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Why are bilateral agreements the most frequent form of cooperation in international migration?

By Aymeric Faure, Open Diplomacy Delegate in London, MSc International Relations Student at LSE

· Social-développement

Since the mid-1990s, globalisation has become more pronounced. Mobility is the constitutive variable of this phenomenon of increasing flows. It concerns several types of flows, of capital, goods, services, information, as well as people flows. Today’s context seems to foster global migrations. The transportation costs decreased, transnational communities and information flows were improved by the revolution in new technologies, information and communication, emigration and immigration countries are economically integrated, the demographic dynamism of sending countries matches with the need of new workers in receiving countries (Martin, 2007); all these elements imply a growing spread of the migration phenomenon. This inclination might however coincide with growing restrictions of migration policies (Hatton, 2007). Even though those restrictions do not drastically obstruct migrant flows, the mechanisms resulting of the profound interests of states shape the global organisation of labour migration cooperation. The most frequent cooperation form is bilateral agreements (Betts, 2008).

I argue that the prevalence of bilateral mechanisms is the result of the failure of international cooperation combined with a will of states to keep control on their migration flows through the advantages derived from that type of cooperation. To explore why bilateral cooperation on migration is the most frequent type of cooperation, I will first show the reasons of the failure of global governance in labour migration issues. Then I will explore what are the incentives for states to prioritise bilateral agreements. Finally, those elements open up a reflection on the broader perspective of new forms of cooperation.

The reasons of the failure of cooperative solutions

The demand for establishing a global governance system about non-refugee migrations is low. Very little efforts have been made to multilaterally regulate global migrations (Hollifield, 2012).

It is worth noticing that labour migration issues were not totally absent of the international cooperation agenda. The International Organisation of Migration (OIM) and the International Labour Organisation (ILO) represent some steps forward but their mandates are not clear, their conventions are signed and ratified by few states and the constitution of a global architecture of multilateral migration regulation is not their objective (Hatton, 2007; Betts 2008). Since the eve of the discussions during the 1994 International Conference of Population and Development, states have been divided on this subject and the hypothesis of a global UN conference has been rejected. The international regime of labour migration is thus ineffective as well as fragmented (Chang, 2002). The main results in multilateral cooperation are at regional scale, in organisations not specifically dedicated to migration issues. For instance, the European Union is often presented as a model (Geddes, 2012; Hollifield, 2012; Sykes, 2012). Elsewhere, however, it is not a success. In Africa, the Southern African Development Coordination Conference (SADCC) tried to establish a free cross-border movement framework but which had not been implemented because of the reluctance of the main receiving country, South Africa, and of some sending countries which feared brain-drain (Geddes, 2012). Several authors such as Hollifield (2012) consider that the “issue linkage” could be a solution to avoid the opposition of states, consisting in incorporating migration issues in negotiations on other but connected topics such as global trade or environment. It appears that this solution does not overcome the problem.

"The international regime of labour migration is ineffective as well as fragmented"

Behind this fragmented and inefficient regime lies the question of sovereignty. The Geneva Convention of 1950 stipulates that states hold the undisputed sovereignty concerning who enters and exits their territory (Hollifield, 2012). For the emergence of the state goes with the building of the concepts of nationality and citizenship since the Renaissance. The Westphalia treaties have shaped the structure of nation-states as exclusive entities (Betts, 2008). This structural phenomenon is emphasized by the emergence of a welfare state which can entail a sentiment of rejection of migrants by natives (Hatton, 2007). The latters can consider that immigrants might raise the welfare burden. Conjectural events may also impact states positions toward labour migrations. Macroeconomic crises could lead to tougher immigration policies as exemplified by the recession following the 1973 oil shock which pushed European states to suddenly end their guest workers’ policies (Hatton, 2007). Security shocks could also lead to protectionist attitudes such as the reinforcement of controls at France’s borders following the 13-November attacks in 2015. To go more in depth, behind those structural and conjectural effects lies the political feasibility constraint applied by the median voter. Public opinion matters in shaping the migration policy. Today’s raise of populist anti-immigration movements in Western Europe highlights that a difficult economic and security environment affects the evolution of public opinions. States have to deal with that international and domestic context.

