Goldilocks Globalization: Searching for “Just
Right” Regulation of Cross-Border Labor Flows
Gonzalo Fanjul
Harvard Kennedy School and Oxfam Spain
Lant Pritchett
Harvard Kennedy School
May 31, 2010
1. Introduction: A case for reform1
An editorial in the New York Times on the reform of the US immigration
regime described the situation of nearly 12 million residents of the United States who
lack legal authorization as a “civil rights crisis” facing the Obama Administration2. It
is the same moral crisis that has caused a recent legal reform in Italy to turn irregular
migration into a penal crime. The same crisis has caused the death of thousands of
African men, women and children, attempting to reach the coasts of southern Spain by
crossing the Atlantic in small fishing boats.
This crisis is itself a case for reform. The Obama administration is promising to
move ahead with immigration reform in 2010 and there are already a number of
proposals for “comprehensive reform” on the table in various OECD Governments.
All of these involve some combination of a path to regularization of status of existing
residents and changes in the regulation of future flows that involves modestly more
liberal flows with tougher enforcement3. This mainstream consensus around
“comprehensive reform” masks two striking features of the debate. First, unlike
nearly every other global issue from AIDS to climate change to the recent
economic/financial crisis to terrorism to poverty to regulating trade flows to
intellectual protection, no proposal involves any meaningful degree of international
1
We would like to thank Michael Clemens, Duncan Green, Diego Iñiguez, Clara Mapelli and two
anonymous reviewers for comments that were helpful in improving this essay.
2
Obama Flinches on Immigration: The New York Times, March 24, 2009.
3
For instance, the Council on Foreign Relations issued a bi-partisan task force report in July 2009 that
encouraged legislation that (a) “Reforms the legal immigration system so that it operates more
efficiently, responds more accurately to labor market needs, and enhances U.S. competitiveness”; (b)
”Restores the integrity of immigration laws through an enforcement regime that strongly discourages
employers and employees from operating outside that legal system, secures America’s borders, and
levies significant penalties against those who violate the rules;” and (c) “Offers a fair, humane, and
orderly way to allow many of the roughly twelve million migrants currently living illegally in the
United States to earn the right to remain legally.”
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2
cooperation, either with sending countries or with movers themselves. The discussion
is entirely unilateral: what should the USA and the USA alone do? Second, the
assumption is that the solution will be a “closed” solution, with a once off legislative
reform followed by implementation of that fixed solution (with only the details left to
be worked out) rather than an “open-ended” set of processes that work towards
feasible solutions. While it might create some confusion between “open” and “closed”
borders, in this instance we use “open” versus “closed” as a characterization of the
nature of the process of policy formulation itself, a description of how innovation
happens. The term ‘closed’ reflects a rigid, non-adaptive, system which cannot
respond easily to the evolution of circumstances versus a more open system of policy
making in which actors have an “authorizing environment” with scope to innovate
(Moore 1995).
For whether the resulting policy is more or less “open” to labor
mobility, for which we will consistently use the terms of more or less “restrictive” or
more or less “liberal”). The assumption of “unilateral” and “closed” solutions is in our
view an important constraint for policy-making, since it limits the domestic political
debates to just the range between “more restrictive” and “less restrictive” one-way
approaches to labor flows and regularization of existing migrants.
While labor mobility has played out in distinctive ways in the USA, given its
long land border with Mexico, the USA is hardly alone in grappling with the
movement of people. Especially with the economic crisis, the movement of people for
labor is an increasingly pressing economic, political, and social issue in every
developed country. Increasingly all rich industrial countries are coping with the flows
of people who come seeking work, both through legal channels and also spilling into
unauthorized presence. Nor is the USA alone in the or with the pursuit of “unilateral”
that involve neither the sending countries nor any global engagement of movers in
solutions4. This collective failure of the international system to dignify labor and make
freedom of mobility work in the common interest not only constitutes an unrivaled
foregone cost in the fight against global poverty, but it also uncovers the ethical and
4
Of course the countries of the EU are engaged in a regional agreement with free labor mobility
amongst them, but this does not grapple with the fundamental issue across countries with very
different levels of development.
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3
political limitations of the existing governance of globalization, from governments, to
corporations, to civil society and one that cuts across the ideological spectrum.
Focusing on the flows from the world’s developing countries to high-income
industrialized countries, we argue the current international anti-globalization nonsystem for labor mobility is lose-lose-lose: unjust in frustrating the legitimate desires
of those who would like the opportunity to move but are blocked, unnecessarily cruel
and inequitable to many who do manage to move, and also ultimately ineffective in
meeting recipient countries desire for control5. But, while numerous social and
intellectual movements critique many dimensions of globalization, e.g. anti-sweatshop
movements to promote worker rights, “fair trade” movements, protests against
extension of intellectual property rights that increase drug prices in poor countries,
advocacy against rich country agricultural subsidies, proponents of debt relief—labor
mobility is a glaring, and as yet largely unaddressed, exception to pursuing a fair and
progressive system of global governance.
We argue that the existing dynamic of individual industrialized host countries
pursuing “unilateral” and “closed-ended” policy making will never add up to an
adequate framework for global labor mobility. However, we also argue that the direct
opposites are politically infeasible. A “multi-lateral” and “closed” solution in which
nation-states enter into legally binding reciprocal commitments on labor flows is not
on the table. Nor, given current wage gaps and cultural attitudes, is an “open-ended”
solution of liberality which would allow movers and employers to work out their own
mechanisms of mobility, regardless of governmental constraints. Precisely because of
the need for institutional innovation, we seek the “Goldilocks” approach to find “just
right”: avoiding systems that are either too closed-ended or open-ended and too
unilateral or too multi-lateral. We propose an “adaptive” and “pluri-lateral” approach.
We argue this approach has the potential to find politically feasible incremental steps
5
We primarily focus on these flows, while acknowledging these are just one element of global human
mobility. Recent estimates are that “South-South” flows are roughly 47 percent of migration and
flows from “South” to high income oil countries another 13 percent so “South” to industrialized
“North” countries are only about 40 percent of the total (Ratha and Shaw 2007).
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today but which are strategically transformational in the long-run towards a less
restrictive and more just system for labor mobility. An adaptive approach creates a
space in which different political, economic, and social agents have the chance to
discuss, experiment and move forward with mutual agreements, which agreements are
embedded into an aggregative pluri-lateral organization. In this approach countries or
other entities could join to the organization by acceding to a minimal(ist) core set of
standards. The organization would then serve three functions: (a) a registry of
migration voluntary agreements among the nation-state members of whatever scope
the nation-state members choose (bi-lateral, regional, open accession by a host, multilateral), (b) an implementation and dispute-resolution forum dealing with registered
agreements, and (c) a capability to examine experiences and promote extension of
success, tailored to circumstances.
The reader might legitimately wonder why, with the subject of migration
already crowded with “initiatives” (such as the Berne Initiative or the Rabat Process),
cluttered with acronyms of international organizations whose mandates concern in
different ways immigration or labor mobility (the ILO, the WTO, the IOM, the UNDP
–the most recent Human Development Report (UNDP 2009) was about migration--the
World Bank), and busy with meetings and “forums” (such as the annual Global Forum
on Migration and Development), we would propose yet another approach. Our
concern is that while there is “attention” to the issue and while there is “innovation”
and while facts on the ground are forcing the issue these separately have too little
leverage to change the deeply embedded intellectual “field” (Bourdieu 1993) within
which ideas are produced and evaluated. There are three distinctive features to our
proposed approach.
First, an approach with “soft law with basic rights” that is, a set of core
standards would attempt to also be neither too hard nor too soft but “just right” and
commits the participants to pursuing a more just and liberal regime for labor mobility
as an explicit aspiration, but does not attempt to overly prescribe what individual
participants must or may do (provided basic rights are guaranteed). This approach
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contrasts with existing proposals begin from “hard law” standards that demand such
high levels of either movement liberality or protection of workers or both that they are
politically still-born.6 The “too hard” approach—insisting on very stringent up-front
standards for migration--fails to recognize that the existing situation that pushes so
much mobility underground is really the same as “no law” with its attendant
precariousness for movers. The “too soft” contrast is that, in order to induce
participation, many of the organizations and forums settle for “vision” statements that
are not clearly committed to less restrictive environments for labor mobility, and often
frames labor mobility as an inevitable (or even regrettable) fact which creates an
“issue” to be just better “managed” which leaves open it being “managed” with even
more restrictive controls. Our goal is to produce more freedom and dignity for
individuals and movers while being politically feasible for receiving and sending
states.
Second, “pluri-literalism” with respect to both the types and numbers of
participants seeks an “equilibrium of interests” that would make agreements
meaningful and sustainable. “Pluri-lateralism” could be both with respect to the
numbers of nation-states which would be party to agreements but also, equally
important, with respect to the status of the membership in the organization, which
would not be limited to nation-states but rather that nation-states would participate
along with other groups—representing migrants, overseas associations, employers,
development and advocacy non-profits. As we argue below a fundamental problem
with creating a positive political economy of labor mobility is that the intellectual field
is itself so completely and thoroughly nationalized. Since the most direct and concrete
benefits of mobility accrue to movers, in a nationalized world (even a nationalized
“global” world of inter-national agreements or multi-national organizations) movers
are, by social construction, an anomaly to an international system in which actors are
6
For example, while international conventions on issues like the rights of the child, discrimination
against women, or torture have been ratified by (nearly) all countries with “very high” human
development, a proposed 1990 convention to protect the rights of migrant workers has been ratified
by exactly zero o f the world’s 38 countries with “very high” human development (HDR 2009,
Trachtman 2009).
