Economic Integration and Security
New Key Factors in Managing International MigrationApril 1st, 2004
*This study is also available in French.
Since the late 1980s, there have been numerous multilateral initiatives to manage international migration. This is evident at the regional level, where there has been cooperation in Europe and America, but also at the international level, with the involvement of organizations such as the International Organization for Migration. These initiatives include measures to restrict people’s mobility, as well as incentives to encourage certain types of migration.
In this paper, Hélène Pellerin examines multilateral initiatives for managing migration at the European, North American and international levels. She notes that these initiatives are occurring within the broader context of regional economic integration, but also – and this is all the more evident since September 11, 2001 – in a context where many countries are increasingly concerned about the security of their borders. The aim of these initiatives is to harmonize, or at the very least to coordinate, the principles and practices of countries of destination, origin and transit. Economic and national security considerations have influenced governments’ priorities regarding border management, leading them to cooperate more and even to harmonize some of their migration policies. From an economic perspective, this greater cooperation has led, among other things, to the introduction of incentives to promote mobility among highly skilled workers.
Pellerin also explains that these measures were developed in a context where there was practically no international legal framework. Apart from human rights, refugee rights and a few conventions on the rights of migrants, there are few standards to which states can refer on the subject, and there is no legal instrument that specifies states’ obligations with respect to the application of the standards and principles established in recent years. In the absence of international legal instruments on international migration, the author argues, international trade law tends to serve as the reference or framework.
International trade law has in fact played a key role in regional integration processes and is influencing strategies to encourage the migration of highly qualified personnel. Thus, while at the regional level the emphasis is increasingly being placed on the need for foreign workers, at the international level we are seeing the development of global strategies aimed at encouraging the mobility of certain categories of migrants, notably those in activities related to the service industry. Moreover, a proposal is presently circulating within the WTO on the creation of a “GATS” visa for certain categories of people who would thus not be subject to the immigration policies of countries that import their services.
The legal framework of international trade law seems to have even played an important role in the security field and with respect to initiatives aimed at restricting or controlling people’s mobility at borders. This reinforcement of controls at the level of external borders is, however, occurring at the same time as the elimination of internal borders. Thus, from this perspective we are seeing the emergence of an area of freedom, security and justice in Europe and a security perimeter or “smart” border in North America. This rapprochement between management of security and of economic integration has become even more evident since the events of September 11, 2001. There has been, among other things, a reformulation of security issues, which are now seen as relating to a new integrated economic space.
This phenomenon is not without consequences. In the last section of her article, Pellerin explains, for example, that the management of migration, previously the prerogative of sovereign states, is increasingly a matter for broad regional groupings, even the international community as a whole. She also observes a new trend in which migrants are regarded and dealt with in terms of the returns that they can bring to national economies, often at the expense of measures that should be taken to further the development of their country of origin or their social and political integration into the host countries.
In the wake of September 11, 2001, national security issues quickly rose to the top of the Canadian political agenda. Organizations, laws and regulations concerning public security, customs, immigration and even financial assets – all came under close scrutiny. Among other things, the effectiveness of our immigration policy in controlling the comings and goings of arrivals was questioned. Some critics said that our immigration system was lax and excessively generous and that it should be rethought in order to regain the confidence of the Canadian public and our neighbours to the south. These observations provoked widespread debate on the capacity of our immigration system to help achieve security objectives, while upholding the economic and humanitarian principles upon which it is built.
Given the importance of this debate and its economic and political ramifications, as well as its repercussions on the management of the country, the IRPP launched a new research program called “Shaping Canada’s Future: Immigration and Refugee Policy.”
This Choices study, entitled “Economic Integration and Security: New Key Factors in Managing International Migration,” is the first to be published as part of this program. In this document, Hélène Pellerin of the University of Ottawa examines multilateral initiatives for managing migration in Europe, in America and within the international community. The originality of this study lies in the fact that instead of emphasizing the causes and consequences of migration, the author focuses on the factors that influence migration management. She points out that regional economic integration and security concerns now have considerable weight in the decision-making process regarding international migration. According to the author, the events of September 11, 2001, accentuated this phenomenon.
The study first looks at the general trends that are emerging in the multilateral management of international migration and then goes on to explain how trade law and security considerations are having a major impact on management practices in this field. The author also sheds light on the rarely discussed consequences of these new trends in global governance.
Hélène Pellerin says that multilateral initiatives in migration management and their logic based on trade law and security have in a way moved the seat of decision-making. Whereas before labor and social security departments played a key role in defining migration objectives and priorities, we are now seeing greater involvement on the part of trade, finance and foreign policy departments and information agencies. The author notes as well that the influence of international trade law has had the effect of dividing migrants into two classes: skilled and others. For skilled workers, mechanisms are put into place to facilitate their mobility, while for others, control measures are adopted that make them either victims or criminals.
Many studies have attempted to shed light on the causes of international migration and its consequences for migrants, countries of origin and countries of destination. Studies on managing international migration have been far fewer in number and were done mostly in the 1990s (Zlotnik 1996; Zolberg 1992; Freeman 1998; Sassen 1998; Hollifield 2000). However, the globalization of regional economic integration, as well as increased interest in security and border issues, especially after the events of September 11, 2001, has put the management of international migration at the centre of the debate concerning human rights and global governance.
The inclusion of migration issues in global governance is a relatively new development that has only recently been studied by international relations specialists (Felblum 1999; Rudolph 2002a; Ghosh 2000). Also showing interest in the subject are international organizations that are seeking solutions to the migration crisis – real or potential. This is the case with the OECD, which, during the 1990s, encouraged a serious examination of this issue, and the Trilateral Commission, a private, international organization that influences political leaders in terms of the issues they choose to discuss among themselves. The UN has also done studies in this field, producing an incisive report on the population decline in industrialized countries and the need for replacement immigration (OECD 1994; Meissner et al. 1993; UN 2000).
These changes are not unrelated to the transformations in migration dynamics that have occurred over the past 20 years. From the increasing number of migrants in the world and the diversification of the sources of the migrants, to the difficulties that industrialized countries have experienced in processing asylum requests, the rise in xenophobia and the strong demand for human capital, international migration has become an unavoidable problem for many economic and political planners.
An examination of these changes reveals new trends in the management of international migration. There has been a dovetailing of recent initiatives, in terms of both content and form. With the strategies that have been adopted, we are also seeing the emergence of a form of global governance and, with it, specific priority orientations. The nature of this governance warrants serious examination, not only for what it teaches us about current priorities and the power relations involved, but also because of the very forms it takes. We observe that efforts to regulate the movement of persons are often part of broader strategies concerning security, deeper economic integration and the transformation of “citizenship regimes” (Jenson and Phillips 1996);1 and also that they entail a form of governance, largely based on trade law practices, which has major repercussions for the way in which problems are formulated and solutions envisaged.
In the pages that follow, we will present and analyze emerging trends in the multilateral management of international migration, with a special focus on the European Union and North America. The consequences of the specific mechanisms and strategies adopted will also be discussed.
Conceptualizing the Management of International Migration
The Development of Multilateral Cooperation
The management of international migration has not always been under the stewardship of sovereign states. There have been periods of relative laissez-faire, during the second half of the nineteenth century, for example, when migration was partly controlled, and even facilitated, by employers who recruited on site or by transporters who also took care of employment for migrants (Thomas 1973; Stikwerda 1997). During this period, state involvement was limited to developing statistical tools to calculate the number of entries and exits, and issuing travel documents, including passports (Torpey 2000). After the 1929 stock market crash, states consolidated their controls over international migration, at a time when unemployment was on the rise in developed countries and when efforts were made to limit the entry of migrants. The Second World War gave states the instruments and the legitimacy to maintain these controls, and the subsequent development of the welfare state in most industrialized countries enabled them to strengthen the controls.
These controls primarily concerned recruitment, entries, residence and work permits and, in some cases, the integration of new arrivals in the host society. Over the years, specific strategies were added or modified to either tighten or loosen these controls. For example, in the 1980s, measures were put into place to give temporary protection to asylum seekers who would be refused protection on a permanent basis, and new strategies were adopted to enable states to shirk their Geneva Convention obligations toward refugees by intercepting them before they arrived on the state’s territory.
