Mode 4. First ofall, they generally cover temporary movement of workersregardless of any distinction between the services andmanufacturing sectors. Secondly, they incorporate many aspects

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of migration that go beyond the trade concept of market accessand the reach of Mode 4. However, some of these measures mayarguably provide a favourable backdrop for Mode 4commitments, such as obligations on source and host countriesconcerning the management of migratory flows, measures tooffset labour shortages, creation of cross-border labour markets,protection of migrant rights, etc.

The same cannot be said about Mode 4 implementation, whichis limited to a set of access commitments. WTO members agreedto liberalize Mode 4 trade, but without prejudice to theirunilateral, bilateral or regional migration policies. After all,Mode 4 is not concerned with liberalizing migratory policies butwith liberalizing the supply of services, which involves themovement of natural persons.

The GATS does not directly regulate relevant policy areas ofits members. Indeed, WTO members remain free to shape theirdomestic policies and laws, provided they respect theirinternational obligations under the GATS.

WTO members agree on binding commitments ofliberalization based on a set of GATS concepts and definitions,which are not necessarily reflected in national laws despiteendeavours to do so. In most cases, Mode 4 commitments are“accommodated” within existing regulatory frameworks, whichare only adapted to reflect the multilateral obligations whenabsolutely necessary.

Another difficulty is that Mode 4 commitments are confinedto the movement of natural persons in connection with the supplyof services, while the vast majority of national regimes do notdistinguish between workers in the services sector and those inthe manufacturing sector.

Therefore, the main drawback of this type of implementationis the difficulty of reconciling Mode 4 provisions with categoriesand concepts used in national regulatory frameworks, whichresults in administrative and procedural obstacles to themovement of natural persons under Mode 4 provisions. Thus,while a full integration of Mode 4 concepts into national

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regulatory frameworks is unrealistic and possibly unnecessary,a certain degree of Mode 4-specific national implementation isdesirable, and in order to facilitate it, more effort needs to bedirected towards developing common categories and definitions.

It should be pointed out in this context that more clarity andprecision in defining Mode 4 categories might also contribute toits liberalization insofar as it would reveal to regulators its limitedscope within the migration field. Indeed, the absence of cleardistinctions between Mode 4 and other types of temporarymovement may constitute a drag factor in the liberalization ofthis category.

Two key approaches to improving Mode 4 commitments andtheir national implementation have so far been proposed. Thefirst suggests a focus on developing common categories anddefinitions for Mode 4. The second approach favours the adoptionof flexible national implementing instruments, such as the “GATSvisa”, and addressing some of the most trade restrictiveadministrative and procedural barriers that result from theincompatibility between Mode 4 commitments and nationalregulatory frameworks.

To conclude, concerns relating to the effective implementationof Mode 4 commitments cannot be addressed through regulatoryuniformity within migration policies and laws. It is neverthelesscrucial to the implementation and to the expansion of specificcommitments on the movement of natural persons that Mode 4concepts and definitions are better integrated into nationalregulatory frameworks.

Case Study 1: Mexico

Luz Maria Servin Sotres, Director for International Affairs,Ministry of the Interior, National Migration Institute, Mexico

Mexico is in the vanguard of the globalized world in its policyof harmonizing international needs and domestic interests. In

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order to encourage economic development, Mexico has signed anumber of international agreements.

International treaties are the responsibility of the Ministry ofEconomy. The National Migration Institute, which is part of theInterior Ministry, has a role in agreements concerning migration.It also has the authorization to sign international treaties withoutneeding further approval by the Senate, which makes the processmore agile. In all other cases, international agreements have tobe ratified by the Senate. Before any treaty can enter into force, ithas to be published in the official journal of Mexico.

A law regulating the process of adopting internationalagreements establishes that treaties can only be signed betweenthe Government of Mexico and one or several subjects ofinternational law. Therefore inter-institutional agreements haveto be signed by a representative body of the Mexican governmentand a body of the foreign government. This is a method used bythe National Migration Institute to form agreements with itscounterparts (e.g. the Memorandum of Understanding recentlysigned with the IOM regarding assisted voluntary returns).

In order to explain the position of international treaties inMexican legislation, the structure of Mexican legislation needsto be clarified first. The hierarchy of Mexican legislation can berepresented by the Kelsen Pyramid: on top of the pyramid is theconstitution, from which other legal instruments are derived toform the general legal framework. The main requirement of thesystem is that provisions of international agreements should notcontradict the Constitution; when there is such a contradiction,the latter is valid.

The Mexican legal system gives the president the authority toadapt regulations and other implementing instruments to ensurethat they correspond to the objectives of legal provisions; in otherwords, the responsibility for the implementation of treaties lieswith the executive. For example, in the case of NAFTA, over ahundred articles in Mexican legislation had to be modified inorder to make provisions of the treaty functional.

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With regard to free trade agreements, Mexico has followed atrend similar to the general guidelines for treaties. Mostinternational agreements, except those signed with the EuropeanUnion, Israel and Panama, include articles on the movement ofpersons. These articles are very uniform: their main objective isto facilitate the movement of people, particularly businesspersons, and they include reciprocal clauses.

Sometimes a free trade agreement can lead to other provisions,as was the case with the system of cooperation between Mexicoand the United States for border security. In March 2002, Mexicosigned an Action Plan for Border Security aimed at regulatingcross-border movement of people between the two countries. TheAction Plan includes provisions for ensuring security at theborders, prevention campaigns for migrants from risk zones,deterrence of undocumented migration and prevention of borderviolence. In order to implement the Action Plan, coordinationwork with border control and other relevant bodies was carriedout and publicity campaigns were organized.

The implementation of treaties has also generated a numberof reforms: the Interior Ministry has started publicizing allinternational agreements on its website, a telephone enquiryservice was introduced to provide information on provisions ofthe treaties, exchange programmes with businesses weredeveloped, etc.

Case Study 2: Canada

Paul Henry, Trade Policy Adviser, Citizenship andImmigration Canada

The subject of the presentation is Canada’s internationalobligations in international trade agreements on the temporaryentry of business persons (i.e. work permits and labour marketopinions) allowing for more “facilitated” or “liberal” access toCanadian markets for business persons engaged in certainbusiness activities.

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On the national level, Canada implements its temporary entryobligations in bilateral, regional and multilateral agreements,when necessary, through changes to its regulations andadministrative instructions or guidelines. In analysing nationalimplementation it is important to consider firstly, the general (oruniversal) provisions and regulations concerning temporaryworkers in Canada’s Immigration Act and regulations, andsecondly, Canada’s obligations in such important internationalagreements as the Canada-Chile Free Trade Agreement, NAFTAand the GATS. In the Canadian case, like many other countries,there are important relationships between national laws andregulations, and obligations undertaken in international tradeagreements. Those relationships may differ in important ways,depending on the categories of business persons covered by theinternational trade agreements. Generally speaking, Canada’sgeneral provisions on temporary entry stipulate that foreignpersons need work permits to be temporarily employed inCanada. Before a work permit can be issued, the Canadianemployer or client of the prospective foreign worker needs toapply for a labour market opinion of the job offer. In internationaltrade agreements, Canada has undertaken obligations allowing“facilitated” or “liberal” temporary entry for the following maintypes of foreign workers: business visitors, traders and investors,intra-corporate transferees, and professionals on contract.Qualifying business visitors do not need work permits. Qualifyingtraders, investors, and intra-company transferees need workpermits, but not labour market opinions. These obligations wereeasily accommodated in the Canadian system, because they wereprimarily equivalent to or compatible with existing generalprovisions. They were implemented by changes to administrativeinstructions or guidelines.

In the case of professionals, however, accommodating theinternational obligations in the Canadian system occurredthrough regulatory changes. Canada’s international obligationsresulted in certain professionals being allowed work permitswithout the need for labour market opinions. To implement thoseobligations, an existing, regulatory exception to the general rulerequiring a labour market opinion was used. Generally, therewas no need to introduce new rules or major changes into the

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Canadian legislation to accommodate the internationalobligations in the Canada-Chile FTA, NAFTA and the GATS.Canada’s international obligations were liberalizing to the extentthat they legally bound certain existing general provisions. Theinternational obligations on certain professionals were moreliberalizing because waiving the labour market opinions was asignificant elimination of an existing temporary barrier.However, implementation was not complicated because of theexisting exception.

Finally, a distinction between market access andadministrative procedures was made in previous discussions.Speakers were differentiating between two sets of temporaryentry problems. However, there are temporary entry measures(i.e. laws, regulations, policies, practices or administrativeprocedures) running through and complicating both cases.Market access barriers are often more easily seen in the country’sinternational obligations or its temporary entry laws andregulations; but there are many, less obvious barriers to mobilityof business persons in the implementation and administrationof a country’s international obligations or its relevant generalprovisions. One of the biggest problems for business people andtrade negotiators with respect to the implementation ofinternational obligations is the lack of transparency in nationaladministrative procedures.

Case Study 3: Colombia

Adriana Suarez, Consejera Comercial, Permanent Mission ofColombia in Geneva

The expansion of global trade in goods and services as well asinvestment requires multiple actions on a national level, includingactions in areas like financial services, communications,infrastructure, customs systems, and facilitation of proceduresessential for the movement of natural persons involved inbusiness activities. An increase in the volume of trade in servicesin the last decade has led to the liberalization of capital as a

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production factor, but the same tendency has not been achievedwith respect to the movement of labour. The level of commitmentsrelated to the movement of natural persons and particularly tothe facilitation of labour mobility in the multilateral context fallsfar behind the achievements made within bilateral and regionalframeworks.