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conditioned to “see” like nation-states (Scott 1998). If organization’s primary
participants are “nation-states” who represent “their” constituents then unlike
agreements on trade, or investment protection or intellectual property in which
domestic political structures exist to represent the interests of domestic exporters or
investors or inventors, who represents the interests of the mover?
A third feature is about the policy and institutional setting for innovation, with
an open-ended nature of the proposed agreement and agreements. There is no
expectation that any of the agreements would automatically extend to any other
member. The idea rather is to create a “pull” of positive experiences. The problem is
not that there is no innovation or new ideas, there are. But individually these
experiences are not embedded in process in which innovations can diffuse sufficiently
to have system impacts. There are many smaller-scale experimental programs in labor
mobility. New Zealand has launched a temporary migration scheme for agricultural
labor with explicitly developmental objectives (Gibson, McKenzie, and Rohura 2008).
Canada and Jamaica have an innovative program in which cooperation in voluntary
return of temporary migrants is encouraged by allocating fixed quotas to specific
Jamaican localities (Brown 2009). Spain is considering a range of “co-development”
schemes with major migration partners (Galdon 2009). There are also innovations in
improving aspects of existing large-scale flows—such as protection of the human
rights of Indonesian migrants—by publicizing their rights and providing access to
regular communication. There are also existing large scale successful programs in
managing repeat temporary migration, often just within sending countries but also
involving bi-lateral agreements, such as those in the Philippines. Individually, these
are not “the solution” waiting to be adapted but they do create a space of possibilities,
but, by having no organizational nexus in which lessons can be drawn and elaborated,
they alone lack sufficient dynamism to scale up and affect the system.
We make our argument for a Goldilocks approach in three steps.
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First, we argue that governments in the rich industrial countries should
abandon their exclusive reliance on a closed and unilateral policy process that attempts
to maintain draconian restrictions on labor mobility. This attitude is both immoral and
incoherent, but much more importantly for domestic politics, it is self-defeating.
Acting unilaterally legitimizes, if not encourages, prospective movers--and the
governments of the countries they move from --to act unilaterally as well. This leaves
host countries increasingly with closed unilateral solutions that provide only the
appearance of control as governments are, thankfully, unwilling to take the actions
pure unilateralism requires. The principal advantages to host countries from
participation in pluri-lateral agreements are (a) to gain cooperation of sending
countries and potential migrants in assisting with compliance with agreed limits on
nature and duration of mobility and (b) to gain legitimacy and transparency to their
actions, while aligning their policies with a(ny) modern conception of justice. Since
the benefits of engaging in an open and pluri-lateral approach are mainly from the
increased cooperation of other actors, a “unilateral open” approach to reducing
restrictiveness we feel has less appeal.
Second, we argue that, while there is political space to move beyond the status
quo, a move to “closed multilateral” global governance of labor mobility is premature.
No existing formula of institutionalized cooperation can be applied ready made. What
is politically achievable in the typical approaches to international organizations
forming around binding reciprocal obligations—such as WTO GATS mode 4—or
around consensus approaches—such as the UN—it just too little and not positioned to
be transformational.
Third, we specify how an open, adaptive, pluri-lateral structure might work and
eventually lead to a framework for more globalized labor flows.
2. The existing conundrum with “closed unilateral” approaches to
restriction
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The primary difficulty facing the industrialized countries is that the
productivity gap, the difference in the productivity of the labor power of exactly the
same person in two different places, creates increasing pressures for flows on both
sides of their borders. The current unilateral approaches are unable to fully cope with
these irresistible pressures within the limits of humanely acceptable enforcement
mechanisms, creating de facto two track systems of authorized and unauthorized
movements. While this maintains an appearance of control, in reality it is lose-loselose as it is ineffective and inefficient for the host, reduces benefits to the sending
country, and ranges from costly to abusive to fatal for the movers.
Productivity gaps and pressures for mobility. In many physical systems
differentials (in temperature, in electrical potential, in pressure) create impulses for
equalizing flows. Preventing those flows requires active intervention--insulation
against heat loss, resistors that reduce conductivity, impermeable barriers against fluid
flow—and greater differentials require more effort to limit flows. The differential in
the productivity of the same people in difference places creates huge pressures for the
mobility of labor. We emphasize the productivity gap, not the wage gap, as the
primary phenomena driving labor mobility for two reasons. First, the productivity gap
disentangles how much of observed wage gaps across countries are due to
characteristics, such as low levels of education, that make individuals of low economic
productivity no matter where they are (which do not create pressures for movement)
and how much observed wage gaps are a true “place premium” of different realized
productivity of the people with the same intrinsic productivity just working in two
different places.
Clemens, Montenegro, and Pritchett (2008) estimate that a person with exactly
the same observed personal characteristics makes enormously less in poor countries.
For instance, take individuals of the same nationality, same low level of schooling
(less than high school), both schooled in their home country, same sex (male), and
same age (35 years old) who both work in the urban formal sector. These individuals
make $15,000 (PPP adjusted ) more per year in the USA than in the median of a 41
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country sample of developing countries. Depending on how one adjusts for migrant
selectivity on other characteristics, this implies that people of equal intrinsic
productivity are made 3 to 4 times more productive just by crossing the US border
(almost certainly similar magnitudes of productivity differential would be found
between other OECD countries and their potential migration partners).
Second, the productivity gap emphasizes that not only do workers want to
move in response to higher wages, but people on the host side of the border are willing
to employ these workers at these higher wages because their productivity in the host
country fully justifies their higher wage. The pressure for labor mobility is two sided:
willing movers in sending countries and willing employers and willing consumers of
labor services in host countries. While the politics are sometimes broken into firms or
employers versus “labor” this ignores that (nearly) everyone is both an income earner
and a consumer who buys goods and services that embody the labor of others. One
reason low skilled workers have much higher productivity in rich countries is that they
provide labor intensive services, such as home health care and construction that are
non-tradable and for which “trade” cannot equalize prices.
Third, the productivity gap approach versus an “income gap” approach helps
clarify the discussions about the net consequences on existing residents from greater
migration by focusing on the source of the productivity gap and on what claims over
sources of income migrants of various types acquire. That is, countries can have
citizens with high income, because of abundant resources, accumulated factors, or
“institutions” each of which leads to different implications for migrants and their
impact. The “institutions” approach starts with the fact that only a fraction of the
cross-national gap in per capita incomes can be explained by measured productive
factors of physical or human capital (Casselli 2005). This suggests that differences in
“social capabilities” (Hall and Jones, 1999) or “institutions” account for a very large
part of the observed differences in labor productivity. This “institutions” view of the
sources of cross-national income differences is consistent with the accumulated body
of microeconomic data showing that migrants have, on net, very small impacts on the
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average wages of native workers in recipient countries7. To the extent the observed
productivity gaps are due to differences in differences in country institutions and these
are a “public good” then there should be only small resource sharing8 or capital per
worker reducing effects on existing workers. As Easterly (2004) points out if gaps
across countries are driven by productivity differences then all factors, both labor and
capital, may wish to flow towards more productive places.
The wage gaps between equally productive workers across borders are now
much larger than at any point in human history, relatively and even more so
absolutely. The massive migration flows in the “Atlantic” economy in the first great
globalization happened with wage ratios of unskilled workers of between 2 to 4
between receiving (e.g. USA) and sending (e.g. Ireland, Italy) countries (Hatton and
Williamson 2006). In the world today the similar ratios between the 41 countries
studied and the USA are between 2 and 15 with an average of 5 (Clemens,
Montenegro, and Pritchett 2008). Moreover, compared to that historical period nearly
every other factor today also promotes greater mobility: transport is faster and
cheaper, costs of communication with loved ones left behind are lower, and in most
potential host countries communities of fellow migrants of already exist. All of this
suggests that the pressures for labor mobility are much greater today than ever before.
Appearance and Reality. The magnitude of the two-sided pressure created by
divergence in productivity differentials explains the coexistence of legal barriers to
mobility and substantial flows in spite of those barriers. Given the existing pressures
no country can secure its frontiers exclusively at the border. Unilaterally restricting
flows to only the small quantities legally permitted requires massive efforts at
domestic enforcement, complementing border measures with a relentless prosecution
of illegal migrants and their employers inside the country (Hanson 2009). To use a
7
The vociferous nature of the debate about the impact of migration on wages in the US is perhaps
misleading. There is a broad consensus that the total impact on the wages of the average native worker
is very, very near zero. REF?
8
Of course, “resource sharing” impacts depend on how the claims from resources are allocated. No
Bangladeshi moves to Kuwait expecting to acquire a direct claim on the oil revenues. This is why the
Gulf countries can sustain the proportionally highest migration rates in the world.
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physical analogy, restricting flow of electricity requires resistance but resistance
creates heat, and the greater the differential and potential flow the greater the heat.
The fact is that few governments in highly industrialized host countries choose to take
the heat it would take to completely enforce existing restrictions9.