Another possible obstacle to a global migration governance lies within the very own nature of migration. Migration could be considered as a one-way road (Goswami, Luthria, Malaulau, Saez, 2013). Even though the remittances, the brain-gain phenomenon or development aid constitute counterparties, the asymmetry persists to the extent that labour migration constitutes a real and tangible flow, whereas remittances, foreign aid and brain-gain are not tangible and have often effects only in the long term. The temporal distortion of migration can be seen as the cause of multilateralism’s failure, as well as of the interests’ distortion between sending and receiving countries. The formers tend to encourage emigration whereas the latters want to limit immigration (Moraga, 2008). Although this vision is schematic, the nature of their interests in migration are different just because they do not have the same resources and needs at this is rather a barrier to global cooperation. The fact that the only successful tentative at the regional level happened in a continent, in which development disparities are low and where internal migration flows are both-ways shows in the negative that reciprocity and symmetry matter deeply for international cooperation.

The last major obstacle is, according to me, a problem of method. The comparison between trade and migrations is drawn in many pieces of literature, as well as the comparison with the WTO, the World Trade Organisation (Hollifield, 2012; Hatton, 2007). Yet there is a huge, clear difference: migrants are human beings contrary to services and goods exchanged through trade flows. Migrants do not go where other actors tell them to go. Beyond political, economic frameworks, other factors push and pull migrants, for immaterial reasons such as the presence of a migrant community or diasporas (Geddes, 2012), cultural proximity or even the spoken language. The role of transnational communities is crucial and must be taken into consideration because it represents a migration’s costs-reducing factor for migrants. The analogy with trade organisations gives too much room to rationality where migrants and natives have just a limited rationality.

Incentives for bilateral agreements

Consequently, due to the evoked factors, states have allowed more attention to fulfil their interests through other mechanisms than multilateral processes. Bilateral agreements, which could take different forms such as basic memoranda of understanding or more developed memoranda of agreement, are progressively being signed in every region of the world since the end of the Second World War (Wickramasekara, 2015). We can identify three reasons why sending and receiving states privilege bilateral agreements.

Bilateral agreements improve the governance of labour migrations. The first element is practical. “The fewer principles or norms there are, the greater the likelihood that states will respect them and change their behaviour” (Hollifield, 2012: 18). It is hard to find convergences when many different actors are concerned. Bilateral agreements could consequently be more specific to the counterparts’ interests, simpler, more flexible and assume a stronger commitment from the parties (Goswami et al. 2013). Bilateral agreements can also permit to develop a more efficient labour market management. Those agreements are the focal points between sending states seeking to relieve their labour surplus, and immigrants-receiving countries which need some skills in some sectors but want to restrict welfare access and spur migrants to return. Those agreements seem to resolve the reciprocity issue. The two actors involved fulfil their own interests: receiving countries cover the holes in their labour markets without provoking public opinion contestations, and sending countries benefit from a less stressed domestic labour market, from brain-gain after the return from migrants, and from remittances which tend to be higher when the migrants have to return as in such a case the migrants often keep tighter links with their relatives at home (Hatton 2007). Bilateral agreements could also have an effect on the prevention of irregular migrations by establishing and promoting legal channels and by developing migrants screening.

