Arab Countries and GATS - Mode 4: Negotiating for a ‘ fair ’ and ‘ just ’ migration regime Dr. Azfar Khan Senior Migration Specialist ILO Regional Office for Arab States Expert Group Meeting on the Preparation of Arab Countries for the 7 th WTO Ministerial Conference Beirut November 2009

2 GATS - Mode 4 An instrument that aims at liberalizing labour mobility on the basis of negotiated commitments to accept temporary – and non-permanent- foreign workers subject to the laws of receiving sovereign state/Member (Includes all sectors covered by GATS)

3 GATS - Mode 4 Is it effective as a global regime? Is it workable? Is it just?

4 GATS - Mode 4 Provides a legal basis for the movement of workers to meet demand for labour in countries of destination. These countries do not incur social and financial cost of integration. This movement can contribute to development in countries of origin. These countries do not lose their workers permanently.

5 GATS - Mode 4 What is the state of GATS Mode 4 today? Low commitments. Very few offers Offers limited to high skilled workers (intra-corporate transferees) Barriers to implementation (ENTs) Definitions are unclear (commitments-vs-immigration laws/services – vs- labour) Hardly any commitments and initial offers to low-skilled workers ’ market access.

6 Gats – Mode 4 What is the state of GATS Mode 4 today? 70% of proposals for commitments deal with high- skilled workers accompanying foreign investments, including business visitors, managers and specialists (WTO, 2004: 54). Percentage of categories: 1) intra-company transferees (57%), 2) business visitors (23%), 3) contract service suppliers (8%) and 4) other high-level management officials/specialists (12%). Research indicates that the largest gains come from the movement of low-skilled workers, where the wage gaps are the greatest (Martin, 2006: v).

7 Arab Countries and GATS - Mode 4 Negotiations Collectively no position has been discussed Huge variations of interest Defensive stance of countries who are net receivers of migrant workers Aggressive stance of source countries of migrant workers, which is more closely identified with DCs position rather than in an Arab context. Not much progress on Doha and not much likelihood of facilitating outcomes. Differentiated impact of financial crisis on source and destination Arab countries invites different responses in negotiations

8 DCs and GATS - Mode 4 DCs are currently “ net importers ” of trade in services DCs have identified GATS Mode 4 as an area of interest in market access negotiations Would like to seek commitments on low skill occupations and low-skilled workers ’ access to markets

9 DCs and GATS - Mode 4 ‘ Annex on the Movement of Natural Persons Supplying Services under the Agreement ’ “ Members may negotiate specific commitments applying to the movement of all categories of natural persons ”

10 GATS - Mode 4: the ILO perspective GATS – Mode 4 can be considered from a complementary perspective to that of trade. This complementary perspective should enrich the debate and contribute to making GATS - Mode 4 more responsive to the interests of all States.

11 GATS - Mode 4: the ILO perspective A regulatory framework is required Application of minimum of social and labour standards is necessary Liberalization of GATS Mode 4 should be contingent upon the application of minimum standards.

12 GATS - Mode 4: the ILO perspective ILO Declaration of Philadelphia (1944): Labour is not a commodity. Goods are one-dimensional, have predictable impacts and their border movement can be regulated fairly effectively by border controls. People are multi-dimensional as workers, consumers and residents with an interest in the organisation of society. They can change their status and they can reproduce. These differences make it hard to justify calls for treating Mode 4 temporary service providers “ outside the domain of immigration-related laws and labour market regulations ”.

13 GATS-Mode 4 & Labour Regulation Agreement shall not apply to measures affecting natural persons seeking access to the employment market of a Member, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis. This provision means that persons moving under Mode 4 do not join the labour market of a receiving country party to the Agreement when in fact they perform a job in its territory.

14 GATS-Mode 4 & Labour Regulation The provision is a basis for excluding persons moving under Mode 4 from the jurisdiction of the receiving country, in respect of labour law. The provision allows for differential treatment of workers performing similar jobs in the same country and probably in the same enterprise. This is an infringement of the fundamental principle of equality and non-discrimination established in international labour law. The principle is also a cornerstone of international human rights law.

15 GATS-Mode 4 & Labour Regulation Equality and non-discrimination are therefore essential for cohesive non-conflicting relations between national and foreign workers, and for economic and social stability in the receiving country.

16 GATS-Mode 4 & Labour Standards If GATS Mode 4 is to develop as a international regime then it should be governed by an international legal framework based on: Adherence to International Labour Standards National Legislations Respecting guidelines of ILO ’ s Multilateral Framework on Labour Migration

17 GATS-Mode 4 & Labour Standards Minimum requirements : ILO Fundamental Conventions - Equal Remuneration Convention, 1951 (No. 100) (164 ratifications to date). - Discrimination (Employment and Occupation) Convention, 1958 (no. 111) (166 ratifications to date). ILO Migrant Workers Conventions Nos. 97 and Equality of treatment between national and migrant workers UN Convention on the Rights of Migrant Workers and their Families

18 GATS-Mode 4 for a “ Just ” Regime Criteria for relevance of regime: Global Distributive Justice Human Rights Protection Migration Policy Effectiveness Emergency Safeguards