Internationally, the management of international migration received little attention in the postwar period, contrary to what was done in trade and finance. The sole exception was the establishment of a system to protect refugees, with the creation of a body, the United Nations High Commission for Refugees, and two legal instruments – the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees – which broadened the scope of refugee law. As regards worker migration, although bilateral agreements were made between countries of destination and countries of origin, no legal instruments were created during this period to manage the flow of persons (Zolberg 1992; Felblum 1999).2
The events of the past 20 years have considerably changed the dynamic of international migration and the attitudes of the governments concerned. The massive arrival of asylum seekers in the mid-1980s, due to particularly unstable and violent situations in countries in Africa and Eastern Europe and to greater restrictions imposed on worker migration by industrialized countries, shook national application examination systems in most countries in the industrialized world. The increasing importance of social networks – through which migrant groups or communities have been able to maintain or increase the flows of persons toward countries of destination, despite the restrictions imposed by them – has increased the perception that states are unable to control these flows. In addition, because of new economic and demographic realities, the economies of industrialized countries need workers, especially skilled ones, so these countries have had to develop new migrant recruitment policies. We can add to this list the events of September 11, 2001, which made it easier for some analysts and decision-makers to establish links between migration, terrorism and border control.3 We may well see the development of a new approach to controlling illegal migration, one that is more militarized than ever before. This approach is evident in the border initiatives taken in both Washington and Ottawa, and it has also given new legitimacy to efforts to tighten border controls in the European Union, an issue that was discussed as early as 1997 around the Treaty of Amsterdam.
Since the 1990s, we have seen a significant increase in the number of multilateral initiatives to manage the migration phenomenon. Most of these initiatives aim to better manage cooperation between states as regards the recruitment, return and hiring of migrant workers, but some agreements also concern migrant rights. Multilateral initiatives are primarily regional in scope, but it is important to note that they foster open regionalism; in other words, these cooperation measures are part of broader efforts to promote regional systems that are compatible with each other.
These initiatives are also being carried out within a special economic, political and ideological context. First, they don’t seek to undermine the power of states; on the contrary, as Martin et al. point out, managing international migration is at the very heart of national identity and state sovereignty (2000). Recognizing, as do most specialists who analyze migration statistics, that international migration is going to continue, that the factors that prompt people to leave their country of origin to live elsewhere on a temporary, transient or permanent basis are going to, if not increase, at least persist in the short and medium terms4 is not a sign that governments have failed in this regard.5 In fact, states are still in control of the situation; we are simply witnessing a rapprochement of their interests.
The conceptual tools available in international relations do not allow for either a satisfactory understanding of the complex dynamic of multilateral management of international migration or a proper conception of the form it takes. The term governance, for example, which was first introduced in economics in the 1970s with respect to sound management practices in private business, appeared in international relations in the early 1990s to emphasize a lack of efficiency and the need to delegate management responsibilities to players other than governments. In this sense, it helped to underscore the growing involvement of different categories of players (governments, international organizations and private players) in the management of global problems. Its primary short-coming, as far as we are concerned, is its failure to place management efforts in a normative and political context, thereby implying that management is simply a matter of technique and expertise. However, we could put forth the opposite criticism as well, that the concept is implicitly normative, promoting management that is further removed from state control, i.e., “management that is outside the realm of state authorities and that gets players in civil society involved in collective management” (Kebabdjian 2002, 244) [translation]. The interaction and balance of power between private stakeholders and the state are, however, central to the new multilateral management of international migration and should therefore be analyzed rather than taken for granted.
Another concept often associated with management issues in international relations, that of regime, also has its benefits and its limits. By emphasizing processes of cooperation between states, it enables us to understand the normative context in which interests are formulated and positions negotiated.6 For example, the attention given to the very processes of negotiation and to the internalization of interests, standards and strategies in each of the states that are part of a regime makes this concept a key heuristic tool (Kebabdjian 2002). However, it suffers from a perspective that is too “state-centred” (Strange 1982), which has major repercussions for the analysis with respect to recognition of nonstate players and the supposedly natural division between the political and economic spheres. In the multilateral management of international migration, though, changes occur in a special economic and political context, that of regional integration and a reconfiguration of the relations between the state and certain groups in civil society, in this case economic players.
Our analysis will therefore seek to combine some of the strengths of the concepts of regime and governance. We will, however, add two important aspects. First, we will endeavour to describe the broader political economy context; i.e., the power politics underlying regional economic integration. Then we will focus on the effect of the political strategies put into place. We will show that these management policies are not a neutral vehicle, but rather that they constitute measures that condition the preferences, the dynamic and even the presence of players. We will thus demonstrate not only that most multilateral initiatives for managing international migration occur in regions where significant efforts are made to achieve economic integration, but also that the management of migration is one of the key components of increased trade, regionalization of production activities and transformation of the relationship between state and nonstate players.
Preponderance of Law in the Management of International Migration
Since the 1990s, international cooperation has taken institutional and legal forms that are much more developed. This “legalization”7 of international relations can be seen, for example, in the cooperative processes within the European Union, where treaties made by its members and judgments rendered by the European Court of Human Rights have taken on increased significance. The creation of the World Trade Organization has also contributed to the growing importance of law in international relations. This phenomenon is further illustrated by the improvements in the areas of human rights and humanitarian law. The degree of centralization and the scope of the law vary according to the field and the issues involved. The legal framework may be normative or it may be legalized.8 In some cases, the legal framework is normative, i.e., the definition and application of rules are flexible. In other cases, the legal framework is legalized; in other words, the power to define and apply rules is centralized and the rules become binding. Be that as it may, we can see a growing trend toward legalization of the issues in many fields.
The multilateral management of international migration is also affected by this phenomenon of omnipresent international law. Refugee law, established by the Convention Relating to the Status of Refugees and expanded by the Protocol Relating to the Status of Refugees, which extended the geographic and historical scope of the definition of “refugee,” is one of the key instruments in this field. It should be pointed out, however, that the scope of refugee law is limited to one category of migrants and that its extension to other categories remains highly doubtful given the changes of the past 15 years, which have called into question some of the cornerstones of this regime (Goodwin-Gill 2000). For example, the very vague definition given to the term “refugee” led migrantrights advocates to believe for some time that the definition could encompass “economic refugees”; however, because of the complexity of the processes involved, not all experts agreed with this broader definition, and it is not accepted by officials at the Office of the United Nations High Commissioner for Refugees (HCR) (Goodwin-Gill 2000). The refugee crisis of the 1990s practically ended the hopes of migrant-rights advocates by further limiting the role of the convention – because of implementation by the signatories of measures that would enable them to escape their obligations with respect to asylum seekers (such as strategies to prevent the entry of applicants into their country) – and that of the HCR – on account of a reduction in its operating budget.
There are other legal instruments in public international law, such as human rights treaties, but their application to migrants remains limited, especially because they fail to specify states’ obligations toward each other in terms of cooperation vis-à-vis management of the migration. It is instructive to note in this regard the very mitigated support that the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families has received for more than 10 years now. This convention is the most complete legal document offering protection to migrant workers, and it spells out states’ obligations toward migrants who are on their territory. To date, it has been ratified only by about 20 countries, none of which is a country of destination situated in developed regions.9
The limits of public international law regarding migration are also evident in the policies that are adopted. Generally, treaties simply state standards, giving the countries concerned considerable latitude on how to apply these standards. In fact, most cooperative efforts between states over the past few years have focused on the application of such standards. Does this mean that multilateral management of international migration cannot be based on, and framed by, international law? We should point out, first, that the law can exert an ongoing influence even in the absence of a direct link or control. This can be explained in large part by the existence of normative power, i.e., a power of persuasion exercised through the enunciation of general standards. In addition, the judiciarization phenomenon does not originate solely in the field of public international law. Private international law, which governs, among other things, international trade relations, can also be a source of standards. Rapprochements between public international law and private international law, which, conceptually and historically, are separate branches of law, are becoming more and more conceivable in a context in which governance now grants a role to both public and private players in the management of public affairs (Cutler 2001).
Indeed, despite the limits of public international law, cooperation between states in managing international migration is becoming increasingly judiciarized. This was unthinkable in the past both because of the states’ prerogative in controlling their borders and because of the major differences between states in terms of their needs and their strategies for controlling international migration; for example, between countries of immigration and countries that only received migrant workers on a contractual or temporary basis. But the settling of migrants and the right to family reunion in countries that welcome migrants on a temporary basis – in Western Europe, for example – as well as the growing number of temporary work permits issued in immigration countries like Canada and the United States, are reducing these differences. Migration policies also vary according to whether they favour internal or external controls. Internal controls are provisions that seek to control migrants by means of labour market controls, residence permits or naturalization (Hammar 1992). These measures were much more prevalent in Western Europe, whereas external measures, which consist of intercepting potential migrants at the border or even controlling them before they arrive in a country, were applied primarily in the US. Today, these distinctions are becoming blurred, with states that constitute arrival areas adopting complex measures that combine both external and internal controls, as well as new measures as part of regional or supranational cooperation efforts.10
In this context of convergence, certain rules drawn from international trade law seem to serve as a model for managing international migration. International trade law governs various aspects of trade relations, including the formulation of contracts for the international sale of goods, the arbitration procedure for resolving trade disputes, merchandise transport agreements and insurance arrangements (Cutler 2001, 481). States are increasingly using forms of management borrowed from rules of trade in goods and services, for example, as regards the movement of workers who provide certain services, under the aegis of the General Agreement on Trade in Services (GATS), or with respect to rules for the rapid, technical processing of cases of error or fraud and the recourses available in these situations. The present context of regional economic integration is particularly conducive to the adoption of these rules in the management of migration, which augurs well for liberal and optimal management of the flow of persons.
