Migrants' Human Rights: Could GATS Help?

The General Agreement in Trade and Services (GATS) is one of the central parts of the World Trade Organization (WTO) Agreement. The provision of services takes many forms, or "modes" in WTO parlance, and Mode 4 of GATS specifically addresses the temporary movement of individuals. GATS is thus an important intergovernmental framework facilitating the temporary movement of service suppliers.

From a human rights perspective, Mode 4 can be an important tool because it can permit individuals and families to earn money in places — often abroad — where jobs are available, and to send that money home. This is particularly important in today's globalized world, where the international dimensions of human rights obligations are increasingly recognized.

In current GATS negotiations in the WTO, all 148 member countries are being encouraged to further open their service sectors, including Mode 4, to international competition. Could these negotiations provide an opportunity to address the human rights risks linked to migration?

Although often discussed in the context of migration policies, the actual scope of Mode 4 is extremely limited. It applies only to people who cross a border temporarily for the purpose of supplying services (GATS does not define "temporary," but WTO members have agreed to Mode 4 for periods ranging from a few weeks to three to five years). Therefore, it is not an instrument designed to enable people to cross borders in search of employment. Rather, it aims to create a multilateral framework for the predictable provision of skills and expertise in the service sectors.

Because industrialized countries, which are sensitive to their electorates, want to protect local labor markets and tightly control migration flows, discussions of Mode 4 have been difficult and controversial. As a result, the scope and impact of Mode 4 have been limited by the fact that few WTO Members have made commitments in this area, and even fewer are proposing to expand them in the current negotiations.

This is not to say that Mode 4 cannot protect the human rights of migrants in migrant-sending countries. As discussed below, it does have this potential, but human rights advocates should not expect Mode 4 to solve all the human rights-related problems of labor migration, as it only addresses a small part of this puzzle.

Right to Work

International human rights law includes a right to work, which is recognized in many international treaties. This could have far-reaching consequences for GATS Mode 4 negotiations.

Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR — see full text here) is one of the key provisions protecting this right, spelling out that the right to work includes "the right of everyone to the opportunity to gain his living by work."

The ICESCR goes on, in its Article 7, to specify that countries must ensure just and favorable conditions of work, including fair remuneration. It is generally acknowledged that the right to work is a fundamental right, as well as one of the keys to exercising other rights.

The right to work is a fundamental right, as well as one of the keys to exercising other rights.

The UN Committee on Economic, Social and Cultural Rights (CESCR) is currently considering a "General Comment" on the right to work. General Comments are authoritative interpretations of the covenant's provisions. The draft version of the General Comment acknowledges that high unemployment and the lack of secure employment induce migrant workers to take employment in the black economy, and calls on states to take measures to reduce the number of workers outside the formal economy, who, as a result of that situation, lack legal protection.

Although the General Comment does acknowledge that migrant workers are entitled to equality of opportunity and treatment regarding employment and occupation, it puts more emphasis on migrants who are legally employed. Thus, it stops short of exploring how the right to work, as well as other human rights, are affected when people are pushed by lack of work at home into the informal economy of another country.

It does, however, recognize the need for appropriate economic policies and the existence of obstacles beyond the control of states that hinder their full implementation of Article 6.

The General Comment also asserts that a country's failure to consider its legal obligations regarding the right to work when entering into bilateral or multilateral agreements with other states, international organizations and other entities — such as multinational entities — constitutes a violation of its obligations.

This perspective implies that industrialized countries must cooperate to realize the right to work, and that these countries would be in violation of their obligations if they undermine the possibility for new work opportunities through the WTO.

The international dimensions of human rights are receiving more and more attention today. The CESCR has, for instance, often expressed concern about the way countries' international trade-related obligations affect human rights. Although individual states' actual international human rights obligations still need further clarification, it is clear that their trade and development policies impact the lives of individuals around the world and thus warrant consideration.

As multinational companies benefit from moving both low- and high-skilled jobs around the world through GATS Mode 3 (investment-related) provisions, it seems legitimate to ask whether it is development- or human rights-consistent for rich countries — which have made so few Mode 4 commitments — to limit the capacity of workers to seek employment in the countries where jobs are available.

Wages and Working Conditions

GATS currently covers the most privileged of migrant workers, who also face fewer human rights risks: high-skilled people who are paid well and have an employment contract before they move. This group includes expatriate executives, who move from one country to another within the same multinational corporation. In addition to arranging their residence and work permits, corporations usually provide relocation benefits, language, and culture training.

