In the last post, we understood the basics
relating to GATS and Movement of Natural Persons. Now, let us come to the GATS
Annex on movement of natural persons. It is important to remember that the
Annex deals only with temporary movement of natural persons. It also makes a
distinction between a natural person and a service supplier. For the category
of employees of a service supplying natural or juridical person, GATS operates
an “artificial” distinction between “foreign” and “domestic”
employment. The distinction is nothing but an attempt to keep the temporary
movement of persons covered by GATS as limited as possible. While foreign
employment forms part of “trade” in services under GATS, domestic
employment, which is qualified as “labour migration” is not covered by
GATS. As the WTO Secretariat maintains, it would be illogical if host country
firms could bring a claim against their own government requiring GATS treatment
for foreign nationals they desire to employ[1]. Domestic employment thus remains under the
sovereignty of national immigration authorities[2]. Thus WTO
Members can treat certain WTO Members more favourably than others in terms of
visa policy and the other immigration issues, because these are exempted from
the scope of most-favoured nation clause (MFN)[3].
Another important problem is the discriminatory
use of Visa and Work Permit Requirements. The Visa Policy can be challenged by
a member country only when it nullifies of impairs a benefit under a specific
commitment. This would come under a non-violation complaint as it acts as a Market
Limitation[4].
There is a clear need to have harmonized Visa Requirements. There are many
countries who have proposed ‘GATS Compliant Visas’ in their countries[5].
Usually, the Specific Schedule of Commitments of
WTO Members under the GATS provides for following category of Service
Providers[6]:
1. Independent Professionals – These are
the self-employed persons who enter the territory of another WTO member to
provide a service based on a services contract.
2. Intra-Corporate Transferees (ICT) –
These are employees of a Foreign Company providing services through
establishing commercial presence in another WTO member country and are
transferred to that establishment.
3. Contractual Service Suppliers – These
are employees of a Foreign Company without commercial presence (Mode 3) in the
host country who enter the territory of another WTO member to supply a service
pursuant to a services contract.
4. Business Visitors (BV) – These persons
do not supply service themselves but are sent abroad to negotiate a services
contract.
5. ‘Executives, Managers and Specialists’
(EMS) – This category is usually by the member countries through quota or
skill requirements.
6. Others – These comprise of low skilled
services and includes persons such as sportsmen or artists or who do not fall
in any of the other categories.
7. Short-Term Employees – This category
is mainly used by US to recruit foreign employees for domestic firms.
A further challenge is that there is no specific
duty in GATS to match service provider categories to visa or work permit
application procedures. In consequence, most WTO Members have neither taken
time nor care to align their visa categories to their GATS service provider
categories. Foreign Service suppliers find it difficult to obtain a full
picture about actual market access[7].
The Annex on movement of natural persons is
partially responsible for this. The immigration clause in the Annex makes sure
that any attempts to align service provider requirements to visa/work permit
requirements remain dormant. Even Article III of GATS (Transparency
Clause) is too broad to derive a specific duty for WTO members to ensure
coherence between service provider categories and visa requirements[8].
The WTO can play an important role in furthering
the immigration liberalization by inducing Free Trade Agreements between the
countries. Even the current Free Trade Agreements should be asked to include
legislation that touches on movement of people. More limited individual free
trade agreements, such as the Trans-Pacific Partnership (TPP), are in
the midst of negotiations, and should look to include legislation addressing
movement of peoples. These individual agreements do not have the same global
reach that the ISA and the GATS have, but they still can play an
integral role in advancing liberal immigration policy[9]. A
commitment to liberalize immigration, even among a limited number of countries,
signifies that the countries entering into said agreement are willing and
committed to altering their “old” approaches toward immigration.
It is indeed true that Mode 4 is one of the very
few international legal mechanisms that resemble a global labour migration
regime. However, countries are reluctant to make commitments under Mode 4. They
prefer opening a sector unilaterally by granting Market Access
without the constraints of National Treatment.
[1] WTO Document S/C/W/301 p. 3.
[2] Bast, Jürgen, ‘Annex on the
Movement of Natural Persons’, in Rüdiger Wolfrum, Peter-Tobias Stoll and
Clemens Feinäugle (eds.) WTO-Trade in Services: Max-Planck Commentaries on
World Trade Law (2008) pp. 580–582.
[3] Id.
[4] Delimatsis, Panagiotis, ‘Due
Process and “Good” Regulation Embedded in the GATS – Disciplining Regulatory
Behaviour in Services through Article VI of the GATS‘, 10(1) Journal of
International Economic Law (2007) p. 35.
[5] Chanda, Rupa, ‘Mobility of
Less-Skilled Workers under Bilateral Agreements: Lessons for the GATS’,
43(3) Journal of World Trade (2009).
[6] Roy, Martin, ‘Endowments,
Power and Democracy: Political Economy of Multilateral Commitments on Trade in
Services’, WTO Staff Working Paper ERSD-2009-07 (September 2009).
[7] Nielson, Julia and Oliver
Cattaneao, ‘Current Regimes for the Temporary Movement of Service Providers:
Case Studies of Australia and the United States’, in Aaditya Mattoo and
Antonia Carzaniga (eds) Moving People to Deliver Services (2003) p. 137.
[8] Delimatsis, Panagiotis,
Diebold, Nicolas F., Molinuevo, Martin , Panizzon, Marion and Sauvé, Pierre, ‘Developing
Trade Rules for Services: A Case of Fragmented Coherence?’, NCCR Trade
Regulation Working Paper No. 38.
[9] Clyde Hufbauer, Bradford Jensen,
and Sherry Stephenson, Framework for the International Services Agreement,
PETER-SON INSTITUTE FOR INTERNATIONAL ECONOMICS, (2012) http://www.piie.com/publications/pb/pb12-10.pdf
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