Published by De Gruyter

Volume 23 Issue 2

Issue of Theoretical Inquiries in Law

Contents
Journal Overview

Publicly Available August 10, 2022

Frontmatter

Page range: i-iv

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Bilateral Labor Agreements

Open Access August 10, 2022

The expanding universe of bilateral labor agreements

Adam Chilton, Bartosz Woda

Page range: 1-64

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Abstract

In the seventy-five years since the end of World War II, pairs of countries have entered into over a thousand bilateral labor agreements (BLAs) to regulate the cross-border flow of workers. These agreements have received little public or academic attention. This is likely, in part, because there is limited data or easily available information on BLAs. This Article hopes to change that by introducing three new resources: (1) a dataset documenting the formation of over 1,200 BLAs; (2) a corpus including the texts of over 800 BLAs; and (3) a dataset coding whether over 500 BLAs mention twenty topics that the ILO has identified as best practices for these agreements. Using this data, we show that, unlike some other forms of bilateral agreements, the rate of BLAs being signed has remained relatively high during the first two decades of the twenty-first century. Additionally, we also show evidence that, although many BLAs were formed during this period, relatively few agreements include various worker protections advocated for by activists, scholars, and NGOs.

August 10, 2022

Gaining control? bilateral labor agreements and the shared interest of sending and receiving countries to control migrant workers and the illicit migration industry

Yuval Livnat, Hila Shamir

Page range: 65-94

Abstract

Countries increasingly have been entering bilateral labor agreements (BLAs) as a tool for the regulation and governance of short-term temporary labor migration worldwide. However, these are often confidential legal instruments, and consequently we know relatively little about their actual content and impact, and why countries choose to enter them. This Article complements existing explanations in the literature regarding the reasons why countries enter BLAs and their potential to create and improve migrant workers’ rights. Based on a detailed content analysis of 81 recent BLAs signed largely over the last 20 years, and on a wide literature review and interest analysis, we introduce a “control thesis.” According to the control thesis, the popularity, confidentiality and unenforceability of BLAs can be explained, at least partially, by their ability to promote a key shared interest of sending and receiving countries in controlling and policing the mobility and actions of migrant workers and also, at times, aspects of the illicit migration industry that develops around labor migration. We reach this conclusion, and elaborate on its meaning and the potential it may hold for migrant workers and their advocates, in strategically seeking to use BLAs to improve temporary migrant workers’ rights and protections.

August 10, 2022

Obscurity and nonbindingness in the regulation of labor migration

Tamar Megiddo

Page range: 95-112

Abstract

Labor migration is often regulated internationally through bilateral treaties signed between states, determining the conditions under which migrants from one state (or both) may travel to the other state and reside there in order to work. These instruments are sometimes designated as memoranda of understanding and regarded as nonbinding agreements. Many remain unpublished and undisclosed. This Article assesses these design choices critically. It considers the interaction between bilateralism, obscurity and nonbindingness. It evaluates and rejects possible justifications for obscurity and nonbindingness. Finally, it argues that these design choices should be resisted. Since bilateral labor agreements do not regulate strictly the bilateral relationship between two states, but rather create rights and obligations for various third-party individuals, they should be required to meet a rule of law requirement of transparency.

August 10, 2022

Informalization, obfuscation and bilateral labor agreements

Tijana Lujic, Margaret E. Peters

Page range: 113-146

Abstract

Researchers who have attempted to collect and compare bilateral labor agreements (BLAs) have encountered varying degrees of accessibility of information on these agreements. Why is it harder to find out information on some bilateral labor agreements than others? In this Article, we argue that it is more difficult to find information and agreements tend to be more informal when governments want to obscure what they are doing. Building on insights from the study of optimal obfuscation in trade policy and research on informal institutions in international politics, we argue that policymakers use more informal agreements and make it more difficult to find information on BLAs when they think they will be politically unpopular and are unlikely to be ratified. In contrast, leaders will be more likely to use formal agreements when they want to lock in a policy. Drawing on original quantitative data on the accessibility of information on bilateral labor agreements and Peters’ 2019 database on BLAs, the Article analyzes the accessibility of information on bilateral labor agreements and finds some support for our argument.