In the last decade, Colombia has signed agreements concerningthe temporary movement of persons within bilateral, regionaland multilateral frameworks. The main purpose of theseagreements is to improve trade in goods and services and topromote investment into the national economy. During the lastthree years, the Colombian government has been working onimproving mechanisms for implementing obligations assumedin the international agreements.

Within the regional context, Colombia, as part of the AndeanCommunity, has agreed to put in place a scheme that allows thefree movement of persons within the region. This scheme hassimilar objectives to the one established by the EC member states.The Andean subregion has 120 million inhabitants and exportsvalued at 6 billion US dollars annually. Obligations adoptedwithin the Andean Community framework aim at facilitatingentry of tourists and business persons into the regional labourmarket. This type of agreement goes beyond the provisions forcommercial and trade movements within the GATS, NAFTA,APEC and other analogous cases.

Colombia has also signed bilateral agreements concerning themovement of persons; for example, the Group of ThreeAgreement (G-3) with Mexico and Venezuela. The Agreementestablishes principles with a view to facilitating the movementof professional and business people, including categories suchas intra-company transferees, business visitors and investors.Within the multilateral context, Colombia has entered the GATSand has made some horizontal commitments related to Mode 4.

To understand what was done by Colombia on the domesticlevel in order to implement these international and bilateralagreements, it is necessary to analyse relevant provisions of the

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national legislation. Migration policy maintains sovereignty asthe basic principle, but also aims at achieving transparency andcooperation between the parties involved. Furthermore,immigration provisions are regulated according to social,demographic, economic, scientific, cultural, sanitary and otherneeds and interests of the state.

In order to find appropriate mechanisms to facilitateadministrative procedures, Colombian legislation differentiatesbetween temporary and permanent entry of persons. Thisdistinction has helped to protect the domestic labour market,which is a high priority due to unemployment ranging between15 and 20 per cent for the last four years; it has also allowed thedevelopment of effective procedures for facilitating themovement of certain categories of persons. Thus, nationalmigration policy includes the Temporary Visa, which regulatesthe entrance of foreign people who come to Colombia for a limitedperiod of time. The Temporary Visa establishes clear requirementsand procedures for a number of categories of people, simplifyingand expediting administrative measures and facilitating control.Under the Temporary Entry Permit category, there are specifictypes of visas which include certain groups of persons such asbusiness visitors, intra-company transferees, workers, investors,professionals, teachers and scientists, artists, experts required fortechnology transfer, etc. Depending on the kind of activity andterms of the contract, each person entering the country needs theappropriate type of entry document.

The first type of entry document covers contract workers andpersons coming to Colombia to undertake a particular task withintheir area of specialization, journalists, missionaries, technicaldirectors and administrative personnel of foreign public or privatebodies operating in Colombia. To obtain this type of visa, thecompany contracting the person is required to present anapplication in his/her name. Two-year multiple entry visas areissued for this category, but only under the responsibility of thecompany of a natural person requesting it.

The next type of entry document available in Colombia is theBusiness Visa, intended for business visitors (managers and

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executives of foreign companies which have economic links witha national company). This group is covered in Mode 4commitments, and its purpose is to facilitate the development ofbusiness and investment into the Colombian economy. Personswho fall into this category have a right of multiple entry into thecountry for up to five years.

The third type of entry document is for visitors. A visitors’visa is issued in cases where there is no link with the domesticlabour market and no salaries or fees are paid in the country. It isoffered to foreigners wishing to enter Colombia on a non-permanent basis and usually applies to persons such asphotographers, entrepreneurs, academics wanting to participatein seminars, symposia, etc.

Another type of entry document is issued to foreignersentering the country for medical treatment, investments and forother personal reasons. Furthermore, there are visas for studentsand priests.

In the process of accommodating international and bilateralagreements into the national system, many restrictions wereeliminated from the domestic administrative procedures, makingthe whole process more efficient. Today, visa applications areprocessed within 48 hours from the time of submission of therequired documents. It is an agile procedure aimed at facilitatingexchanges among countries and businesses.

Responding to some earlier comments, it should be noted thatColombia is not interested in achieving harmonization ofcategories for the domestic regimes within the internationalframework, as the definitions currently used in Colombia are agood starting point for adapting its national legislation tointernational treaties. However, it is in Colombia’s interest to seemeaningful Mode 4 commitments under the GATS.Consequently, it is necessary to work on the clarification ofexisting definitions and different service provider categories.Having a better understanding of the commitments wouldcontribute to increased predictability and transparency of Mode4; however, it will not guarantee real market access.

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Discussant

Sumanta Chaudhuri, WTO Mission, India

Earlier discussions had suggested that bilateral and regionalagreements are often very unlike the GATS in terms of categoriesof persons covered. It was also observed that national lawsconcerning migration greatly differ from each other. However,in the course of the discussion, it became apparent that thedifferences are much narrower than previously thought and thereis an overlap between national migration regulations andcategories included in the GATS. In particular, in the Canadianexample, national provisions for two groups of migrant workers– business visitors and intra-corporate transferees – weresubstantially similar to Mode 4. It has also emerged that certaincategories which are being discussed in the GATS context, suchas contractual service suppliers and independent professionals,are prevalent in a number of multilateral schedules and in somebilateral and regional agreements. So there is an indication thatfor certain categories, it may be easier to establish acorrespondence between national regimes and internationalobligations, including regional trading arrangements, than forothers. Concentrating on such categories of migrant workersmight help to advance GATS progress.

Focusing on commonalities between different nationalexperiences can offer another way of achieving progress in GATSnegotiations. It is in this context that proposals have been maderelating to adoption of certain common templates for Mode 4trade liberalization, such as the model schedule, including theconcept of a GATS visa. Such templates can be useful multilateraltools: they would provide a greater degree of certainty, whileretaining significant flexibility within the policy making process.The Colombian case, in which implementation of internationalobligations was used to simplify domestic administrativeprocedures, suggests that there might be a value in creatingtemplates for administrative procedures as well as nationalregulations.

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One of the arguments used in favour of bilateral and regionalagreements is that they are far more flexible than the GATS inbeing selective and covering very specific areas of mutual interestamong the parties concerned. The GATS uses a positive listapproach, but most bilateral and regional agreements choose tocover specific areas so as to have the ability to be more selectiveand to benefit from drawing on areas of greatest mutual interestin terms of sectors or occupations. It appears that there is nointrinsic conflict between these two approaches. There mighttherefore be a possibility of bringing the flexibility andselectiveness of bilateral and regional agreements into the GATScommitments through using either the positive list or the negativelist approach for specific commitments under Mode 4 for thevarious categories identified.

Finally, a number of concerns were brought up which, whileremaining within national frameworks, spill over into theinternational commitments – in particular, security and labourmarket related issues. Again, experience with bilateral andregional agreements can be used to help alleviate these problemswithin the multinational framework. For example, a number ofsafeguards can be borrowed from existing bilateral and regionalagreements and adapted for the GATS commitments whereverthey are suitable. Further, the model schedule advocated earlierhas also suggested a number of mechanisms to providedisincentives to stakeholders who misuse the GATS visa andtherefore prevent its inappropriate application.

General Discussion

The discussion was lively and focused on the interface betweenMode 4 obligations and the feasibility of their implementationwithin domestic regulatory frameworks. The challengesurrounded the dichotomy between the possibility of deeper andquicker liberalization of narrow sectors of labour mobility andthe realities of domestic immigration policies and regulations,which do not recognize certain of the distinctions made underMode 4.

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One group of participants maintained that the process ofliberalization and implementation of international commitmentswould be facilitated by developing narrow and clearly definedcategories of persons covered by Mode 4 obligations and ensuringthat the negotiators are comfortable with them. One of theparticipants suggested that categorization should be designed totake into account both the needs of Mode 4 and the generalstructure of domestic immigration systems, and carried out ontwo levels. The first level of distinction would be made betweenpersons entering a country to work in the service sector asopposed to other sectors of the economy. The second level ofdifferentiation would include two types of categorizations: firstly,the general categorization found in the existing schedules andmade according to the position of a migrant worker (e.g. manager,executive, specialist, etc.); secondly, categorization according tothe particular sector of service (e.g. banking, telecommunications,accountancy, etc.). Such approach would allow liberalization ofvery narrow and specific segments of the market, which wouldbe considerably easier to negotiate and to implement thanliberalization applying to the entirety of labour mobility acrossthe national border, provided that these categories are reflectedin national regulatory frameworks. It was argued that, in theabsence of clearly defined groups of people, implementation ofinternational obligations takes place within the general rulesregulating the totality of national immigration flows, which, withlimited exceptions in instances of very liberal national regimes,means that liberalization is hampered by the need to follow theslowest pace of opening.

Another group of participants pointed out that the majorityof national immigration regimes do not differentiate betweenservice suppliers and other sectors of the economy. In the fewinstances where there is a separate provision for service suppliers,it is not widely used because general national provisions are morebeneficial. It was argued that Mode 4 is an artificial construct:from the perspective of domestic policy and administration, theconcept of service providers is inadequate and the creation ofmultiple narrow categories is cumbersome. Moreover, the lackof awareness about the GATS among the business communitywas cited as an indication of the irrelevance of this agreement

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for the needs of business people. It was suggested that bothmigration authorities and businesses are interested in having abroader category of labour covered by Mode 4. At the same time,as current national regulations and Mode 4 obligations do notprovide a sufficient level of labour mobility, some changes arerequired.

