• TABLE OF CONTENTS
HIDE
 Front Cover
 Title Page
 Table of Contents
 Preface
 Introduction
 Forerunners of recompense
 The state, borders, and immigr...
 Migration characterized by human...
 Recompense: Why, how, and...
 In lieu of conclusions: Outline...
 Appendices
 Bibliography
 Advertising
 Back Cover














Group Title: Working paper - International Migration for Employment ; MIG WP 2
Title: Towards a system of recompense for international labour migration
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00086807/00001
 Material Information
Title: Towards a system of recompense for international labour migration
Series Title: Working paper International Migration for Employment
Physical Description: iv, 81 p. : ; 30 cm.
Language: English
Creator: Böhning, W. R
Publisher: International Labour Office
Place of Publication: Geneva
Publication Date: c1982
 Subjects
Subject: Alien labor -- Taxation   ( lcsh )
Brain drain -- Taxation   ( lcsh )
Distributive justice   ( lcsh )
International economic relations   ( lcsh )
Revenue sharing   ( lcsh )
Migración de trabajadores
Genre: international intergovernmental publication   ( marcgt )
bibliography   ( marcgt )
non-fiction   ( marcgt )
 Notes
Bibliography: Bibliography: p. 77-81.
Statement of Responsibility: by W.R. Böhning.
General Note: "February 1982."
Funding: Working paper (International Labour Office. International Migration for Employment Branch) ;
 Record Information
Bibliographic ID: UF00086807
Volume ID: VID00001
Source Institution: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: oclc - 12810736
lccn - 84228332
isbn - 9221030008 (pbk.)

Table of Contents
    Front Cover
        Front Cover
    Title Page
        Title Page 1
        Title Page 2
    Table of Contents
        Page i
        Page ii
    Preface
        Page iii
        Page iv
    Introduction
        Page 1
        Page 2
        Page 3
    Forerunners of recompense
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
    The state, borders, and immigration
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
    Migration characterized by human resource transfer
        Page 32
        Page 33
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
        Page 39
        Page 40
        Page 41
        Page 42
        Page 43
        Page 44
    Recompense: Why, how, and how much?
        Page 45
        Page 46
        Page 47
        Page 48
        Page 49
        Page 50
        Page 51
        Page 52
        Page 53
        Page 54
        Page 55
        Page 56
        Page 57
        Page 58
        Page 59
        Page 60
    In lieu of conclusions: Outline of a model agreement
        Page 61
        Page 62
        Page 63
        Page 64
        Page 65
        Page 66
    Appendices
        Page 67
        Page 68
        Page 69
        Page 70
        Page 71
        Page 72
        Page 73
        Page 74
        Page 75
        Page 76
    Bibliography
        Page 77
        Page 78
        Page 79
        Page 80
        Page 81
    Advertising
        Page 82
    Back Cover
        Page 83
Full Text








INTERNATIONAL MIGRATION FOR EMPLOYMENT


Working Paper
















TOWARDS A SYSTEM OF RECOMPENSE
FOR INTERNATIONAL LABOUR MIGRATION


by

W.R. Bihning


International Labour Office, Geneva





MIG/WP.2


INTERNATIONAL MIGRATION FOR EMPLOYMENT




Working Paper


















TOWARDS A SYSTEM OF RECOMPENSE
FOR INTERNATIONAL LABOUR MIGRATION


by


W.R. Bbhning


Note: This is a Working Paper issued by the International
Migration for Employment Branch. It is circulated
informally in a limited number of copies to stimulate
discussion and critical comment. It is restricted and
should not be cited without permission.


February 1982












Copyright Q International Labour Organisation, 1982


ISBN 92-2-103000-8














The designations of countries employed, which are
in conformity with United Nations practices, and
the presentation of the material in this paper do
not imply the expression of any opinion whatsoever
on the part of the International Labour Office
concerning the legal status of any country or ter-
ritory or of its authorities, or concerning the
deliminations of its frontiers.

The responsibility for opinions expressed in ILO
Working Papers rests solely with their authors,
and their circulation does not in any way constitute
an endorsement by the International Labour Office
of the opinions expressed in them.












TABLE OF CONTENTS

A. PREFACE, by W.R. Bbhning

B. TOWARDS A SYSTEM OF RECOMPENSE FOR INTERNATIONAL
LABOUR MIGRATION, by W.R. Bohning

I. INTRODUCTION ..................................... 1


II. FORERUNNERS OF RECOMPENSE ........................ 4

(a) Bhagwati's brain drain tax .................. 4

(b) The International Labour Compensatory
Facility .................................... 6

Address by Jordan to 1977 International
Labour Conference ........................... 6

UN General Assembly resolutions and stirring
at UNCTAD ..................................... 8

Follow-up to the World Employment Conference
and to Jordan's address ..................... 10

(c) Retrospect and prospect ..................... 11

III. THE STATE, BORDERS AND IMMIGRATION ............... 13

(a) The State ................................... 13

(b) Borders ..................................... 15

(c) Immigration of active persons .............. 16

Scope .......... ............................. 16

Why active foreigners are admitted ......... 18

Why international migration takes place ..... 19

(d) Legislative examples of fundamental
principles .................................. 21

(e) Limited abrogation of controls ............. 25

(f) Political contradictions and administrative
problems ........................................ 26

(g) Outlook ......................................... 29








- ii -


IV. MIGRATION CHARACTERIZED BY HUMAN RESOURCE
TRANSFER .......................................... 32

(a) Scope ........................................ 32

(b) Official or business migration ............ 35

(c) Contract migration .... ..................... 38

(d) Settlement migration ...................... 41

(e) Free migration ............................ 42

(f) Irregular migration ..... .................... 43


V. RECOMPENSE: WHY, HOW, HOW MUCH? ................ 45

(a) Justification ............................. 45

The principal institutional justification .. 45

The supplementary economic justification ... 46

The legal inequity ...................... ... 50

(b) Procedure .................................... 50

(c) Amount ...................................... 53

A portion of the basic wage ................ 53

Hypothetical illustrations ................. 56

Imputing values to human resource flows .... 57


VI. IN LIEU OF CONCLUSIONS: OUTLINE OF A MODEL
AGREEMENT ................................. 61


APPENDICES

(a) Statistical examples of hypothetical number
of cases liable to recompense in the past .. 67

(b) Statistical examples of hypothetical amount
of recompense due in a recent year ........ 73

(c) List of countries hypothetically liable to
recompense ................................ 76

(d) Bibliography .............................. 77





- 1.i -


A. PREFACE


This is the second working paper of the ILO's International
Migration for Employment Branch. The objectives of the Branch
are to contribute to (1) the evaluation, formulation and appli-
cation of international migration policies suited to the economic
and social aims of governments, employers' and workers' organi-
sations, and (2) the increase in equality of opportunity and
treatment of migrants and the protection of their rights and dignity.
Its means of action are (a) research and reports, (b) technical
advisory services, (c) technical co-operation, (d) meetings, and
(e) work concerned with international labour standards. The
Branch also collects, analyses and disseminates relevant infor-
mation and acts as the information source for ILO constituents, ILO
units and other interested parties.


This new working paper series continues the Migration for
Employment project working paper series which formed part of the
ILo World Employment Programme between 1975 and 1981. A set of
selected WEP research working papers is available in microfiche
form for sale to the public.

The starting point of the following paper was the address
to the 1977 International Labour Conference by Crown Prince Hassan
of Jordan, which is quoted extensively on pp. 6-7 below. The
1980-81 ILO Programme and Budget asked for review of the justifi-
cation of "compensation" and investigation of various operational
formulae through which it might be achieved. It goes without
saying that the case which I have made for "recompense" expresses
my own view and not necessarily that of the ILO or of the Govern-
ment of Jordan for that matter.


I should like to thank David Freedman, Phil Martin, Felice
Morgenstern, Italo Musillo, Samir Radwan, Ned Reubens and Chuck
Stahl whose comments on an earlier draft and views assisted me
greatly. Their willingness to comment should not be interpreted





iv -






as an endorsement of the view expressed here. Indeed, some of

them disagreed substantially with me; but because their dis-

agreement helped me in clarifying my own thinking their assistance

is gratefully acknowledged.


February 1982


W.R. Bbhning







I. INTRODUCTION


Recompense is a new word for a recently emerged subject. It is meant to

designate a payment for another country's human resources when one wishes to utilise

them. Until well into the 1970s this idea had not entered the academic literature

or political speeches. When it did, compensation was the label attached to it.

This reflects the grievance that fomented its appearance. However, the word does

not serve its cause well. Compensation invariably signifies a loss suffered, the

money supposedly making good the loss, at least to some extent. This is its

accepted meaning ever since Workmen's Compensation Acts have been drafted. The

justification which is implied in the word is intuitively obvious. Not so in the

context of international migration Our image of migration portrays the sufferings

and successes of the people who move. A justification for compensating losses

inflicted upon emigration countries through the outflow of migrant workers or

refugees or any other category that comes to mind is not immediately obvious; it is

in fact quite difficult to grasp; and it can be attacked easily. Hence the need

for a new term to designate a basically sound and defensible idea. Recompense does

not have the millstone of assessable losses around its neck; it still permits a

specific meaning in the field of international migration.


Irrespective of its specifics, recompense stands a chance of becoming accepted

and acted upon only if two conditions are fulfilled. First, it must relate to

economic or production requirements (such as the division of labour, the growth of

output cr profits). Second, it must be powerfully supported in national and

international political arenas. A moral impulse alone, however noble, will not

breathe life into the idea. One may be reasonably optimistic as regards the first

condition. That economic needs in immigration countries are at the heart of much

contemporary international migration is undoubted. That the institutional

arrangements of contemporary sovereign States allow the entry of foreign labour only

if there is a demonstrable need, and that this principle is likely to be more loudly

asserted and strictly implemented in the face of rising emigration pressures,

provides good reasons for hope. As regards the various political arenas, national

ones naturally have the advantage of decisiveness and of making commitments stick.