Perhaps more than any other major public issue, labor mobility is burdened by
a lack of policy innovations. Despite of their poor record, host countries come back
again and again to unilaterally chosen, fixed policies, with tight restrictions on
numbers of migrants. What passes for “new” policy is often only the intensification of
the failed enforcement of the same policies: if border control is failing then more
agents, if more agents doesn’t work then more agents with higher technology, if more
agents with higher technology doesn’t work then a fence. The USA in 2008 had twice
as many border patrol agents on its Mexican border as in 2000 and roughly 50 percent
more persons present without valid legal authorization, an increase from 8.4 to 12.4
million and the flow of undocumented workers from Mexico increasing more than sixfold from 1990s to 2005 (Passel 2005). High profile attempts at enforcement serve
primarily a political purpose: to sustain the illusion that that the rich world can open
and close the flow of people entirely according to its own interests. But this is an
illusion, as the last three decades have proved. Millions of undocumented workers
cross the borders of host nations every year, millions enter legally and then over-stay
or fail comply with the restrictions of entry. While the US situation is complicated by
having a long land border with a substantially poorer region—unlike most European
countries or an island like Japan—it is hardly unique in the challenge of
undocumented movements, as the number of unauthorized residents is rising rapidly in
many other countries.
The combination of labor mobility restrictions and economic dynamism
(productivity-demographic gaps) that has taken place in the last twenty five years have
9
Among other reasons, because it would violate legal rights of workers. For instance, European
Supreme Courts such as the Spaniard have stated the right of irregular migrants to unionize or receive
medical treatment.
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given birth to a de facto dual temporary migration system with parallel realities.
Governments of destination countries (particularly in the developed world) sustain a
de jure regime that is based on the illusion of tight control: national-state authorities
unilaterally decide who comes in, how long they stay and under what conditions. On
the other, millions of undocumented foreign workers travel and work in a de facto
migration reality where a different set of rules operate.10 The authorities in destination
countries are often less preoccupied for the actual exercise of border control than for
their appearance to be doing so. As a result, political leaders are left weathering the
storm, with public opinion unhappy about the current system but also willing to punish
attempts to reform it. As the systems increasingly slip out of control any positive
intervention is made more difficult by the need to cope not just with regulating the de
jure flows but also coping with the existing de facto stocks.
These two realities coexist in most destination countries. All parties seem to
have come to accept them as inevitable, learning to play each side according to the
circumstances. Voters are willing to maintain and demand the illusion of strict control,
but most will have no qualms about hiring an undocumented migrant. This creates
nations of “conscientious objectors” to the enforcement of existing borders. While
substantial majorities tell pollsters they want to limit immigration, they are also willing
to hire, directly and indirectly, undocumented migrants to perform a variety of
services.
Potential and actual migrants have also learnt to play the de facto game at the
margins of the laws. In this game, hundreds of thousands of workers cross the borders
illegally every year, joining labor markets and as a sort of legal ghosts. Many will not
wait for the destination country to issue a legal visa for their trip, or return to their
countries once this has expired. They are dispossessed of the rights other workers
enjoy, but in turn they are able to earn a living and send money home from time to
There are other pieces of international regulation (on trade, health or human rights, for instance) that
have a direct effect on the mobility of workers, as Betts (2008) has suggested. But we would argue that
the system is basically driven by the dual approach we have described.
10
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13
time. They only occasionally benefit from the health and social system, but they are
not paying direct taxes to maintain it either. Most of these workers will stay in the
shadow for as long as it takes in order to achieve a legal residence status through
occasional amnesties or naturalization opportunities. They will try to bring their
families along with them and will have no chance to come back to their countries
while their legal status is on hold.
Origin countries might be coerced to sign repatriation agreements, but they will
only occasionally collaborate in the control of illegal emigration, preferring to
maximize the reception of remittances and the ease of local unemployment pressures,
even if that comes at the cost of having their nationals emigrating irregularly.
The resulting is a system based on mistrust and governed by default, where all
parties win something, but where the benefits of migration are both squeezed and
unequal. To be clear, we consider that there is no fundamental difference between the
USA and the EU in this regard, both of which differ in certain aspects of their
immigration policy but are coincident in their ‘closed-ended’ and ‘unilateral’ policy
approach to restrictions. The freedom of mobility within the 27 member states of the
EU is only guaranteed for its nationals, and not for third citizens. When it comes to
immigration policies, Europe is a series of 27 countries, rather than a Union.11
Costs of the failures of the closed unilateralism approach. The existing dual
track labor mobility is, we argue, the inevitable consequence of attempting the static,
unilaterally enforced approach to the dynamic and global pressures for labor mobility.
Attempting to stick to this approach has five major disadvantages.
11
Actually, migration policies constitute a striking exception in the process of unification of European
countries. Despite the fact that the Treaty of Amsterdam establishes migration as one of the common
areas of work, this has so far been limited to the enforcement of common borders. Ole Waeber has
referred to this process as a ‘securitization’ of a policy that shadows any other political objective. This
is unfortunate, because a Common Migration Policy (equivalent to the Common Agricultural Policy or
the one-voice negotiating approach to trade) would help to underpin the political impulse of change
through sharing risks and opportunities of migration.
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First, the charade has become increasingly unpopular and the sense of not just
“more” migration but “out of control” migration may feed some of the expressed
desire to reduce the flow. One of the political facts about OECD countries is that there
is almost no expressed support for a truly liberal regime for labor mobility, with very
little change over time. The World Values Survey of 2005 asked interviewees in a
larger number of OECD countries their attitudes about government policies towards
“people from other countries coming here to work.” The choice “let anyone come”
attracted fewer than one in ten respondents in all OECD countries. The bulk of
respondents in the World Values Survey favor either “if jobs are available” or “strict
controls.” Moreover, using the most recent data from the International Social Survey
Program Facchini and Mayda (2009) estimated that, on average across 22
industrialized countries, only 1 out of 10 voters favors greater migration while almost
6 out of every 10 think immigration should be reduced (either a “a little” or “a lot”).
One possibility is that the opposition expressed as favoring “less migration” is
that people are expressing a deep discomfort not with migration per se but with
migration as symptomatic of forces in the world affecting them that are beyond their
control, hence the desire for “strict control.” Many individuals who report they want
“less migration” may be reacting to the chaos, illegality, and perceived abuse (e.g. of
asylum and refugee processes) of the existing situation. Even people who like to see
the USA, for instance, as a nation of immigrants also see her as a nation of laws and to
these people it is not the immigration per se, but the levels of unauthorized immigrant
stocks and flows that are seen as indefensible and dangerous (Council on Foreign
Relations 2009).
This frustration is expressed in the overwhelming support for the
“comprehensive reform” in the USA of migration policies that brings the existing
stock into legal status, even if it does not reduce the total12. There is an analogy with
12
Recent polling by the Berenson Strategy Group in the USA showed that two thirds of voters were in
favor of “comprehensive reform” even before what that meant was described to them. The polling
showed that regularization of existing migrants was strongly preferred to dramatic reductions in the
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15
the temperance movement in the USA and Prohibition. Some strongly wanted
alcoholic beverages illegal, some strongly wanted them legal, but many felt that laws
on the books, whatever they were, should be enforced and that if the country was
unwilling or unable to do what it takes to enforce a law, then enforceable regulation is
better than an unenforceable ban. The ‘conflicted middle’ of the population –the ones
that have no economic or ideological reasons to be in the ‘fortress’ or ‘open borders’
extremes—would perhaps accept current or even much higher levels of foreign
workers as long as they come hand in hand with a more ordered and controlled system
that balanced “if jobs available” and “strict controls.”
Second, the existing system is massively economically inefficient as it both
limits the flow does not facilitate meeting legitimate needs in the host countries and
does so in ways that hamper the effective allocation of the existing flows.
Demographic changes in most industrialized countries have made immigrants a key
component of their national economies. Labor intensive sectors have chronic
difficulties attracting sufficient workers, and this sometimes effects the viability of
certain industries, such as agriculture and textiles. However to this some may respond
that those mobile industries should efficiently move elsewhere (though of course this
is only globally efficient under assumptions of equalized productivity which is
certainly not the case).
But even more directly affected are service industries which cannot move as
the provider and recipient of the service must be in contact (e.g. haircuts) and
production non-tradable industries like construction. Many of which provide services
directly to households such as child care, elder care, home health care, etc. in which
case the primary alternative to labor scarcity is that the household perform these
services directly with household, non-marketed, labor and usually with the burden
mainly falling on women. In this case migrants do not displace “jobs” they displace
unpaid work. Kremer and Watt (2006) show that Singapore’s immigration of
numbers through enforcement and that the main concerns were to bring migrants into the legal system
so that they paid their “fair” share of taxes.
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16
household workers increases the labor force participation of high skilled women.
Leaving aside some worrying considerations about the legal constraints of immigrants
in Singapore, this is win-win-win as it raises the wages of the migrants, increases tax
collections (as high skill women shift from untaxed home work to marketed work),
and reduces domestic wage inequality by increasing the average skills of the labor
force and driving down the skill premium.
