Distributive Justice and Limitations of GATS

Limitations of GATS and Mode 4

In the previous posts we understood that GATS is quite weak in impacting the immigration related issues. The language of GATS remains aspirational and does not provide concrete criteria such as quota of commitments of interest to developing countries or preferences for labour migrants from developing countries etc.^[1]

GATS's weakness in addressing global disparities is evident through its negligible impact on global migration and development to date. The language of GATS provisions relating to development remains ambitious but fails to establish any concrete criteria that must be met for global distributive justice, such as quotas of commitments of interest to developing countries, or preferences for service-providing labour migrants from developing countries.

The “enabling clause” that permits developing countries to grant preferential market access to developing countries on a non-reciprocal basis despite MFN, applies to goods, but not to services.^[2]

Broude believes that on the basis of Article XVII GATS, one might argue that foreign labour migrants must receive national minimum wage and social benefits. In some cases, this would deter labour migration from low-wage countries, having been robbed of its competitive advantage, and hence trapped in its domestic setting. National treatment, originally designed to overcome non-tariff barriers to international trade, is in these cases a barrier to both trade and development.^[3]

It is equally true that Mode 4 does not prevent labour migration policies of developed countries that are potentially detrimental to the social, economic, and political development of developing countries. Brain drain and remittance dependence concerns are not incorporated into GATS in any way.

Another significant limitation of GATS is that it does not require members, directly or indirectly, to protect migrants from violations of basic human rights. GATS also does not provide members receiving temporary labour migration under Mode 4 with any legal or other mechanism that would make migration policy any more effectively enforceable.

Distributive Justice^[4], Migration and Mode 4

John Rawls in his work Law of Peoples^[5] argued that migration pressures are the result of bad governance in source countries. He believed that if all peoples were decently governed, the problems of migration would disappear both empirically and conceptually. Thus for a global migration regime to exist, following conditions need to be satisfied:^[6]

1. An international labour migration regime should be tailored to increase the capacity of burdened societies to become well-ordered. It is only the Mode 4 that has the potential of becoming a comprehensive global migration regime. Hence, adequate changes need to be incorporated in GATS.

2. Migration is not an “escape” option that can justify or perpetuate bad, non-liberal governance at the national level. So if a migration regime promotes brain drain, it would be problematic and a bad choice. Thus the problem of brain drain needs to be explicitly under Mode 4 in GATS.

3. A migration regime must avoid the imposition of egalitarian ideals^[7] upon non-liberal societies, even as it pro-motes them. Thus, a migration regime should avoid political conditionality, either explicit or implicit. Thus the proposed changes in Mode 4 need to be politically neutral from the perspective of developing countries and the LDCs.

International Trade Law Notes

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[1] Julia Nielson and Daria Taglioni, A Quick Guide to the GATS and Mode 4, OECD World bank - IOM Seminar on Trade and Migration, 2003.

[2] Waiver Decision on the Generalized System of Preferences, June 25, 1971, GATT B.I.S.D. (18th Supp.) at 24 (1972), superseded by Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, Nov. 28. 1979, GATT B.I.S.D. (26th Supp.) at 203 (1980).

[3] Tomer Broude, Moral Aspects of International Labour Regimes, American Society of International Law, 101 ASILPROC 313 (2007).

[4] To understand Distributive Justice, Please Read Suyash Verma, Distributive Justice and WTO, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2020300

[5] John Rawls, Law of Peoples, Critical Inquiry, Vol. 20, No. 1. (Autumn, 1993), pp. 36–68.

[6] Tomer Broude, Moral Aspects of International Labor Migration Regimes, American Society of International Law, 101 ASILPROC 313 (2007).

[7] Egalitarianism, Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/egalitarianism/