It is possible, albeit improbable, that one day an immigration country unilaterally

and voluntarily undertakes to set up a system of recompense without real prompting

from the countries supplying it with labour (in the same way in which, for instance,

the world's first social security system was introduced in Germany 100 years ago


E-4482-6A:12




- 2 -


without noticeable pressure from "below"). However, a more probable scenario is

bilateral negotiations requested by emigration countries where the outcome will be

enacted through national law. Preferences, linkages, even pressurising come into

play here. At the regional and most of all at the international level these factors

are less powerful and commitments are less enforceable. Still, the international

process has a useful role to play in the gestation of recompense. Interested

parties can draw on it for political or intellectual support; and it is in this

spirit that I have written this brief monograph.


However, the political feasibility of recompense is not the object of this

work. Nor is it the administrative feasibility of transferring money from one

country to another, which happens daily at the snap of a finger. The aim of this

study is to put forward for discussion a justification for recompense and to explore

the key operational problems that would be encountered in implementing any scheme of

recompense or of compensation for that matter. Readers should not expect an

economic treatise on the costs and benefits of international migration. I do not

believe one can reasonably argue that, in normal circumstances, the outflow of

workers will make emigration countries worse off than they are. Cne can argue that

immigration countries will gain more than emigration countries (Bahning, 1978). The

case that will be made here proceeds from a political and institutional 2ersg tlve

and is based on the fact that immigration countries would not admit foreign workers

with a view to employment if it were not in their economic interest to do so.


The plan of work is, firstly, to trace the forerunners of the notion of

recompense, thus illuminating the many different perspectives present at its

beginnings. Secondly, to explain the nature of the State, the excluding function of

borders, the reasons why foreigners are admitted and international migration takes

place. It is on these fundamental factors that the idea of paying for another

country's labour can and indeed must be established. Thirdly, to typify the

multitude of today's international migration movements involving a human resource

transfer and screen them to see in how far they derive from or accord with those

fundamental factors and could, therefore, be liable to recompense. Movements whose

origin can be attributed to other factors, such as humanitarian considerations, are

sorted out; they cannot justifiably be merged with the conceptual frame of

reference of recompense. The distinctions made are later applied to a selection of

representative immigration statistics. Of course, this statistical determination

of what might have been recompensable cases in the past, had the criteria proposed


E-4482-6A:12




- 3 -


here been adopted by the countries referred to, is meant to be entirely hypothetical

and illustrative. Fourthly, to elaborate the justification for recompense and to

examine whether or which general administrative practices lend themselves to the

implementation of the principles of recompense. This will bring us to the question

of the amount of recompense to be paid. Possible yardsticks, such as the cost of

migrants' upbringing or education, are reviewed and discarded in favour of a one-

month wage or salary in ordinary cases. This section will also serve to sharpen

still more the basic idea of recompense and to mark off its boundaries. Confusion

is the worst enemy of recompense.


It should be made clear at the outset that the terms "migrant", "foreign

labour" and "immigrant" or "citizen working abroad" and "emigrant" are used

interchangeably as are the terms "immigration country", "migrant-receiving country"

and "country of employment", on the one side, and "emigration country", "migrant-

sending country" and "country of origin", on the other. None is meant to express

either temporary or permanent intentions on the part of the mover or on the part of

the country he enters or from whence he comes. Many migrants do not have definite

intentions regarding the duration of the move, or they change them while abroad (see

e.g. B6hning, 1982). Some governments admittedly have limited-stay policies, and

they cast them in such telling phraseology as "non-immigrant" or "temporary

employment". But not only are the administrative definitions highly varied, more

often than not the law and practice at least of advanced industrialized countries

-enable migrants to change from one status to another, thus rendering the literal

interpretation of policies inaccurate. Throughout the text the word "migrant",

etc., is used in a generic sense; unless otherwise stated it should not be taken to

coincide with the meaning of any national or international law. There will be an

opportunity later to consider the proper meaning of temporariness.


E-4482-6A:12





- 4 -


II. fORERUNNERS OF RECOMPENSE



(a) Bha.wati's brain-drain tax

Towards the end of the 1960s a number of development economists and

politicians became concerned at the apparent inability of Third World countries to

catch up with the First World. Simultaneously, the large-scale movement of

professional, technical and kindred workers from the Third to the First World turned

into an international issue.- The first to articulate distinct links between the two

subjects was Jagdish Bhagwati, once Professor at Delhi University, India, and later

at universities in the United States of America. He proposed to levy a surtax on

the income accruing to brain-drain immigrants in developed countries with a view to

transferring the receipts to developing countries. Several permutations,

modifications and justifications have evolved through the interplay of academic

dispute and political temptations (see, e.g., Bhagwati, 1976a, 1976b, 1977, 1978,

1980; Bhagwati and Partington, 1976). They all have in common a basically moral

position. According to Bhagwati, migrants are the fortunate few who, while

maintaining their rights as citizens, escape their domestic tax obligations; and

the people left behind are, by and large, less well able to carry a tax burden.

Morality demands, he says, that this double inequity be rectified. An economic case

for a surtax on skilled migrants' incomes has also been made by Bhagwati. In his

view, the stiff immigration restrictions and substantial wage differentials between

rich immigration and poor emigration countries imply that migrants from the latter

will earn a substantial rent.


Proposals of a different ethic inspiration aim at tax deductions or credits

(Oldman and Pomp, 1976; Pomp and Oldman, 1977). In the first case, individual

migrant taxpayers in rich immigration countries would be allowed to deduct from

their taxable income the amount they might wish to contribute to charities in poor

countries. In the second, they would be permitted to earmark a proportion of their

taxes for routing to a designated UN agency for developmental spending.


The brain drain and surtax features of Bhagwati's proposals were perceived as

unnecessarily restricted to "brains" and punitive by Western Europeans who had begun

to realise the inequities to which international labour movements could give rise.

A representative of the Italian Government at a 1974 ILO Conference suggested that

"part of the benefit received by immigration countries, such as taxes, should be


E-4482-6A:12








5 -



paid into a special fund to be used for the purpose of transferring work" to the

emigration countries (ILO, 1974, para. 47). At a Nordic seminar, a representative

of the Finnish Ministry of Labour proposed that "part of the direct taxes paid in

the host country by a migrant worker are transferred to the country of origin", due

account being taken of different taxation systems (Majava, 1974, p. 15; see also

Majava, 1976). These, then, were proposals for international revenue-sharing and

not restricted to the brain drain.


I myself entertained for a while the idea of a differential surtax on

migrants' gross wages to be held in trust in case of return.1 However, the drawbacks

of imposing any kind of special tax on migrants have become increasingly clear. It

is discriminatory compared with the tax burden of nationals of the immigration

country; it may be onerous for the individual who is, in effect, subject to double

taxation; it might induce evasion and illegal employment if workers and employers

collude and "split the difference". To extend the tax system to one's citizens

working abroad is perfectly legitimate and perhaps desirable, but the immigration

country will have to forgo a corresponding amount lest it place the migrant in a

difficult position and lay itself open to the charge cf tolerating discrimination on

grounds of nationality. Where an immigration country unilaterally makes allowance

for taxes owed to an emigration country, it would effectively enter into a revenue-

sharing agreement without having conceived it as such. At any rate, surtaxes, tax

deductions or credits blur the two distinct issues of national and international

distributive justice. Moreover, they are not tangibly related to economic or

production requirements in the country the immigration country which is to part

with income generated within its borders, which does not augur well for the success

of such schemes.


Bhagwati has at times considered taxation of highly skilled migrants on the

grounds of losses inflicted by their migration on those left behind. He explained

that this is a case for compensaion to be paid by:


the migrants themselves for the privilege of being allowed to move
internationally in a world which, unlike in the 19th century, has


"Skilled migrants might, for the sake of argument, be levied at a rate of 2
per cent, unskilled ones at 0.5 per cent. This would reflect the different
education costs and constitute a disincentive for those whose out-migration is least
desirable. Should the migrant return within, say, five years, he would receive the
accumulated amount to use as he wished ... If he did not return ... the funds would
revert to the State as a proper compensation for its original expenditure on
education and training" (B6hning, 1975, p. 275).


E-4482-6A:12








- 6 -


unfortunately learnt to accept immigration restrictions as consistent with
human rights. But it is also then a case which needs argumentation on a case-
by-case approach, for the brain-drain phenomenon is not always a brain-drain
problem (Bhagwati, 1978).

This personalisation of compensation puts the matter into the sphere of national

distributive justice vis-A-vis the emigration country. No immigration country could

feel morally obliged to have anything to do with collecting the tax. As the

economic need for the tax arises outside its borders (even though a real demand for

migrants may exist within), the tax has not a sufficiently important function for

the immigration country to persuade its decision makers to endorse such a proposal.



(b) The Intsrnational Labour

Compensatoy_ Facility


The issues of taxing brains or compensating migrants' countries of origin were

not on the agenda of the 1976 ILO World Employment Conference, but international

manpower movements and employment were. During the negotiations of the Programme of

Action, several representatives of the Third World wished to refer explicitly to

measures of financial compensation through an international fund. Leading First

World countries were adamantly opposed. As a compromise, the Programme of Action

states that multilateral and bilateral migration agreements should "provide ways of

limiting losses in countries of origin, particularly developing countries, which may

result from the departure of skilled personnel whose education and training they

have provided" (para. 43(i)).


One year later, Crown Prince Hassan bin Talal of the Hashemite Kingdom of

Jordan, a country in the throes of an apparently unstoppable flow cf workers to its

oil-producing Arab neighbours, gave a special address to the International Labour

Conference. It provided the first important political airing of the ideas with

which this monograph is concerned, albeit under the misnomer compensation. To do

justice to the various rationales touched upon in this speech, it will be quoted

extensively.


Address by Jordan to 1977 International Labour Conference


Under the mounting pressure of rising costs of living, (Jordanian)
workers were easily lured by lucrative salaries abroad. Unable to resist the
temptation, skilled and semi-skilled workers continued to leave the country.
This labour drain reversed the traditional picture, and we found ourselves in
Jordan in dire need of labour, compared with our previous surplus. This
shortage of necessary skills had its impact in turn on our ability to
implement our development plans ...