Because migrants are generally attracted by a productivity gap with creates a
two-sided benefit from labor mobility and border restrictions inhibit mutually
voluntary and advantageous economic transactions, it is no surprise that all economic
studies show that migrants make a net positive, if small overall, economic contribution
to the host economies. As discussed above, even the most “negative” studies about the
impact on wages suggest that, while some few people are close substitutes with new
migrants, the wages of most natives in rich countries are increased by migration.
Moreover, these nominal wage impacts need to be adjusted for the price effects on the
real wages. The average citizen benefits economically from migrants.13 The fiscal
issues are more complex, as the fiscal implications vary widely by what type of
migrants come (high skill versus low skill) and what benefits they are eligible for
while present. In considering changes to immigration policy the issue is less what the
average fiscal impact of the average existing migrant is, rather what the fiscal
contribution would be under various proposed policies and there are certainly ways in
which migrants can make substantial positive fiscal contributions.14
Attempts to deal with the massive inefficiencies of blocking labor flows are
sometimes dealt with legal mechanisms. Most existing programs in which workers are
allowed temporarily are based on a ‘micromanagement’ approach that has long since
been abandoned as ridiculously inefficient in other sectors of the economy. For
13
See the latest OECD Migration Outlook (OECD 2009) and the Human Development Report 2009
(UNDP 2009) for a recent review of these facts.
14
Given the ongoing rapid rise in dependency ratios, this will likely grow as migrants are a likely
lifeboat of existing pensions and social transfers as more working participants help avoid draconian
cutbacks in benefits (OECD 2006).
Draft. Not for citation or circulation
17
instance, temporary worker schemes often attempt to establish every year not just the
number of persons that can be hired abroad, but also determine in which sectors,
regions and even which particular companies they will be able to work in15. According
to the law, workers will go back to their countries as soon as their visas expire, and a
failure to do so will entail fines, deportation and a prohibition to come back in the
future. Spain provides an illustrative example of this fact. The outstanding economic
dynamism of the last decade made this country an attractive destination for both high
skill and low-skilled temporary migration. Yet, the government-driven ‘contract-inorigin’ system was only able to recruit half of the necessary labor force. The rest (over
700,000 workers, according to some calculations)16 came in as undocumented
migrants. With the sudden economic downturn, many of these workers (particularly
the non-EU nationals) remain ‘trapped’ in Spain, unable to work but unwilling to
return. It is true that many immigrants have already established their families in Spain,
and therefore there are other important considerations. But many others have not and
would be willing to return. Despite of the measures implemented by the government to
stimulate the return, by mid-2009 only 4,000 out of the initially estimated 1,000,000
workers had decided to go back.17
15
Most temporary migration arrangements are handled in the middle of an overwhelming burocracy. In
the their agricultural seasonal program, for instance, the Canadian and the Mexican governments engage
in detailed memorandums of understanding, recruiting processes and negotiation of wages (Martin
2003). Not only this makes the process longer and more expensive, but it often crowds out small and
medium employers that cannot afford the burden of those transaction costs.
16
Ceimigra (2007) (cited in Intermón Oxfam 2007), on the basis of the municipal census and the
Spanish Secretary of State for Immigration and Emigration. These figures are particularly impressive if
we consider that almost another 700,000 irregular immigrants were amnestied in a special process
back in 2004, and a number of others were automatically considered ‘legal’ after Romania and
Bulgaria joined the EU in 2007.
17
Published in El Pais (Casi 4.000 inmigrantes parados se han ido a sus países) on the basis of the
information provided by the Ministry of Labor. Available at
http://www.elpais.com/articulo/espana/4000/inmigrantes/parados/han/ido/paises/elpepuesp/20090
323elpepunac_11/Tes.
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18
Third, the current unilateral approach to labor mobility is at odds with
everything else these same host countries are seeking to do globally. Unilateral
restrictions on labor mobility contradict every notion of global justice that the
progressive international community has tried to build in the last fifty years as well as
the ideals of the recent social movements for a more just globalization: fair trade,
fairness and equality, development as freedom, and human rights. In the Doha round
of WTO negotiations there were pressures to make the round a “development” round.
Notions of “fair trade” were prominent in the attacks on agricultural subsidies of the
USA and Europe, with the spectacular examples like the US cotton subsidy and its
impact on Sahelian farmers getting huge attention. The issue of global economic
inequalities has drawn more and more attention, joined by such bastions of economic
analysis as the World Bank (e.g. World Bank 2005). The notion of “development as
freedom” (Sen 1999) and development as an expansion in human capabilities has been
widely promoted by the UN and its agencies (e.g. Human Development Reports). The
promulgation of a “rights based” approach has also attracted rhetorical attentions.
Unilaterally imposed barriers to the mobility of persons are almost certainly the
most egregious current offense to equitable globalization. What could be more
“unfair” trade than systematically banning the ability of the poor to sell their largest
asset—labor power—in the markets where it would earn the most? What could
generate more inequality that freezing the mobility of people across places? Why
would the principles that guided historical achievements in the fight for the equal
treatment for sexual, racial or ethnic discrimination stop when it comes to a border?
(Pritchett 2009). What is a more basic denial of human freedom that restrictions on
mobility based on the conditions of your birth, reminiscent of other birth based
mobility restrictions like serfdom, slavery, and debt peonage? What is a more
fundamental right than mobility, which the apartheid like global system of banning
people from moving across borders without government issued passes violates
routinely?
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19
Yet global progressive advocacy for greater international labor mobility has
been deafening in its silence. We suspect the progressives’ lack of enthusiasm for
actions on trans-national labor mobility that is otherwise so consonant with their stated
principles is rooted in two assumptions: (i) that a policy of more open borders would
undermine social and legal achievements that the host societies have fought hard to
achieve18 and (ii) the hopeful assertion that labor mobility is not “necessary” to
achieve fairness as all countries could, in principle, with the right combination of
policies and external assistance succeed in securing prosperity for all their citizens19.
The idea that the global inequities in human well-being, maintained by
involuntary restrictions on the movement of labor, can be addressed through aid is, by
now, empirically ridiculous. The magnitude of external assistance is tiny compared to
the losses imposed by border controls, and the magnitudes consistent with the use of
external assistance to compensate the poor countries for the rich countries imposition
of barriers to selling their labor services are not a prospect. Take Haiti as a simple
example as there is another nearby Caribbean island, Puerto Rico that can be used to
illustrate what a “free labor mobility” solution would look like. In 2000 the wage of a
typical unskilled male worker in Haiti was $141 a month and the observational same
worker made $1452 a month in the USA for a total annual wage differential of
$15,738 (adjusted for PPP). We’ll scale that number back by 50 percent to adjust for
the compensatory differentials of moving (e.g. living in a foreign culture) on the basis
that the observed ratio between observationally equivalent Puerto Ricans in the USA
and in Puerto Rico is 1.5 and hence that is likely an equilibrium ratio. So the annual
money equivalent welfare gain of a mover from Haiti to the USA is around $10,000.
Suppose there were open borders, certainly not all Haitians would move, but let us
assume that the ratio of Haitians in the US to Haitians on the island would move to the
ratio currently observed for Puerto Rico of about 35 percent. This would involve the
18
In fact, philosopher John Rawls argues that his social contract theories of fairness only apply within
“peoples”, and the across “peoples” allowing mobility would create “moral hazard” as countries could
export their problems leaving them less incentive to cope with their national development issues.
19
Two recent books by contemporary “western” philosophers, Appiah’s Cosmopolitanism and Sandel’s
Justice ignore or dismiss migration issues and focus their discussion of moral/justice obligations to
“foreigners” as a matter of how much aid should countries provide.
Draft. Not for citation or circulation
20
movement of an additional 2 million Haitians (over and above the roughly 400,000
already in the USA). We will assume away any gains at all to those remaining in Haiti
and hence the gains to Haitians of allowing free movement just for the movers would
be 20 billion dollars a year (all paid by willing employers in the USA based on the
productivity of the Haitians working in the USA so at roughly zero net cost to citizens
of the USA). The average annual disbursements of official development assistance
(ODA) from all Development Assistance Committee (DAC) donors to Haiti in the
2003-2007 period was $283 million and from the USA was $144 million. So a
extremely conservative estimate of the losses to imposed on Haitians by the USA
policy of preventing them from selling their labor services in the USA exceeds the aid
received from the USA by a factor of 140—more than two orders of magnitude.
The notion that ethical and justice claims stop at the nation-state borders
contradicts the very notion of global justice based on freedom and rights that the
progressive international community has tried to build20. If there is to be an age of
transnational justice in a globalized economy, the boundaries of nation-states cannot
have complete domination in a debate about the justice of restricting mobility.
Moreover, leaving aside short-term political interests, one cannot separate national and
international justice claims. The massive entrance of undocumented workers creates a
tier of less than second-class citizens undermining not just bargaining positions but
also the very notions of rule of law: the only way to guarantee your rights is making
sure that the rest of the world will eventually get the same deal in the long run, and an
enforceable deal on the short-run.