August 10, 2022

In the zone: Work at the intersection of trade and migration

Jennifer Gordon

Page range: 147-183

Abstract

Trade and immigration are generally described as separate dimensions of globalization. This Article challenges that story by focusing on settings where states and private actors are bringing the two together to achieve disparate economic and policy goals. In one of the two sets of cases analyzed here, governments in the Global South are seeking to increase trade through the use of migrant labor, attracting transnational firms to export manufacturing zones by importing lower-cost workers from other countries. In the other, policymakers in the Global North are seeking to decrease immigration through the use of trade by investing in export processing zones in migrant origin countries, on the theory that more trade, and the employment it creates, will deter onward migration to the Global North. I use these contexts as the starting point for a reconsideration of core ideas in trade and migration policy and theory. In the first set of cases, governments are constructing a comparative advantage in labor from whole cloth, by bringing in workers from other countries on terms that restrict their freedom and subject them to exploitation at work. This challenges the usual description in the trade literature of labor cost as a natural phenomenon based on local wage and productivity levels, and thus a legitimate source of advantage in trade. Meanwhile, transnational firms that locate production in such export processing zones sidestep the ordinary choice between benefiting from global wage differentials by moving work overseas or by hiring migrant workers. Instead, they do both simultaneously, a strategy I term “double labor arbitrage.” I explore the ways in which the construction of comparative advantage and double labor arbitrage operate together to extract additional value from workers for the benefit of states and corporations. With regard to the second set of cases, I draw on recent empirical economic scholarship to challenge the argument that more trade will decrease emigration. More profoundly, I question the normative justification for these proposals, given the treatment of workers in the zones. Although proposed as a “solution” to immigration, I argue that they are much more likely to deepen the problems that drive it. Immigration and trade law do not bar any of the developments I analyze here. The question is whether they should. This Article—the first step in a larger project—launches that inquiry.

August 10, 2022

Bilateral labor agreements as migration governance tools: An analysis from a gender lens

Jenna L. Hennebry, Nicola Piper, Hari KC, Kira Williams

Page range: 184-204

Abstract

This Article discusses BLAs as tools of global labor migration governance, with a specific focus on gender. Drawing on our global database of 582 bilateral labor migration agreements (BLAs), we investigate the extent to which these governing instruments connect and align with relevant international normative frameworks, in particular the extent to which they represent gains, gaps or gaffs in terms of gender equality and the human and labor rights protection of women migrants. In the context of the Global Compact for Safe, Orderly and Regular Migration (GCM), which stresses a gender-responsive approach to migration governance as one of its guiding principles, we ask: Do the BLAs which are increasingly being used as instruments to govern labor migration contribute toward sustainable gender equality, decent work and reduced inequalities for women and gender-diverse migrants?

August 10, 2022

Getting China into the game: Bilateral labor agreements in the system of global labor rights

Alan Hyde

Page range: 205-221

Abstract

Bilateral trade agreements are the preferred mode of transnational regulation for the People’s Republic of China. China has made promises on labor rights in draft bilateral agreements that it has not previously made in any other venue. The future of transnational labor regulation requires Chinese participation. Bilateral agreements should therefore become a normal part of transnational labor law. Model labor rights provisions for bilateral agreements should be promulgated. Consultative and informal enforcement will be necessary.

August 10, 2022

Entrapment processes in the emigration regime: The presence of migration bans and the absence of bilateral labor agreements in domestic work in Nepal

Ayushman Bhagat

Page range: 222-245

Abstract

This Article offers an integrated analysis of the combined effect of the presence of migration bans and the absence of BLAs in domestic work in the emigration regime of Nepal. It identifies, acknowledges, critiques, and contributes to the critical literature highlighting entrapment processes in labor relations and immigration regimes by demonstrating the presence of such in the emigration regime. Drawing on the empirical findings of a participatory action research (PAR) project conducted in Nepal, the Article demonstrates how restrictive emigration policies and practices entail entrapment processes constitutive of the existing historical, cultural, gendered, racialized, and classed constraints impacting the lives of Nepalese citizens. The Article contributes to the critical literature that seeks to advance migrants’ rights, arguing that experiencing, encountering and escaping entrapment processes in the emigration regime impacts their agency when navigating immigration regimes and labor relations. This contribution advances the existing efforts to establish oft-ignored emigration regimes as important epistemological sites of research, theorization, and intervention.

August 10, 2022

Blas as sites for the meso-level dynamics of institutionalization: A cross-sectoral comparison

Yahel Kurlander, Avinoam Cohen

Page range: 246-265

Abstract

In this Article we seek to shift the focus from the texts of bilateral labor agreements (BLAs) to the context of their emergence and materialization. We argue that to study BLAs and evaluate their consequences and potential relevance, they must be read from the perspective of processes of institutionalization that shape the paths of different agreements. In Israel, a cross-sectoral comparison of the agricultural and construction sectors reveals that different agreements did not follow the same path and institutionalization process. The Israel-Thailand agreements for the agricultural sector and the agreements regulating migration to the construction sector did not generate similar dynamics of institutionalization. In both sectors, BLAs transformed recruitment practices and led to a sharp decrease of illicit migration costs extracted in the process. Yet due to differences in the structure of the sectors and the expected skill level of workers, significant variations remain, most notably in the effect of BLAs on the permit and quota system and in the rise of paths to import labor outside BLAs. Based on this cross-sectoral comparison, we offer in this Article a grounded analytical perspective for examining and evaluating BLAs in context. In discussing our suggestions, we will project our analysis to the more recent agreement covering the live-in care sector that is currently the largest employing sector of guest-workers in Israel.