Secondly, this kind of agreements permits to promote and protect migrant workers’ rights (Wickramasekara, 2015). A long time discriminated according to their origin country, migrants’ rights are protected in newly taken provisions in bilateral agreements. Migrant workers are treated under the host country’s laws in the majority of cases. Other elements could be part of the agreements like the non-retention of identity documents. This preoccupation of migrants’ rights is growing. In Spain, the existence of two generations of migration agreements highlights that evolution. The first generation of agreements with Ecuador, Colombia, Morocco, or even the Dominican Republic developed measures on the protection of migrant worker’s rights. The second generation, whose first agreement is with Guinea in 2006, adds new measures concerning the fight against traffic and smuggle of people and a readmission clause (Pinyol, 2009). The well-being of migrants is an important element for sending countries. However, this is not the best developed feature of bilateral agreements.

Thirdly, bilateral agreement could favour development linkages. Remittances are the most important and the most tangible feature in that dimension. A huge part of agreements contains a clause on remittances, most of the time permitting migrants to send home freely their savings (Wickramasekara, 2015). Initiatives concerning the mitigation of brain-drain, reintegration processes, support of diaspora, skills recognition and skills training are ways to establish a positive link between the actors. It could also be a way to protect exclusive post-colonial relationships and to promote cultural and economic connections (Pinyol, 2009).

Those three dimensions represent incentives which reduce the reciprocity problem and create an adapted framework at the bilateral level. However, all those measures are not per force implemented and the overall structure of multiple agreements raises questions about cooperation and governance.

Considering new forms of international cooperation

Chang considers guest-workers’ programs as “second-best policies” (2002). Indeed, whatever one might say about bilateral agreements, they have limitations. They are legal ways to operate a selection among migrants, based on national origin and/or on the level of competence. Those preferential channels of migrations are not necessarily the most effective ones. The migration diversion problem happens when migrants who are authorized to enter the territory are not the most efficient ones (Sykes, 2012). Data and controls seem insufficient and several possible incentives evoked in the previous part are not proved and sometimes not applied such as the human rights protection in Middle Eastern receiving countries. What is clearer is the preponderant weight of Northern countries in shaping the bilateral agreements. Without a global authority, the interests of the strongest prevail. The disagreement concerning the development of a Global Forum in Migration within the UN proposed by the UN’s Secretary General in 2006 originated in the preference of Europe and the US to maintain the status quo which permits them to continue with a flexible framework better adapted to their short-term interests in which they are rule-makers whereas weaker countries rule-takers (Betts, 2008). In a few words, the imperfection of these bilateral agreements relies on the power relationship they mirror.

Even though bilateral agreements have some inefficiencies and limits in terms of balance of powers, it is worth wondering whether the global cooperative approach is so desirable. Pragmatism obliges us to underline how much regime building is a complex task, especially without the support of great powers. It appears that great powers privilege bilateral agreements and tend to avoid legally binding forms of cooperation (Goswami et al. 2013). The sovereignty of states seems hard to by-pass. Consequently, short-term state agreements have to be considered as the only possible solution. Hatton highlights that “the need for multilateral negotiation is far from obvious” (2007: 363). As things stand currently, a unique global regulation framework on labour migration seems unlikely.

On this basis, we can think about what could possibly become a new form of governance. A bottom-up process which results in a fragmented multi-level governance essentially based on bilateral agreements (Betts, 2008). Thinking about an efficient management of labour mobility where receiving as well as sending countries highlight risks and intensify benefits, seems more appropriate than thinking about a global liberalisation of labour markets in which receiving countries would have to open their borders. In that new pluralist view, states enjoy flexibility and can develop new ways of non-permanent and ad-hoc cooperation (Betts, 2008). The necessity of a binding organisation is contestable. Other functions than direct regulation are possible: data collection and analysis, technical assistance, creation of platforms of discussion, or even coordination with different mechanisms could be set up to insert a certain form of cooperation (Hatton, 2007). Many authors emphasize the efficiency potential of a global cooperation on labour migration, especially in terms of GDP growth. Different studies ranged the possible gains from 10% to 50% of the world’s GDP (Hatton, 2007). As we can see, the estimations are divergent as far as their magnitude is concerned. States are not completely economically rational and can obey to other lines of influence, especially political ones – opposition of public opinion is one of those. Consequently, this bilateral form of governance seems to be a good compromise, with a certain room for improvement, between domestic forces and states interests.