E-4482-6A:12








- 7 -


Since the primary resource of my country is the human element ... we
feel that there is a pressing need for a set of formulae to be elaborated and
adopted at a universal level in order to ensure that the terms of trade
between capital and labour do not degenerate further in favour of capital.
Unless this imbalance in terms of returns is discouraged, the gap between the
rich and poor countries is bound to widen further and may, in the foreseeable
future, reach intolerable limits.

It is hardly necessary for me to emphasise here the obvious fact that
labour is at least as important a factor of production as capital. It is
becoming increasingly clear to planners around the world that man is the
primary development factor and capital occupies a secondary position. The
issue is fortified if one looks at the cost incurred in preparing capable
human beings and that of accruing capital. In many developing countries,
qualified labour is getting to be in chronically short supply. Thus, economic
conditions should be, but are not, tipping the exchange rate between labour
and capital in favour of labour. The world at large still discriminates
between labour and capital exports. The time has come to give labour exports
the attention and consideration traditionally accorded to capital transfers.
In order to do this, there is a need for an international agreement on the
movement of labour whereby proper remuneration and treatment are ensured ...
What I have just said naturally applies equally to the outflow of highly
skilled manpower. The familiar phenomenon of the brain drain must be
harnessed, regulated and controlled if we are to keep developing countries
from becoming anaemic economically, socially and intellectually.

In this over-all context, I should also like to propose the
establishment of an International Labour Compensatory Facility (ILCF). It
could be elaborated along the lines of the Trust Fund for Compensatory
Facilities of the International Monetary Fund. The proposed facility would
draw its resources principally from labour-importing countries, but in, a
spirit of solidarity and goodwill, other ILO Members may contribute to it.
The accumulated resources will be diverted to developing labour-exporting
countries in proportions relative to the estimated cost incurred due to the
loss of labour (ILO, 1977, pp. 281-3).

Several points stand out. There is no mention of taxing migrants. There are

references to the brain drain but not in such a way as to exclude ordinary skilled

and semi-skilled or even unskilled migrants from the scope of "compensation". The

justification for calling into question the traditional view that international

migration is an unrequited resource flow brings together losses (in momentum of

development as well as in expenditure on people who move abroad) and the widening

gap between countries (due to the gains reaped by the rich from the export of

capital and the import of the costless production factor labour).


The reference to the International Monetary Fund is puzzling. The IMF

compensatory financing facility enables countries to borrow money, at considerable

interest, when they experience balance-of-payments difficulties arising from export

shortfalls, provided the latter are temporary and largely attributable to

circumstances beyond the country's control. Emigration commonly eases balance-of-

payment problems, lasts for lengthy periods, may be quite irreversible, and at any

rate is nowhere as well-documented as the volumes and prices of commodity exports.

As the IMF facility seemed to provide a fruitless analogy, I have elaborated the

idea of recompense in a different context. It should be mentioned, however, that


E-4482-6A:12








- 8 -


the IMF facility was liberalised in August 1979, since when receipts from workers'

remittances can be added to earnings from merchandise exports (see Goreux, 1980).



UN General Assembly resolutions

and stirrinagsatUNCTAD


In December 1977 the UN General Assembly adopted a resolution on the "Beverse

transfer of technology" (which is UNCTAD's designation for the brain drain from

Third to First World countries). Its eighth preambular paragraph faintly endorsed

Jordan's call for a new view of international migration by "taking note of the

constructive proposal made ... concerning the establishment of an International

Labour Compensatory Facility". One of its operative paragraphs requested the UN

Secretary General, in co-operation with UNCTAD and ILO, "to undertake an in-depth

study of the 'brain-drain' problem, taking into account specific proposals made on

this subject, including the proposal referred to ... above".


The report of the Secretary-General (UN ECOSOC, 1978) makes but a few

references to compensation, mostly in the summary of the ILO submission. The

substantial in-depth analysis of UNCTAD was apparently expected to be published in

its entirety, but this did not happen straightaway. A series of resolutions at

UNCTAD and at the 1978 General Assembly requested that UNCTAD's study be made

"available", so it eventually appeared late in 1979 (UNCTAD, 1979b).


A resolution of the 1979 General Assembly once more recalled Crown Prince

Hassan's proposal and requested a study on the feasibility of establishing the ILCF.

The study took the form of two rather thin UN documents (see UNGA, 1980b and 1981).

The 1980 Resolution proclaiming the Third Development Decade mentioned the brain

drain and appropriate "assistance" to relieve its damaging effects.


In spring 1978, a group of governmental experts met to consider the studies on

the brain drain undertaken by or for UNCTAD (among them the Bhagwati and Pomp-Oldman

papers already referred to). The representative of Jordan submitted a number of

recommendations on behalf of the States Members of the Group of 77 (see UNCTAD,

1978, Annex I). The relevant sections start with the statement: "The emigration cf

skilled manpower represents a transfer of productive resources and there is evident

need to take systematic account of this in international resource flow accounting.

The gains associated with skill flows between the recipient and source countries

should therefore be shared on the basis of reciprocity." The Group then urges the


E-4482-6A:12








- 9 -


developed countries "to institute arrangements whereby the developing countries

share in the economic gains accruing to developed countries from skilled migration,

by means of revenue-sharing arrangements". The following rationales were put

forward:


(a) where developing countries incur disruption and economic difficulties in
their economies, there is a cogent case for financial assistance-cum-
compensation so that they may adjust to their loss of manpower with
greater ease.

(b) where developing countries do not incur any measurable disruption and
their comparative advantage is in skill production to export skills
abroad, they can legitimately improve their economic returns from such
migration through revenue-sharing arrangements; and

(c) in so far as there is a prima facie case for deducing that the developed
countries benefit from the inflow of skilled migrants ... such benefits
... may legitimately be shared through income-tax revenue-sharing
arrangements with the developing countries from which these skilled
migrants originate.

The position of the Group of 77 then lists the Bhagwati and Pomp-Oldman tax

proposals as well as Jordan's suggestion for an ILCF.


The experts of the industrialized market economy countries were not at all

enthusiastic. They played down the tax proposals and the ILCF and considered that

any compensatory scheme would run the risk of exacerbating rather than mitigating

the brain drain problem "since it puts a premium on brain-drain flows" (UNCTAD,

1978 Annex II). As a result, the agreed conclusions and recommendations of the

Group of Governmental Experts on Reverse Transfer of Technology were devoid of

substantive agreement on the tax and compensation issues raised.


In December 1978, UNCTAD was confronted with the same questions at a higher-

level body. A Pesolution on the Development Aspects of Reverse Transfer of

Technology was adopted but no substantial progress was made. The spokesman for the

industrialized market economy countries explicitly stated that its adoption by

consensus should not lead to the assumption that the position of his group had

changed in so far as compensation for the brain drain was concerned (UNCTAD, 1979a,

pp. 40-48 and 66-67).


In May 1979, UNCTAD V discussed a Resolution on development aspects of the

reverse transfer of technology. Apart from re-stating pertinent sections of earlier

UNCTAD documents, the final wording calls on "the international community" to

"consider examining, in the light of the in-depth study by the Secretary-General of

the United Nations, possible arrangements whereby developing countries experiencing

large-scale outflows of their skilled professionals which cause economic disruptions


E-4482-6A:12







- 10 -


could secure assistance in dealing with adjustment problems arising therefrom"

(para. 9.D.(i), emphasis added). Adoption without dissent was ensured by replacing

the term "compensation", which drew fire from the First World, by "assistance".

Opponents of the idea of compensation may now say that compensation is one thing,

which is not acceptable, and assistance is another, which is acceptable. Proponents

might argue that the position paper of the Group of 77 submitted to the 1978 UNCTAD

Group of Governmental Experts already spoke of "financial assistance-cum-

compensation" as though it was one and the same notion (see quote above, p. 9).

However, this is not particularly fruitful owing to the fact that compensation

invariably means financial redress. It is also noticeable that, in this resolution,

the rich immigration countries are not portrayed as gaining from the brain drain.

In other words, while a strong rationale of international redistributive justice -

gains is not mentioned, a weak one migration-inflicted problems is but is not

operationalised (as it logically should be) in terms of compensation. Besides, the

"international community" seems the wrong addressee for what are (in the case of

migration) primarily bilateral or regional matters.



Follow-uplto the World Emplyment Conference

and to Jordan's address


Within the framework of the ILO, two preliminary working papers, a few pages in

the International Labour Review, some innocuous references in the follow-up report

to the World Employment Conference and a little publicity material marked the

progress of the subject (B6hning, 1977, 1978, 1979a; ILO, 1979a, 1979b; Dajani,

1978). Delegates from the Third World would occasionally pronounce the word

"compensation". Resuscitation was attempted in June 1979 when the International

Labour Conference had before it a draft Resolution concerning follow-up to the World

Employment Conference which mentioned compensation several times. However, again

the word "compensation" was replaced by "assistance". A relevant section now calls

on States to "conclude multilateral and bilateral agreements for solving the

problems of migrant workers in host and home countries. These could provide, where

appropriate, for ... possible schemes to assist developing countries especially in

the area of training, welfare services, taxation and re-employment" (para. II.C(d),

emphasis added). Another suggests that the ILO promotes and, on request, assists in

consultations or negotiations between emigration and immigration countries with a

view to "ensuring that the interests of both sending and receiving countries are


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- 11 -


safeguarded and, in particular, that migration does nct deprive countries of origin

of scarce labour required for their development and, whenever appropriate,

undertaking assistance and co-operation schemes in such areas as training, re-

employment, taxation and welfare services" (para. III. Migration (a)(iii), emphasis

added).

The August 1979 UN Conference on Science and Technology for Development,

during the preparation of which a brain drain compensation fund had been proposed

(UNGA, 1978, para. 51), was addressed by Crown Prince Hassan of Jordan on the need

for an International Labour Compensatory Facility. It adopted the principle of

establishing a financing system for Science and Technology for Development. This

foresees that the system's own resources can be supplemented by anything "that may

accrue from the proposed 'International Labour Compensatory Facility' related to the

reverse transfer of technology" (UN, 1979, para. C. 26(b)). Nothing concrete seems

to have resulted from this initiative yet.