Although GATS does not define the skill level of the services to which Mode 4 applies, hardly any states have made GATS commitments for low-skilled workers.

Yet, workers at the lower end of the skills spectrum are more vulnerable to discrimination and human rights violations. They are often the victims of abusive working conditions and the targets of suspicion or hostility in the communities where they live and work. Many lose the ability to enjoy specific rights, such as the right to food, housing, and health care.

Most countries that have made GATS Mode 4 commitments also provide for wage and labor standard parity.

Migrant workers are often prepared to work for lower wages than local workers. Labor unions and human rights advocates fear that the availability of relatively cheap labor will undermine wage levels and labor standards.

The UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (see related article) expressly provides that migrant workers must not be treated less favorably than nationals of the state regarding pay and other conditions of work and terms of employment.

Most countries that have made GATS Mode 4 commitments also provide for wage and labor standard parity. Over 50 WTO members have included the wage-parity stipulation in their Mode 4 commitments. In addition, to prevent foreign "strike breakers," 22 members have reserved the right to suspend Mode 4 commitments in the event of labor-management disputes.

While labor unions have generally welcomed these moves, there are various perspectives on wage parity. Many in the human rights community and labor movement point to examples where international competition for jobs in rich countries has resulted in lowering labor standards and wages, to the detriment of local and foreign workers alike.

Others, though, contend that such provisions undermine the comparative advantage upon which Mode 4 trade should be based, namely the relatively inexpensive labor of sending countries. Prices for goods and services differ from across developed and developing countries by a factor of 1 to 2, or at most 1 to 3.

But in the case of similarly qualified workers, wage differences are on the order of up to 1 to 10, with the greatest difference in lower-skilled jobs. In the WTO, some developing countries have hinted that wage-parity conditions might undermine their comparative advantage by pricing their workers out of foreign markets, but this view is generally not explicitly stated.

The comparative advantage argument is of dubious application to Mode 4 services trade, though, as someone from a low-wage country working in a more expensive country will have the same living expenses as a local employee, making the wage level of the country of origin irrelevant. And although wage parity can help prevent the erosion of labor standards, such wage-parity obligations could discourage companies from hiring foreign workers.

How GATS Could Help

Attempts to improve levels of legal migration within the WTO framework can provide means for individuals around the world to seek legal income in countries where employment is available. By offering new, predictable opportunities for legal migration, particularly for lower-skilled workers, GATS could reduce illegal migration and the human rights violations that come with it, issues that concern all countries and human rights advocates.

By offering new, predictable opportunities for legal migration, GATS could reduce illegal migration and the human rights violations that come with it.

And by offering a framework into which incentives can be built for temporary workers to come and go on a predictable basis, Mode 4 migration can reduce problems linked to visa overstaying, including the fact that some legal migrants are pushed into illegality by fearing that if they leave, they will not be able to return.

Current Mode 4 commitments have also demonstrated that the WTO can uphold measures to protect the rights of workers in foreign countries, and reduce the scope for depressing wages or labor standards.

Moreover, the CESCR's draft General Comment on the right to work, if adopted, could enhance the ability to hold industrialized country policymakers accountable for ensuring their GATS commitments promote rather than undermine opportunities for people to find work, whether in their home country or abroad. It also goes a long way towards protecting the rights of migrant workers.

What GATS Cannot Accomplish

There is a growing recognition that trade law is behind the times, encouraging the movements of goods, capital, and delivery of services, but essentially ignoring the movement of people. Discussions on labor migration issues are fragmented among the International Labor Organization (ILO), human rights bodies, the WTO, and others. Bilateral agreements are also a critical component of global labor migration. As a result, it is extremely difficult to find common ground.

Although Mode 4 could be useful in solving the problems underlying migrant workers' human rights violations, it does not address migration's human dimension. It considers movement of labor essentially in terms of numbers (how many commitments, how many service providers?) and with reference to purely local situations, as countries limit their Mode 4 commitments to their own economic needs and political priorities, with little regard for the international dimensions.

Mode 4 also does not address the social impacts of limiting migrants' stay in foreign countries to a few months or years, the impact on separated families, or the fact that some people might be seeking opportunities abroad because they cannot earn enough money at home.

Moreover, while the WTO framework and GATS have shown they can uphold countries' domestic labor standards, the organization is a trade body and therefore not the appropriate forum for setting social or labor standards and protecting workers around the world.

Within the GATS discussion, governments are reluctant to incorporate an understanding of migration that includes the development impact. Many advocates for workers and those who see migration as a way to relieve poverty believe this is a missed opportunity to reframe the migration and rights discussion.