¹ Devesh Kapur & John Mchale, Give Us Your Best and Your Brightest: the Global Hunt for Talent and its Impact on the Developing World (2005); Philipp Martin, Managing Labor Migration: Temporary Worker Programs for the 21ST Century (2003).

² France’s new pacts are a poster child of the newly created Ministry of Immigration, Integration, National Identity and Development Partnership. They were designed mostly to dissipate tensions with former colonies in West Africa, which had been disproportionately affected by the high skill orientation of France’s new point-based recruitment scheme. France has signed nine such pacts, but so far only the one with Gabon has entered into force (July 5, 2007). Undergoing ratification are the pacts with Congo (Oct. 25, 2007, in Brazzaville); Benin (Nov. 28, 2007, in Cotonou); Senegal (Sept. 23, 2006, in Dakar and expanded by the covenant-agreement of 2008 signed on Feb. 25, 2008, in Dakar); Burkina Faso (Jan. 10, 2008, in Ouagadougou); Tunisia (Apr. 28, 2008, in Tunis); Mauritius (Sept. 23, 2008, in Paris); Cape Verde (Nov. 25, 2008, in Paris); and Cameroon (May 21, 2009, in Yaounde). Pacts with Algeria, Morocco, and the western Balkans are being negotiated. No agreement could be reached with Mali due to a clash over the number of Malians to be repatriated from France.

³ Spain has concluded bilateral migration agreements as part of its “migratory diplomacy” with countries in Latin America and West Africa, whose citizens account for the highest number of migrants into Spain. In 2006, 800, 000 foreigners moved to Spain, an increase of 17% over the previous year, of which 110,000 were from Romania, followed by 69,000 from Bolivia and 60,000 from Morocco. OECD, International Migration Outlook 2008, Country Report, Spain. Spain’s “cooperation agreements on migration” form part of the Ministry of the Exterior’s Action Plan for sub-Saharan Africa 2006-2008 (Plan Africa). Spain concluded agreements with Guinea Bissau and the Gambia (Oct. 9, 2006); Senegal (Oct. 10, 2006); Mali (Jan. 23, 2007); Cape Verde (Mar. 20, 2007); and Niger (June 10, 2008). Future agreements with priority countries such as Ghana, Cameroon, Côte d’Ivoire, and Guinea-Conakry are expected.

⁴ Castles, Stephen, Guestworkers in Europe: A Resurrection?, 40 Int’l Migration Rev. 741, 741-66 (2006 CrossRefGoogle Scholar).

⁵ Hainmüller, Jens & Hiscox, Michael J., Attitudes Toward Highly-Skilled and Low-Skilled Immigration: Evidence from a Survey Experiment, 104 Am. Pol. Sci. Rev. 61, 61-84 (2010)CrossRefGoogle Scholar.

⁶ Pierre Sauvé & Natasha Ward, The EC-CARIFORUM Economic Partnership Agreement: Assessing the Outcome on Services and Investment 17-19 (Jan. 2009) (unpublished document), at http://www.ecipe.org/publications/ecipe-working-parpers/me-ec-cariform-economic-partnership-agreement-assessing-the-outcome-on-services-and-investment/PDF.

⁷ Agreement Between Japan and the Republic of the Philippines for an Economic Partnership, Japan-Phil., Aug. 28, 2008, Ministry of Foreign Affairs of Japan, available at http://www.mofa.go.jp/region/asia-paci/philippine/epa0609/main.pdf.

⁸ GATS, art. 1(2)(d).

⁹ Chetali, Vincent, Freedom of Movement and Transnational Migrations: A Human Rights Perspective, in Migration and International Legal Norms 48-60 (Aleinikoff, Alexander & Chetail, Vincent eds., 2003)Google Scholar [hereinafter Migration]. “Non-refoulement” is a customary international law obligation, which describes the duty to admit those whose life and health are threatened in their home country. It has been codified in the Convention Relating to the Status of Refugees, art. 33:1 (July 28, 1951), 189 UNTS 150; the Protocol Relating to the Status of Refugees (Oct. 4, 1967), 606 UNTS 267; and in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3:1, (Dec. 10, 1984), 1465 UNTS 85.

¹⁰ Carzaniga, Antonia, A Warmer Welcome? Access for Natural Persons Under Preferential Trade Agreement, in Opening Markets for Trade in Services Countries and Sectors in Bilateral and WTO Negotiations 476 (Marchetti, J. A. & Roy, M. eds., 2009)Google Scholar.