The fourth cost of the two track regime is to the movers themselves. Restrictions
that push labor mobility underground fuel labor and civil rights’ abuses and hence
come at a high personal cost for the migrants and their families. This constitutes the
20
If there is a ‘responsibility to protect’ civilians in third countries whose lives and rights are threatened
in their nation-states, how should this responsibility be interpreted when it comes to non-nationals that
are willing to escape poverty and despair through migration? How are they substantially different from
those that escape violence or repression, who are protected by asylum and refugee laws? (Pritchett
2009)
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21
ethical starting point for reform. Undocumented foreign workers are dispossessed of
the most essential labor and civil rights, subject to abuse before, during and after their
migration experience. In the extreme cases –like the legislation that has been recently
introduced in Italy—illegal migration is considered a crime that entails high fines,
prison sentences and even forced separation from their children. But the abuses are
not restricted to illegal immigrants. Temporary legal workers are often subject to a
watered-down version of the labor and social codes. With few exceptions, they are not
granted access to social services and labor benefits, such as non-emergency health,
training or unemployment insurance. Most importantly, abuses are related to the strict
limitations that the program imposes on workers during their stay, like the inability to
change their employer or their working residence. In the United States, for instance,
civil society organizations have denounced H-2 guest worker programs –which
covered 125,000 workers in 2005—as “close to slavery” (Southern Poverty Law
Center 2008). According to their research, the inability of workers to change jobs
when they are mistreated provokes systematic exploitations and abuses, including
cheating on wages, overtime, denied access to medical benefits, document-seizing or
lousy living conditions. For migrants and their employers, the imposition of screening
tests and intermediaries can multiply their transaction costs and dwarf the economic
and personal gains of the migration experience. This is true for undocumented
workers, who are forced to pay recruitment fees that range from $1,000 to $20,000 and
in many cases exceed their total annual pre-migration income (UNDP 2009).
A particular cost to movers of border based enforcement is that it raises the cost of
crossing the border relative to the gain of being in the labor market. This has the
perverse effect of actually raising the length of each undocumented migrant stay. This
is particularly costly in terms of family separation as it discourages trips home to visit
as the mover has to risk the border crossing and incur costs. So, whereas migrants
might return home annually or more often if crossings were legal they stay longer each
stay when undocumented. There is some evidence that the impact of the dramatically
increased border enforcement in the USA did not change the stock of migrants, in
party because it substantially lengthened stays, for instance the average length of stay
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22
of Mexican migrants appears to have increased from around six months to over a year
as the emphasis on border enforcement has increased (Ratha 2009). This is also true
of many of those arriving in Europe from Africa who simply rid themselves of all
documentation to forestall repatriation, which also therefore obviously prevents
circular movement.
Fifth, a non-system based on formal restrictions and de facto irregular migration
reduces the potential for development for the sending countries. The bottom line of
this system is that less people move, many of those that are able to move legally are
high-skilled workers and most of the rest are forced to emigrate as undocumented
workers. All in all, this reduces their personal benefits and their origin countries’. As
we said before, almost every meaningful piece of research that has analyzed the
potential impact of enhanced labor mobility underlines the very same point: not only
the benefits would be extraordinary for all parties, but they would also underpin and
complement the current development efforts that are being made in others areas such
as trade, aid or debt. Pritchett (2009) summarizes the evidence by noting: “most gains
from in situ anti-poverty interventions are measured in percents of local income, while
the gains from labor mobility to the USA are measured in factor multiples of local
income”. Needless to say, migration also entails risks for the migrant themselves and
for their countries, and addressing those should be one of the priorities of the
development community. But, considering that so far these risks have not reduced the
massive and increasing efforts to work abroad, it is difficult to see how the downsides
of the system are going to be corrected when a good part of the working force is
considered officially inexistent.
3. What kind of “global” approach is possible?
Even with all the faults of the existing approaches of host countries, there are
common sense arguments that, in spite of all the costs, nothing but closed
unilateralism is possible because (a) host countries hold all the cards and (b) the voters
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23
of industrialized are against more migration. Hanson (2009) summarizes the
conventional wisdom:
“One question is why labor-importing countries continue to set immigration
policies unilaterally. The simple answer is that when it comes to migration
from poor to rich countries importers have all the bargaining power”.
With host countries having all the bargaining power over senders and movers and host
voters against increased migration, failure at creating global mechanisms facilitate
labor mobility seems over-determined. But, while one should not underestimate the
difficulties of the politics of migration, both of these common sense views are, on
further examination, far from obvious.
While host countries can act unilaterally to set the de jure rules they cannot
unilaterally choose the decisions of others. Individual migrants can make the decision
to enter and work against the rules: an estimated 20 million people have already done
so in the USA and the European Union alone. Sending country governments can
choose to cooperate in preventing this behavior and can choose to collaborate in the
repatriation of their nationals (as it happens now with a number of West African
countries)—or not. The success of the Filipino government in cooperation with
recipient countries proves how much can be expected from a collaborative origin
country (Chapell and Glennie 2009).
The second notion behind closed unilateralism, that democracy means the
direction of policy is driven exclusively by polls fails on three counts. This view
cannot account for the major transformations accomplished by socially progressive
movements and political leaders which gradually but ultimately completely, changed
public opinion21. In 1958 only 5 percent of the population in the USA approved of
21
A forthcoming paper by Martínez-Herrera (2010) analyzes this issue in the case of the EU-15
countries, highlighting how “institutions and grand policies that are sustained in time contribute to
Draft. Not for citation or circulation
24
inter-racial marriage, while by 2007 over 80 percent did. More relevant to the case in
migration, countries actions on globalization have hardly been driven by polls, which
two quick examples will suffice.
First, free trade as a benefit to a national economy is found by many to be
counter-intuitive, and many think “common sense” agrees with Abraham Lincoln “I
don’t know much about the tariff, but I do know that if I buy an American coat then I
have the coat and an American has the money but if I buy a British coat I have the coat
and Britain has the money” In fact, the very same polls that show that most people are
anti-immigration on economic grounds also show, in many cases by the same or larger
percentages, that people are against the idea of free trade (Mayda and Rodrik, 2005).
Mayda (2006) shows that in the 1995 International Survey Programme data, when
asked whether they agreed or disagreed with the statement: “(Respondent’s country)
should limit the import of foreign products in order to protect its national economy” on
average only 23 percent disagreed, including only 13 percent of those in the USA, 11
percent in Spain. No matter whether you think this has been normatively “good” or
“bad” it is clear one cannot chalk up the amazing triumph of free trade as a dominant
policy idea and the history of increasing liberalization, in part negotiated via the
GATT/WTO process as merely the expression of domestic politics reflecting the
pollster captured views of the mythical “median voter.” The “field” and structures
within which trade policies and ideas about trade have been managed—consciously
designed to avoid unilateralism and facilitate incremental steps--have allowed policy
makers to lead and reach much more liberal outcomes than naïve prediction based on
polls would predict.
Second, once “fields” of ideas and concrete organizations and networks are
created they facilitate outcomes that build in unpredictable ways. A clear example is
the use of the Uruguay Round of GATT negotiations to promote intellectual property
rights (IPR). While all narratives of policy change are complex, the simple narrative is
shaping the attitudes of the average citizen”. In other words, in the long run policies are not
necessarily trapped by opinion polls.
Draft. Not for citation or circulation
25
that the existence and structure of the GATT rounds allowed a very small number of
individuals with very concentrated interests (most accounts identify the CEOs of
Pfizer pharmaceuticals and IBM as being central to getting this onto the GATT
agenda) to influence a process in ways for which there was essentially no popular or
grassroots political support (Devereaux, Lawrence, and Watkins 2006, chapter 3).
These actors consciously structured the debates so that rather than being about the
USA achieving globally uniform definitions and enforcement of property rights
conducive to the interests of some concentrated and influential industries (which it
clearly was) it could be portrayed about being about “free trade” (which the consensus
among economists was that it was not) and about “piracy” (which the consensus
among economists was that that it was not)22.
Again, the point is not whether the
changes in IPR achieved as part of the TRIPS agreement were normatively “good” or
“bad” but rather than one cannot explain these changes in the global system without
reference to the pre-existing structures of international negotiation and “fields” and
frames of ideas.
So how is participation in a non-unilateral regime for labor mobility in the
interests of host countries? More pointedly, could participation in actual international
agreements actually benefit a host country politician? What host countries have to
gain from entering into agreements with others is cooperation, principally in screening
and enforcement, legitimacy, and linkages. The current unilateral approach by the host
countries provokes a unilateral approach both by source countries and by the potential
individual migrants themselves. Since the host countries completely ignore their
interests in the formulation of their rules, there is no reason to expect the sending
countries or movers to provide any respect for, or cooperation in, complying with
those rules.
22
F.M. Scherer (1998), a perfectly mainstream economist, argues the notion that IPR issues were about
“piracy” was a “big public relations scam” as most of the actions to which the US industrial groups
objected were in violation of no national or international law, rather, other countries simply had laws
that allowed activities that reduced the profitability of US industries.
Draft. Not for citation or circulation
26
In a large number of global endeavors countries embed national policies in
larger international processes in order to legitimate their own actions—which is clearly
a motivation of participation in agreements concerning trade, development and
security cooperation. Countries trade off getting exactly the outcome they could get if
they acted unilaterally to reduce the risk of the action being perceived both with other
countries, and by constituencies at home, as illegitimate.
Finally, one of the keys to the cumulative global liberalization through the
GATT then WTO processes in particular was the use of linkages so that political
“losses” from liberalization were always paired with “gains” from the liberalization of
others23. Public support could be garnered with a guarantee of reciprocity or mutual
concessions among the parties involved. This the kind of reciprocity that we are
proposing for the migration, in which host countries would gain in assistance from
sending countries and from movers in enforcement.