It was reiterated that the purpose of Mode 4 was tocircumscribe the area of intervention into domestic immigrationpolicies and regulations with the aim of faster liberalization inthis area, but such a demarcation made accommodation of theagreement within national regulatory systems problematic. Whilea broader agreement might be more compatible with nationalregulatory systems and be easier to implement, it might notprovide the same potential for liberalization. This was widelyunderstood to be an important dilemma which needs to beaddressed. One of the participants suggested that partial solutionfor this problem can be provided by focusing on contractualservice suppliers, which can represent a horizontal category notlimited to employment in the services sector. Contractual serviceproviders can be seen as an across-the-board genuinely temporarycategory, relevant for the business community and not artificiallyconstrained by employment in a particular sector.

A question regarding bilateral investment treaties was raised,in particular whether some of such agreements have provisionscovering the movement of natural persons and theircorrespondence to Mode 4. In reply, it was explained that in thecase of Canadian foreign investment protection agreements, forexample, although some reference to the movement of people,primarily investors, is made, it could not be likened to the fullprovisions found in the GATS.

One of the participants expressed concern with respect to thefact that international trade obligations taken by countries in somecases bind the status quo rather than provide furtherliberalization. In response, it was suggested that agreementsbinding the status quo are still significant as they provide anassurance that a country will not move away from its regulartrade position in the direction of less openness.

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SESSION VI: A VIEWFROM THE CONSTITUENTS

Chair: Piyasiri Wickramasekara, Senior Migration Specialist,International Migration Branch, ILO

This session of the conference was devoted to hearing theviews of employers and workers organizations – key constituentsof the International Labour Office (ILO). Workers and employershave a direct and vital interest in moves to liberalize trade andmigration. Employers have always advocated more liberal rulesfor the admission of foreign workers in order to have access toskills and expertise that may not be easily obtainable at home.Trade unions, on the other hand, have always sought to protectthe interests of their members and of all workers employed intheir countries.

The International Labour Office (ILO), as a unique tripartiteinstitution representing governments, workers and employers,considers these discussions to be of enormous significance to theinterests and stakes of its key constituents. The Director Generalof the ILO, Mr Juan Somavia, has recently brought to the attentionof the heads of states attending the UN General Assembly in NewYork the report of the World Commission on the Social Dimensionof Globalisation. It is clear that liberalization of trade and capitalflows, as well as the cross-border movements of people, haveprofound social dimensions which must be taken into account ifglobalization is to bring about improvements in welfare.

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At the International Labour Conference held in June 2004 inGeneva, the issue of labour migration was on the top of the agendadiscussed by tripartite delegations from the 177 member statesof the ILO. The General Discussion held as a part of the conferenceled to the adoption of a resolution requesting the ILO toimplement a Plan of Action on migration, including thedevelopment of a “non-binding multilateral framework for arights-based approach to labour migration.” It can be regardedas a significant achievement to reach agreement on a subject ascontroversial as migration. The conference went as far as tospecify what policy issues, ranging from admission to treatment,from remittances to return, would need to be covered by such aframework. The ILO will develop the guidelines on improvingstate policies and practices for the mutual benefit of all parties inconsultation with other concerned agencies.

These developments are highly relevant to the theme of thecurrent session as there is a convergence in what migration, labourand trade specialists are trying to achieve. In the sphere ofmovement of natural persons, the aim is to develop a multilateralframework acceptable to all states, which would facilitate thecross-border provision of services by individual workers ofdifferent skill levels. The ILO has a vital interest in ensuring thatsuch a framework will lead to the opening of more opportunitiesfor decent employment, and protection of workers. Theexperience of the ILO indicates that the best guarantee of reachingthis objective is to engage governments, employers and workerorganizations in a social dialogue.

Employer Perspective

What are the practical impediments to moving highly-skilledand other temporary workers? What is the actual experience?

Ellen Yost, Partner, Fragomen, Del Rey, Bernsen & Loewy,LLP, US-based International Business Immigration Law Firm

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This presentation addressed some of the practical impedimentsto moving highly skilled temporary workers experienced by theclients of Fragomen – who are corporations operatinginternationally and small and medium-sized businesses locatedin various countries – wishing to move their workers from onecountry to another in the most efficient way possible. Looking atthe development and activities of Fragomen can provide anillustration of the amount of resources companies have to spendin order to achieve this objective.

The firm was founded in 1951, but has grown explosively inthe past decade as a result of the increase in the cross-bordermovement of persons and the tightening regulation of thismovement. Currently, Fragomen assists in cross-border relocationof employees of its clients, which involves obtaining workpermits, residence permits and visas. It provides advice regardingUS compliance issues, export controls and governmentregulations, and monitors and maintains the status of employeesand their families in the receiving country. Fragomen also informsclients of changes in laws and regulations in jurisdictions wherethey operate.

International trade, which is considered today as a source ofwealth and development, entails not only the movement of goodsand capital, but also the movement of people. This is notmigration in the traditional sense because in this case, themovement of persons is not an end in itself, but rather a way tofurther a business purpose.

In order to be able to do business globally, it is necessary tosend employees wherever in the world they are needed, quicklyand with a minimum amount of effort and expense. Employerswish to have access to the best and the brightest employees andto build a cadre of skilled workers who can be transferredanywhere on short notice to meet business needs. Their goal isto have the right person in the right place at the right time.

The movement of skilled business persons is a tool toaccomplish business objectives, including starting new businessoperations; transferring knowledge or culture to other parts of

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an organization; building an international group of personnelcapable of working anywhere on short notice; increasingcustomer satisfaction; increasing employee productivity; andgenerating cost-savings. Educating, training, recruiting andrelocating workers on a global basis are as important asmanufacturing, investing and marketing on a global basis. Manycompanies, when deciding where to open new subsidiaries, takeinto account the level of openness of national migration policies.Australia and Canada are among the countries changing theirlaws and procedures to attract highly skilled workers, foreignstudents and investment.

Fragomen is working with three broad categories of employeetransfers. In all three categories the workers are highly skilledand often are paid more than the local work force. All theemployees are permanent, or the companies would not wish toinvest in them. Except for some short-term trips, companies oftendo not know how long a transfer will be.

The first category is “short-term transferees”. In these cases,it is usual for the assignment to last less than six months, theworker to remain on the home payroll and the family to remainat home while the worker visits frequently. Short-term transfereesoften leave on two-weeks’ notice, and there is a need for them todo productive work as soon as they arrive. In the United Statesand in some other jurisdictions, short-term workers cannot enteron business visitor visas, or under the visa waiver programme,because visitors cannot perform any productive services on behalfof a local employer. The short-term worker must instead obtaina visa that authorizes employment (i.e. a work permit). Short-term transfers are increasingly common and there is a need forspeed and predictability. The GATS could play an important rolein providing both.

The second category is “international assignees”, either longterm or short term. Families usually accompany internationalassignees in moving abroad. Traditionally, companies sentexecutives and managers abroad for three or four years to workon the payroll of a foreign subsidiary or parent company.Increasingly, international assignees include not only executives,

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but also employees at a variety of levels in the company. Theymay be sent abroad for training or to perform a specific function.More and more of these assignments are short term. In thiscategory, the major difficulties confronting Fragomen and itsclients are the differences in provisions and categories in thevarious national laws. The GATS can make a significant differenceby helping to harmonize national definitions.

The third category is “high-potential” employees, who can beeither temporary or permanent. High-potential employees aretypically recent university graduates who have not worked forthe company concerned, and therefore are not eligible forinternational assignee status. Providing entry for this categorywill be an increasingly serious problem in the United States. Thisyear, the entire annual quota for the H-1B visa – the visa statusavailable for high-potential new hires – was filled within oneday as a result of a high volume of applications. Consequently,absent Congressional intervention, businesses will not be able torecruit new high-potential workers for a year, with the exceptionof Canadian, Mexican, Chilean or Singaporean workers in certainprofessions who might qualify for visas under US Free TradeAgreements.

National immigration laws and procedures often createbarriers to international mobility and therefore to the interests ofbusiness. Although most countries’ laws will accommodate theneeds of multinational corporations, the procedures for obtainingpermission to work are time consuming and differ greatly fromcountry to country, and there often is a lack of transparency inadministrative procedures. Security issues, visa problems, andnumerical limitations may force companies to locate theiroperations elsewhere. Free Trade Agreements have not removedall barriers to the movement of business persons. Yet, wheninternational trade agreements are negotiated, it is essential thatprovisions relating to the temporary entry of business personsbe included.

The North American Free Trade Agreement (NAFTA)simplified entry for certain citizens of one party into another;however, the scope of the NAFTA is limited. The United States

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has nearly 40 types of non-immigrant visa categories, but theNAFTA facilitates entry for only four categories: business visitors,intra-company transferees, professionals, and traders andinvestors. Nevertheless, the advantages of NAFTA areconsiderable. The NAFTA provisions are broader than the GATSservices provisions; the administrative procedures involved,particularly border-processing, are very efficient; and the newTN category is increasingly useful for certain professionals intimes of visa shortages. One of the main shortcomings of theNAFTA is the lack of clarity as to who qualifies in some of theprofessional categories. Another problem is the difficulty ofamending the original list of 63 qualifying professions.