(c) E~t25EB.t_aaderosEec^

Bhagwati's publications have undoubtedly aroused a great deal of interest;

they have promoted an awareness of problems and they have stimulated the minds of

people who felt that there was a case for rectifying an inequitable situation. As

regards compensation, the word naturally forces the mind into considering losses

suffered by the emigration country. To prove the existence of such losses and to

quantify their extent then becomes inevitable, excessively complicated and probably

unattainable, as Bhagwati's repeated forays in this area have shown.


Two rationales of international distributive justice can be envisaged in the

context of migration. The first could elate the admission of foreign workers to

the losses imposed on the countryof oriin and the second could E _o_ g_ 9gains

of the Sco-untry S of ilS em.lyment from t hei SSnq S (The second can be argued

regardless of whether the emigration country gains or loses.) For the first case,

compensation would indeed be appropriate and should take the form of revenue

sharing. However, if one cannot convincingly demonstrate that for any move

considered there is an acceptable standard procedure for assessing losses inflicted

on those left behind, there is no reason to expect that goM.ejsatdij for migration

will be seriously and lastingly treated at the national or international level. In

any of the second variations, redistribution of the gains could and should also be


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effected through revenue sharing but not on grounds of compensation as ordinarily

understood. Moreover, to bring about measures of redistribution in the

international sphere it is not usually enough to call for justice or solidarity, not

even where comparatively small amounts are involved as in the case of recompense.

One must be able to relate the justification for change to the raison d'tre of the

State, its rules and procedures as well as, in the case of immigration countries, to

the functional requirements of the economy. To these factors I now turn.


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III. THE STATE, BORDERS AND IMMIGRATION


(a) The State


Today's world system of States can in most developed areas he traced back to

the impact of the industrial revolution and in most developing areas to the impact

of colonialism. Industrialisation and the formation of nation States occurred

simultaneously and reinforced each other. When independence came to the colonies,

nationality became the most inclusive and most explicitly political element of

individuals' group identity. It did not necessarily signify a culturally

homogeneous group; it hardly ever could in the case of the older nation States of

Europe. But it brought along with it a "we-they" or "in-out" distinction that

overrides everything else. Even in the class-conscious socialist countries the

State did not wither away nor did nationalism. Everywhere, both were simply there

and were pervasive and dominant. The intractable concept cf "nation" or "community"

(Isaacs, 1975; Hanrieder, 1978; Walzer, 1981) need not detain us here; the

institution which expresses its broad purpose, the modern State, can be understood

regardless of one's philosophy.


A State is a sovereign territorial authority. Put differently, it is an

autonomous order relating to a defined territory. Protection is its ultimate

purpose. Membership is the primary status a State bestows upon human beings. It

provides the right to reside in the territory and to participate in the collective

self-determination. Sovereignty legitimates the exercise of institutional power and

endows the State with its specific character in domestic and inter-state relations.

Sovereignty is a legal fiction power is exercised by real people. Some people

muster a great deal of power to exert sovereignty; others command less or are hemmed

in by philosophical constraints. In any case, the legal fiction is operative and

the organisation of the contemporary world into mutually exclusive territories is

its inevitable corollary, indeed its most fundamental norm.


The modern State is, by its nature, increasingly heterogeneous in economic and

social terms because the industrial revolution ushered in a complex and spreading

division of labour. For instance, the production of food, shelter and clothing or

the teaching of children and the entertainment of the community is undertaken by

individuals who assume roles that are limited in scope, increasingly so, and which

are complementary or supplementary to the roles of others. These roles also carry

people, goods and money across borders.


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The State is embodied by the Government (by the central government in the case

of federal States). It supervises and integrates the complex domestic and inter-

national division of labour and the diverse forces that form them. It benevolently

tolerates or actively directs the contacts of citizens with other States.

Government action (or inaction) is supposed to be guided by one key objective: to

promote the welfare and satisfy the wants of citizens, including their security.1 No

responsible person or school of thought seriously disputes this principle;

disagreements surface as soon as the specific form it should take is examined in

practice; and there always seems to be more than one way of achieving whatever has

actually been agreed upon. The reason is simple: in a heterogeneous society and

population the view of one constituent group is bound to compete or conflict with

that of another as to what is good for itself or the citizens as a whole. Neither

the "invisible hand" nor the "national interest" or the "class interest" are

sufficiently powerful fictions to fool all of the people all the time.


When foreigners knock at their doors, governments and citizens perceive

additional competing or conflicting interests. Who knows how their presence will

affect the promotion of welfare and satisfaction of wants of the citizens?

Everybody will have his own view about it. The elementary "we-they" or "in-out"

dichotomy seizes possession of brains and emotions.


Governments are subject to purely political, narrow economic, broader social

and humanitarian pressures or influences. These originate mostly from within the

country but sometimes from other countries or international bodies. When it comes

to admitting foreigners, non-economic factors tend to play a more prominent role

than with the flows of goods or money. The appearance of foreigners touches upon

the innermost feelings of people their identity. When they are not refugees, it

commonly also entails a tightening of governmental purse strings. Considerations of

reciprocity can exert a moderating influence; internationally acknowledged

principles of human dignity and rights may temper actions; political support might

be organised domestically in favour of migrants pictured as weak and suffering or

deserving on some other grounds. Nevertheless, it remains true that governments -



I This concept of the State obviously differs from the Marxist concept which
holds that governments serve the interest of one particular class. Apart from
socialist countries, such a thesis may have occasional empirical validity in
countries characterized by a low level of development but not in contemporary
developed market economy countries where a great variety of heterogeneous interests
are articulated in the political process.


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and, indeed, citizens will look at foreigners as non-belongers who are subject to

the powers of exclusion and expulsion.1



(b) Borders


The modern States draw a border line around them over which foreigners may not

step without explicit or tacit consent. Governments are invested with the authority

to determine whom to admit, under what conditions and with what prospects for

citizenship. Access to the territory and to citizenship is permitted as an

exception or privilege that is extended on its own terms.and which can be revoked.2

As in the case of sovereignty, from which it derives, border control is a

universally acknowledged principle no matter how it is implemented in practice.

"Control includes not only the erection of more or less restrictive barriers to free

movement across state boundaries but also a policy of permissive indifference or

benign neglect, as is the case with respect to exit in most liberal r6gimes during

peacetime" (Zolberg, 1981, p. 8). Citizens, i.e. the native or naturalised members

of the political entity State, cannot be denied access to the territory.

The view of States and borders presented here has recently come under attack

by cosmopolitan philosophy. This invokes the growing interdependence on a planet

that is limited in size and resources; it holds that morality requires concern for

the interests of everyone, not just citizens; and it sees the refusal of entry as

one instance where the interests of non-citizens may be harmed (Lichtenberg, 1981).

However, cosmopolitan morality is singularly unable to operationalise its concepts.

It fails to provide useful guidelines on "whcm", "how many" and "when" to admit or

to stop. It is also quite incompatible with the idea of recompense where one

sovereign territorial authority is to pay another if it wishes to employ the

latter's citizens for its own ends.




I Several countries have voluntarily curbed their powers to expel foreigners
when they are considered a public liability, i.e. when they are unemployed or
without own means of support. This applies, for instance, to permanent resident
aliens in the US and to long-staying guest workers in most of Western Europe (see
BShning, 1982). See also the following section.

2 At least on non-economic grounds. Where foreigners have been given the right
to participate in elections, which is a radical departure from hallowed traditions
and can, as yet, be found only in a few Western European countries such as Sweden
and Ireland, the State still holds certain reserve powers of expulsion. In Sweden,
such foreigners can be expelled on account of criminal offences, asocial behaviour
and membership in terrorist organizations.


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On the other hand, the concepts elucidated here are not at all opposed in

character to the philosophies inspiring international law and universal human

rights. Neither doubts that States possess a broad competence in regard to the

entry and expulsion of foreigners. International law holds that the States' powers

are:


clearly limited and confined by established and emergent rules and standards
of international law. On occasion it may be that such limitations operate
only at the outermost edges of an apparently illimitable power, as is often
the case where expulsion is ordered of an alien deemed to be a risk to
national security. But such cases are exceptional and it is more usual to
find the existence of rules which operate to limit the ambit of the power in
question and to direct the manner of its exercise. Such rules have their
origins in treaty, in the practice of States and in general principles of law
(Goodwin-Gill, 1978, p. V).

Defenders of human rights believe that:


a State does not violate a person's human rights by refusing him or her entry,

as well as that:


presence in a territory is sufficient to generate an obligation for the
government of that territory to uphold a person's human rights ... Presence
generates this obligation but it does not preclude deportation in accordance
with due process of law (Nickel, 1980, pp. 15 and 16).

My reiteration of the law and practice of contemporary States should not be

misrepresented as the dogma of a closed and self-sufficient society.

Interdependence between entities claiming autonomy is a fact known since time

immemorial. Economic and political interdependence has been in powerful evidence

since the period between the two world wars. Interdependence is heightened today by

the rapid advances of science, technology and communications side by side with the

spreading and deepening international division of labour. But interdependence does

not deprive States of their inherent logic nor borders cf their essentially

excluding function.



(c) Immigration of active_ persons


Scoje

It is appropriate now to narrow the subject from international migration in

general to what could readily be called economic migration or labour migration. The

first term conveys some kind of finality or rationality on the part of the

individual who moves. The second puts the limelight on events rather than

motivations and brings the economist's production factor, "labour", into the

picture. Labour migration is perhaps more suitable than economic migration in the


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- 17 -


context of recompense. To speak of the migration of economically active people

would be still more precise and is done henceforth synonymously with migration

characterized b a human resource transfer.


In line with international usage, economically active persons include

employers, people working on their own account, salaried employees and wage earners

as well as unpaid family workers. The scope of this definition extends to persons

seeking work for the first time, seasonal workers, persons engaged in part-time

activities and to employed or unemployed people alike. It excludes students, women

occupied solely in their own household, retired persons, persons living entirely on

their own means and persons wholly dependent on others.