3.1 Adaptive: a balance between closed and open approaches to policy
We are of course far from the first to examine the conditions for globalization
of labor flows, and there have already been a large number of initiatives and proposals.
There already exists an International Organization on Migration (IOM) which,
although for many years played much less of an advocacy role, has taken an
increasingly active role. There are some important pluri-lateral initiatives, such as the
Berne Initiative, which was launched by the Swiss Office of Refugees as an attempt to
facilitate cooperation among states (host and sending) countries in migration issues.
Likewise, the Rabat Process is an effort to increase the development impact of AfricaEU migration flows, while contributing to their better management. The United
Nations hosted a “High Level Dialogue” at the General Assembly in 2006 which has
been followed by an annual Global Forum on Migration. The private World
23
This political rhetoric is of course the exact opposite of economic logic, in which the liberalizing
country experiences net gains from their own liberalization, with the gains from other countries
liberalization or the reciprocal nature of liberalization adding very little.
Draft. Not for citation or circulation
27
Economic Forum has launched an initiative to assemble groups working around key
issues, including a Global Agenda Council on migration. This is in addition to the
rapidly expanding agenda of research and research initiatives, including in multilateral institutions that formerly shied away from this area (World Bank 2006).
The closest we have got to a solid institutional framework for the regulation of
labor flows is the WTO, which already has a mechanism for agreements on part of this
matter in the General Agreement on Trade in Services (GATS) under Mode 4 (the
“movement of natural persons” to provide services). But even the WTO shares a
common characteristic with the myriad of initiatives and institutions described above,
no matter their various takes on migration: they lack the ‘teeth’ to introduce tangible
reforms in the unilateral-closed migratory regime imposed by host countries, or even
to incorporate in any meaningful way the views of origin countries. Where they could
(like in the case of the GATS-Mode 4), its regulatory development has been
systematically watered-down.
It is this dilemma between rigidity and irrelevance that has raised most
concerns among institutional innovators, opening a policy space that is more
prominent than ever. The economist Jagdish Bhagwati (2006), for instance, proposed
the creation of a World Migration Organization (WMO) “that could oversee the whole
phenomenon, according to internationally agreed objectives and procedures”.24 This
path was recently followed by the scholar Joel Trachtman (2009).
Our proposal is also concerned with this very dilemma. If the system is on the
wrong track but there are open opportunities for a change the question is, how could a
reform be usefully structured? Are there relevant institutional precedents that could be
applied to this case? We begin with the characterization of three fundamentally
24
J. Bhagwati. The world needs a new body to monitor migration. Financial Times, October 24, 2003.
Draft. Not for citation or circulation
28
different approaches (which, although they are idealized types which blend into each
other in practice, clarify options):25

A closed-ended approach26 focuses on top-down management of migration flows
through a series of pre-specified, rarely changed, legislative rules intended to
determine outcomes. Governments determine who enters, how long will he/she
stay, and often specific numerical targets are written into legislation. In this
approach implementation is merely enforcing legislated rules with little scope for
innovation or modification through feedback. It is thought that policy can strongly
structure, if not completely determine, outcomes. We call this approach to policy
“closed” because there is little scope for anyone to affect outcomes or policy
making: as agents of the state are expected to passively implement policy,
domestic actors (employers, citizens, labor unions) are allowed to participate in
policy formulation only rarely, and other countries and potential movers are
excluded from consideration entirely, except as those who are expected to
passively comply or face the consequences.

The polar alternative is an open, or agent-based approach27. The most extreme
version is simple open labor markets in which the decisions of individual agents—
employers and workers—completely determine outcomes. The most opposite
example of open systems are those in which results are the emergent or selforganizing outcome of the choices of individual agents, subject only to broad
“rules of the game.” But there could be more structured agent based approaches,.
Collective bargaining in labor markets in any European country is an open
approach. Governments set the broad limits (minimum wage legislation, for
instance), but it is the economic agents’ responsibility (unions and employers) to
reach an agreement on the level of salaries in each sector for the incoming year.
Moreover, the match of individual workers to individual jobs is subject to only
25
The following three paragraphs are based on the contents of the IGA-104 course lectures, directed
by Prof. William Clark.
26
Sterman (2001)
27
Seeing Around Corners” The Atlantic (April 2002) — http://www.theatlantic.com/doc/200204/rauch
Draft. Not for citation or circulation
29
process controls. If we apply this approach to the migration debate, we could
envision a model where the number of migrants would not be determined by the
government, but by the labor market actors themselves (unions, employers and
migrants) according to the needs of the labor markets. Governments (origin and
destination) would have a say on the broad conditions (related to security, for
instance) but its role would be basically limited to guarantee that the agreement is
legal and to sign on it. This is a risky but effective “no man’s land between state
and non-state solutions” (Adler et al. 2009).

In between those two is an adaptive approach.28 This approach creates an
legislative or executive “authorizing environment” (Moore, 1995) in which the
specifics of policy are allowed to adapt, with explicit space for experiments,
feedback, and learning. This is not an “open” approach that allows outcomes to be
the result of bottom-up actions of agents as it involves a series of quite specific
“closed” solutions to particular problems. But the sequence of closed solutions are
embedded in a system that allows and encourages sequential innovation. Central
Banks often have “adaptive” approaches as their authorizing environment specifies
broad objectives but then grants substantial autonomy to the Central Bank in the
particular policies, and even strategy, the Central Bank adopts. At the same time,
Central Banks are aware that their policy objectives, such as price stability or
adequate employment, are only indirectly influenced by actions under their direct
control.
The idea of a multilateral institution tasked with regulating migration flows has
obvious merit. We believe a move from “closed unilateral” to a “closed multi-lateral”
system in which countries would made specific binding reciprocal obligations on labor
market access on a universal (e.g. “most favored nation”), or even extended basis, is
pre-mature, for two reasons. The most obvious reason is that there is not even the
broadest outline of a consensus across countries in the world on what such a system
would look like. We argue that functional global institutions, like the IMF or WTO,
28
Dercole, Fabio and Sergio Rinaldi (2008)
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30
are more often the consolidation of cumulative success, rather than the origin of
success. Currently many host countries resist the engagement of existing multi-lateral
organizations in even the advocacy of more liberal rules on labor mobility. Just as one
example, the “high level dialogue” was the best the UN could achieve as the US
blocked the plans for a UN “conference” on migration (similar to conferences on
population and development (e.g. Cairo 1994) or the environment and development
(e.g. Rio 1992) or gender (e.g. Beijing 1995)).
If we had to use the trade parallelism, the current consensus around labor mobility
is not even at the GATT-1948 stage. No recipient country has demonstrated any
willingness to engage in commitments to have their domestic policies about who can
be physically present on their territory limited by international obligations. As we
have noted before, the existence of “mode 4” of the WTO GATS allowing for the
physical presence of “natural persons” to provide services has attracted very few
commitments (and these mostly about higher level executives and sales
representatives).
Second, whatever is proposed as the next step in the global governance of labor
mobility needs to keep one major objective in sight: building trust among the parties
involved. The political sensitivities around this issue suggest a model that is built step
by step, and that incorporates a very flexible attitude towards possible partial
solutions. Besides, temporary migration cannot count on a large number of useful
precedents to base the next steps on. In other words, this is a extremely complex issue
around which there is not a well developed body of technical expertise that has
coalesced into a “profession” that has a commonly accepted vision of standards and
practices (e.g. such as exists in fields like Central Banking, accounting, or is emerging
around evaluation). There is a serious risk of back-firing and political backlash if
things go wrong.
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31
Fortunately, as Held and McGrew (2004) have emphasized in their overview of
globalization, there is potentially a productive space in between closed unilateral and
closed multilateral approaches which is what we refer to as “adaptive pluri-lateralism”
“…this evolving global governance complex is far from being a world
government, with ultimate legal authority and coercive powers, but it is far more
than a disarticulated system of limited intergovernmental cooperation”.
One proposed label for adaptive pluri-lateral arrangements in which an array of
institutions (national public sector, private sector (NGO or for profit) create an
association to pursue the solution of global policy problems is global governance
networks (GANs)29. GANs have emerged in a number of areas. The Global Fund to
Fight AIDS, Tuberculosis and Malaria is 30 was formed as a mechanism to channel
additional resources into fighting these diseases to find more flexible and adaptive
ways of funding than those available to, say, multi-lateral organizations. There are a
number of GANS formed around advocacy of various kinds, from the promotion of
labor rights (Fair Labor Association) and sustainable trading practices (the Ethical
Trading Initiative focuses on learning and pilots, and it is built on a common base code
and multi-stakeholder approach. There are also initiatives in development about
promoting more “South” based research in development such as the Global
Development Network (GDN) based in Delhi or promoting rigorous impact evaluation
in development projects such as the 3IE initiative based on Cairo. These GANs need
not be formed solely around participants with the same agenda. The Global
Commission on Dams attempted to bring together both proponents of dams (national
governments and construction firms) and opponents (environmental and other NGOs)
29
Possible Future Architectures of Global Governance: A Transnational Perspective/Prospective.