The rapprochement and harmonization of national migration standards and policies undoubtedly responds in part to the need for convergence between the interests of different states. However, the legal vacuum in which these standards and policies exist warrants closer examination, particularly as there is a noticeable increase in ways of controlling migrants,which in the past were limited. For example, the scope of legal practices has been extended beyond states’ internationally recognized space to include interception on the high seas, detention in airports or agreements on the movement of persons involved in the services trade. Sophisticated systems for exchanging migrant information have also been created. All these instruments are designed to better manage migration flows beyond state borders, but without specific legal rules or standards. This poses a risk of confrontation between states, not to mention human rights violations. We will explore the consequences of this trend after discussing the multilateral initiatives developed since the 1990s.
Multilateral Initiatives for Managing International Migration
The management of international migration affects at least three areas of public activity: public policies, relations between states and human rights. More specifically, international migration management can include immigration policies, bilateral and multilateral agreements on border controls, sectoral economic agreements that presuppose the movement of persons, security measures and information services, development assistance programs that occasionally contain clauses to promote the return of migrants or slow the exodus of persons and, finally, agreements to ensure that the rights of specific categories of migrants are respected. Within these very diverse measures, two major types of multilateral cooperation may be discerned, both influenced by contexts of economic integration in the short and medium terms. First, there are initiatives based on international migration controls and restrictions, and second, there are multilateral measures that facilitate the movement of persons. These two types of initiatives emerged in the 1990s, a period when authorities were expecting a migration crisis that would require a coherent response from the international community. It was at this time that the notion of “orderly migration” – developed, among others, by the International Organization for Migration (IOM) and quickly adopted by bodies like the Organization for Security and Co-operation in Europe (OSCE) and the Organisation for Economic Co-operation and Development (OECD) – was presented as a guiding principle that could help governments develop migration policies that reflected new realities, with a view to international harmonization. This concept involves the type of legal migration favoured by states, whereby the security and rights of all the players are protected (IOM 2000).
The table below shows the many multilateral initiatives launched in the 1990s that are still in place today.
There is a significant gap between control measures, which serve to limit the flows, direction, density and forms of international migration, and measures to promote certain movements of persons (table 1). Migration control initiatives and restrictive measures at the multilateral level are much more numerous; in addition to encouraging ongoing discussions on migration control, these initiatives deal with more specific measures concerning refugees, displaced persons and illegal migration. In the 1990s, experts and decision-makers generally focused their attention on illegal migration networks and trafficking in human beings.11 Unlike the adoption of measures to tighten border controls in countries of destination, efforts to combat illegal migration clearly had multilateral implications. These efforts required not only that countries of destination share data gathered by their information agencies, but also that countries of transit adopt reliable statistics collection and border control systems, and that countries of origin put into place legislative measures that, among other things, criminalize the traffick in human beings. The battle against illegal migration networks gave rise to a major international mobilization effort in various regions and saw both countries of origin and countries of destination, although very different, rally to the cause. This cooperation makes it possible to fight transnational organized crime more effectively; it also helps protect victims’ rights and allows countries to share the costs of control operations.
Many organizations played a role in spearheading the implementation of these measures. In terms of number of initiatives and regions involved, the International Organization for Migration (IOM) stands out, both for the impressive number of regional conferences on migration it co-sponsored and for the special effort it made to involve countries of origin, of transit and of destination. For example, to facilitate dialogue and cooperation between the countries of Asia and Oceania, initiatives were launched in Asia as part of the Manila Process (coordinated by the IOM) and as part of the Asia-Pacific consultation (co-sponsored by the IOM and the Office of the United Nations High Commissioner for Refugees ([HCR]). The Bangkok Declaration on Irregular Migration, signed in 1999, allowed the 18 participants to recognize international migration as a problem that requires a multilateral solution. Both the Manila Process and the Bangkok Declaration encouraged the imposition of criminal sanctions on smugglers and illegal migration networks in southeast Asia.
As far as Europe is concerned, three things should be pointed out. First, the free movement of persons between member countries of the European Union (EU) had already been established by the Treaty of Rome (1957) and put into practice in 1986 with the Single European Act. Second, ways and means remained exclusively under intergovernmental jurisdiction until the ratification of the Treaty of Maastricht (1992). Third, regional initiatives in the 1990s involved ties between the EU and neighbouring regions as well as between EU member countries themselves. It is within this context that the Schengen Agreement takes on its full significance.12 Some of the provisions of this agreement, which was developed outside the framework of the European Union, were incorporated into community asylum and visa initiatives when the Treaty of Amsterdam was adopted in 1999. Under this treaty, other measures will become communitarized within five years, i.e., in 2004. The objectives, as presented to the Council of Tampere, are fourfold: partnership with countries of origin; a common European asylum system leading to a common asylum procedure; fair treatment of third-country nationals; and management of migration flows. To achieve some of these goals, the European Union put into place various decision-making units and coordinating programs – for example, Eurojust, a body composed of EU lawyers and judges to help establish an EU-wide judicial network. The action program with regard to administrative cooperation in the fields of external borders, visas, asylum and immigration (ARGO) was adopted in June 2002 and is one of the technical pillars for increasing judicial, penal and administrative cooperation. And in July 2002, a framework program on police and judicial cooperation in penal matters was established (AGIS). The purpose of these measures and actions is essentially to harmonize the policies of EU member countries as regards management of their external borders. One of the noteworthy EU initiatives concerning countries of the East is the Odysseus program which, from 1998 to 2001, served as a springboard for training, exchanges and cooperation concerning asylum, immigration and external-border crossing policies. This program will likely be replaced by more direct negotiations between the EU and the 10 countries that presently want to join the EU.
One of the regional organizations that function outside the jurisdictions of the EU, but in a very complementary manner, is the Budapest Process. This conference, which was established thanks to the efforts of Germany in 1991, was officially launched in 1993, with 26 participating countries from both sides of the former Iron Curtain. The primary objective, then and now, is to find ways to better respond to migration pressures from the countries of Eastern Europe. The conference is a forum for consultation at the political level, the objective of which is to encourage participants to develop means of creating a lasting system for the orderly management of international migration between the countries involved (Klekowski von Koppenfels 2001). Over the years, the Budapest Process has formulated recommendations on border and immigration management, some of which were taken up as part of negotiations for membership of Eastern European countries in the EU. Because of the participants’ constant concern about border security, many Budapest Process recommendations have to do with efforts to combat illegal immigration, including a common definition of the traffick in human beings, the extraterritorial scope of certain national legal provisions and the adoption of comparable legal penalties (ICMPD 2001).
If the IOM plays a less pivotal role in Europe than in Asia, it is because there are many other active European organizations and treaties. The InterGovernmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia (IGC) was one of the first initiatives to be launched, in the mid-1980s. Its goal was to encourage discussion of the various refugee and asylum regimes in force in the three regions concerned. The growth in the number of refugees in Europe during the 1990s was a particular focus of attention for the IGC. The Council of Europe and the Organization for Security and Co-operation in Europe (OSCE) also organized forums in the early 1990s to discuss questions and problems relating to illegal migration networks, with a view to making politicians aware of the economic, humanitarian and security issues involved. These organizations persuaded governments to make a commitment to eliminate this type of crime.
In America, there are two types of measures to control international migration: bilateral agreements and, relatively recently, multilateral processes.13 Because of its dominant economic and political position in the world – it is the primary area of attraction for migrants from Mexico and Central America – the US largely influences the way in which international migration is managed in the region. For example, the US has favoured bilateral agreements, such as the Bracero Program (on migrant workers), which was in force from 1942 to 1964 (Martin et al. 2000). During the 1980s, the United States and Mexico created the US-Mexican Commission on Migration Issues in order to facilitate the joint management of migration. This enabled Mexico to obtain consular protection for Mexican nationals in the US, and both countries agreed to increase their cooperation in the fight against illegal migration (Miller 2000).