Despite the NAFTA, it is more difficult for Canadian citizensto enter the United States to work now than it was in 1989 due tosubsequent restrictions to general US immigration law andprocedures. NAFTA currently provides the only flexible andefficient route for the mobility of business persons within thelargest trading relationship in the world.

Businesses are looking for more international cooperationsystems similar to the Schengen zone in Europe, systems wherea business person acceptable to one country could also beacceptable to another. That means that the work of the GlobalCommission on International Migration and other cooperativeefforts on migration should be promoted and sustained, andsignificantly more effort should be directed towards developinginternational cooperation in labour mobility.

With regard to the GATS, employers believe that its scope istoo narrow. From the business point of view, separating servicesfrom production does not make sense. In order to ensureeconomic growth and business development, governmentsshould consult with employers through trade associations andcoalitions when formulating policies.

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Union Perspective

What are the concerns of trade unions and how can these beaddressed in managed approaches to the movement of temporaryworkers (e.g. social security, human rights protection, etc.)?

Mike Waghorne, Public Services International

Public Services International (PSI) is a global union federation,representing 20 million public sector trade unionists around theworld. It has 627 affiliates in 149 countries. PSI is an autonomousbody, which works in association with federations covering othersectors of the workforce and with the International Confederationof Free Trade Unions (ICFTU). PSI is an officially recognized non-governmental organization for the public sector within theInternational Labour Office and has consultative status withECOSOC and observer status with other UN bodies such as theUNCTAD and UNESCO.

It should be noted that the following comments relateexclusively to Mode 4 issues, as observations on broadermigration issues would touch upon a number of wider topics.

From the outset, it is important to note that there is muchconfusion in debates on issues raised by Mode 4. In particular,two fundamental distinctions often fail to be made: first is thedistinction between temporary and permanent migration, andsecond is the distinction between temporary migration that isMode 4-based and other temporary migration which happensregardless of the GATS. Much of the polemical debate aroundGATS negotiations is caused by the inability or unwillingness tomake these distinctions. As a result, much that is said aboutMode 4 is irrelevant to it. Part of the difficulty stems from thefact that the boundaries between all these issues are porous.However, it is important that attempts are made in discussionsto identify specifics. Failure to do so serves the interests of someparticular groups in society for which the confusion between

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issues relevant and irrelevant to the GATS is convenient, forexample, some racist and nationalist organizations.

There are ten different global union federations, each coveringa specific sector. These comments reflect PSI’s position but arethought to correspond to the standpoints of other unions.

Unions would share some of the concerns expressed by EllenYost in her presentation of the employer’s perspective, insofar asrepresentatives of the top levels of professional and managerialstaff would agree on the need to resolve visa problems moreexpeditiously. However, for many other categories of workers,there are other areas of concern.

One of the problems is related to social security: temporaryworkers in a host country are often required to pay into socialsecurity or similar schemes from which they are very unlikely tobenefit. In some cases there is an agreement between the hostcountry and the sending country that money that is beingcollected through social security payments is sent back to thecountry of origin as part of the remittances. But it is not universallythe case and a wider solution is needed. It is also necessary toaddress the question of whether temporary workers get accessto social and other services in their host country.

The current use of Mode 4 to cover top-level workers does notraise too many concerns for unions because they tend to be wellprotected. However, any extension of Mode 4 coverage to a largerand wider set of occupations and sectors will apply to many moreworkers, whose concerns are not necessarily well catered for byeconomic and social arrangements. This is the reason for thewillingness of the unions to be involved in these discussions.

There are also general concerns regarding the potential impactof Mode 4 on labour markets. Mode 4 specifically does not coverthe entry of people to the host labour market, becausegovernments would not be willing to place such a sensitive socialpolicy area under the control of the WTO rules. The currentproblems being faced by the United States Trade Representativewith the US Congress merely illustrate this point.

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There is a whole set of issues around labour and trade unionrights: whether temporary migrant workers have the right to joina trade union in the host country; whether they have access topersonal grievance or other such procedures and are covered bycollective agreements and contracts in terms of wages andconditions; and whether they are protected under laws dealingwith sexual, racial or other discrimination. In this regard, it shouldbe noted that there are many examples of gross discriminationagainst migrant workers: racism, sexual harassment or outrightabuse, workplace discrimination, etc. Many developing countriesrely on remittances from their citizens working abroad and aretherefore interested in sustaining good relations with the hostcountries. In these circumstances, the rights of migrant workersare sometimes compromised. For example, there was a case of alabour attaché who, having witnessed severe abuses of the rightsof migrant workers from his/her country, duly informed therelevant authorities and was instructed by his/her capital not totake any steps to prevent the continuation of this situation. Thesending country authorities feared that complaints aboutmistreatment of their workers would result in the host countryimporting temporary labour from another state. Thus, it isimportant to realize that discrimination and abuse occur and away of dealing with this problem needs to be found.

Another subject raised in the context of labour mobilitydiscussions is the issue of comparative advantage. Somedeveloping countries believe that trade union demands on issuessuch as wage parity will obliterate their comparative advantage.However, this is a misconception. In reality, in spite of any mutualrecognition agreements, it is very rare for the qualifications andexperience of a migrant worker to be fully taken into account. Inmost cases, the foreign worker is placed lower on a salary scalecompared to the domestic workers who have the sameprofessional characteristics. In addition, even if migrant workersdo receive payment equal to domestic wages, they might beprepared to work in areas in which domestic employees are notwilling to serve, for example, in isolated rural regions. Thus,equality of treatment and wage parity, advocated by trade unions,will not destroy the comparative advantage of sending countries.The aim of the unions is to ensure that once a fair decision hasbeen made as to where a person will be placed on a payment

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scale, s/he is treated equally with domestic workers in allrespects, and no discrimination occurs on national or racialgrounds.

There is also clear evidence of employers who falsely describetheir employees as intra-company transferees, independentcontractors or partners, exploiting entry provisions in order toget contracts that adherence to the law would prohibit. In somecountries and in some sectors (e.g. the German constructionsector), such falsely described workers constitute 10 per cent ofthe sector’s workforce, which seriously erodes wages andconditions. Such employer practices create trade union oppositionand explain the eagerness of the unions to be involved in settingthe rules concerning migration issues.

Finally, there are brain drain concerns. It has to be pointedout that the brain drain debate should not focus exclusively onmass movements of people. In some countries, the loss of onlyone person can be devastating. There is an example of a Caribbeanisland that lost its intensive care unit because its only anaesthetistquit. It is therefore important that countries adopt an ethical hiringpolicy ensuring that recruitment or government agencies suchas the UK NHS are more sensitive about these issues and discussthem with target country governments.

General Discussion

The necessity to take further actions in order to make Mode 4more operational from the employers’ perspective wasemphasized, both in terms of eliminating barriers and providingmore clarity and transparency.

One of the participants enquired whether there is anycorporate interest in greater movement of lower-skilled workers.It was clarified that, at present, admission of unskilled workersinto the United States has nearly stopped. The businesscommunity is not concerned with increasing the inflow of lower-skilled workers into the United States, as presently there are noshortages of this category of workers in the domestic labour

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market. Furthermore, the issue of the movement of lower-skilledworkers is very political, given its relation to concerns regardingthe domestic labour market.

It was observed in relation to highly skilled professionals thatmedium and longer-term migration involves the movement ofthe family unit and is therefore related to such issues asemployment possibilities for spouses and access to housing,education and healthcare. The question of how these issues areresolved and whether they represent a barrier to the movementof workers was raised.

In reply, it was noted that family issues are of great importancein labour movement, particularly the possibility of employmentfor spouses and children of migrants. Participants were informedthat the US law was recently changed following seven years oflobbing by the business community. At present, spouses of intra-corporate transferees and investors can be entitled to workauthorization under NAFTA. However, this change does notaffect all categories; for instance, there is no discussion of allowingspouses of H-1B migrants to be employed in the United States.In France, a recent reform has introduced the possibility ofemployment for the spouses of expatriate executives or personswith an annual wage of over 60,000 euros. Limitations onemployment for family members of expatriates prevent somepeople from moving, in effect constituting a barrier to trade, andin some cases, result in the corruption of the system. For instance,to avoid restrictions on employment of family members oftemporary migrants in the United States, foreign workers oftenapply for permanent residence instead of using temporarychannels. There is a need to move in the direction of the policiesapplied in such countries as the United Kingdom and Australia,which authorize the employment of temporary migrants’ spouses.

Another issue discussed concerned the protection oftemporary migrant workers’ rights. A question was posed aboutthe ability of temporary migrant workers to join trade unions inthe host country. It was explained that although trade unionsencourage membership of temporary migrant workers, it is notalways possible, because legislation of some countries does notpermit it.

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It was noted that the WTO does not have a mandate to ensurethe protection of workers under Mode 4 movement. The UnitedNations and the International Labour Office Conventions includea very comprehensive coverage of all aspects related to the rightsof migrant workers and their families. However, as theseinstruments were developed before Mode 4 came into existence,they do not adequately cover Mode 4 specific issues and makeno distinction between temporary and permanent migrants,maintaining that all workers should be treated equally. A moregeneral problem is that these conventions have not been widelyratified; in particular, the UN Convention on the Protection ofthe Rights of All Migrant Workers and Members of their Familieshas been ratified by only 26 states, the majority of which aresending countries. Another challenge is enforcement. It wasemphasized that protection of the rights of migrant workersrequires a combination of efforts of trade unions, human rightsbodies, NGOs and watchdog mechanisms.