Sanjeev Khagram (Global Governance 12 (2006), 97–117) and Transnational Transformations: From
Government-Centric Interstate Regimes To Cross-Sectoral Multi-Level Networks of Global
Governance. Sanjeev Khagram and Saleem H. Ali
30
The description from its own web-site is that “The Global Fund is a unique global public/private
partnership dedicated to attracting and disbursing additional resources to prevent and treat HIV/AIDS,
tuberculosis and malaria. This partnership between governments, civil society, the private sector and
affected communities represents a new approach to international health financing. The Global Fund
works in close collaboration with other bilateral and multilateral organizations to supplement existing
efforts dealing with the three diseases.” This fits the definition of GAN exactly (other than its belief it
is “unique”).
Draft. Not for citation or circulation
32
in order to development mutually acceptable procedures for the construction of new
dams. There is no template for these arrangements, other than their pluri-lateral
(involving both state and non-state actors as participants) and adaptive characters, with
and open architecture of committing to specific goals but not pre-specifying the exact
solutions.
4. Where angels fear to tread….
With so many existing initiatives under way, we hesitate to rush in with yet
another idea, but we want to give some concreteness to the type of initiative we are
proposing. A basic notion is that the problem is not so much that there is a lack of
new ideas or initiatives but rather that these ideas lack the space for examination and
amplification—a sounding and resounding board. It is not as if people are waiting for
a framework, there are millions of people moving across borders every year. Along
with this fact of expanding movement, there have been policy responses. Three
examples of the kinds of innovations that are happening will be useful:
Canada and Jamaica have entered into a bi-lateral agreement that attempts to
limit the unauthorized over-staying by Jamaicans by allocating a certain
number of visas for temporary stays directly to Jamaican communities (Brown
2009). In this way, the opportunity to work in Canada rotates within the
locality which intends to harness the “social capital” within Jamaica to
encourage on-time return.
France and Spain have put in place the so-called “co-development”
immigration initiatives that combine training, employment and investment
opportunities at different stages of the process. In the Spanish case these
experiences (with Colombia, Morocco or Senegal, for instance) have been
focused on temporary/circular migration models. (Galdón 2009)
Draft. Not for citation or circulation
33
New Zealand entered into an agreement with some of the Pacific Islands for a
seasonal migration program. What is innovative about this program versus
other programs for seasonal agricultural migration is that it is seen not just as
an agricultural program, but also as a development program and is designed to
maximize the development benefits for the movers and the sending countries.
REF
However, the dominant policy response over the last 20 years in host countries
has been to increase the extent to which labor market access is conditioned by the
contribution the potential migrant will make to the host country. As Kapur and
McHale (2005) have documented many countries are not only moving to “points”
systems that reward education and skills in access to migration (such as Canada and
Australia) but are actively recruiting top talent (e.g. Germany’s outreach to maintain
its biotech industry). Whatever one thinks about the impact of sending countries (see
Clemens 2009 for an empirically informed and skeptical overview of concerns about
“brain drain”) this direction certainly does not maximize the benefits of labor mobility
for the world’s poorest.
As our premise is that political space is tight and too little is known for
advocacy around a specific approach, particularly to the issue of facilitating unskilled
labor mobility, no initiative can be too tightly structured. We just specify three
elements: the members of an initiative, its functions and goals, and the minimal
contents of acceptable agreements to be registered.
In concrete, the initiative would hope to provide:

A pool of (non-unilateral) experiences, that other countries can join or replicate.
These will be agreed by governments and can begin at the bilateral level but,
ideally, they could be expanded to the regional and ultimately the multilateral
levels.
Draft. Not for citation or circulation
34

The basis for a social contract between parties that establishes what is not
accepted, rather than a narrow definition of the agreements/arrangements that are
acceptable.

An compliance mechanism via a forum for disputes.

A platform for the participation of civil society (employers, unions, labor brokers,
migrant associations): they would have the same membership status as nationstates, but at the same time they would be integral members, able make proposals
and bring cases to the dispute settlement understanding.
4.1 Membership
Any initiative would have to engage state and non-state actors. One of the key
problems with the international political economy of migration is that nearly all of the
gains (and the loses, in the case of undocumented workers) in the first instance accrue
to the movers themselves. Traditionally most of the structures of the formal
international system have states as members, and all the views of individual agents are
expected to be filtered through the representation processes of the states. This
obviously risks leaving the views of actual and potential movers under-represented.
The essence of “pluri-lateral” is a plurality of voices. Membership of
organizations of migrants would be welcomed. Alongside those would hopefully be
major employers of migrants and the large labor brokers who operate in this sphere.
There are already employers and facilitators of labor movement that recruit and move
millions of persons annually and hence, while some might suspect their motives in
some regards, these are a potentially valuable source of information and experience
about how processes of mobility actually work. The most difficult question is how to
mobilize the views of potential movers. A major objective of this arrangement is to
increase the willingness of senders and movers themselves to cooperative in
Draft. Not for citation or circulation
35
compliance. For this to happen, there have to be positive perceived gains from a
system perceived as fundamentally legitimate.31
4.2 Content
Our proposal is to take an approach based on the development of interim
institutions, where collective or individual policy entrepreneurs can experiment with
new arrangements, test them and build on them (framework and contents developed
together).32 The content would be three-fold.
First, a basic voluntary agreement and statement of principles of all
participants, which would have two functions. One is to establish the goal of the
organization to facilitate the expansion of human well-being by facilitating voluntary,
rights-respecting, legal movement of labor. The second is to establish a a “floor” of
what acceptable practices or policies are and hence those that could be “registered”
within the association.
Second, state actors can choose to “register” negotiated agreements between
origin and destination countries with this institution. The “registration” implies that
(a) all parties agree it meets the “floor” requirements and (b) the registration creates a
forum in which disputes about the agreement or its implementation can be raised
(though these need not be legally binding arbitration agreements). This ‘soft law’
approach would establish the floor of the different arrangements, but not a ceiling, and
it would also provide a platform for dispute resolutions. Third, the institution creates a
mechanism for the evaluation and dissemination of information about the operation of
existing agreements.
31
Facchini and Mayda (2009) have highlighted the role of particular lobbies (like trade unions and
employers’ associations) in shaping the contents of immigration policies that are originally driven by
strict electoral concerns. To the extent that the pluri-lateral nature of the agreement can help to raise
trust among parties, the chances for a successful political outcome will be higher.
32
The concept has been taken from Adler et al. (2009).
Draft. Not for citation or circulation
36
To be sure, not all of these will be considered ethically ‘cleared’ for all observes (the
restriction of the family reunification right in the sake of political consensus is an
obvious example), but their main virtue is to act as a building block for better
agreements. The controversial question to be worked out is what constitutes an
acceptable “floor” to an agreement that can be registered. One approach, common to
advocacy in the global sphere, is to specify a very desirable set of outcomes as the
“floor” such that the agreements attract at best rhetorical commitments. A recent book
by a legal scholar Trachtman (2009) proposes one such framework, envisioning the
creation of a ‘General Agreement on Labor Migration’ that would provide a legal
content to a World Migration Organization of the type Bhagwati proposes. Trachtman
suggests a careful approach, one that considers the complex institutional building
involved and is based on a “political give-and-take” between origin and destination
countries in building to ultimate solutions. On the other hand, allowing agreements to
be registered with an organization that are clearly abusive undermines the legitimacy
of the whole process.
There are at least three core issues on which there will need to be agreement:
Basic human rights and labor practices. No agreement could be registered in
this institution unless it guarantees the protection of a series of rights and obligations
that are non-negotiable for each of the three parties (host, sender, movers). These
would be intended to provide the basis for an agreement, while breaking the
first/second class citizen dichotomy in host countries. This level should combine
essential labor rights (like the core ILO rights, including the right to unionize,
collective bargaining, minimum wage, unemployment benefits, etc.) with a core set of
civil liberties (such as the right of non-arbitrary detention and non-discrimination) and
individual social benefits (beginning with guaranteed medical assistance). A possible
way to look at this level of the agreements is through the assumption of an already
designed international convention on foreign workers rights, such as the UN
Convention on the Protection of the Rights of All Migrant Workers and Members of
their Families, which ensures core human and labor rights, protects immigrants against
Draft. Not for citation or circulation
37
arbitrary measures and contemplates basic safeguards for destination countries (a right
to restrict immigration in the sake of “public interest”, for instance). (Martin 2003).
While the UN Convention has not been signed by a single developed destination
country, we believe it constitutes a fair starting point for an agreement.
Temporary versus “path to citizenship.” We feel acceptable agreements can
cover regimes for labor mobility that do not involve a path to citizenship. Although
this is itself controversial, we feel it is useful to separate the question for the potential
recipient country citizens of “who, and under what conditions, will be the future
citizens of our country?” from the question “who, and under what conditions, will we
allow physical access to our territory to engage in economic transactions?” This
formulation of the questions deliberately emphasizes that “temporary migration” for
economic reasons without path to citizenship, far from being the exception, is the rule
in cross-border mobility: tourists are temporary migrants who are allowed to
participate in economic transactions, students are given visas to live in a country and
purchase educational services, business travelers are given visas for temporary
presence to buy, sell, and manage, academics and researchers are given visas to attend
conferences (for which they are often paid). No one imagines the temporary
authorization of physical presence in these cases implies either claims or entitlements
nor a path to citizenship. A regime for temporary movements of people enabled to sell
their labor services not only offers enormous potential for gains in human well-being
but also constitutes a natural ‘next step’ in the trust-building process we have
mentioned above.