For Canada, multilateral management of international migration began in the 1990s with its participation in the Puebla Process, at about the same time that bilateral cooperation with the United States was initiated. The events of September 11, 2001, brought Canada and the US closer together as regards migration issues. Before the events of September 11, most Canada-US bilateral initiatives were part of efforts to open the border to facilitate the movement of goods and persons, be they tourists or business people. These programs included NEXUS (express lane program) and FAST (Free and Secure Trade). After September 11, bilateral measures were adopted to better harmonize border controls, particularly control over the mobility of persons. These measures include a smart border agreement between the US and Canada that combines external-policy-type security measures, in this case the signing of a document on safe third countries, with domestic security or crimefighting measures, notably the coordination of information agencies (integrated border law-enforcement teams). Also part of the agreement was the putting into place of joint customs teams in some ports, as well as joint training exercises in the fight against terrorism (Government of Canada 2003).14
A multilateral initiative concerning the movement of persons was also launched in America in the 1990s. The Puebla Process, or the Regional Conference on Migration (RCM), is a Mexican initiative sponsored by the IOM. The Puebla Process was started up in 1996 with the goal of better coordinating the immigration policies of the countries of Central America, the Caribbean and North America. Its Plan of Action, adopted in 1997, calls for five areas of intervention: the formulation of migration policies; the link between migration and development; the need to combat trafficking in human beings and illegal migration networks; the return of extra-regional migrants; and the rights of migrants (Pellerin 1999). The RCM focused particularly on efforts to eliminate trafficking in human beings, because there was probably a stronger political will in this regard on the part of many member countries, including the United States and Mexico.15 Apart from these objectives, the accomplishments of the Puebla Process since 1997 have had more to do with a rapprochement between national laws on trafficking in human beings than with the creation of computer systems to manage data on entries and exits of persons, as well as with training immigration and customs officers in the countries concerned (RCM 2002).
In short, initiatives for restrictive control of international migration seem to be increasing, both because of the growing number of countries and regions involved and because of the commitments made by participating and signatory states. Some attribute this greater interest to the “threat to society” posed by the arrival of migrants and asylum seekers in industrialized countries since the second half of the 1980s (Weaver et al. 1993, and the critique in Bigo 2002; Huysmans 2002). Others have suggested that, in a context of globalization, reduced state authority and falling popular support, states are trying to assume new functions to legitimize their existence (Bigo 2002). In other words, countries are using threats to their security posed by migration to adopt initiatives to strengthen their legitimacy and their power. This analysis is interesting, if only because it shows the increasingly common link being made between security and migration, and between borders and migration controls – a link that, according to this logic, is often deliberately fabricated in order to deflect the problem or bolster the authority of the state – or both. These analyses are silent, however, on the link between the tightening of migration controls and regional economic integration. But it is precisely in a context where the economic function of borders is being expanded and redefined that these efforts are being made, both in North America and Western Europe. In Europe, the creation of an area of freedom, security and justice is at the forefront of talks on the establishment of a rigid and secure external border, while internally, flexible and increasingly integrated borders are being developed. A similar approach is found in North America, in a context of trade liberalization, where there is a need to guarantee the security of the economic space that is being built. This context has a major impact on the migration pressures that governments are trying to control. To better understand this context, we also have to look at multilateral efforts to promote the mobility of persons.
In 2000, the United Nations issued a powerful report on the population decline in industrialized countries and the need to consider replacement migration for both the labour market and social systems as a whole. This report, entitled Replacement Migration: Is it a Solution to Declining and Aging Population?, launched a debate in political circles and among experts on the need to attract migrants, as well as on replacement solutions to increase the proportion of people active in the work force and on the transformations that these changes could engender. It is interesting to note that, despite the very broad scope of the report, political authorities in the European Union focused primarily on openness to immigration of experts and highly qualified workers. In fact, incentives adopted at the national and multilateral level essentially target this category of migrants.
Unlike initiatives to reduce migration flows, those that seek to open borders are rather timid, a contrast that may appear paradoxical to an observer of international relations. Since economic issues are more complementary in nature than security concerns, international cooperation on economic matters should generally be easier than cooperation in the field of security. This paradox can undoubtedly be explained by the fact that international migration is not just an economic issue, even though economists have long regarded migrants as a factor of production, like capital. Reflections on the risks for the integrity, values and traditions of society – that is to say “societal security,” to use a highly controversial expression – of integration questions and of the infringement of human rights, three issues raised by certain migration dynamics, illustrate the social complexity of international migration, both for host countries and for countries of origin.
There are at least two reasons for the relatively timid nature of migration incentive measures at the multilateral level. First, it reflects in large part the lack of national attention given to the increased mobility of persons during the twentieth century. Most industrialized countries were slow to (or have yet to) recognize that their economies require new immigrants, or they have been unable to adjust their recruitment and selection systems to respond quickly to the new economic realities. This situation can be understood when we note, as Zolberg did in 1992, that industrialized countries enjoyed years of economic growth between 1950 and 1970, at a time when the supply of foreign labour exceeded the demand. Consequently, there was no immediate need to collectively coordinate measures adopted with countries of origin or with other countries of destination. The present situation is very different. For one thing, countries of origin are much more reluctant to let their most skilled workers leave and they are more demanding in negotiating remittances16 and the status of their nationals; also, countries of destination are competing to attract the best and the brightest. Multilateral organizations such as the World Trade Organization (WTO) and the Organisation for Economic Co-operation and Development (OECD) are increasingly emphasizing the need to collectively manage this new situation of competition and movement of skilled migrants; but many countries are still reluctant to do so, viewing these possible measures as external constraints that have little to do with their domestic economic reality, or as factors that could encourage a brain drain.
Multilateral migration incentive initiatives are also limited because of a failure to recognize the complementarity of economies and labour forces at the international level. Professional associations and national unions have long focused their strategies on protecting their members’ rights and benefits – promoting employee training rather than competition from foreign workers – and countries of destination defended this position for a period of time. Over the past 10 years, however, different employers’ organizations, chambers of commerce and business associations, particularly in the services sector, have been trying to impress upon their governments the importance of recruiting workers and of adopting various incentives to maintain the comparative advantage of domestic economies that are increasingly open onto the world. Countries of destination are more and more aware of these pressures.
The multilateral initiatives already in place consist of promoting the idea of complementary labour markets and of getting participating countries to harmonize their efforts so as to minimize any detriment they may cause to each other. Migration incentives generally take two forms: they focus either on the very principle of greater mobility for highly skilled migrants or on ways of facilitating the free movement of these persons.
The IOM, with its principle of orderly migration, recognizes the opening up of economies and the benefits of greater mobility of persons – specifically certain categories of persons. The OECD, through its Continuous Reporting System on Migration (SOPEMI), has since the mid-1990s regularly examined the question of skilled labour. However, it is still a vague issue that for now does not involve any concrete measures.
The strategies put into place to recruit skilled workers were first developed at the national level. Countries of immigration like the United States, Canada and Australia were leaders in this regard, some more than others. Canada is considered a model because of the system it has put in place that gives points for sought-after skills among migrants. This system has been adopted by Australia, while the United Kingdom is presently studying its benefits (Apap 2001). In Germany, a draft law, dropped in 2003, proposed an immigration policy that featured numerous incentives to recruit highly skilled foreign workers, including a point system.
As far as strategies are concerned, NAFTA initiated measures to increase the mobility of persons, with specific temporary migration schemes for specific categories of persons, such as investors, business people and certain professionals.17 A series of bilateral measures exists as well. For example, in 1995 the United States and Canada signed an accord regarding their shared border to facilitate the movement of goods and services between the two countries. The objectives of this agreement were fourfold: to promote international trade; to facilitate the movement of people; to provide enhanced protection against drug smuggling and the illegal and irregular movement of people; and to reduce costs to both governments and the public (Coalition 2001). A recent report on the application of this accord indicates that discussions were held on eight different points: commercial vehicle processing; contraband detection technology; joint facilities; intransit highway simplification; liaison officer exchange; joint review of border security; travellers’ initiatives; and alternative inspection services (Canada Customs and Revenue Agency 2002).
In 1999, an agreement between Canada and US customs services called the In-transit Preclearance Programme was implemented in some airports. In the wake of the events of September 11, 2001, Canadian authorities sought to promote cross-border trade by increasing the tax-free personal exemption for residents of Canada who are out of the country for seven days or more. It was also announced that cargo plane officials would no longer have to present papers each time they enter or leave Canada or the US. An integrated system would enable them to go through customs upon arrival in the country of transit and upon entry into the importing country (Secretary of State 2002).