¹¹ Chanda, Rupa, Movement and Presence of Natural Persons and Developing Countries: Issues and Proposals for the Gats Negotiations 26 (South Centre, Working Paper No. 19, 2004)Google Scholar, at http://www.acp-eu-trade.org/library/fsies/Chanda-Rupa_EN_052004_South-Centte-Movement-and-presence-of-natural-persons-and-developing-countries-issues-and-proposals-for-the-GATS.pdf; Sabrina Varrna, Facilitating Temporary Labour Mobility in African Least-Developed Countries: Addressing Mode 4 Supply-Side Constraints (ICTSD Programme on Trade and Services and Sustainable Development Series, Issue Paper No. 10, 2009). Developing and least-developed countries with surplus (unemployed) labour contest the narrow view, while labor-receiving countries have an interest to keep the scope of Gats Mode 4 as limited as possible, so as to retain the widest possible policy space over labor migration. Only if there is a category of workers remaining outside the scope of Gats, is it possible for labor-receiving countries to give preference in terms of market access quotas to those migrant-source countries willing to cooperate on border management, readmissions, and combating irregular migration. However, if a country has to generalize such an opening under “immediately” and “unconditionally” as the MFN obligation of Article II of Gats requires, it is no longer possible for it conditionally to link labor market openings to enlisting the source country cooperation via bilateral migration agreements.

¹² Steve Charnovitz, Trade Law Norms on International Migration, in Migration, supra note 9, at 252: “[A]t present, the movement of natural persons is discussed in the WTO mainly as a services modality, rather than in the broader context of allowing workers to gain new skills and career opportunities.” See also Bast, Jürgen, Annex on the Movement of Natural Persons, in WTO-Trade in Services: Max-Planck Commentaries on World Trade Law 580-82 (Wolfram, Rüdiger et al. eds., 2008 Google Scholar).

¹³ Council for Trade in Services, Background Note by the Secretariat: Presence of Natural Persons (Mode 4), S/C/W/301 (Sept. 15, 2009) [hereinafter Council for Trade in Services]. As the WTO Secretariat maintains, it would be illogical if host country firms could bring a claim against their own government requiring Gats treatment for foreign nationals they desire to employ.

¹⁴ Hufbauer, Gary & Stephenson, Shiry, Increasing Labor Mobility: Options for Developing Countries, in International Trade in Services: New Trends and Opportunities for Developing Countries (Cattaneo, Olivier et al. eds., 2010)Google Scholar.

¹⁵ Matsuzawa, Kotaro, Movement of Natural Persons and the United States: Probability of the Mode 4 Offers Improvement by the United States, 42 J. World Trade 653, 665 (2008)Google Scholar.

¹⁶ The GATS was designed to include an obligation to fast-track entry for these service-supplying persons falling under GATS Mode 4 as opposed to other types of labor migration, according to the Group of Negotiations on Services (GNS). See Communications from Argentina, Columbia, Cuba, Egypt, India, Mexico, Pakistan, and Peru—Annex on Temporary Movement of Services Personnel, Gatt Doc. No. MTN.GNS/W/106 (June 18, 1990). “Expeditious procedures for entry for temporary stay” stated that “the procedures for entry for temporary stay shall be accomplished expeditiously so as to avoid unduly impairing or delaying the conduct of trade in services,” and obliged the parties to ensure that “their embassies and immigration offices abroad, and immigration authorities at ports of entry are familiar with the visas issued pursuant to this Annex.” Id.

¹⁷ Panagiotis Delimatsis et al., Developing Trade Rules for Services: A Case of Fragmented Coherence? (NCCR Trade Regulation Working Paper No. 38, 2009), at http://ssrn.com/abstract=1472053.

¹⁸ Int’l Org. Migration [IOM], Illustration of Multilateral, Regional and Bilateral Cooperative Arrangements in the Management of Migration, in Migration, supra note 9, at 306.

¹⁹ Andre, Irving, The Genesis and Persistence of the Commonwealth Caribbean Seasonal Agricultural Workers Program in Canada, 28 Osgoode Hall L.J. 243 (1990)Google Scholar; Basok, Tanya, Migration of Mexican Seasonal Farmworkers to Canada and Development: Obstacles to Productive Investment, 34 Int’l Migration Rev. 79 (2000)CrossRefGoogle Scholar.

²⁰ Joel P. Trachtman, The International Law of Economic Migration: Toward the Fourth Freedom 152-62 (2009).

²¹ Panizzon, Marion, International Law of Economic Migration—A Ménage à Trois? GATS Mode 4, Epas and Bilateral Migration Agreements , 44 J. World Trade 1207 (2010)Google Scholar.

²² IOM, supra note 18, at 305.

²³ Alexander T. Aleinikoff, International Legal Norms and Migration: A Report, in Migration, supra note 9, at 2-3.

²⁴ Global Comm’n on Int’l Migration, Migration in an Interconnected World: New Directions for Action (2005).

²⁵ G.A. Res. 61/208, UN Gaor, 61st Sess., UN Doc. A/RES/61/208 (Mar. 6, 2007).

²⁶ Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Circular Migration and Mobility Partnerships Between the European Union and Third Countries, at 248 (May 16, 2007) [hereinafter Migration and Mobility Partnerships]; see also Council Directive (EC) 9460/08, Joint Declaration on a Mobility Partnership Between the European Union and the Republic of Cape Verde (May 21, 2008).