Acceptable agreements could involve workers would enjoy a multi-entry visa
that would allow them to go back to their countries for holidays during the temporary
contract, and be obliged to return to their origin countries once the temporary visa
expires. They would also be obliged to respect the law in order to keep their status. In
case the visa is unilaterally revoked by the host countries, they would be entitled to a
fair compensation. A key issue with respect to temporary programs is the portability
of permission for presence with respect to employer, and more broadly, the sectoral
Draft. Not for citation or circulation
38
and geographical mobility of workers.33 These rigidities have been at the core of labor
abuses in a number of host countries.
Schemes for the temporary mobility of people to provide labor services have
almost no allies except reality. Politically “progressive” forces see them as inherently
abusive and rights denying while anti-migration advocates see them as merely a
Trojan horse. But reality is that the deviations from enforcement are a scheme for
temporary labor mobility, just an incredibly ineffective, abusive, and politically
unpopular one. Bringing them onto the table in explicit ways is a step away from the
current lose-lose-lose approach.
Our instinct is to keep the floor standards for registered agreements low and
generate the momentum of participation and let the transparency of the process
constitute the pressure that raises standards—rather than forcing merely rhetorical
consensus disregarded in practice (as is the case for nearly all existing multi-lateral
agreements on human rights for instance) or creating a standard that no host country
then wishes to voluntarily accede to. For instance, the case of family reunification,
which on the one hand, could be asserted as “rights” and considered as part of the core
human liberties, the Convention on the Rights of Migrant Workers, for instance, seems
to consider that, although it refers to the national legislation. But –provided it is a
temporary situation- we see these as elements to be negotiated as part of the trust
building process we have mentioned, treating agreements for temporary presence for
labor services along a continuum of allowed access for a variety of other purposes
(tourism, business, academic conferences, study) which no one regards as creating a
“right” of unification.
The idea of adaptive approaches is to not make the floor and ceiling touch, but
rather establish a floor and encourage any construction about that: the registered
33
In the case of the EU, all legal immigrants should be allowed to move and work freely within the
unified labor market, as it has been suggested for qualified workers under the new Blue Card. The
fragmentation of labor markets are a source of economic inefficiency and labor rights’ abuse.
Draft. Not for citation or circulation
39
agreements can have infinite variety in their contents. The goal is precisely more
innovation, in the open, where it can be discussed and examined.
A second level of rights would include any other benefit or concession that can be
agreed between the parties. The most obvious are related with the impact on the
welfare of host societies and the development of destination countries, but we could
also consider here individual rights of the migrant such as voting or full family
reunification. There are no rules in this level, since they depend on the particularities
of the countries and sectors involved.
Countries could agree to introduce fees or targeted taxes that would
compensate the host societies for the increase in social spending (mainly health and
education expenses, but also others like integration and language programs, for
instance) and in order to bridge the wage gap between foreign and national workers.
There are various ways to do this, most of them sharing the burden between the
different players. In other cases, like in the Singapore model, the fee is specifically
intended to encourage the hiring of nationals in the first place (Ruhs 2006). It must be
noted that these fees should not necessarily imply an extra cost for migrants or their
origin countries. Migrants could be obliged to pay the same level of taxes as other
workers (plus the administrative costs of the process, maybe), but do it in a distinctive
way, so host societies can see that there are no extra costs for them in the process. The
bottom line of these measures is that increased immigration flows alter welfare
systems and have a fiscal impact, but to what extent this alterations are a burden or a
relieve for the local social systems depends on many factors, such as the age of the
immigrants, the number of family members that come with them or the level of social
protection in the host country (Hanson 2009).34 The pedagogic effect of these
measures is therefore as important as the actual net economic outcome, and transparent
and accurate information plays a crucial role in making them work. This second level
can be understood as an ‘accumulative’ process, where the compliance with the rules
34
Recent research (Barbone et al 2009) suggests, though, that there are no fundamental differences
between natives and immigrants as regards to the fiscal impact.
Draft. Not for citation or circulation
40
in previous migration experiences opens the opportunity to new rights (ultimately
leading to permanent residency and citizenship, for instance).
As regards to origin countries, the agreements could also consider an array of
measures intended to increase the positive impact of migration on development: the
design of mechanisms to reduce the cost of sending remittances, programs intended to
optimize the use of these funds or measures to support the return of migrants and the
establishment of small business. The development perspective could also include
mechanisms to promote brain-circulation when it comes to high-skilled migration.
An essential component of a reliable agreement is a balance in the qualification of
the workers or the democratization of migration flows. While host countries are
normally more flexible in the case of high-skilled migrants, it is the low-skilled
working force that constitutes the majority of prospective emigrants, and the ones that
have a more positive impact in the development of origin countries (Winters et al.
2003; OECD 2008). Any agreement that intends to satisfy all parties will have to
consider sectors and quotas that respect these balances. As we said before, the
composition of these quotas does not have to be established by the governments, but
by other economic and social agents in both sides of the pact that are capable to reach
an agreement and elevate it to be legally sanctioned.35
As regards to the geographic origin of the workers, the possibilities are also
numerous. Ideally, the paced liberalization of temporary labor mobility should expand
from the bilateral to the regional to the multilateral. The advantage of a broad
geographic framework (West Africa and the EU v. Senegal and Spain, for instance) is
twofold: first, a bigger geographic space makes it easier for foreign workers to adapt to
market demands. Second, it helps to avoid one of the traps of the system, which is the
impossibility to control the decisions of third players: an agreement can be reached
35
Hanson, for instance, mentions the possibility of these agent-based approaches in the context of
screening processes for low skilled migrants. (Hanson 2009)
Draft. Not for citation or circulation
41
with Senegal, but Guinea Bissau’s prospective migrants will not feel constrained by it
and will try to emigrate illegally.
To the extent that more origin and destination countries can coordinate their
migration policies, the system would also allow for some pro-development,
imaginative arrangements, like establishing a series of country tiers ‘a la WTO’ where
the poorest could get enhanced market access.
One area between floor and ceiling is the mechanisms to ensure compliance of the
movers, which will be necessary. If real opportunities are open for a considerably
higher number of foreign workers, it is crucial that the system is not undermined by
large flows of illegal immigrants. Part of the idea is to create a system that can cope
with the existing pressures and keep the parallel systems from becoming dominant. In
order to avoid that, origin and destination countries should work together, and
compliance measures should be extended to the interior of host countries in the form
of labor inspections, where they seem to be more effective.
But this can still be coupled with mover friendly approaches that do not force all of
the cost on the movers. One possibility is ‘accumulating’ rights, so the past
compliance derives in enhanced rights and new opportunities to migrate. If they lose
their job before the visa expires, the worker should also be granted with a reasonable
time to find new jobs without being forced to leave the country, as Sweden has
recently recognized (Chapell and Glennie 2009) (of course, this could also be argued
to be a fundamental right to prevent the abuse from employment linked stays). From
the origin country perspective, the return could be stimulated through financial
incentives, such as measures that would complement their savings. (Ruhs 2006)
The former is a list of possibilities, but the menu could be completely different
depending on the needs and options of the parties involved. Provided that the basic
rights are guaranteed, the new institutional arrangement should be focused on
facilitating the next steps, based on building the trust for a new social contract.
Draft. Not for citation or circulation
42
4.
Conclusion
The regulation of international migration flows constitutes the most important
lacuna in the global governance regime—both in ideas and practice. Addressing the
pressures for labor movement created by existing productivity gaps of labor is one of
the most difficult challenges of our times, one will demand tremendous creativity. The
battle for a fairer migration system ultimately plays out in a complex interplay
between innovations, institutions, and public opinion. This is where all parts of the
global networks from states to existing international institutions to civil society
(academics, trade unions, civil society, and NGOs) have so far failed miserably. The
“field” within which beliefs are produced (Bourdieu 1993), trapped as it is in un-de/reconstructed nationalisms-has yet to create a viable space for the promotion of labor
mobility as a means to improve human well-being. While impressive human resources
are devoted to the resolution of global problems around which it is feasible to create a
movement (e.g. “debt relief”, “micro-credit”, “free trade”) in relative terms
international migrants have been abandoned to their own luck.
How to create the space in the existing system in which politically feasible,
human rights respecting, development promoting solutions can emerge, be assessed
and then replicated is a challenge. We build the case for an alternative institutional
arrangement on the basis of two main ideas: first, host countries must abandon the
“closed unilateral” approach that drives the design and implementation of immigration
policies. Second, we have argued that a new governance framework can only emerge
from ‘interim institutions’ that design their tools and rules as they walk. One
possibility (that could hosted in any number of organizational guises) is the creation of
a initiative that is pluri-lateral that creates a registry of temporary migration
agreements that meet an agreed up floor of acceptability, thus providing an
opportunity for trust-building and dispute resolution. We are aware this is far from a
coherent overall systemic alternative, but feel such a solution is impossible and this
constitutes the best mode for groping forward in a way that seizes concrete
Draft. Not for citation or circulation
43
possibilities while simultaneously seeking to alter the fundamental fields and
structures to create new possibilities.
Draft. Not for citation or circulation
44
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