At the multilateral level, North America created a migration incentive mechanism. As we already mentioned, NAFTA contains (in chapter 16) provisions concerning the temporary entry of business persons. These provisions are very limited and exclude permanent migration. The Canada-Chile Free Trade Agreement (CCFTA) contains the same clause. In both cases, visas are still necessary, but are available at reduced cost. The permit-granting system has been simplified as well, since the requirement concerning national accreditation of professionals has been eliminated; also abolished is the condition that for a permit to be issued, there must be a labour shortage in the host country (Nielson 2002).
A second, much more recent initiative, the PueblaPanama Plan (PPP), is a follow-up to the Puebla Process. The PPP was launched by President Fox of Mexico in 2001 with a view to creating a road, railway and industrial corridor along the Pacific coast that would connect the seven countries of Central America and the south of Mexico. The migration aspect of this plan consists for the moment of creating a migration-flow information and recording system throughout the region. Longer term, the PPP can be expected to facilitate the movement of goods, capital and certain categories of persons in a region that will become more closely integrated in terms of overall production logics. Finally, we should mention the Free Trade Area of the Americas (FTAA) project, which already has provisions on the temporary movement of persons involved in trade in services and which could apply to both citizens and permanent residents (Nielson 2002).
Efforts to implement multilateral incentives in the EU have also been timid; however, they are noteworthy, given their stark contrast to the migration restrictions in place during the 1973-90 period. Migration liberalization follows the logic of the free movement of goods and capital, from an expansion perspective. The Europe Agreements, which replaced bilateral accords between EU member countries and neighbouring states in the East, concern trade and investment, but they also contain provisions on the free movement of certain categories of persons involved in trade in services. Here, too, the goal is to facilitate the temporary movement of specific categories of persons, as is the case with the Association Euro-Med agreements, with Morocco and Tunisia (Nielson 2002). More recently, since the beginning of negotiations to admit 10 new countries into the EU, the European Commission has been developing a significant strategy to promote the free movement of third-country nationals, as witness the directive it issued concerning conditions of entry and residency for such persons for the purpose of engaging in gainful employment or exercising an independent economic activity. These new measures are in addition to those already adopted, i.e. the directive of the Council of the European Union concerning the status of third-country nationals with long-term resident status.
Influence of International Law on Migration Strategies
Absence of International Migration Law
We mentioned above that there is no international migration law that spells out the roles and obligations of states toward each other as regards the mobility of persons. There does exist in international law a human rights regime and a refugees regime, which consist of informing states of the rules and obligations they should, in principle, comply with. The progress made with regard to these rights is one of the positive changes that took place in the 1990s in industrialized countries, although much remains to be done in terms of rights and responsibilities in applying the principles set forth in the current agreements. For example, the rights of refugees and asylum seekers defined in the 1951 Geneva Convention relating to the Status of Refugees and the rights contained in two International Labour Organization (ILO) conventions on migrants18 are rules that govern state actions with respect to certain categories of foreign citizens. However, these rules do not cover immigration policies or visas, nor do they deal with measures to manage migrant stays; all of these matters remain under the individual responsibility of the states concerned. These are precisely the issues targeted by multilateral initiatives, which seek to establish basic rules and a normative framework within which specific state practices would take form. Some observers see these initiatives as nothing more than a rapprochement of the interests of different states, since countries are very careful not to delegate their sovereignty on an issue as fundamental as international migration (Hollifield 2000). However, this theory must be qualified in light of two phenomena. First, the growing number of rules and standards are “factors that regulate the conduct” of states (de Vareilles-Sommières 1997, 65) [translation]. In this sense, they already constitute forms of legalization, albeit timid and very flexible ones. In more technical terms, they could be described as “a particular form of institutionalization [which] represents the decision in different issue-areas to impose international legal constraints on governments” (Goldstein et al. 2001). We can thus view refugee law as a set of very rigid rules – rigid in the sense that the obligatory nature of the measures that signatories must comply with is very significant – the application of which remains flexible because it is decentralized.19 This gap could have repercussions when it comes to applying the migration control legalization process; that is, if legislation and formal institutions stipulating and monitoring each party’s obligations are not put into place. This is what efforts to combat trafficking in human beings, for example, seem to show. Gradually, standards are set, definitions formulated, officials appointed and national laws passed so that states can comply with this new international obligation, while the application of the entire system remains for the most part a national prerogative. Multilateral initiatives to fight illegal migration are an initial step in the legalization of international migration, although they take a less centralized form than what is being done in public international law. This legalization does seem like a rather decentralized form of management, since each state is required to abide by the rules. The legalization of the battle against illegal migration also clarifies the responsibilities of states, defining the roles that countries of origin, countries of transit and countries of destination must play in migrant identification operations and in implementing migration border controls.
Multilateral initiatives to promote mobility and international migration, while less numerous, also seem to be increasingly institutionalized and founded on legal principles. The legalization process is different, however, since it is based on already established rules, those of international trade law. Trade law – or mercantile law (lex mercartoria) – was, until the nineteenth century, confined to trade in goods. It saw its influence spread as trade practices became diversified (Cutler 1999). Eventually, the application of international trade law was extended to management of antitrust systems and management of financial securities, which seek to define each party’s obligations and to authorize different tribunals to rule on litigated issues (Guzman 2001). International trade law has become a slightly institutionalized form of international law that focuses on key economic activities in regional economic processes; its influence on the management of international migration is also becoming significant.
International Trade Law and Authority in the Multilateral Management of Migration
There are many indications of the influence of trade law in the multilateral management of international migration. It has an indirect or normative influence on the formulation of an overall vision, objectives and priorities, as well as a direct influence on the strategies adopted to implement this management.
International trade law has a standardized language and a normative framework that are used to define problems, envisage solutions and devise strategies. The first indirect influence of international trade law has to do with the way of regarding migrants as mere commodities or objects to be transported, with the benefits and costs of the transaction being the only factors taken into account. It should be pointed out, however, that the commodification of migrants preceded the entry of international trade law into the realm of migration management. For example, after the Second World War, many industrialized countries had foreign labour recruitment systems, all of which treated migrants as a work force that could be transported and transferred according to economic conditions, without regard for the migrants’ needs or their social and political rights. This situation was partially remedied by legally protecting migrants’ human rights, including the right to family reunion and to nondiscriminatory treatment. The treatment of migrants as commodities entered a new phase in the 1990s, with migrants now being ascribed basic economic qualities. They were viewed as human capital, on the basis of their origin, their cultural traits and the social networks with which they maintain close ties. This is because labour recruitment policies are now closely linked to the principle of competition, a principle that is accepted by most industrialized countries. Human capital, social capital and rate of return are becoming key factors in measuring economic competitiveness. In the search for highly skilled migrants, the governments of industrialized countries are focusing more and more on the human and social capital of migrants from different countries who have maintained close ties with their country of origin, which helps improve the productivity of the national economy and facilitates access to various emerging markets. Occasionally, the recruitment of highly skilled migrants is even regarded as a technical measure that has little to do with immigration policy, because it is the “work force” aspect that predominates.
One of the main principles of international trade law is liberalization (or free movement). Applied to trade practices, this principle implies access to markets and openness to competition. The principle that is presently influencing global efforts to manage international migration, including recruitment of foreign labour, is therefore that of orderly and regulated movement, to ensure accessibility and competition. Within this framework, a balance is sought between the movement of migrants, market needs and rules of economic competition at the international level.
