Migration and Trade: Prospects for Bilateralism in the Face of Skill-Selective Mobility Laws

Abstract

International migration management lacks a formal global institution, but in its place a multi-level system of norms is taking shape. This article finds that level of skill has become a more important selection criterion than nationality in post-9/11 immigration law reforms in Europe. The result is a skill divide, which is being further entrenched by the high-skill bias of the multilateral commitments in the so-called ‘Mode 4’ of the General Agreement on Trade in Services (‘GATS’) of the World Trade Organization. It finds that when it comes to the migration of high-skill labour — a scarce resource for which there is stiff global competition — countries increasingly opt for venues outside the regulatory constraints of traditional immigration law and prefer the mobility chapters of free trade agreements. This article combines international migration studies with trade regulation and human rights law to obtain a better understanding of how normative responses to economic migration differ, overlap and interact. Through an exposition and analysis of bilateral migration agreements, I describe their re-emergence in response to skill-selective immigration laws and trade agreements. I identify an ‘agreement dualism’, consisting of trade agreements attracting the highly skilled, corrected by bilateral migration agreements reintroducing nationality-based selection criteria at the risk of infringing the most-favoured-nation clause of GATS. The point of convergence in both regimes is their absence of migrant workers’ rights protection.