A burgeoning literature addresses the inclusion of non-trade issues, such as human rights, labor, environmental protection or security provisions, in preferential trade agreements. Nevertheless, the proliferation of PTA provisions facilitating labor mobility, protecting migrant rights and fighting irregular migration has remained understudied. This is surprising because PTAs’ migration policy content goes well beyond states’ existing multilateral commitments. What is more, such provisions have recurrently spurred political controversy across the globe. India’s demands for greater concessions on immigration have been the major obstacle to the establishment of a post-Brexit trade agreement with the UK. On the day Rishi Sunak became the UK’s prime minister, his trade minister Greg Hands sought to allay public concerns arguing that “in the area of trade, what we’re talking about is mode four arrangements. These aren’t immigration arrangements. These relate to business visas not for permanent settlement.” Such controversies are not new. In 2003, the US Senate sharply criticized the inclusion of visa commitments in the PTAs the US concluded with Chile and Singapore. It adopted a Resolution stating that “trade agreements are not the appropriate vehicle for enacting immigration-related laws or modifying current immigration policy.” This resolution put a de facto ban on the US Trade Representative’s competence to include further migration commitments in trade agreements. Migration provisions in trade agreements have also come under trade unions’ attack for disadvantaging domestic workers, for instance by abolishing the qualification requirements for certain professions, and for failing to protect the socio-economic rights of migrant workers. As the largest federation of unions in the US put it, such provisions would be “trading away migrant rights.” Finally, the third type of migration provisions included in PTAs, the commitment to fight unauthorized migration, also is far from being uncontroversial. The negotiation of detailed provisions for the readmission of migrants staying irregularly in the EU in the ‘post-Cotonou’ partnership agreement with the countries of the Organisation of African, Caribbean and Pacific States of 2021, are a case in point.
Mobility, migrant rights and migration control provisions in PTAs
Unlike other non-trade issues, such as human rights or environmental protection, migration has seen little codification in multilateral treaties. Although two UN compacts on migration and refugees concluded in 2018 emphasize the need for closer international cooperation, states have remained reluctant to concede national sovereignty over the admission of foreigners and to make binding commitments. Existing international norms date back to the post-World War II period and concentrate on states’ responsibilities towards refugees (the 1951 Geneva Convention and its 1967 Protocol) and migrant workers (the poorly ratified 1949 and 1975 Conventions of the International Labor Organization and the 1990 UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, UNCMRW). However, two core aspects of migration policy—the admission of economic migrants and the control over irregular migration—are widely considered “the last bastion of state sovereignty.” The only exception is a limited set of commitments that facilitate the mobility of “natural persons” moving for commercial purposes, which were established in the WTO’s 1995 General Agreement on Trade in Services (GATS) and are commonly referred to as “mode four” liberalization. International cooperation on migration has progressed more at the regional level and through various bilateral arrangements, including bilateral labor agreements, readmission agreements, more informal ‘migration diplomacy’ and, as we show below, PTAs.
Provisions that facilitate labor mobility, protect migrant rights or foster migration control relate to PTA’s general objectives to different extents. Labor mobility is inherent to market integration, and the GATS recognizes the economic value of facilitating the cross-border movement of persons who deliver services. The rights of migrant workers can be seen both as a corollary of labor rights that have been included as safeguards against the potential negative externalities of free trade on labor, and as a commitment to ensuring the social and economic rights of PTA partner countries’ citizens abroad. The third type of migration provisions in PTAs,—the parties’ commitment to fight irregular migration—cannot be related to improving their commercial relations, nor to addressing the externalities of the trade agreements, and therefore constitute the most unexpected migration policy content in PTAs.
These three types of migration provisions relate to distinct areas of states’ immigration policies and invoke different logics and dilemmas of international cooperation. In the following subsections, we briefly present these provisions before investigating the patterns of their distribution in PTAs.
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