Whereas every human being constitutes a potentially important human resource

- and students especially are budding human resources it is more practicable ifor

the purposes at hand to equate human resources with economically active persons as

defined and to abstract for a while from the differential values one might be

tempted to impute to, for instance, a hospital orderly compared with a physician.

Countries' immigration policies regularly distinguish students from economically

active persons and dependants; they do not categorise foreigners in terms of human

resource flow accounting.'


That all migration of economically active people involves a resource transfer

is not a matter of definition but of fact. This may not be as self-evident or as

visible as in the case of the "brain drain", but it is none the less undeniable.

The most humble labourer has absorbed some expenditure provided by parents or

society, and any activity he engages in and for which he receives a wage is

productive; otherwise he would not be paid for it or some arbitrary distinction

would have to be invented as to what is or is not productive. This banality bears

repetition because much of the discussion on human resource flows proceeds as though

differences in degree were differences in kind. Of course, the productivity of

personnel that has undergone a long period of training is higher as a rule than that

of untrained personnel, at least if our conventional yardstick, income, is used to



I The nearest exception to this rule is Canada where, inter alia, one unit of
assessment is awarded for each year of primary and secondary education successfully
completed, several units for more than 31 days of training, further units for
experience in the occupation in which the applicant is assessed, and so on, up to a
maximum of 100 points that can be scored on economic or personal grounds or through
family links. Australia introduced a similar point system in 1979.


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measure it.' But a 1:5 or 1:10 income gap means precisely that; it does not mean

that the human resource embodied in ordinary working folk can disdainfully be valued

as zero.



Why active foreigners are admitted


leaving aside until later the special case of refugees, a State opens its

borders to economically active foreigners only in the pursuit of its key objective,

i.e. to promote the welfare and satisfy the wants of citizens. Why and when this

happens is a question bound up with the use of resources within its territory.2

According to the inherent logic of States, on the one hand, and of economic

activity, on the other, a government may consider opening its terders to active

foreigners if land, energy or capital are not utilised to their potential. When

individuals, corporations or the public sector articulate a demand for labour and

there is a physical shortage of labour (in the sense that insufficient citizens or

resident foreigners are present) or a relative shortage of labour (in the sense that

not enough unemployed or inactive can be attracted) the government may, or may

not, sanction the entry of foreign labour suited to the work in question.

When the demand for labour concerns immobile resources, the government's

choice is simple: yes or no. Most countries in the Americas had unused or

underused arable soil for a hundred years or so after independence and freely

permitted immigration. In the case of energy, machinery or money, governments have

the additional option of inducing their utilisation abroad in preference to labour

immigration; but they can rarely enforce relocation and might not insist, owing to



There is a long-run, if somewhat faint, relationship between individuals'
productivity and their personal income in market economy countries. Income
differentials and hierarchies more generally derive from historical power
relationships rather than pure market forces. Piore (1979) has stimulatingly
examined the economic vs. social determination of incomes in the context of
international labour migration.

2 The following resources (or factors of production) may be differentiated:

"land", which includes the arable soil, the space on which rcads are laid out
or houses built, and the minerals (other than energy) underground;

"energy", which ranges from fossil fuels to water-driven electricity
generation and nuclear power;

"labour", which comprises both the physical use of brawn and the mental use of
brains;

"capital", which includes the physical capital embodied in goods (such as
machinery, roads, schools) and the investment capital (money) needed to
produce them.


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the insecurity of reaping worth-while rewards from the move. Or they can exchange

one mobile resource for another, as the Arab oil-producing countries of the Gulf

have done, whereupon their small populations could not satisfy the ensuing demand

for labour and massive inflows of active foreigners were directed to the sources of

this demand.


Why unutilised or underutilised resources exist in a particular situation, or

how they come into being, is rather more difficult to explain than the preceding

examples would seem to suggest (see Bdhning, 1978, pp. 6-8; 1980, pp. 11-22;

Piore, 1979). Whatever the cause may be, it is not directly relevant to the justi-

fication for recompense because recompense hinges on the institutional character of

the State rather than on the underlying economic reasons for admitting active

foreigners.


Why international migration takes place


There is no need to detail why individuals move. Aspiring migrants presumably

expect that a move will be useful or successful in promoting their welfare or

satisfying some other want (see B6hning, 1978, pp. 10-12; Piore, 1979, p. 50 ff.).

What is important is that, as a rule, there are more candidates for migration than

jobs offered to them. Foreign employment opportunities tend tc be snapped up

quickly by an abundant supply of people willing to work. This is not a logical but

an empirical proposition characteristic of the world today and, as far as can be

foreseen, of the world tomorrow.


Of course, it is necessary that there be candidates for migration. But it is

not enough that individuals want to move. If no government wants to admit them and

if borders are closed effectively, there will be no employment of foreigners.

Conversely, for international migration to occur it is neSessar2 and sufficient that

governments permit the immigration of active foreigners. A tap provides a good

analogy. As there is always pressure in the pipe, it suffices to turn the tap to

ensure the flow of water.


This distinction between the necessary- and sufficient conditions for the

presence of foreign labour throughout the world is crucial. It highlights the

demand for labour in the immigration country as the critical cause of contemporary

economic migration. It is for this reason that international manpower movements are

often termed demand-determined (in contrast, for example, to the movements of asylum


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seekers where individuals flee across borders although no country has asked them to

come; their moves are supply-determined).


If the foreign human resources were not demonstrably required they would

neither be desired nor admitted for the purpose of productive employment. The

desired entry of economically active foreigners, in fulfilling a functional

requirement of the immigration country's economy, benefits its citizens. Some

sections of the population will gain more from the production of migrants than

others; this is an ineluctable feature of economic activity in societies

characterized by a division of labour; but it does not invalidate the logical

proposition that demand-determined employment of foreign human resources benefits,

in principle, all citizens. It follows that the immigration country must be better

off with than without the foreigners.


The migrants themselves will reap benefits from their labour through the

income accruing to them. Economically speaking, they are, as a rule, better off

than they were in the migrant-sending country, otherwise rationality would impel

them to cease working in the immigration country.


Where the emigration country is poor and developing, afflicted by unemployment

and poverty, it usually also benefits from the employment of citizens abroad. Here,

it is a little more difficult to determine the precise balance of costs and benefits

and to generalise judgements than it is in the case of immigration countries or

migrants. This subject will be taken up in more detail later.


One can tentatively conclude: (a) the migration of economically active

persons (other than refugees and family members) is occasioned by production needs

in the country deliberately admitting them; (b) the migrant-receiving country, the

migrants themselves and probably the migrant-sending country as well benefit from

the move; and (c) in a world where production is woefully inadequate in relation to

known needs, such migration invariably satisfies needs and, especially where it

involves people going from poor to rich countries, contributes to the reduction of

world poverty.


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(d) Leislative examples of fundamental

principles

Is there any legislative evidence of the principles governing States'

existence and admission of foreigners that have been presented here? There is.

But the principles are so widely acknowledged and taken for granted that they rarely

appear in national Constitutions or similar basic documents. Constitutions mention,

at most, that the government (or central government) is endowed with the right to

control immigration, or they reserve certain rights for citizens. The access of

foreigners to the territory and employment is left to detailed regulation by the

legislator, administrative action by the executive or challenges in the courts.

Countries not interested in having recourse to foreign labour or which are by-passed

by international migration streams may not crank their legislative machinery,

especially if they are young and underdeveloped and feel that globally acknowledged

rules will serve them reasonably well. Still, countries large and small, developed

and underdeveloped, immigration countries and emigration countries alike have

promulgated relevant laws and enacted administrative rules and regulations. A

selection follows.1 Only key stipulations will be reported; comprehensiveness is

not the aim.


Austria is a small, developed immigration country in Western Europe, which

also experiences some emigration. Its Federal Law respecting the Employment of

Foreigners of March 1975 specifies as prerequisites for the engagement of wage and

salary earners coming from abroad that:


3(1) An employer ... is permitted to employ a foreigner only if he has been
granted an employment permit for that person (or if the foreigner
possesses a certificate of exemption).2

(2) A foreigner ... is permitted to start and undertake employment only if
an employment permit has been granted for him (or if he possesses a
certificate of exemption).1

4(1) The employment permit ... is to be granted if the employment is
sanctioned by the situation and development of the labour market and
there is no objection to it on public or macro-economic grounds.

Should the general economic and labour market situation be judged propitious

by tripartite bodies (comprising government, employer and local worker

representatives), a quota procedure can simplify the utilisation of foreign labour

in defined regions or occupations for a predetermined length of time. It is



A summary of countries' positions and a survey of their law and practice
relative to the ILO Conventions and Recommendations on migrant workers can be found
in ILO, 1980a and 1980b.

2 After eight years of continuous employment or due to marriage with an Austrian
citizen.












instructive to see what the Austrian law says when foreigners may be hired in excess

of the quota fixed;


4(6) (b) The employment of foreigners shall take place only if particularly
important reasons warrant it, especially:

(1) in the case of key personnel necessary to maintain the
workplaces of citizen workers;

(2) in firms newly founded in structurally weak regions;

(3) as urgent replacement personnel for the filling of a
workplace that has become vacant due to departure of a
foreigner; or

(4) in the field of public health or public welfare services;
or

(c) if public or macro-economic interests require the employment of a
foreigner.


Mauritius is a very small, underdeveloped immigration and emigration country

off the coast of East Africa. Its Employment (Non-Citizens) (Restriction) Act,

1970, lays down that:


sec.3(1) ... a non-citizen shall not -

(a) engage in any occupation in Mauritius for reward or profit; or

(b) be employed in Mauritius unless there is in force in relation to
him a valid work permit and he so engages in the occupation or is
so employed in accordance with the conditions which may be
specified in the permit ...;

(3) ... no person shall have in his employment a non-citizen without
there being in force a valid work permit in relation to that
employment;

sec.4(1) an application for a work permit shall be addressed to the
Minister who may, in his absolute discretion, either grant or
refuse it.