This is illustrated by the fact that the free movement of persons is now associated with the free movement of goods and capital. The General Agreement on Trade in Services (GATS) is a good example of priorities in this area. The GATS is an agreement that provides a predictable system and legal conditions for services trade, with the additional goal of promoting investment, efficiency and growth. It distinguishes between four modes of supplying services: (1) importing of services from abroad; (2) consumption of services abroad; (3) establishment of a commercial presence; and (4) temporary movement of people for the purpose of providing a service (Carzaniga 2002). The international migration question concerns the fourth mode. The GATS specifies that the mobility of persons covered by the Agreement is temporary and that it does not give access to the entire labour market in the host country. It is therefore solely for the purposes of services trade that mobility is encouraged. Migrants’ interests become secondary, since social protection, insurance and workers’ rights issues are excluded from the Agreement. It is noteworthy in this regard that two of the basic principles of international trade, nondiscrimination and reciprocity, do not apply to the treatment of migrants – policies regarding visas and labour market access restrictions remain the prerogative of the states concerned – but rather to the businesses that export the services in question. It should be pointed out as well that the GATS does not concern economic development conditions in countries of origin, nor does it deal with the costs to these countries of a brain drain. But its impact on state management of migration policies is great, because of the ripple effect it produces. A proposal is presently circulating within the WTO on the creation of a “GATS visa,” which would be specifically designed for the services trade and which could accelerate the examination procedures imposed by host countries. This proposal, submitted by India, is very popular among associations representing the services sector in the United States and in the European Union (Zutshi and Self 2002). The principles of free movement, market access and investment protection that characterize trade law thus seem to be winning out, when we look at the measures adopted at the international level and even the regional level to promote greater mobility of people. The principles laid down by the GATS have become a benchmark not only in most free trade agreements, but also in the liberalization of the immigration policies of industrialized countries.20
The influence of international trade law can also be seen in the way in which trade principles are applied. In fact, multilateral agreements tend to entrench these principles. First, the agreements constitute a constraint for states which, although they have some leeway, cannot renege on their concessions once they have submitted them, since they are then agreed to by the other participants. This is the lock-in principle, which automatically entrenches various provisions in agreements that have the force of law. In the actions taken by the Regional Conference on Migration (RCM), and even in the EU, countries that agree to measures cannot unilaterally reject them afterward, that is, without obtaining the consent of their partners. The “horizontal negotiations” mechanism also reduces the decision-making power of governments; all sectors – or, in this case, all services – that may appear in a clause and that are part of the same family of industries are automatically subject to a new measure once it is adopted, unless there are exceptions that are clearly spelled out by the countries concerned. This leads to generalization and accentuates the influence of liberal principles in the management of international migration. We can already see examples in the decisions adopted by states or regional groupings in their agreements on services. The European Commission, for instance, issued a directive in 2001 that had already been adopted by the European Parliament and submitted to the European Council, concerning third country nationals and engagement in gainful employment. It is the first directive of this scope that promotes the recruitment of foreign labour in the EU. In explaining this directive, the commission states that it was “fully compatible with the commitments undertaken by the European Community and its Member States under the WTO Agreement on Trade in Services (GATS), and to further facilitate the trade in services which has already been committed to in this context” (2001). This initiative of the commission was followed, in 2003, by a policy statement on immigration, integration and employment, in which it asks member states to step up their efforts to open immigration to new arrivals and facilitate their integration.
It should be pointed out once again that these measures are not imposed on states that are reluctant to adopt them, because most industrialized countries have, individually, passed measures to attract highly skilled migrants. For example, the United States has created H1B, H2B and H1C visas to recruit, respectively, skilled workers, service sector workers and nurses. Canada, with its new immigration law, has strengthened the temporary migration system by offering benefits to migrants such as spouse work permits or skilled-worker recruitment agreements (Citizenship and Immigration Canada 2002). Germany adopted a green card system in 2000 for certain highly skilled workers, and the United Kingdom adopted a similar version in 2002. These measures are all in line with WTO policy as regards mobility of people. While they undoubtedly constitute individual strategies to respond to particular economic needs, they are also influenced by the multilateral negotiations and practices they involve with regard to mobility of people, if only in the formulation of objectives and in the definition of the mechanisms put into place to achieve them. So flexibility is a key factor in these policies so as to be able to respond just in time to fluctuating labour market needs. Best practices are also used more and more to assess each member state’s progress.
The influence of international trade law can be seen as well in the more “extroverted” orientation of the management of international migration, specifically in the creation of migration incentives. Whereas industrialized countries, in their brief history of migration control, have adopted migration management systems where the recruitment of foreign labour depends on basic conditions in their own labour market, considerations such as international competition and the global labour market are becoming increasingly important. More and more now, obligations with respect to reciprocity, nondiscrimination and competition – the cornerstone of international trade law – are governing access to labour markets. Evidence of this can be found in the point systems put into place to recruit skilled, versatile workers, which are less and less directly related to the imperatives of the labour market but which constitute instead a response to the challenges posed by foreign competition. The influence of trade law can also be seen in the attitude of host countries that try to put into place migration-friendly immigration policies. International obligations are increasingly regarded as mandatory benchmarks, while departments of industry and employment, as well as union organizations, are marginalized in the development of policies for the recruitment of skilled foreign labour. It is in this light that one can best understand the objectives of the European Round Table of Industrialists, a body comprising leaders of the biggest European companies who support efforts to create an area of freedom, security and justice and who see it as an opportunity to promote reforms and the adoption of a competitive position based on the global market rather than a regional or even a national one (ERT 2003). It is also in this context that the green card systems adopted by many European countries, such as France, Germany and the United Kingdom, take on their full significance. Similarly, as regards the WTO, the principles of free movement and nondiscrimination prevail in decisions to grant visas to certain categories of workers who follow the demand for services abroad (UN 2002).
That the principles of international trade law are applied to migration management associated with trade in services and, consequently, with trade activities, may not be surprising. After all, we are speaking here about special cases directly related to services trade, and it could be argued that they are limited in scope in that they do not affect state management of international migration as a whole, which is subject to demographic, political and labour market considerations – in other words, national considerations. However, in light of the changes of the past 10 years, this interpretation should perhaps be qualified. Standards derived from international trade law are also found in measures to control and restrict international migration.
What we are witnessing in fact is a rapprochement of economic and security interests in migration management, through the consolidation of a new economic space delineated by regional borders. The changes of the past five years in Europe and in North America reflect this trend. In Europe, an area of freedom, security and justice was created as a way of achieving both economic and security goals with respect to border management. At the economic level, the establishment of a single market necessitated the elimination of internal borders, i.e., between EU countries, and a strengthening of the external border, i.e., between EU countries and other nations. In North America, border discussions and initiatives have also seen a dovetailing of economic and security considerations, especially after the events of September 11, 2001. The notion of a security perimeter, or “smart border,” as it has been referred to since 2002, is critical to both prosperity and security.
This symbiosis between control and security objectives on the one hand, and prosperity and economic liberalization goals on the other, is taking form in border management. It should be noted that border management in developed countries was put on the back burner during the twentieth century, as if, once the fear of another state conquering part of a country’s territory had dissipated, such management became “self-regulating” thanks to good trade and diplomatic relations. In the 1980s, borders became a space that had to be defined and managed because of the increase in transborder transactions of all kinds and the movement of persons and capital, and also because of trade in legal and illegal goods. With economies becoming more export-oriented and with the advent of just-intime production, borders have become a key security matter. Businesses are seeking a balance between security and that which is practical and feasible, and governments are adopting a position and discourse that combines both security and economic issues.
The notions of a security perimeter in North America and an area of freedom, security and justice in Europe illustrate well this symbiosis between economic and security issues, in a context where borders are being redefined as both a legal space and a stage in the movement of goods, capital and services. The security perimeter concept, borrowed from the computer field, evokes both place – in this case, a company’s operational space – and strategies, i.e., erecting barriers to protect the territory against external threats, as is done in the computer field to protect data. It is interesting to note in this regard that the US administration’s discourse on a North American security perimeter, pronounced during the 1980 electoral campaign, was taken up by Canadian politicians as well as by leaders of other countries at the G-8 Summit in Kananaskis in 2002 (Rudd and Furneaux 2002). The “area of freedom, security and justice” expression adopted by the European Union meets almost the same objectives: to facilitate the cross-border movement of goods, services and capital, while ensuring economic and social security within the unified space.
The expression “security perimeter” does more than just describe the symbiosis between the economy and security; it also specifies, in a way, the management priorities to be defined. In practical terms, the notion of perimeter implies strategies for the control and liberalization of borders as an area of movement. Measures are taken to facilitate trade in goods and services by accelerating trade procedures, while maintaining a high level of security. Without self-regulation of borders by businesses, security systems that are conducive to smooth and efficient processing – like the earlydetection, monitoring and information systems adopted by industrialized countries – become pivotal (Whitaker 2002). These systems tend to reduce the costs involved in any cross-border transaction. Moreover, because they require better police cooperation at borders, these initiatives encourage harmonization of the actions taken by various national legal authorities in the fight against crime. Efforts to achieve greater coordination are not limited to the fight against migrant trafficking, however, since one of the purposes of creating security areas or perimeters is also to reduce the insecurity that may be caused by the co-existence of different, even incompatible, legal systems. This process is much more advanced in Europe than it is in North America (Riemen 2001).