Another aspect of migrant labour protection that wasdiscussed was the application of standard laws to contractualservice suppliers, as often the employer, who is responsible forthe application of labour law, and the employee are located indifferent countries, and therefore within different legaljurisdictions. It was explained that there are three possiblesituations with regard to contractual service suppliers. In the firstcase, where an employee of a foreign company is sent to anothercountry for a short period of time and does not receive anyremuneration in the host country, the sending country’slegislation applies. In the second case, a temporary workerprovides services directly to an employer of the host country andtherefore the labour law of the host country applies. The difficultyarises in the third situation, in which a worker is an employee ofa company in the sending country, but is providing services tothe host country customers. In this case, there is lack of claritywith regard to which country’s labour law applies. One of theparticipants stressed the importance of clarifying the applicationof labour law to temporary workers and underlined the role oftrade unions in finding a solution.

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SESSION VII: WHERE DOWE GO FROM HERE?IMPLICATIONS FOR MODE 4

Chair: Hamid Mamdouh, Director, Trade in Services, WTO

Introduction

Synopsis of the seminar discussions and focus on key questionsfrom here

Aaditya Mattoo, Lead Economist, World Bank

Three types of arrangements were examined during theseminar: national unilateral programmes, regional trade schemesand bilateral labour agreements. It has become evident that thereis a poor correspondence between GATS Mode 4 and existingmigration regimes. Although Mode 4 is nested in the broaderimmigration regime, its implementation is not always directlyidentifiable.

It can be argued that most arrangements, such as the US H-1Bscheme or the special programmes for skilled labour which exist

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in Canada, Australia or the United States, are not truly temporaryschemes at all, but rather stepping stones to permanent migration.

It would perhaps be most fruitful for the Mode 4 negotiationsto concentrate on contractual service providers. First of all, themain advantage of contract worker agreements is that they aregenuinely temporary arrangements, which do not formallyintrude on host country labour markets. Therefore, negotiatingthe movement of contractual service providers is genuinely closein spirit to negotiating a trade agreement. Secondly, it is artificialto allow service suppliers to work only for the service providersof another member: it does not correspond to the needs of theprivate sector or the way immigration regimes work. The categoryof contractual service providers is arguably more general. It mightseem to be a gimmick of nomenclature to call a fruit picker aprovider of fruit-picking services, but perhaps it can be seeninstead as the kind of imaginative action that negotiators need totake in order to make Mode 4 match more closely the needs ofboth the immigration regimes and the business community.

The second set of schemes analysed in the course of themeeting were regional trade agreements. Although theseagreements focus on trade, labour is embedded within them,usually within the provisions for the movement of serviceproviders. It emerged that even without considering deepintegration agreements (like the European Union), there are anumber of programmes, like NAFTA for example, which haveachieved a certain degree of liberalization of the movement ofskilled workers. There was also the very interesting example ofthe APEC visa scheme which, while not focused on improvingmarket access, is a remarkable device for simplifying entryprocedures.

The survey of bilateral labour agreements that deal directlywith the movement of labour was perhaps even more interesting.Agreements between Spain and Ecuador, Germany and theeastern European countries, and Canada and the Caribbean wereexamined. As economic logic suggests that some of the biggestgains lie in the movement of unskilled workers, it is particularlynotable that this category was included in some of the bilateralschemes, if only to a limited extent.

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The question arises as to why there has been such limitedsuccess within the GATS framework compared to otheragreements.

It can be suggested that the GATS goes both too far and notfar enough. There are a number of key differences between otheragreements and the GATS. First of all, obligations within theGATS are extended only to the host country, whereas otheragreements usually include obligations on the source countriestoo. Some of these commitments apply pre-movement and helpto avoid the adverse selection problem (e.g. security screening,qualification verification), whereas other obligations cover post-entry measures (e.g. accepting and facilitating return). Thenecessity of ensuring return has been repeatedly emphasizedduring the seminar. Implicit in this issue is also the commitmentof the host country to send migrants back. This dual obligationcreated by bilateral agreements succeeds in ensuring whatMode 4 is aimed at creating – a revolving door of temporarypresence.

Another critical aspect of bilateral and regional agreementswhich is lacking in the GATS is flexibility. Therefore, there is aneed to explore options for making access commitments moreflexible but in an objectively verifiable way, without letting themdegenerate into the completely open-ended economic needs testsfound in the GATS schedule. A very interesting idea can be drawnfrom the German scheme, where a temporary migration quotawas established but made dependent on fluctuations of theunemployment level in the host country. This example has greatappeal, as it involves an objectively verifiable link betweendomestic economic conditions and the level of liberalizationcommitment.

Finally, the GATS negotiations are conducted under the MFNrule, while regional and bilateral schemes are preferentialarrangements. Equality of treatment of all parties is a feature ofthe GATS that offers a possibility of achieving somethinggenuinely different from what is already being done within theframeworks of other agreements. Furthermore, significantbenefits can be reaped if the reciprocal access principle used inthe trade of goods can be brought into the labour mobility field.

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However, it is necessary to address issues that have beenmentioned which are peculiar to labour movement because theability to deal with the specificities of labour movement in themultilateral context could give valuable dynamism to the wholeservices negotiations.

There are several areas in which progress can be made inMode 4 negotiations. First, elements of bilateral agreements couldbe incorporated into the negotiation context. Many valuablesuggestions on means to achieve this objective were made. Accessof migrants can be made conditional on their home countrymeeting a certain set of conditions. The principle here would beanalogous to the qualification requirements an individualprofessional has to meet, but the conditions would concern certainpolicies and regulations of the source country. This idea raisesan interesting MFN question: whether people with equivalentqualifications but from countries which have different policieson screening and ensuring return of their nationals should betreated equally. This is another case where a real gain can beachieved by negotiating such conditions multilaterally, ratherthan on an often-unequal bilateral basis. If a set of conditionsand, more ambitiously, a mechanism for confirming that a sourcecountry meets these conditions could be developed and approvedby all the members, then it might become a way of reconcilingnon-discrimination on the one hand, with the incorporation ofreasonable obligations on the source country on the other.

Anya Oram, Administrator, Directorate General Trade,European Commission

Communication between trade and migration communitiesis essential if progress is to be made in trade agreements withlabour mobility elements. It is a good sign that discussions havebecome more constructive and focused over the last year.However, it is important to ensure that cooperation between tradeand migration specialists is a continual process and not limitedto occasions such as this seminar.

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In analysing the significance of Mode 4, it is essential to avoidboth over- and underestimating its importance. Mode 4 covers avery small part of international migration and a very small partof international trade. But, at the same time, development ofMode 4 is a crucial element for the success of the GATS nego–tiations as a whole.

This seminar has demonstrated that unilateral, bilateral andregional approaches have definite attractive features over GATSMode 4 for both sending and receiving countries: they coverlabour migration more broadly, include a wider range of issues(e.g. returnability and worker protection), allow a higher level offlexibility to adapt to changing circumstances, and are based onconsiderable mutual trust.

It has been said that the European Union is not a suitable modelfor Mode 4 as it is a very deep integration agreement. Never-theless, some EU experiences concerning the process ofliberalizing the movement of people can be instructive for theGATS. First of all, it is worth bearing in mind that establishmentof free movement of people within the EU has been a very longprocess, which is not yet complete. For instance, recognition ofqualifications is still an unresolved issue. Another area requiringa lot of attention is policies regarding entry of third-countrynationals into the EU.

The European Commission made a proposal concerning theseand other migration matters in 2001, which was supported bythe European Parliament and the business community. Theproposal covered all economic migration, a wide range of issues(including rights of migrants) and administrative procedures.However, the proposal was probably too ambitious: differencesbetween member states and the Commission were too great, asthe states were unwilling to alter their domestic regimes. Thiscase shows that it might be easier to achieve success by takingsmaller steps.

This seminar helped to identify the main concerns of themigration community with regard to the GATS, which includereturnability, impact on the domestic labour market, abuse of

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the system, lack of flexibility, and especially, the binding natureof multilateral obligations.

A number of possibilities to alleviate these problems emergedin the discussions and need to be carefully considered. First ofall, a reference was made to shortage lists and floating quotas asways to increase the flexibility of Mode 4 commitments. However,such measures might lead down a slippery slope and negativelyaffect other modes of supply.

Another suggestion concerned means to raise the confidencelevels of migration officials, which included development ofcommon categories and definitions, and increasing transparencyof national regulations.

The role of home countries in the process of labour migrationwas also discussed. It is important to consider whether and howit might be possible to incorporate home country commitmentsinto the GATS structure.

Finally, the relation between bilateral/regional initiatives andthe GATS needs to be analysed. These agreements may be a wayto alleviate some of the pressures on Mode 4. However,considerable difficulties might arise in making bilateral andregional schemes compatible with the GATS, as these initiativesare preferential by definition whereas the WTO agreementincorporates the MFN principle.

Ambassador Sergio Marchi, Former Canadian WTORepresentative and Minister of Citizenship and ImmigrationCanada; Commissioner, Global Commission on InternationalMigration

Migration and trade authorities have to come together andbuild a common ground. It has been popular to see trade andmigration as distinct and in some ways opposite: trade has beenperceived as dynamic and open and migration as controlled andrestricted. However, the overlap between trade and migration is

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increasing, and today more unites these two phenomena thandivides them.

Millions of people are migrating already, and it is expectedthat both trade and migration will continue growing.Unfortunately, both disciplines are placed on the defensive. So itis vital that both trade and migration are recognized as positiveforces, which help to build nations rather than undermine them.Mode 4 is not about conflicting interests and opposition betweenNorth and South, East and West; it is about cooperation andstriving towards common objectives.