Exemptions from the work permit requirement are extended to several

categories, for example, persons employed with the prior approval of the Government

by any body incorporated or regulated directly by statute; persons employed by the

University of Mauritius as academic staff; writers, broadcasters, etc. Work

permits are issued only to migrants who possess specific skills in fields where

local manpower is not available. One of the conditions attached to the granting of

a work permit is that the foreigners should train a local counterpart so that he is

able to take over the job on expiry of the permit.


The United Arab Emirates is one of the small city States on the Gulf with a

legacy of underdevelopment where migrant outnumbers national labour (see Birks and

Sinclair, 1980). Federal Law 6 of 1973 requires foreigners seeking to enter the


E-4482-6A:12


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country, whether for a visit, work or residence, to obtain an entry permit or visa

specifying the purpose of entry. Work questions are regulated by Council of

Ministers Decree No. 3 of 1977 (this and the following is taken from Dib, 1978, pp.

49 and 58-59). The Decree defines "worker" as any man or woman who performs

remunerative work of any kind in the service of and under the supervision or

direction of an employer. Excepted from the Decree's provisions are:


(1) employees, workers and labourers brought in by the Government for work in its

ministries, departments and public organizations;


(2) employees of diplomatic and consular missions and branches as well as of

specialised agencies of regional and international organizations working in

the country; and


(3) domestic servants and similar personnel.


Foreign workers outside these exceptions may not be brought into the country

without permission of the Ministry of Labour and Social Affairs. Permits are

delivered after determination that the work involved cannot be performed by a

citizen. The Decree also permits the collective immigration of foreign workers in

cases where they number 25 or more.


A citizen or legal resident of the UAE can submit an application for the

individual or collective immigration of foreign workers on the following conditions:


(1) that he submits written evidence justifying that his business requires the

particular worker or the number of workers involved;


(2) that he enters into an engagement vis-a-vis the Ministry of Labour and Social

Affairs:


(a) to assume and guarantee responsibility for the persons) he will bring

into the country;


(b) to take the measures necessary for the preparation and signing of the

work contract;


(c) to return the persons) to the place they came from.


Work contracts are subject to the approval of the Ministry of Labour and

Social Affairs and may not be valid for a period exceeding five years.


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In April 1980 a comprehensive "labour code" came into force for the United

Arab Emirates through the Federal Law to Regulate Employment Belationships, No. 8 of

1980. It says:


Article 13 No non-national may be recruited for work in the United Arab
Emirates without the prior approval of the labour department and
without first obtaining a work permit ...

Such permit shall be granted only if the following conditions are
fulfilled:

(a) that the person possesses the professional competence or
educational qualifications required by the country;

(b) that the person has lawfully entered the country ...

Article 14 The labour department may not give its approval to the recruitment
of non-nationals unless its records show that, among the nationals
registered with the employment section, there are no unemployed
persons capable of performing the work required.

The provisions of this law do not apply to domestic servants employed in

private residences and the like, employees working in small establishments normally

employing a maximum of five employees, and employees engaged in temporary jobs for

a period not exceeding six months.


The United States of America is the most important immigration country in the

contemporary world. The legislation is correspondingly extensive and complex (US

Congress, 1980). The Immigration and Nationality Act excludes from admission:


aliens seeking to enter the United States, for the purpose of performing
skilled or unskilled labor, unless the Secretary of Labor has determined and
certified to the Secretary of State and the Attorney General that (A) there
are not sufficient workers who are able, willing, qualified (or equally
qualified in the case of aliens who are members of the teaching profession or
who have exceptional ability in the sciences or the arts), and available at
the time of application for a visa and admission to the United States and at
the place where the alien is to perform such skilled or unskilled labor, and
(B) the employment of such aliens will not adversely affect the wages and
working conditions of the workers in the United States similarly employed"
(section 212(a) (14)).

The preferential admission of specified numbers of immigrants, i.e. presumed

permanent settlers, aims at:


qualified immigrants who are members of the professions, or who because of
their exceptional ability in the sciences or the arts will substantially
benefit prospectively the national economy, cultural interests, or welfare of
the United States, and whose services in the professions, sciences, or arts
are sought by an employer in the United States (section 202(e)(3)),

as well as


qualified immigrants capable of performing specified skilled or unskilled
labor, not of a temporary or seasonal nature, for which a shortage of
employable and willing persons exists in the United States (section
202(e) (6)).


E-4482-6A:12








- 25 -


In addition, employers in the United States may petition for an alien as a

non-immigrant, i.e. for someone who is not expected to settle permanently, namely:


an alien having a residence in a foreign country which he has no intention of
abandoning (i) who is of distinguished merit and ability and who is coming
temporarily to perform services of an exceptional nature requiring such merit
and ability, and who, in the case of a graduate of a medical school coming to
the United States to perform services as a member of the medical profession,
is coming pursuant to an invitation from a public or non-profit private
educational or research institution or agency in the United States to teach or
conduct research, or both, at or for such institution or agency; or (ii) who
is coming temporarily to the United States to perform temporary services of
labor, if unemployed persons capable of performing such service or labor
cannot be found in this country, but this clause shall not apply to graduates
of medical schools coming to the United States tc perform services as members
of the medical profession; or (iii) who is coming temporarily to the United
States as trainee, other than to receive graduate medical education or
training (section 101(a)(15)(H)).


(e) Limited abrogation of controls


A number of countries have, in a limited way, modified their exclusiveness

towards citizens of countries with which they are allied economically, politically

or to which they feel specially close historically. For example, beginning in 1954,

the Scandinavian countries have abolished labour market tests for the nationals of

Denmark, Finland, Norway and Sweden (Lnnnroth, 1978). Work permits are not required

when a citizen of these States wants to work in another Scandinavian country.

Iceland is not a member of the Common Nordic Labour Market, as it is called, but its

nationals are freed from the work permit requirement in Denmark and Sweden. Denmark

is also a member of the European Communities where the labour market border that

delineates mutual exclusiveness has similarly been put around a larger whole. Here,

the border encompasses Belgium, Denmark, the Federal Republic of Germany, France,

Ireland, Italy, Luxembourg, the Netherlands and the United Kingdcm. Greece's

accession to this system of freedom of movement and establishment will take place in

stages, and Portugal's and Spain's are to be negotiated. Persons from non-member

countries desiring entry actually still have to grapple with the immigration laws of

individual member States rather than a common jurisdiction (Hartley, 1978); once

admitted they are not free to move between the member States as they please (this

might conceivably change in the future); and there is some dispute as to who should

be considered a national (Bbhning, 1972; Goodwin-Gill, 1978).


The Trans-Tasman_ Areement between Australia and New Zealand has eliminated,

for Commonwealth citizens, the substantive control over the number or type of short-

term or settlement movements, on labour or any other grounds. The inhabitants of

the South Pacific Islands of Niue, Tckelau and the Cook Islands possess the


E-4482-6A:12








- 26 -


citizenship of New Zealand and need only passports, not permits, to work in that

country. They are able to come by right, without preconditions regarding jobs.


Two Arab countries, Irag and the Syrian Arab Republic, have unilaterally

decided to exempt all citizens of other Arab States from the definition of

"foreigner" for purposes of immigration and employment. They treat them as though

they were nationals; indeed, they believe that all Arabs form a common "Arab

nation". The laws of some other Arab countries contain a few highly specific

provisions distinguishing selected Arab citizens from foreigners (see Dib, 1978).

At the regional level, the League of Arab States has, since 1957, agreed to

recognize freedom of residence and employment between members. But the League's

limited competence has not given rise to appropriate domestic legislation outside

Irag and the Syrian Arab Republic.


Other regions of the world have also seen steps taken towards the pulling down

of border posts between labour markets. This holds true for the Economic Community

of West African States (ECOWAS) of 1975 and the Central African Customs and Economic

Union (UDEAC) of 1976 to name only those which exhibit a certain durability.

However, it seems that these zones of freedom of movement exist only on paper.


In each case, the countries which relax the controls on entry and employment

of selected nationalities expect this move to he in the interests of their citizens,

in a narrow economic sense or in a broader political way. Preferential treatment

does not remove the "we-they" or "in-out" distinction tut adds graduations.

Sovereignty, as such, is not relinquished. Exclusion or expulsion of foreigners on

grounds of public order or security remains a national prerogative. And the general

principle of final say rests in national hands, even where supra-national powers are

conferred on joint bodies (as in the European Communities), for national governments

keep the reserve power of withdrawal from the supra-national mechanism to which they

voluntarily acceded.



(f) Political contradictions and

administrative problems


There is, to paraphrase a proverb, many a slip between principle and

administration. For one thing, a heterogeneous society may include groups which, in

contrast to the prevailing opinion, favour permeable borders. Where such groups


E-4482-6A:12








- 27 -


have sufficient political clout, they may be able to render the legislation Porous.

A prime example is the United States. It is illegal to enter the country outside

the procedures foreseen. However, a group of politically powerful growers from

Texas succeeded in making the law self-contradictory by an amendment which ensures

that it is not illegal to employ illegal migrants.' Where political power has been

insufficient, certain employers have not infrequently disregarded the law and hired

foreigners illegally, sometimes simply by tapping the pool of people desperate for

employment, sometimes going out to recruit them or sending out agents to do so (see

N'Goumou and Power, 1974; Kiser and Kiser, 1979). Occasional amnesties testify the

existence of irregular labour inflows (see North, 1979).


Another reason for labour immigration being in discordance with statutory

policies is the near impossibility of policing frontiers effectively. France, for

example, is one of the European countries convinced that it is neither possible nor

desirable to seal borders and to subject every entrant tourist, businessman,

worker, etc. to draconian control and verification. Its governments have armed

themselves with increasing powers to eliminate trafficking and clandestine

employment. At the same time, they have felt obliged to tolerate a certain margin

of reqglarisatiqn, i.e. to legalise ex post facto the engagement cf foreigners who

had not been recruited through the cumbersome official channels but whose employment

would in all likelihood have been approved had it been processed as it should

(Houdaille and Sauvy, 1974; Tapinos, 1975). The so-called adjustment provisions of

the US law and practice are akin to the French regularisation procedure in that they

permit foreigners who are present as tourists, on a temporary visa or illegally, to

be assessed for legal immigration rather than have to return and start proceedings

from home. These provisions are frequently administered with regard to the economic

or family ties already established by the foreigners present in the country.