August 10, 2022

Bilateral agreements, precarious work, and the vulnerability of migrant workers in Israel

Nonna Kushnirovich, Rebeca Raijman

Page range: 266-288

Abstract

We examine the short-term and long-term impact of bilateral agreements on migrant workers’ vulnerability during their employment in Israel. To do so, we developed the Vulnerability Index of Migrant Workers based on five dimensions: poor working conditions, poor living conditions, poor safety conditions, low wages, and dependence on migration costs. We focus on migrant workers arriving in Israel from two different countries (China and Thailand), employed in two different sectors of the economy (construction and agriculture, respectively). Data was gathered through a survey conducted among workers arriving from both countries before and after the implementation of the bilateral agreements. The study revealed that after the implementation of bilateral agreements, the working, living and safety conditions of migrant workers remained poor or even worsened. For Thai workers, there was a slight improvement in the working and living conditions in the short term after the bilateral agreement, but they worsened in the long run. The total Index of Vulnerability of both groups showed improvement due to the dramatic decrease in dependence on migration costs, despite the deterioration in some working and living conditions and the reduction in migrant workers’ relative wages.

August 10, 2022

Blas as sites for the meso-level dynamics of institutionalization: A cross-sectoral comparison

Yahel Kurlander, Avinoam Cohen

Page range: 246-265

Abstract

August 10, 2022

Bilateral agreements, precarious work, and the vulnerability of migrant workers in Israel

Nonna Kushnirovich, Rebeca Raijman

Page range: 266-288

Abstract

August 10, 2022

Understanding the gaps between the bilateral regularization of migration and workers’ rights: The case of agricultural migrant workers in Thailand

Sudarat Musikawong

Page range: 289-325

Abstract

ASEAN agricultural workers represent one of the most vulnerable groups of workers regardless of citizenship. While bilateral agreements focus on general migration governance mechanisms, the specifics of agricultural workers’ rights and protections fall outside their scope. Due to the seasonal nature of cross-border agriculture, these are flexible precarious workers readily available to employers in the borderlands that often do not invest in worker health and social security. The Article reveals how foreign migrant agricultural workers with and without work permits continue to fall between the gaps of national labor protection laws, due to both legal structural exclusions as well as the particular vulnerabilities of being noncitizen workers in remote, unsafe workplaces. This Article documents some of the developments during 20172019 in migrant employment in export cash crops. The next challenge for the future is developing mechanisms for bilateralism to lower migration costs, with a commitment to genuinely safe migration, as well as the establishment of long-term equitable working conditions for all migrant workers. The major findings demonstrate how the two main reasons for the discrepancies between the BLA and labor protections have to do with the noninterventionist approach of ASEAN and a series of technical exclusions in Thailand’s labor law and regulation.

August 10, 2022

Adjudicating labor mobility under France’s agreements on the joint management of migration flows: How courts politicize bilateral migration diplomacy

Marion Panizzon

Page range: 326-373

Abstract

France’s agreements on the joint management of migration flows (AJMs) figure centrally within studies of bilateral migration agreements. With their origins in friendship and navigation treaties of the late 19th century, the AJMs are successors to the postcolonial, circular mobility conventions of the 1960s, and are uniquely positioned for periodizing the evolution of bilaterally negotiated labor mobilities. Nonetheless, due to the European Union’s reluctance to embrace mass regularization and the EU Member States’ legislative powers over labor markets, they have time and again scotched France’s ambition to leverage preferential labor market entries in exchange for more cooperation over irregular migration. Through documents and statistical data analysis, this Article studies the case of Senegal’s negotiation of additional pathways to France for its lower-skilled workers. At the center is France’s administrative court of appeals, which has confirmed the broad margin of discretion over Art. 42 in the AJM between France and Senegal. This jurisprudence has decoupled the automatic linkage between a job listed under duress in France under the Annex to the AJM and the entitlement to exceptional admission. We argue that France’s courts have removed a privilege of Senegalese workers, which has re-politicized France’s migration diplomacy with Senegal. At the same time, retention of the prefectorial discretionary power has levelled the playing field among West and North African countries that have concluded similar bilateral agreements with France. This Article adds to the research on bilateral migration agreements by proposing a multilevel legal analysis, which studies AJMs in the context of France’s common law, EU labor and return directives, and the multilateral of WTO/GATS liberalization.

About this journal

Theoretical Inquiries in Law is devoted to the application to legal thought of insights developed by diverse disciplines such as philosophy, sociology, economics, history and psychology. The range of legal issues dealt with by the journal is virtually unlimited, subject only to the journal's commitment to cross-disciplinary fertilization of ideas. We strive to provide a forum for all those interested in looking at law from more than a single theoretical perspective and who share our view that only a multi-disciplinary analysis can provide a comprehensive account of the complex interrelationships between law, society and individuals.

Theoretical Inquiries in Law appears in several databases, including Lexis, Westlaw, LegalTrac, and HeinOnline.

At present, Theoretical Inquiries in Law is ranked third for "impact factor" by the Washington and Lee most cited legal periodicals list in the "Jurisprudence and Legal Theory" category, ahead of such journals as Law and Social Inquiry, Law and Society Review, Legal Theory, Canadian Journal of Law & Jurisprudence and Oxford Journal of Legal Studies.