Both disciplines will prosper from greater policy coherence atthe international level. With regards to migration, it is clear thatwhile every organization is doing their utmost both on policyand administration, more effort needs to be made. Likewise, whilethe WTO might provide the right instruments for tradeliberalization, this process is not complete: more work needs tobe done on creating new rules, ensuring that all countriesparticipate in WTO agreements and correlating hundreds offlourishing bilateral and regional agreements with the WTOframework. Therefore, in order to achieve coherence betweenmigration and trade, the focus needs to be made on theirintersection, which is Mode 4. Trade negotiators have to try to fitMode 4 within the migration world with its own categories anddefinitions and, at the same time, migration authorities have tounderstand the relatively narrow perspective that is beingdemanded of them in terms of Mode 4, given that it is temporaryand related to services, and does not constitute an attempt totake over the immigration programme.

In order to move forward together, trade and migrationcommunities need to find answers to a number of pertinent issues:

• It is necessary to clarify the definition of “temporary” underthe GATS, and whether and in what way renewals should beencouraged or discouraged.

• Some careful consideration needs to be given to methods ofensuring that temporary migration remains temporary, and to

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mitigate the danger of creating permanent underground mi-grants. The question here is how to refrain from taxing analready burdened migration system internationally and avoidinflaming the control and security mentality that is alreadybeginning to grip the migration community.

• It is important to explicate what kind of labour is involved intemporary labour migration, as skilled, semi-skilled andunskilled migrant workers trigger different public and polit-ical reactions.

• The GATS represents a voluntary, bottom-up scheme based onthe principle of reciprocity. Migration authorities are hopingthat at the end of Mode 4 negotiations, a level playfield fordifferent countries will be developed. However, it is not clearwhether such an outcome will be achieved and whether Mode 4will enhance the symmetry and coherence of the system at theend of the negotiations. It is possible that instead, Mode 4negotiations will consist of bargaining on other services, andthe outcome will be contrary to the wishes of the migrationcommunity.

• The very sensitive issue of migrant rights has been repeatedlybrought up. While there is no hope that the WTO will providea solution for these problems, it is useful to try to see themigration authorities concerns from the trade negotiators’perspective. The following questions arise in relation to thisissue: arrangements for the family members of temporarymigrant workers, access to social security benefits, legalprotection, etc.

• It is important to ensure that benefits of Mode 4 obligationsoutweigh the costs for the participating states. In this context,instruments such as adjustable quotas and return mechanismsshould be considered.

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Today, the two fascinating worlds of trade and migration arebecoming one. Misconceptions abound and emotions run high,but what is required is a dispassionate and reasonable discoursewith a view toward providing maximum benefits andopportunities for the growing number of people who are movingbetween different countries. The two subsets of policymakers arecharged with the task of creating a policy framework to facilitatemovement in an efficient, secure and beneficial way for themigrants, the private sector and for the countries. It is possible toachieve this objective if both trade and migration communitiesadopt a positive “can do” attitude.

Ambassador Chandrasekhar, Permanent Representative ofIndia to the WTO

In previous discussions, the importance of coherence betweenmigration policy and trade negotiations was mentioned.However, it should be emphasized that trade negotiators arelooking for coherence not only in this particular sector but alsowithin the entire framework of negotiations. The objective ofliberalization in the long run means liberalization in each sub-sector of the totality that comprises trade negotiations. All sectorsare interrelated and protectionism in one area always engendersprotectionism in another. Liberalization is a step-by-step processin which one sector needs to keep pace with another. Therefore,a phased and integrated approach should be maintained in theprocess of negotiations, which will allow the achievement ofprogress on all fronts. The Doha declaration is aimed at attainingthis kind of momentum. The Framework Agreement, which wascompleted in July 2004, is one more step forward.

The main constraint to Mode 4 movement is that overallconcerns relating to migration sometimes overshadow it.However, it also needs to be appreciated that not all problemsrelating to temporary movement of natural persons can be forcedthrough a trade agenda. So, a balance between trade andmigration considerations should be maintained.

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One of the issues brought up in the seminar requiring closeattention is the need to distinguish more clearly betweentemporary and permanent migration. Another matter that needsto be considered is finding the right balance between theresponsibilities of the source country vis-à-vis the host country.In both cases, the way forward is in continuing the discussionsand actively looking for the solutions.

Some suggestions can be drawn from earlier discussions.Notably, a point was made earlier about the need for broadercoverage of categories within Mode 4 movement, especially thecategories not linked with commercial presence. Existingcommitments on such categories are virtually absent. A particularstress should be made on some categories that have attracted alot of attention, such as contractual service suppliers andindependent professionals. There are problems regardingcorrespondence of such categories with the general migrationregime, but these concerns are not insurmountable. During theseminar, some progress was made in relation to this issue.Alterations in regulations and laws may be called for, but thesewill not be different from the changes that may be required fromWTO members in various other areas of negotiations.

The next important issue mentioned is transparency ofcommitments with regard to various categories of movementcovered by the commitments. Presently, information is availableonly on overall immigration policies, without specific referenceto temporary movement under the GATS. Along withtransparency, administrative procedures relating to work permitsand visas need to be streamlined and simplified.

Another significant area on which the development ofMode 4 depends is recognition of qualifications, as progress onall other fronts can be negated if current levels of discretion arenot disciplined. Governments will maintain their sovereign rightto lay down qualification requirements and procedures, but itneeds to be ensured that such requirements do not act as barriersto trade and are least trade restrictive. Adding transparency, clearcriteria and conditions for awarding qualification recognitionmight help to alleviate this concern.

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In the course of the seminar, some provocative newsuggestions were made, which need to be carefully considered.For example, the model schedule idea was mentioned, and as itis supported by business associations across the globe, it is worthpursuing.

Mode 4 trade liberalization is far from being a resolved issue.It is part of a bigger challenge to maximize global developmentwithin the shortest possible time, which is one of the fundamentalaims of trade negotiators working on the Doha round. Thisseminar was very useful for furthering this objective. More suchevents should be held not only on the specific issue of Mode 4,but also on the overall context of negotiations, in order to achievethe goal of self-sustained and rapid growth.

General Discussion

The significance of the development of a truly global mobileatmosphere for the business community was emphasized. It wasargued that in the face of uncertainty with regard to furtherliberalization of Mode 4 trade, many industries attempt tocompensate through increasing usage of Modes 1 and 2 (i.e. globaloutsourcing), which creates a new dynamic concerning servicestrade, infrastructure and skills development within emergingeconomies. However, another speaker pointed out that it isimportant not to consider the situation from the perspective ofintermodal competition: all modes of supply are linked andshould be perceived as complementary.

Concern was expressed that Mode 4 trade liberalization isincreasingly perceived as a panacea for developing countries. Itwas highlighted that the financial benefits which are projectedto result for the emerging economies from the liberalization ofMode 4 trade would ensure development only if successfulsolutions are found for such issues as returns, brain drain,effective investment of remittances, etc. Resolving these concernsrequires regulatory creativity and careful consideration of amultitude of cultural, administrative and regulatory differencesexisting worldwide.

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The issue of bringing bilateral and regional schemes into themultilateral framework was discussed. One of the participantssuggested that although bilateral and regional schemes favourcertain regions due to their objective advantages in supplyingworkers to the member countries (e.g. geographical proximity),this need not prevent multilateralization of these agreements. Itwas suggested that competitive liberalization might be a possibleway to expand bilateral and regional schemes and ensure non-discrimination in the multilateral context. Such approach wouldinvolve host countries setting certain standards and requirementsfor all states wishing to supply workers to their markets. Inreaction to the above proposal, the necessity of fixing suchstandards in a very objective way in order to avoid an appearanceof subjectivity was stressed. Confidence was expressed withrespect to the possibility of importing best practices and elementsof coherence adopted within regional and bilateral agreementsinto the multilateral context. However, it was noted that in orderto serve the cause of Mode 4 and interests of the participatingcountries, multilateralization of bilateral and regional agreementsshould be a gradual, evolutionary process.

A reference was made to the concerns of labour unions aboutthe influx of certain types of migrant workers into the domesticmarket. It was observed that not enough has been done so far toalleviate such apprehensions, and although ensuring that thereis a clear distinction between permanent and temporary migrationis a necessary measure, it is not a sufficient one.

Another area where progress should be made is increasingtransparency in relation to immigration laws and regulations,where there is currently a big knowledge gap. It was remarkedthat although a questionnaire distributed by the IOM is asignificant contribution to bridging this gap, a more systematicapproach to collecting information about individual countryregimes and temporary migration should be made.

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CLOSING REMARKS

Gervais Appave, Director, Migration Policy and Research,IOM

This seminar has demonstrated that an exploration of national,bilateral and regional experiences in the management of labourmigration can yield valuable lessons towards the more effectiveimplementation of Mode 4 of the GATS.

It is true that trade regulators and migration managers live incontrasting work environments and are confronted with specificpolicy challenges. But the differences ought not to be overstated.The cliché that trade negotiators are eager to dismantle barrierswhile migration officials are bent on creating new ones does nothold up to scrutiny. There is, in reality, much convergencebetween the interests and concerns of the two communities, andthe languages they use is at least mutually intelligible. Once thatlanguage problem is resolved, in other words, once commonterms of reference and analysis are adopted, it is possible toidentify a range of conceptual tools and policy options that mayhave been developed for the purpose of managing temporarylabour migration, but can nevertheless be made use of to advanceMode 4 objectives.