The security and economic prosperity issues that have crystallized around borders have repercussions that go beyond border areas, particularly as regards internal legal systems, in that they require much deeper harmonization of different national laws. A jurisdiction is said to be expansive when states that wish to coordinate their efforts adopt common values. In the field that concerns us, this applies both to security and to the nature of the space to be controlled; i.e., borders, economies and societies. In an address given in Ottawa in September 2002, Commissioner Zaccardelli of the Royal Canadian Mounted Police suggested that integrating the management of the Canada-US border signifies a common vision (the same priorities and objectives) and not just the same tactics (Zaccardelli 2002). In the EU, the area of freedom, security and justice has led to the harmonization of various national laws in many fields, such as inheritance rights, privacy jurisprudence and advertising, to name but a few (Riemen 2001).
It is reasonable to assume that regional integration, revolving around the movement of goods, services and capital, initiated the symbiosis between security issues and economic matters, and that it will now accelerate it. At the regional level, the PueblaPanama Plan has a control aspect, with the modernization and harmonization of border control procedures for the large region it creates in Central America. In the EU, the Schengen Agreement was adapted to the creation of an area of freedom, security and justice by linking security issues to the achievement of greater economic integration. In North America, recent initiatives to fight terrorism and, more generally, threats to national security have prompted the US and Canadian governments to adopt strategies not only to coordinate their efforts, but also to involve private sector organizations, businesses and universities in the development and implementation of antiterrorism strategies21 (Riemen 2001).
During the 1980s, international migration became an important political subject in industrialized countries. Reactions were also very politicized, with the rise of xenophobic political forces in European countries and reactions of withdrawal and control in North America. Current developments are consolidating this trend. The multilateral management of international migration and its legalization enable us to better understand the political issues of migration; however, the treatment of migrants remains problematic, especially since the events of September 11, 2001, because of the prevailing logic and objectives in this field. At least three consequences of these phenomena warrant comment.
As far as state sovereignty is concerned, multilateral initiatives and their logic, based in large part on either trade law or security, are such that host countries can no longer develop their migration policies without taking into account their international obligations. There may not be much that is new here, except perhaps for the large number of multilateral commitments undertaken between many countries. Even more significant, though, is the change in decision-making processes. While immigration policies have traditionally involved immigration, labour and national security departments, the influence of trade law and economic integration priorities on how migration issues are defined is giving rise to major changes. In most countries of destination, we are now seeing greater involvement on the part of trade, finance and foreign policy departments and information agencies and less involvement on the part of labour and social security departments in the formulation of objectives. In other words, departments and government agencies concerned with dynamics and interests that lie in part more outside than inside the country are having greater influence. In addition, and possibly as a result, we are also seeing changes in the judiciarization of the migration issue, which is becoming increasingly politicized, with governments trying to respond more technically rather than on the basis of moral or social considerations. This reduces the democratic aspect – the control that can be exercised by citizens – of the migration issue. These tensions are already being felt within the European Commission, where the directive to help attract more third-country nationals was presented as simply a technical measure to respond to the challenge of competition and to the strategies negotiated in the General Agreement on Trade in Services. This type of phenomenon can be seen in Canada as well, where there is no extensive debate among political authorities on the negotiations that took place between the federal government and the US administration with view to establishing a joint list of countries that are considered safe, a list that could be used when analyzing the files of asylum seekers. Canada and the United States have very different refugee protection systems, however, and in Canada, there has been much more reaction from the courts, refugee rights advocates and society in general to changes in policies or priorities than has been the case in the US, where foreign policy considerations largely dominate the refugee rights system.
A second negative consequence of the global governance system that is presently developing concerns migrants. The legalization of migration management, under the influence of international trade law, is contributing to a situation where migrants are divided into two categories – skilled and others – that are treated very differently. For skilled migrants, incentives are put into place to facilitate their mobility, while for others, control measures are adopted that make them either victims or criminals. The fight against migrant trafficking best exemplifies this trend. Under the pretext of protecting human rights, measures to reduce illegal migration – from border controls to criminal law amendments – are transforming migrants, as well as the social networks upon which their mobility strategies often depend, into criminals.22 This tendency to criminalize migrant acts also has the effect of monopolizing government efforts, while issues concerning the integration of immigrants who have already settled in their host country need to be reviewed in most industrialized countries.23 So although they are actively solicited, even highly skilled migrants do not benefit from more appropriate integration measures, because governments are slow to put them into place. In fact, the forms of integration that will be offered to migrants, both in their host countries and in their countries of origin, are questionable. Jenson and Phillips have suggested that, in Canada, changes to the citizenship system are based on the fragmentation of society, a society in which individuals are regarded as customers and where civil society is organized by groups that, rather than defending the interests of their social base, provide services to target populations (1996). In this context, the place given to migrants may reinforce this fragmentation, because with new arrivals being regarded as mere customers, there is no need to put into place integration measures that recognize the social nature of migrants and of the communities that take them in. In countries of origin, there is also a risk of citizen hierarchization, i.e., a “market citizenship,” where efforts are made to attract emigrants who have left temporarily so that they will bring back money to the country, and where, at the same time, they are discouraged from returning on a permanent basis.24
Multilateral initiatives have also had an effect on migrants’ areas of origin, which seem to be absorbing most of the costs associated with the increased controls, as well as the resulting brain drain. Countries of origin already incur migration control costs by having to adapt their travel document issuance systems and their information services in order to facilitate cooperation between police departments in areas of transit and of destination. And they are offered no support in their development efforts as a sustainable solution to migration pressures. Such support, while necessary, is relegated to a position of secondary importance, behind the concepts defended by international and regional organizations, which prefer to promote flexibility, liberalization and the mobility of persons. The neoliberal ideology adopted in negotiations with countries of origin advocates economic laissez-faire, i.e., economic openness, in order to achieve equality of socioeconomic conditions in regions of origin and of destination, and in that way control migration pressures.
The large number of multilateral initiatives for managing one or more aspects of international migration is a relatively recent phenomenon. However, this trend seems to be growing, so we may see the creation of a global form of governance or regulation of migration. This prediction is based on two considerations. First, the majority of the most powerful industrialized nations are involved in initiatives that have already been implemented, so there is little risk of these initiatives being marginalized. Second, the implementation of initiatives does not seem to be leading to any major confrontations between the powerful countries involved. This cooperation is undoubtedly due to the fact that these countries have an interest in achieving greater economic liberalization; it is also facilitated by the strategies chosen to carry out the different initiatives, strategies based in large part on international trade law.
The influence of international trade law and the trend toward greater regional integration have also led to a rapprochement of strategies for the multilateral management of migration, which a few years ago still sought to both promote migration and control migration flows. Until very recently, there was reason to believe that these strategies would retain their distinctness, operating at different paces and taking different paths according to the general situation and the will of the countries concerned. However, it seems that regionalization efforts in Europe and in North America are leading to a rapprochement and greater complementarity between the two types of initiatives, which are coming to embody the same objectives. The judiciarization of migration management is also contributing to this rapprochement by allowing for a complementary definition of the goals sought by the different players and by first defining possible management strategies. We are not yet at the point of creating a global management regime for international migration, i.e., one similar to the New International Regime for Orderly Movements of People (NIROMP), a project financed in part by the Swedish government and the United Nations Population Fund and managed by the International Organization for Migration (IOM).25 But the way in which the economic and security aspects of international migration are increasingly being managed suggests that the obstacles are less numerous than one might have thought at the outset. This having been said, major tensions still exist that could, if not stop, at least slow or divert the process. These tensions include the treatment of migrants once they are granted migrant status and questions concerning citizenship. However, these concerns rarely come up in discussions within the European Commission and the Regional Conference on Migration, or as part of the GATS. Many NGOs that work with migrants are focusing their efforts on this issue; it is to be hoped that these organizations will get more involved in current and future negotiations, so that migrants will truly be treated like human beings and not just factors of production, and so that they will no longer be regarded almost automatically as potential criminals.
The author wishes to thank Geneviève Bouchard, Research Director at the IRPP, as well as the two evaluators who read this text, for their comments.
- The authors suggest that a citizenship regime is composed of legitimate forms of citizen representation vis-à-vis their government. In the postwar period, the citizenship regime that prevailed in Canada and in most industrialized countries was one where citizens were represented by intermediary groups from civil society, groups that defended their interests. According to the authors, this regime is being transformed as a result of the restructuring of the economy and changes in the relationship between the government and the market and between individual states and the international community.
- The International Organization for Migration was in fact created in 1951, but its role was limited at the time; it was primarily concerned with migrant transportation. The IOM, an organization outside the UN system, became more proactive during the 1990s in the governance of international migration.