Bilateral agreements are the most common form of cooperation on labour migration issues. It is the result of different factors: the failure of global community to find an agreement, due to several concerns such as sovereignty, public opinion or asymmetry, and the correct match of bilateral agreements and states' interests. What could be characterized as an inefficiency could also be seen as a new form of governance non doomed to reach a global cooperation level: a multi-layered structure where states have power and where some transnational organisations (OIM, ILO, UN) play a role, even if non-binding. Talking about an eventual future multilateral cooperation is not necessary the good method. There are no global binding agreements without the collaboration of great powers. The current form of governance is likely to remain and further work is necessary to evaluate how efficient it is and to improve this system.

Betts, A. (2008), Global Migration Governance, Global Economic Governance Program, GEG Working Paper, 2008/43. http://www.geg.ox.ac.uk/sites/geg/files/Betts_GEG%20WP%202008_43.pdf

Chang, H. (2002), “Liberal Ideals and Political Feasability: Guest-Worker Programs as Second-Best Policies”, Faculty Scholarship, Paper 1271. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2273&context=faculty_scholarship

Geddes, A. (2012), Chapter: “Regions and Regionalism” in Oxford Handbook of the Politics of International Migration by Rosenblum, M & Tichenor, D.

Goswami, G., Luthria, M., Malaulau, M., Saez, S. (2013), Chapter “When and Why Should Bilateral Labour Agreements Be Used?” in Saez, S., (2013), Let Workers Move, Directions in Development, Trade.

Hatton, T. (2007), « Should we have a WTO for international migration ? » in Economic Policy, April 2007, pp. 339-383. http://conference.iza.org/conference_files/amm2006/hatton_t129.pdf

Hollifield, J. (2012), Chapter: “Migration and IR in Oxford Handbook of the Politics of international Migration”, in Oxford Handbook of the Politics of International Migration by Rosenblum, M & Tichenor, D.

Martin, S. (2007), “An overview of international cooperation over migration”, Proceedings of the Annual Meeting, American Society of international law, pp. 306-311. https://www.jstor.org/stable/25660210

Moraga, J. (2008), “A general model of Bilateral Migration Agreements”, IAE-CSIC, Barcelona GSE and IZA. http://www.iae.csic.es/investigatorsMaterial/a82010125228archivoPdf57247.pdf

Pinyol, G. (2009) “Labour agreements for managing migration: the Spanish experience”, Workshop on Establishing Labour Migration Policies in Countries of Origin and Destination and Inter-State collaboration in the Western Balkans – OIM, CIDOB Foundation. http://www.migrantservicecentres.org/userfile/G_Pinyol_CIDOB_Spain.pdf

Ruhs, M, & Chang, H, 2004, “The Ethics of Labor Immigration Policy”, in International Organization, Volume 58, Issue 1. https://www.cambridge.org/core/journals/international-organization/article/div-classtitlethe-ethics-of-labor-immigration- policydiv/861F0ED56C9F83A5AE9DB868FF3C78AD

Sykes, A. (2012), “International cooperation on migration, theory and practice”, in University of Chicago Law Review, Volume 80, Issue 1. http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5597&context=uclrev

Wickramasekara, P. (2015), Bilateral agreements and memoranda of understanding on migration of low skilled workers: a review / Report prepared for the Labour Migration Branch; International Labour Office – Geneva: ILO, 2015. http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---migrant/documents/publication/wcms_385582.pdf

Picture credits: Paul Davidson, Working Visa or Japan, 2005.

Les opinions et interprétations exprimées dans les publications engagent la seule responsabilité de leurs auteurs, dans le respect de l'article 3 des statuts de l'Institut Open Diplomacy et de sa charte des valeurs.

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