A number of policy strategies and priorities were identifiedin discussion. It was agreed, first of all, that a properly functioningcomprehensive migration management framework is essentialif the movement of skilled workers is to be facilitated. Such a

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framework would enable the verification of the bona fides ofpersons migrating. It would also ensure the return of workers atthe end of their temporary stay. Furthermore, it would addresseffectively issues surrounding the recognition of professional andtechnical qualifications. A range of mechanisms that are appliedin different countries to address some of these concerns waspresented and discussed during the seminar. For instance, anumber of useful ideas can be borrowed from the Philippinenational approach to screening and preparing workers foroverseas employment. The APEC pre-clearance mechanism offersan interesting model for the facilitation of business travel.Canada’s seasonal agricultural worker programme offers someeffective strategies for ensuring returns. In more general terms,experiences of Jamaica and other countries show that countriesof origin have much to offer to countries of destination in termsof cooperation, for instance, by addressing security and otherissues with respect to their nationals moving abroad and inensuring their return. Other suggestions were made for usingtraining and capacity building in order to prepare workers foroverseas employment and enable governments to be in a betterposition to manage temporary migration and, consequently,undertake reciprocal commitments.

This seminar has underlined the potential for confidencebuilding between the trade and migration communities. Thediscussion was characterized by great intellectual rigour and aneven and level tone, creating a climate for the free and openexchange of ideas. Not only has the tone of the exchange beennotably constructive and mature over the course of the meeting,but also specific ideas for further cooperation have beensuggested.

Many new ideas were developed, notably the possibility ofdistilling best practices from bilateral and regional schemesthrough the use of templates. Another promising direction forfurther work is to focus on specific sectors. For example, at themost recent World Health Assembly (WHA), governments askedthe WHO to analyse the impact of trade agreements on themigration of healthcare workers. Currently, the WHO iscollaborating with the IOM, ILO and the OECD to explore this

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relationship with the aim of developing a report on this issue forthe next WHA.

Finally, it is worth noting that many participants expressed adesire for this dialogue to continue. For this to be possible it willbe necessary for the discussions to be supported by better data.All participants are therefore encouraged to give more attentionto the collection and sharing of pertinent data.

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PART IIWHERE NEXT?

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WHERE NEXT?

The 2004 seminar highlighted the value of bringing trade andmigration policymakers and practitioners together to deepen andbroaden understanding of the relationship between these fields,and to see what lessons could be drawn from the experiences ofgovernments in managing temporary labour migration that couldbe of relevance to Mode 4. Although the seminar has greatlycontributed to improving the understanding of various aspectsof the trade and migration nexus, the discussion revealed thatmuch more work needs to be done in this area. A selection oflessons learned and remarks on ways forward have been distilledfrom the seminar report and listed below for greater ease ofreference.

1. Continuing the dialogue is the single most importantmeans to create a better understanding and build trustbetween migration and trade communities, develop confi-dence in the ability to work together, and identify avenuesand means for making progress, whether within Mode 4 orin pursuit of a broader goal of more effective and produc-tively managed migration for work.

2. There is much to be done to clear some of the fog of misun-derstanding surrounding complicated regulatory require-ments related to Mode 4, all generally relevant to the notionof “transparency”. One of the areas where there is a particu-lar need for progress is increasing transparency of infor-

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mation about national migration procedures with abearing on trade in services, with specific reference totemporary movement under the GATS. Governmental laws,policies and practices on these questions are simply notreadily available and are even less well understood. IOMcould help in collecting and disseminating this information.

3. In a related vein, there is a continuing need for bridgingthe conceptual and regulatory gaps between trade andmigration by providing Mode 4 with an identity withindomestic migration regulations. At a minimum, it is neces-sary to clearly indicate where within existing nationalmigration regulations Mode 4 movement can be and iscovered.

4. Clarifying certain definitions, categories, criteria andconditions relevant to Mode 4 movement could facilitatethe current round of negotiations. These include: the defin-ition of “temporary”; the criteria and conditions for ENTsand qualifications recognition. More discussion is required.

5. Similarly, providing a broader coverage of categories forMode 4 movement may be needed, particularly for cat-egories not linked with commercial presence. Considerationof contractual service providers and independent profes-sionals warrants concerted attention.

6. Options need to be explored for making access commit-ments more flexible, but in an objectively verifiable way.A principal concern of migration regulators with Mode 4 istaking on binding multilateral commitments in a policyarena which has traditionally been regulated at the nationallevel according to a multitude of changing national eco-nomic, social and other policy considerations. The concernsof migration regulators about the potential loss of flexibilityto adapt to changing national circumstances might beaddressed through adopting more flexible access commit-

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ments, linked to objective criteria such as shortage lists inparticular sectors, domestic unemployment ratios, etc.Creative thinking needs to be done to accommodate theneed for flexibility.

7. One of the key lessons that emerged from the seminar is thefact that there is a need for establishing a two-way set ofcommitments as opposed to obligations solely for thereceiving countries to make Mode 4 workable. Indeed,examples exist of what countries seeking market access canoffer – potentially in terms of flanking migration measures– in exchange for access. Greater exploration is needed ofwhat the countries seeking market access can bring to thenegotiating table, such as commitments to verify the qualifi-cations, identity and criminal records of potential serviceproviders (as in the APEC systems as well as with thePhilippines Overseas Employment Administration), tocooperate in efforts to reduce the incidence of irregularmigration; to accept the return of nationals, etc.

8. At a more general level, there are many lessons that can bedrawn from existing practice in domestic administrativeprocedures and national regulations, including elementsfrom existing bilateral and regional migration and tradeagreements. Developing templates could be considered toaddress regulatory policies and flanking measures that maketemporary labour mobility successful, for possible consid-eration in the GATS Mode 4 context as well as in broaderefforts to promote more effective management of migration.

Templates could cover such specific issues identified at theseminar as:

• tools for ensuring transparency of entry requirements,streamlining procedures and facilitating dialogue andinformation exchange among members. In particular itcould include pre-clearance systems based on verificationof qualifications, identity and criminal records of potential

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service providers by the country of origin e.g. APECBusiness Travel Card.

• more flexible access commitments based on objectivecriteria (i.e. shortages lists by sector, fixed and adjustablequotas); for instance, linking the number of temporaryservice providers to fluctuations of specified economicindicators, such as unemployment rates.

• a model schedule/GATS visa and sanctions for misuse.

• enforcement and return guarantees, including employersanctions, penalties for absconding works, posting ofbond, and

• policy coordination between trade and migration officials.

9. Templates could be considered either as guidelines or formthe basis for granting market access to all states capableof meeting specified conditions, i.e. those articulated intemplates on such matters as mechanisms to ensure returnsfollowing temporary entry, mechanisms to ensure workerprotection, etc. By drawing elements from existing bilateraland regional approaches, the necessary level of comfort fortrading partners and migration and regulatory authoritiescould potentially be developed in the context of liberalizingand facilitating market access. Similarly, it may be possibleto bring the flexibility and selectiveness of bilateral andregional agreements into GATS commitments througheither a positive or negative list approach to specific com-mitments for the categories which are identified. Safeguardson security and labour market-related issues could be con-sidered as well. Elements of Chapter XVI of NAFTA (con-cerning preferential trade relations between parties, willing-ness to facilitate temporary entry on a reciprocal basis and

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establish transparent criteria and procedures for temporaryentry, etc.), for example, could be extrapolated.

10. Consideration could be given to linking investment ineducational services or training facilities to the move-ment of skilled workers. For example, professional train-ing could be considered as a precursor to certain temporarymovement of service providers under Mode 4, both as ameans to better prepare workers for their overseas stay andas a means to stem and counteract the potential for braindrain.

11. Further consideration is needed to backdrop issues such asensuring the protection of the rights of temporary mi-grants moving as service providers (e.g. social security,right to join a trade union, access to a personal grievance orother procedure, minimum wages and adequate workingconditions, clarification of the application of labour laws,family reunion, etc.).

In short, there is much that has been learned and yet muchfurther to go along the road to developing effective and efficientmechanisms to facilitate the mobility of skills in today’sglobalizing international economy. The path ahead points tofurther research, dialogue and sustained political commitment.The groundwork has been laid.

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PART IIIAGENDA OF

THE IOM/WB/WTO SEMINARON MANAGING THE MOVEMENT OFPEOPLE: WHAT CAN BE LEARNED

FOR MODE 4 OF THE GATS

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IOM — WORLD BANK — WTO SEMINAR ON TRADE AND MIGRATION

MANAGING THE MOVEMENT OF PEOPLE: WHAT CAN BE LEARNED FOR MODE 4 OF THE GATS?

4-5 October 2004, World Meteorological Organization, Geneva

ANNOTATED AGENDA

4 OCTOBER: WHAT CAN WE LEARN FROM EXISTING SCHEMES FOR MANAGING THE MOVEMENT AND TEMPORARY STAY OF FOREIGN WORKERS THAT IS RELEVANT FOR MODE 4 OF THE GATS?

