Bilateral Migration Agreements and the GATS: Sharing Responsibility versus Reciprocity

This revised SIEL 2008 conference paper adds to the debate over migration steering tools. It critically reviews the much-acclaimed role of “shared responsibility”. Originating in refugee law, the principle has been put forward as a policy response to the problem of over- and under-regulation migration opposing countries of origin and destination. But building on the principle of most-favored-nation treatment (MFN) would equally distribute the costs and benefits of migration.  

Shared responsibility calls on countries of origin and destination to share the costs and benefits of migration. We portray this legal principle as the regulatory counterpart to MFN liberalization. The recommendations and guidelines of the Global Commission on Migration and the UN High-Level Dialogue suggest that shared responsibility may balance out tendencies by destination countries to over-regulate and of source countries to under-regulate migration. Bilateral migration agreements have been reinforcing the principle. Free trade agreements, including the WTO General Agreement on Trade in Services (GATS) liberalize the temporary movement of workers on the basis of the principle of most-favored nation treatment (MFN). At first sight, shared responsibility may seem to be the more natural choice for steering international migration. In the final analysis, the MFN principle of Article II GATS emerges as the more efficient steering tool. The MFN disciplines preferential labor market openings and so takes the pressure off the traditional corridors of migration, which bilateral migration agreements have tended to cement. MFN treatment allows distributing the costs and benefits of migration evenly among countries, irrespective of historical and linguistic ties. Without the reciprocity inherent to trade liberalization in goods, however, conditionality should be available to the MFN principle, not least to reciprocate for MFN treatment.