²⁷ Sassen, Saskia, Globalization and its Discontents: Essays on the New Mobility of People and Money 49 (1998)Google Scholar.

²⁸ The term “whole-of-government approach’ ‘ is also used for other areas of global governance and international cooperation, such as relating to fragile states. Organisation for Economic Co-Operation & Development [OECD], Whole of Government Approaches to Fragile States (2006).

²⁹ Managing the Impacts of Migration: A Cross-GOVERNMENT Approach (2008), available at http://www.communities.gov.uk/documents/communities/pdf/838935.pdf; see also Swiss Federal Office for Migration & Director of Political Affairs, Migration Partnerships (2008), at http://www.communities.gov.uk/documents/communities/pdf/838935.pdf.

³⁰ Communication from the Commission to the Council and the European Parliament, The Global Approach to Migration One Year On: Towards a Comprehensive European Migration Policy Brussels (2006) 735 (Mar. 8, 2007).

³¹ Nellen-Stucky, Rachel & Lavenex, Sandra, “Partnering” for Migration in Eu External Relations, in Multilayetered Migration Governance: the Promise of Partnership (Kunz, Rahel et al. eds., forthcoming 2011)Google Scholar.

³² Melde, Susanne & Ndiaye-Coÿc, , The MIDA Experience and Beyond: Operationalizino Migration for Development Across Regions 92–97 (2009)Google Scholar; see also Marion Panizzon, “Does Co-Development Contribute to More Diaspora Entrepreneurship?”, Conference of the Swiss National Science Foundation, 2009, available at: http://siteresources.worldbank.org/INTPROSPECTS/Resources/334934-1110315015165/Panizzon.pdf.

³³ Ecker, Thomas & Koppensteiner, Franz, Applicability of WTO Treaties to Direct and Indirect Taxation, 19 Steuer & Wirtschaft Int’l 142 (2009)Google Scholar; see also Panel Report, Argentina—Measures Affecting the Export of Bovine Hides and the Import of Finished Leather, WT/DS155/10 (Aug. 31, 2001).

³⁴ Global Comm’n on Int’l Migration, supra note 24, at 20.

³⁵ Chahal v. United Kingdom, Eur. Ct. H.R. (1996); Saadi v. Italy, Eur. Ct. H.R. (2008); Rudolf, Beate, International Decision: Chahal v. United Kingdom, 92 AJIL 70, 70-74 (1998)CrossRefGoogle Scholar.

³⁶ Abell, Nazaré Albuquerque, The Compatibility of Readmission Agreements with the 1951 Convention Relating to the Status of Refugees, 11 Int’l J. Refugee L. 60 (1999)CrossRefGoogle Scholar; Phuong, Catherine, Asylum and Immigration in the Context of Enlargement, in Takis Tridimas & Paolisa Nebbia, European Union Law for the Twenty-First Century 394 (2004)Google Scholar; Chetial, Vincent, Migration, droits de l’homme et souveraineté: le droit international dans tous ces états, in Vincent Chetail, Mondialisation, Migration Et Droits De L’Homme: Le Droit International En Question 81 (2007)Google Scholar.

³⁷ Grynberg, Roman & Qalo, Veniana, Labour Standards in Us and Eu Preferential Trading Agreements, 40 J. World Trade 647 (2006)Google Scholar.

³⁸ Aleinikoff, supra note 23, at 2.

³⁹ Sassen, supra note 27, at 47.

⁴⁰ Hufbauer and Stephenson note that the bilateral labor agreement signed by Greece with Egypt covers only fishery workers, while the bilateral labor agreements signed by South Africa recruit farm and mining workers from Botswana, Lesotho, Malawi, Mozambique, and Swaziland.

⁴¹ European Communities and Their Member States, List of Article II (MFN) Exemptions (Feb. 6, 2003), available at http://www.GATSwatch.org/docs/EU-draftoffer-MFN-1.pdf.

⁴² Id.

⁴³ The United States of America: List of Article II (MFN) Exemptions, GATS/EL/90/Suppl.2 (Apr. 11, 1997), Gatt B.I.S.D. (42d Supp.) (1998). For other instances of MFN Article II exemptions facilitating the preferential admission of service-supplying persons, see Council for Trade in Services, supra note 13. Examples include New Zealand vis-à-vis Kiribati (capped at 20 nationals per year) and Tuvalu (capped at 80 nationals annually); Jordan (waiving annual work permit fees towards nationals of Arab countries); Jamaica (towards Caricom members, waiving work permits); Italy (guaranteeing work permits to countries of central and south-eastern Europe and the Mediterranean basin); the Uk (waiving work permit requirements for Commonwealth member countries, if these persons had a grandparent born in the UK).

⁴⁴ Delimatsis, supra note 17.