Yet another reason is laxity borne out of convenience. Saudi Arabia, for

example, has been drawing freely upon the labour of the neighboring Yemen Arab

Republic without institutionalized introduction or screening of entrants at the



i The so-called Texas Proviso of the US Immigration and Nationality Act, section
274(a) reads: Any person who "wilfully or knowingly conceals, harbors or shields
from detection ... in any place ... any alien ... not duly admitted ... shall be
guilty of a felony, and upon conviction thereof shall be punished by a fine not
exceeding $2,000 or by imprisonment for a term not exceeding five years, or both,
for each alien in respect to whom any violation of this subsection occurs:
Provided,__ hoeverthat for the g.os.esof this section ._ em-_lo including the
usual and normal Practices incident to em omenti shall not be deemed to constitute
harbourinq" (emphasis added).


E-4482-6A:12








- 28 -


border. They have been registered wherever they found work. However, the unskilled

work for which the Yemenis were suited is likely to become less plentiful and the

benign neglect of Saudi Arabia's south-western border may eventually be a matter of

the past (Fergany, 1980).


In a somewhat different vein, the long-standing flows of Mossi from Upper

Volta to the Ivory Coast have by-passed numerous attempts by Governments of both

countries to institutionalise and control them (Songre, 1973). The unwieldiness of

the official channels has induced most migrants to strike out on their own.

Employers in the Ivory Coast have generally been content with the responsiveness of

private flows.

It can also be observed that foreign labour crosses borders in the face of

lack _of exlicit policies or administrative capacity. This used to be widespread in

Latin America (BIT, 1974). Among the factors facilitating it. were cultural

affinity, the partially low density or the rural exodus of the indigenous popula-

tion, together with the brighter prospects on the other side of the border.

Recruitment through employers or governments was of minor importance. Here, too,

the situation is changing, especially at the continent's northern pole of

development, Venezuela, where the authorities seek to close the gap between the

spirit cf nationalism, the letter of the law and reality (see Kritz and Gurak, 1979;

Marmora, 1979; Sassen-Koob, 1979; Torrado, 1979).


Il1esailabour immisa1tion, _.E Ely XgesakiJg, i.e. in contravention and

circumvention of strict laws and intense border enforcement, was for many years a

major occurrence in Hong Kong, where it blended with political refugee movements.

Mention must finally be made of conflictinqEg p1Sc_iygctives. In immigration

matters, humanitarian and economic criteria are particularly prone to mingle and

undercut each other. For example, the United States goes to great lengths to keep

out active foreigners from designated unskilled jobs where US citizens are generally

felt to be available., Anyone seeking to enter through the labour certification

procedure (see p. 24) because he has spotted or been offered a vacant job of this

kind, will be refused entry. However, the 90 per cent or so of foreigners admitted

to the US under the normal family reunification procedure, at least half of whom

subsequently become active, are completely free to pick up any of these jobs.

Moreover, even the other 10 per cent who have been allowed into the country for the

purpose of employment in a certified job can occupy any other workplace from the


E-4482-6A:12








- 29 -


moment the immigration controls are passed. In the US, this situation has not been

viewed as a policy conflict but as reflecting the country's history and tradition

(Sorum, 1982). A rather different approach held sway in the Federal Republic of

Germany during most of the last decade. Spouses and children cf non-EEC foreigners

who were gainfully employed and qualified for family reunification were allowed into

the country but not on to the labour market, at least not for several years (see

ILO, 1980a, p. 52; also ILO, Social and labour Bulletin, Ncs. 2/79 and 2/80). The

reason given was that these foreigners were deu.a. not admitted for the purpose of

employment and to do so de facto would be contrary to the 1973 ending of labour

recruitment, conflict with the employment privileges of citizens of the European

Communities and violate the principle of priority for national labour.



(g) Outlcok

Hints have been dropped that countries on various continents are manifesting

a growing concern about the control of immigration generally and labour immigration

particularly. A recent systematic survey of governments' policies confirms these

impressions (UNGA, 1980a, pp. 51-71). The history of nation States has witnessed

periods of relatively open borders as well as tightly closed ones (Zolberg, 1978;

Bohning, 1979b). As far as the future is foreseeable, it seems to hold in store a

stricter adherence to the fundamental beliefs enunciated in this chapter. This

would entail a clamp-down on irregular or illegal migration and more control or

fine-tuning of domestic labour demand and immigration. It is worth while to list

the chief factors responsible for this prediction.


In the first instance, the world is now definitely a closed space that is

daily becoming more populated and marked by diverging living standards. The

overwhelming majority of the poor and destitute live in Third World countries of

Asia, Africa and Latin America, and the bulk of the natural population growth takes

place in the very same countries. "looking to the future ... by the year 2000 the

absolute number of poor people, whatever the definition of poverty used, will remain

roughly the same in developing countries as now" (Hopkins, 1980, p. 573). By

contrast, the populations of the well-off countries of Northern America, Western

Europe, Japan, Oceania as well as the Arabian Peninsula will be still better off

than they are already (Interfutures, 1979).


E-4482-6A:12








- 30 -


Poverty or extremes in living standards are, by themselves, insufficient to

trigger off international migration. In effect, contemporary labour migration is

typically fuelled by population strata above the level of destitution, and it is

propelled by the process of development. The poorest rarely have as much

information about beckoning opportunities elsewhere or the resources to get there as

the nct-so-poor. Development itself means change that renders given skills or

occupations superfluous and brings with it new opportunities, information and

ambitions. After all, the country which prides itself on the most mobile popula-

tion, the United States, is the most developed society by conventional standards.

In contrast, undeveloped societies are stagnant in terms of both economic and

geographic mobility.


Irrespective of the degree to which destitute population groups may be

involved in future economic migration humanitarian considerations might wish them

to be over-represented but the reality of immigration countries' demand for labour

will probably run counter the fact remains that more and more people will chase

the opportunities which development offers. Badio, films, television, newspapers,

letters, etc., will tell of a better life every day. Expectations will rise as such

tales become ubiquitous. Ambitions will know neither bounds ncr borders. Road,

rail, sea and air transport will facilitate travel. The possibilities of satisfying

everybody's expectations and fulfilling personal ambitions will outstrip many Third

World countries' capacities. Some people will be lucky. Others will try their luck

elsewhere, the young in particular, for they feel least constrained and most pressed

to ensure a decent life for themselves or their families; and it is they who people

the Third World (Tapinos and Piotrow, 1978). Therefore, the rest of this century

will very likely see increased emigration pressure from pocr countries, which are

usually populous and their typical inhabitant young. More development in the poor

and the rich countries will, if anything, accelerate this secular trend until that

unlikely day when living standards tend towards rough comparability within and

between countries.


In the face of rising emigration pressure on a planet limited in space and cut

up into mutually exclusive sovereignties, governments will become more sensitive

about immigration, In today's major migrant-receiving countries, additional factors

militate in favour of stricter controls on inflows and residence. In the advanced

countries of Northern America, Western Europe and Oceania, the zero population

growth movement has gained some political influence, as has the related ecological


E-4482-6A:12








- 31 -


group, though the zero economic growth movement has not, or not yet. There is as

well a genuine concern with the least well-off strata of citizens which, on

occasions, spills over into hostility to immigrants perceived as competing for

scarce jobs and welfare services. Elsewhere, the developing Arab countries

bordering on the Gulf have, not surprisingly, been afflicted by anxieties about the

extraordinarily large proportions of foreign labour and the cultural and other

influences this might have. Their indigenous population base is small and the

States have only recently been constituted in their present form. Iraq, which hosts

almost as many foreigners today as does Saudi Arabia, appears still fairly

unconcerned, presumably because its indigenous population is a great deal larger.

But it, too, follows the policy prevailing in the Gulf region with respect to non-

Arab labour, which is to admit it temporarily and for the purpose of work rather

than settlement. South American Venezuela, whose nationals number about as many as

Iraq's but whose foreigners number more and where petro-dollars have created an

acute labour scarcity, has tightened up its policies since the mid-seventies in

concept and implementation. It is now more difficult to migrate to the country

without passing, from the start, through the proper channels.


No doubt, economic forces will continue to open borders much of the time while

social and political forces will tend to close them most of the time.


E-4482-6A:12






- 32 -


IV. MIGRATION CHA.EACTERISED BY l MAN
RESOURCE TRANSFER


(a) ScoE

A variety of international labour movements were touched upon in the preceding

chapter. Now the whole range of migration characterized by a human resource

transfer must be sifted through systematically in order to determine which kinds of

movements may be relevant to the idea of recompense. The question whether, or

which, immigration is caused by humanitarian as opposed to economic factors looms

large and calls for an unequivocal answer. How customary or legislated

temporariness of migrant residence, which occasions much unwarranted discrimination

(Bahning, 1979a), might affect the principle or the amount of recompense is another

issue requiring resolution.


The considerations that fellow take as their starting point the finding that

it is the State as an institution rather than the migrant as an actor which

crucially determines contemporary patterns of migration. If the essence of

migration can be attributed to state action rather than migrants' motives or choice,

it makes eminent sense to conceive a typology from the causal end that actually

matters and to drop the pretence of the neo-classical approach that it is the

migrant's personal will which foreordains the distinctions that can be observed or

that his behaviour is the key to understanding what is happening.1

The summary table below gives a first impression of the kinds of movements

that may be liable to recompense. It attempts to make categories as homogeneous as

possible and yet to make them mutually exclusive. The Yes, No or ? obviously

signify recompense and will be explained in the course of this chapter. It may be

noted straightaway that no artificial cross-classifications are introduced to

differentiate brain drain from ordinary flows, temporary from permanent admissions

or rich developed immigration countries from others.