09.00-10.00 Registration

10.00-10.10 Welcome Remarks: Brunson McKinley, IOM Director General

Objectives and structure of the meeting: Aaditya Mattoo, World Bank, Lead Economist

10.10-11.00 Session I: Trade and Migration Contexts: Setting the Scene CHAIR: LAKSHMI PURI, DIRECTOR, DIVISION ON INTERNATIONAL TRADE IN GOODS AND SERVICES, AND COMMODITIES, UNCTAD

TRADE: UPDATE ON MODE 4: Hamid Mamdouh, WTO Secretariat, Director, Trade in Services. Brief presentation on the state of play in GATS Mode 4 negotiations, including on offers submitted thus far and the main issues of discussion in the negotiations.

MIGRATION: MANAGING MOVEMENT AND TEMPORARY STAY OF LABOUR MIGRANTS: POLICY AND IMPLEMENTATION, Gervais Appave, IOM, Director, Migration Policy and Research What are the principal policy considerations for countries of origin and destination with respect to managing movement and temporary stay? What are the principal administrative mechanisms necessary to facilitate and manage temporary labour migration, and what relevance do these have for GATS mode 4, including visas, work permits, skills recognition, etc.?

Discussion

11.00-13.00

Session II: National Level Unilateral Approaches to Managing Movement and Temporary Stay of Workers

What approaches have countries taken at the national level to manage unilaterally the movement and temporary stay of workers? What has been their purpose and what types of movement (e.g., skill level, sector, duration of stay and type of contractual arrangements) do they cover and how does this compare with bilateral, regional and multilateral mechanisms, including GATS mode 4? What have been the strengths and weaknesses of these initiatives? What lessons can we learn?

CHAIR: G. JOSEPH, DIRECTOR, DEPARTMENT OF HOME AFFAIRS, SOUTH AFRICA

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INTRODUCTION: FRANK LACZKO, DIRECTOR OF RESEARCH, INTERNATIONAL ORGANIZATION FOR MIGRATION

CASE STUDIES

PHILIPPINES: Danilo P. Cruz, Under Secretary for Employment, Department of Labor and Employment

BAHRAIN: Ausamah Al-Absi, Director of Employment, Ministry of Labour & Social Affairs

UNITED KINGDOM: Lesley Maundrell, Policy Development Manager, Home Office, Work Permits (UK), Policy Team

Discussion

13.00-15.00 Lunch

15.00-17.00 Session III: Bilateral Approaches to Managing the Movement and Temporary Stay of Workers

How are bilateral agreements for managing temporary labour migration designed? What kinds of agreements exist? How do they address labour market and administrative issues, and what lessons can we learn, including for mode 4? What have been the strengths and weaknesses of such agreements? What has been their purpose and what types of movement (e.g., skill level, sector, duration of stay and type of contractual arrangements) do they cover and how does this compare with GATS mode 4? What have been the strengths and weaknesses of these initiatives? What lessons can we learn?

CHAIR: IRENA OMELANIUK, EDITOR-IN-CHIEF, WORLD MIGRATION 2005

INTRODUCTION: GEORGES LEMAITRE, PRINCIPAL ADMINISTRATOR, DIRECTORATE FOR EMPLOYMENT, LABOUR AND SOCIAL AFFAIRS (DELSA), OECD

CASE STUDIES

HISPANO-ECUATORIANO BILATERAL LABOUR AGREEMENT: Victoria Galvani, Jefe de Coordinación, Subdirección Gral. de Régimen Jurídico, Dirección Gral de Inmigración Secretaría de Estado de Inmigración y Emigración, Ministerio de Trabajo y Asuntos Sociales

CANADIAN SEASONAL AGRICULTURAL WORKER PROGRAM: Elizabeth Ruddick, Director, Strategic Research and Statistics; Priorities, Planning and Research Branch, Citizenship and Immigration Canada

DISCUSSANTS Veronica Robinson, Deputy Director, Manpower Services (Work Permits, Local Employment and Overseas Migration Programme), Ministry of Labour and Social Security, JAMAICA Dr. Torsten Christen, Deputy Head of Division, Federal Ministry of Economics and Labour, GERMANY

Discussion

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17.00-18.00 Session IV: Regional Arrangements for Managing the Movement and Temporary Stay of Workers

How do regional trade agreements and other regional arrangements for managing temporary labour migration actually work? What kinds of agreements exist? What has been their purpose and what types of movement (e.g., skill level, sector, duration of stay and type of contractual arrangements) do they cover and how does this compare with GATS mode 4? What have been their strengths and weaknesses? What lessons can we learn, including for mode 4?

CHAIR: CARLOS PRIMO BRAGA, SENIOR ADVISER, WORLD BANK INTRODUCTION: JULIA NIELSON, TRADE DIRECTORATE, OECD CASE STUDIES

APEC BUSINESS TRAVEL CARD: David Watt, Department of Immigration, Multicultural and Indigenous Affairs, Australia What exactly does it provide, how does it work, and what lessons can we draw from it for mode 4? NAFTA -- Luz María Servín Sotres, Director for International Affairs, Ministry of the Interior, National Migration Institute, Mexico How does NAFTA cover temporary labour movement, how does it work, and what lessons can we draw from it for Mode 4?

DISCUSSANT: Johannes Benjamin R. Bernabe, Labour Attaché, Permanent Mission of the Philippines to the United Nations Office in Geneva

Discussion

18:30 - 20:00

Reception Hosted by the World Bank: World Meteorological Organization

5 OCTOBER: WHAT CAN WE LEARN FROM EXISTING SCHEMES FOR MANAGING THE MOVEMENT AND TEMPORARY STAY OF FOREIGN WORKERS THAT IS RELEVANT FOR MODE 4 OF THE GATS?

10.00-11.00 Session IV: Regional Arrangements for Managing the Movement and Temporary Stay of Workers (Continued)

11.00 - 13.00

Session V: National Implementation of International Obligations

How do states implement at the national level the international trade obligations they undertake at the regional and multilateral level with respect to movement of persons?

CHAIR: ALEJANDRO JARA, AMBASSADOR OF CHILE TO THE WTO AND CHAIR OF THE SERVICES NEGOTIATIONS

INTRODUCTION: CARLO GAMBERALE, TRADE IN SERVICES, WTO

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MEXICO: Luz Maria Servin Sotres, Director for International Affairs, Ministry of the Interior, National Migration Institute

CANADA: Paul Henry, Trade Policy Adviser, Citizenship and Immigration Canada

COLOMBIA: Adriana Suarez, Consejera Comercial, permament Mission of Colombia, in Geneva

DISCUSSANT: Sumanta Chaudhuri, India, WTO Mission

Discussion

13.00 - 15.00 Lunch

15.00-16.00 Session VI: A View from the Constituents

CHAIR: PIYASIRI WICKRAMASEKARA, SENIOR MIGRATION SPECIALIST, INTERNATIONAL MIGRATION BRANCH INTERNATIONAL LABOUR OFFICE

EMPLOYER: Ellen Yost, Partner, Fragomen, Global Corporate Immigration Law Firm What are the practical impediments to moving highly-skilled and other temporary workers? What is the actual experience? UNION: Mike Waghorne, Public Services International What are the concerns of trade unions and how can these be addressed in managed approaches to the movement of temporary workers? (e.g. social security, human rights protection, etc.)

Discussion

16.00-17.30 Session VII: Where do we go from here? Implications for Mode 4 CHAIR: HAMID MAMDOUH, WTO, DIRECTOR, TRADE IN SERVICES

INTRODUCTION: AADITYA MATTOO, WORLD BANK, LEAD ECONOMIST:

Synopsis of the seminar discussions and focus on key questions from here

Anya Oram, Administrator, Directorate General Trade, European Commission

Ambassador Sergio Marchi, Former Canadian WTO Representative and Minister of Citizenship and Immigration Canada; Commissioner, Global Commission on International Migration Ambassador Chandrasekhar, Permanent Representative of India to the WTO

Discussion

17.30-18.00 Closing Remarks – IOM

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International Dialogue on MigrationSeries

1. 82nd Session of the Council; 27-29 November 2001(available in English, French, Spanish), May 2002

2. Compendium of Intergovernmental Organizations Activein the Field of Migration 2002, (available in English only),December 2002

3. International Legal Norms and Migration: An Analysis,(available in English, French, Spanish), December 2002

4. 84th Session of the Council; 2-4 December 2002 (availableonline only at www.iom.int), 2003

5. Significant International Statements: A ThematicCompilation (available in CD format only), 2004

6. Health and Migration: Bridging the Gap, 2005

7. Managing the Movement of People: What Can Be Learnedfor Mode 4 of the GATS, 2005

Titles in the series are available from:

International Organization for MigrationResearch and Publications Division17 route des Morillons, 1211 Geneva 19SwitzerlandTel: +41.22.717 91 11; Fax: +41.22.798 61 50E-mail: publications@iom.intInternet: http://www.iom.int

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THE INTERNATIONAL ORGANIZATIONFOR MIGRATION IS COMMITTED TOTHE PRINCIPLE THAT HUMANE No. 7AND ORDERLY INTERNATIONALMIGRATION DIALOGUE BENEFITSMIGRANTS AND ON MIGRATIONSOCIETY IOM ASSISTS IN MEETINGTHE GROWING OPERATIONAL CHALLENGES OF MIGRATIONMANAGEMENT MANAGING THEADVANCES MOVEMENT OF PEOPLE:UNDERSTANDING WHAT CAN BE OFMIGRATION LEARNED FOR ISSUESENCOURAGES MODE 4 OF THE GATSSOCIAL AND ECONOMIC DEVELOP-MENT THROUGH MIGRATIONUPHOLDS THE HUMAN DIGNITY AND WELL-BEING OF MIGRANTS

THE WORLD BANK

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