- C. Rudolph, an international relations analyst, states, for example, that international migration is now at the heart of the state security dilemma, for three reasons: its is a component in production and in the accumulation of economic power; it is related to the transformation of the nature of war and to the rise of terrorism as a form of combat; and it also affects social identities and the ties between governments and societies, because of the existence of multiple identities and allegiances (Rudolph 2002a). His analysis is based on other international relations studies – on societal security (Weaver et al. 1993) and on the economy of the importance of human capital.
- Specialists have recognized for several years now that trade liberalization is not a substitute for migration, but that these two phenomena are complementary, so that trade liberalization agreements, far from diminishing migration pressures, actually increase them over the short and medium terms. For a discussion of free trade theory and postulates on worker mobility, see Miller (2000).
- There is abundant literature on the debate on how international migration has harmed state sovereignty and the impossibility of managing international migration at the national level. See, among others, Sassen (1998), Joppke (1998) and Freeman (1998).
- Krasner (1983) defined the regime as a set of principles, standards and procedures around which the expectations of states converge.
- The term “judiciarization” refers to the legal or judicial nature of the problems; in French, the expression “juridicisation” is used. See J. Goldstein et al. (2001). Other analyses also deal with this trend: Cutler (2001); Finnemore and Sikkink (1998). We thank one of the appraisers for explanations concerning this term.
- The distinction between flexible and rigid legalization, which depends on the level of centralization and obligations for states, comes from Goldstein et al. (2001).
- The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families came into force on July 1, 2003; it took more than 10 years to obtain the 20 necessary ratifications. In fall 2003 there were 22.
- The European Union has made the most progress in this area, with its harmonization of visa policies for third country nationals and its border management efforts. With respect to Canada and the United States, negotiations have begun with a view to establishing a list of “safe” third countries to be used in evaluating asylum requests.
- An illegal migration network, or trafficking in human beings, is defined as “all acts involved in the recruitment, abduction, transport, sale, transfer, harbouring, or receipt of persons, by the threat or use of force, deception, coercion, or debt bondage, for the purpose of placing or holding such person in involuntary servitude, forced or bonded labour, or in slavery-like conditions in a community other than the one in which the person lived at the time of the original deception, coercion or debt bondage” (ODIHR 1999, 7). Although legally there is a distinction between smuggling (facilitating illegal border- crossing, illegal entry or stay) and traficking (recruitment, transport, or transfer of persons illegally for the purpose of exploiting them for profit-making), the term trafficking will be used in general to indicate the illegal entry or stay of migrants.
- Originally, in 1985, the Agreement involved cooperation between France, Germany, Belgium, the Netherlands and Luxembourg. Between 1990 and 1992, a number of other countries become signatories: Italy, Spain, Portugal and Greece. Finally, in 1995, Austria, Denmark, Finland and Sweden signed the Agreement. It should be noted that Ireland and the United Kingdom are the only EU member states that are not part of the Schengen space, while two EU non-member states, Norway and Iceland, are part of the space.
- In fact, to be cynical, we could add a third type, i.e., trade agreements that exclude migration issues but that indirectly involve them, as in the case of NAFTA. Indeed, international migration is not covered by any clause in NAFTA (even though chapter 16 deals with the movement of employees and services and with agreements on categories of professionals and investors who have special permits to work outside their country). However, NAFTA was perceived in Mexico and in the United States as a way of slowing migration flows from Mexico to the US. Because it excludes the movement of persons, NAFTA seems to suggest that the management of international migration falls outside the sphere of trade practices, and that international migration is more related to security issues or political considerations at the national level. For a history of migration relations between the United States and Mexico, see Miller (2000).
- Finally, we should mention the unilateral measures taken by the United States concerning Canada in particular, such as the National Security Entry-Exit Registration System (NSEERS), which was put into place in November 2002. The three components of the system are border fingerprinting, registration and periodic confirmation of visitors, and the exit control system. See US Department of Justice (2002).
- Mexico, which joined NAFTA in 1994, was in a rather disadvantageous position at the time, because it had become a country of both emigration and immigration and especially because it was being pressured by the United States to better control the flow of migrants at borders.
- Remittances are sums of money earned by migrants and returned to their country of origin. For some countries, these remittances are a major source of revenue.
- The General Agreement on Trade in Services employed the terms used in NAFTA with regard to the specification concerning the limited duration of migration. See Nielson (2002).
- The two ILO conventions are the Convention concerning Migration for Employment (No. 97), and the Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (No. 143).
- Abbott et al. (2000) establish a typology of international legalization, with varying degrees of obligation, precision and centralization, ranging from very flexible international legalization instruments like the Helsinki Accord to very rigid practices such as the Agreement on Trade-Related Aspects of Intellectual Property (TRIPs), administered by the World Trade Organization.
- Nielson (2002) lists no less than six regional initiatives, modelled to varying degrees on the GATS, to manage the free movement of persons: the US – Jordan Free Trade Agreement; the European Union – Mexico Free Trade Agreement; the ASEAN Free Trade Area; the Euro-Med Association Agreements; the New Zealand – Singapore Economic Partnership; and Mercosur. Other regional initiatives, in the spirit of the principles of the GATS, have established strategies for the temporary migration of persons.
- The US government, for example, has deployed a national strategy to protect cyberspace that involves all of society. In this context, the government’s role is to educate, raise awareness and support efforts to make the information world more secure. Canada intends to cooperate in this initiative. In a similar vein, Canada has created the Research and Technology Initiative, the goal of which is to better prepare organizations, the state and society to defend themselves against chemical, biological, radiological and nuclear threats. These measures involve many levels of government and various government departments and organizations, as well as businesses and universities.
- Many organizations, including the UN and the IOM, have examined the issue of how to define the smuggling of persons, making a distinction between smuggling (facilitating the migration of illegal migrants for remuneration) and trafficking (facilitating the illegal migration of migrants for remuneration as well as for exploitation). Still, the distinction between those who help migrants for humanitarian reasons (social networks) and those who do so for money (criminal organizations) is slight. The very severe legislation passed by Guatemalan authorities in 1998 and 1999, which incriminates “any person who assists, transports, hides or hires illegal migrants,” is a good illustration of how social networks can be criminalized in the context of a widespread fight against trafficking of all sorts. For more information, see US Committee for Refugees, “Country report: Guatemala, Worldwide Refugee Information.”
- It is noteworthy here that in the United States, the events of September 11, 2001, were assessed in terms of security and not from the perspective of integration of new arrivals.
- These are the conclusions drawn by Patricia Landolt (2002) after examining the citizenship practices of Salvadorian authorities, which go so far as to encourage Salvadorians to apply for refugee status in the United States and thus obtain official status while maintaining ties with their family or their community in their country of origin.
- This project gave rise to a book by B. Ghosh entitled Managing Migration (2000).
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List of Acronyms
APC Inter-Governmental Asia-Pacific Consultations on Refugees and Displaced Persons (Australia, Bangladesh, Bhutan, Brunei Darussalam, Cambodia, China, India, Indonesia, Japan, Laos, Malaysia, Myanmar, Nepal, New Zealand, Pakistan, Papua New Guinea, Philippines, Republic of Korea, Singapore, Solomon Islands, Sri Lanka, Thailand, Vietnam)
CCFTA Canada-Chile Free Trade Agreement
CIS Commonwealth of Independent States
EES European Economic Space. It encompasses 15 members of the European Union and four members of the European Free Trade Association (Iceland, Liechtenstein, Norway, Switzerland)
FTAA Free Trade Area of the Americas – 34 countries of Central America, South America, North America and the Caribbean
FYROM Former Yugoslavian Republic of Macedonia
GATS and Mode 4 General Agreement on Trade in Services (AGCS in French); it defines the forms of free movement of services. Mode 4 concerns the temporary movement of people for the purpose of providing a service
ICMPD International Center for Migration Policy Development
IGC Inter-governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia. (Australia, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Italy, Netherlands, Norway, Spain, Sweden, Switzerland, United Kingdom, United States)
ILO International Labour Organization
IOM International Organization for Migration
NAFTA North American Free Trade Agreement
NIROMP New International Regime for Orderly Movements of People
OECD Organisation for Economic Co-operation and Development
OSCE Organization for Security and Co-operation in Europe
PPP Puebla-Panama Plan (Belize, Costa Rica, Guatemala, Honduras, Mexico, Nicaragua, Panama, Salvador)
RCM Regional Conference on Migration (or Puebla Process) (Belize, Canada, Costa Rica, Dominican Republic, Guatemala, Honduras, Mexico, Nicaragua, Panama, Salvador, United States)
SOPEMI Continuous Reporting System on International Migration
UN United Nations
UNFPA United Nations Population Fund
UNHCR United Nations High Commissioner for Refugees
WTO World Trade Organization