Migration has been front page news both in the US and UK in recent months and should remain prominent in forthcoming elections in other EU Member States.
Yet trade and migration have gone hand in hand ever since merchants began travelling the Silk Road over two millennia ago to trade luxuries between China and Europe. This is certain to continue in earnest as international trade in goods begins to be eclipsed in importance by international services.
Here, we explore the place of migration in modern free trade agreements. If the UK is truly to be a global champion for free trade post-Brexit, then the current international trade rules and Realpolitik dictate that it will also need to support and encourage trade-related migration.
We also explore what the status of migration is likely to be as a matter of EU law in the forthcoming Brexit negotiations; this is significant as it will dictate the parameters of such negotiations.
MIGRATION IN WTO LAW
The legal framework for international trade under the World Trade Organisation (WTO) - which appears to be under review by the current US administration - includes a General Agreement on Trade in Services (GATS).
GATS categorises cross-border trade in services according to four 'modes' of supply:
cross-border services - provided remotely (e.g. by post or telecommunication); consumption abroad - where the customer moves to the supplier's country to buy services (e.g. students travelling abroad); commercial presence - of the supplier in the customer's country, e.g. by using a local agent; presence of natural persons - for example by seconding employees or by independent professionals visiting the customer's country to provide services. With the exception of mode 1, trade in services therefore implies - at least in the majority of cases - the movement of individuals across national frontiers.
WTO members offer commitments (in a series of schedules) dictating the level of free trade they are willing to permit all other WTO members - both in goods and services.
Currently, the UK uses the EU's WTO trade schedules. However, as Prime Minister May indicated recently, Britain will be leaving those parts of the common customs union which prevent the UK from negotiating its own WTO schedules. It is therefore likely that UK trade policy - including migration - will become a subject of internal debate and external negotiation in the near future.
The UK's new WTO schedules (including under GATS) will form the bedrock of its future world trading position.
Most favoured nation principle
It is a key principle of WTO membership that commitments offered under its schedules are available to all members (about 140 countries) on a non-discriminatory basis - the so-called "most favoured nation" (MFN) principle. If a member does not adhere to its commitments as listed in its schedules, the WTO treaties contain dispute resolution procedures through a system of 'panels' (essentially international arbitrators), to make decisions permitting others to impose trade sanctions on the defaulting member.
Trade-related migration is, though, likely to apply only to individuals staying in the UK for a short period of time. An annex to GATS explains that it does not apply to national legislation regulating citizenship, residence or employment on a permanent basis.
Nor does it affect national rules (for example visa requirements) restricting entry or temporary stay in the member's territory. However:
such measures are not [to...