I Zolberg (1978, p. 242) has criticised the migration literature that is founded
on the axiom of individual choice as follows:

From that vantage point, the obstacles that States of putative origin
and destination erect in the path of many who want to go, as well as the
coercive measures that produce departures among many who would prefer to stay,
are treated as events that lie beyond the explanatory domain of migration
theories, as residual error does in an equation. But since the residual error
accounts for more of the variance than does the equation, migration theories
of this sort are, at best, useful as counterfactual models, suggesting what
might occur under conditions of relatively free movement and, at worst,
trivial or even ideologically misleading.


E-4482-6B:12







- 33 -


Summar.y_ ale:


Broad t-yes of international migration characterized bv human


resource transfer


whether liable to recomernse


Official or business migration


Transport
or media
represen-
tatives,
entertain-
ers


No/?


Employees
of multi-
national
enter-
prises


No/Yes


Contract migration


Individuals
wanted for
a limited
economic
purpose only


Collec-
tive
moves
(groups
or
firms)


Settlement
migration


Individuals
wanted in
their general
capacity as
future
citizens


Yes/No


Irregular migration


Begularisation Lack of policy or Porous law or Circumvention or
or registration administrative incompatible law disregard of
(convenience) capacity unequivocal law


8 9 1C 11


Yes No ?/No No


E-4482-6CApp-C:12


Official
or reli-
gious
movements


Free
migration


Nation-
alities
entitled
by law or
treaty



7


No


------------------i--------L-;-----------


------- ------------ -----lr-------- --- --------- ----------------


- - - - - - - - - - - -











Students or trainees do not figure in this scheme because they are given leave

to enter for the purpose of education or training. Should they subsequently seek or

be offered employment, the immigration country's regular procedure for foreign

labour would be set in motion and the now economically active persons would turn up

in category 4 or 6 or be regularised later (category 8), unless irregular employment

would ensue on the lines of categories 9, 10 or 11.


Pilgrims are admitted for non-economic reasons and would be dealt with like

students if they took up employment.


Tourists, even where their presence is welcome economically, are not given

leave to enter with a view to their employment. Change of status would be caught by

the typology.


efuggees, although their moves involve a human resource transfer, are not

migrants whose admission is sought by the receiving country when domestic resources

are not utilised to their potential and labour demand cannot be satisfied

nationally. They are allowed entry on humanitarian grounds. Many developed

countries recognize an obligation to accept certain kinds or numbers of refugees,

regardless of their own current economic situation or the person's suitability of

skills, age and sex. Quite a few developing countries are powerless in preventing

the crossing of enormous numbers of refugees. Whatever the form, international

migration streams that qualify as refugee movements fall outside the framework of

recompense. This applies to both persons displaced by natural disasters, such as

the advance of the Sahel, and persons fleeing on political and similar grounds.


"Economic refugees" are a hybrid category that cannot in theory exist since

the internationally accepted definition only allows for political and assimilated

refugees.* However, one would have to be blind to deny that they exist in practice

and that some quietly get accepted as political refugees. As long as that is the

case, or even if an appropriate category came into being,2 because the impetus for



I Refugees are persons who leave their own country for another because of a
well-founded fear of persecution by reasons of race, religion, nationality,
political association or social grouping (culled from the 1951 UN Convention
relating to the Status of Refugees). Economic refugees might be defined
analogously, i.e. as persons who leave their own country for another because of a
well-founded fear of perishing by economic circumstance.

2 I believe there is a case for reconciling concepts and practice by
establishing an operational definition of economic refugees, exhorting particularly
the First World countries to adopt corresponding legislation, enabling the reflex of
national specification of the ceilings involved and the trade-offs that might be
(Footnote continued on next page)


E-4482-6B:12


- 34 -






- 35 -


admitting refugees is fundamentally humanitarian and their appearance is supply

rather than demand determined, one cannot slap a receiving country in the face by

posing the question of recompense. Refugees and labour migrants are viewed as two

totally different matters by States.


The same holds true for comparable movements that are not considered refugee

movements but where defined ethnic groups move from their country of habitual

residence to the place their forebears came from (as in the case of Germans and Jews

emigrating from Eastern Europe) or where families are reunited (as between the two

German States).


Nomads need not be covered here. They are a dying breed, and their entry into

a country is not at the behest of its employers or government.



(b) Official or business migration


When a person moves from one country to another on private or official

business, a human resource transfer occurs. However, where this transfer is not at

the heart of the admission into the migrant-receiving country, i.e. not economically

motivated, recompense would be quite inappropriate. This applies to the first

category, official or religious movements, which comprises diplomatic, consular and

assimilated personnel, including civilian employees of armed forces, related

housekeepers and personal service attendants, also officials of international

organizations, volunteers plus persons coming to join religious bodies or perform

pastoral duties. (Like all such exemplifications in this chapter, this list is

meant to be indicative rather than exhaustive.)


The second category, transport or media representatives or entertainers,

encompasses foreign shipping or airline employees, crews of ships or aircraft,

representatives of information media plus writers, artists, entertainers and

sportsmen. As far as crews and newsmen are concerned, considerations of con-

venience, custom, efficiency and reciprocity have led to the almost universal

facilitation of transitory or short-term entry outside the cumbersome procedures


(Footnote continued from previous page)

necessary with other categories of immigrants; thereby rendering immigration policy
foreseeable and controllable and stemming the mounting hostility towards a seemingly
uncontrollable influx of partly legitimate and partly false political refugees (see,
e.g. Teitelbaum, 1980; Der S elgel (Hamburg), No. 38/1980, pp. 19-26); and thus
making room for the accpetance of undoubtedly deserving categories in countries that
can provide them with a livelihood.


E-4482-6B:12






- 36 -


designed to keep foreign labour out. It would be extremely impracticable to change

foreign by national crews when they hit national territory or land at ports.

Newsmen are admitted because it pleases countries to see events reported, not

because they wish to use their manpower. Neither of these two subgroups could

justifiably give rise to recompense.


Foreign shipping or airline employees, on the one hand, appear to be ordinary

workers and therefore subject to the work permit procedure and recompense. On the

other hand, where shipping and airlines are public enterprises, their staff exercise

commercial functions quasi officially and are usually admitted without prior testing

of the availability of national labour. Their marginal numbers would seem to

vindicate neglect of this subgroup for recompense.


Entertainers, etc., are a harder nut to crack. They gain entry because some

section of the national population wishes to appreciate their special gifts.

Subjective rather than objective criteria dominate. They are not needed, in the

strict sense of the word, to realise the potential of other resources, although

entertainment may be a necessary complement to modern productive life. They cannot

be cast aside on grounds of small numbers because they are by no means negligible.

Still, to bring entertainers or sportsmen within the framework of recompense would

seem to deal a symbolic blow to, for instance, the international exchange of

musicians and sportsmen. It would seem best to exempt this subgroup from

considerations of recompense unless strictly commercial criteria govern their

employment in the receiving country.


None of the preceding groups or subgroups is inextricably lumped together with

truly recompensable cases of labour immigration if (as will be argued in detail in

Chapter V) the assessment for recompense occurs at the moment of admission, rather

than after the event on the basis of work permit or residence statistics. Even

where separate legislative categories do not exist, it would be entirely feasible to

determine liability for each individual migrant. As an administrative act is

required for newsmen or sportsmen as much as for apple pickers or nurses, it would

be just as practicable to denote one case of admission as recompensable as it would

be to exclude others. By the same token, such foreign nationalities as are legally

entitled to work in a receiving country, for whom recompense has to be ruled out

because the institutional link between national needs and desired foreign

immigration is severed, can be designated accordingly when the liability for


E-4482-6B:12






- 37 -


recompense is fixed, i.e. upon entry, irrespective of whether the receiving country

presently collects or publishes statistics on them. Recompense does not depend on

the measurability of migration (or of skills for that matter). Recompense depends

on the employment country's administrative sanction of each case of foreign

immigration.


The third category, 2mloyees _of multinational enterprises, includes subgroups

for which different answers may have to be given. Intra-company moves of trainees

is one. At junior grades and young ages, they correspond in substance to those of

ordinary students and trainees (who were earlier explicitly removed from the context

of recompense (p. 34)). Training at senior levels is tied up closely with private

career development and firms' personnel policy and, more often than not, lasts only

a short time; the persons involved may be able to enter as tourists rather than

employees. To spare endless discussions of consistency and practice, it would seem

reasonable not to hold any intra-company training movements liable to recompense.


The law of the United States specifies one group as "treaty traders and

investors" who are usually either entrepreneurs or representatives of overseas

businesses. Tens of thousands are admitted each year. They undoubtedly exist

elsewhere in the world even if they are not separated out from broader groups. It

would be odd, and they would be unknown to immigration authorities, if they entered

as tourists. Admittance under any part of the labour immigration procedure is a

presumption in favour of recompense. Against this may be held that such persons

tend to follow their own impetus rather than the articulation of needs as sanctioned

by immigration countries' governments. However, where they are categorised along

with other foreigners requiring a work permit, there would seem to be no reason to

leave treaty traders or investors out of the framework of recompense.


The final subgroup under this heading brings together the many positions

occupied by foreigners in multinational organizations directors, general managers

and administrative, legal or medical specialists of any kind, researchers,

consultants and designers, also support personnel such as clerks, office machine

operators, even secretaries. All require permission to work. Table 11 shows the

numbers granted admission in a developed country, the United States, which keeps




I See Appendix for tables.


E-4482-6B:12






- 38 -


separate statistics for "intra-company transferees".1 This is the kind of foreign

labour to which the idea of recompense seems predestined: for it is allowed into a

migrant-receiving country because its government wishes to utilise domestic

resources fully and cannot do so without the help cf foreigners. That some

multinational enterprises have attracted academic and political wrath has mainly to

do with the distribution of benefits from economic activity, but that is another

question.

Migrants within multinational organizations, like most persons subsumed here

under business migration, tend to view their stay abroad as impermanent, whatever

the actual duration may be. Most countries' work or residence permits for business

migrants, including the relevant US non-immigrant visas, are valid for a certain

length of time. The holders are often subject to restrictions regarding choice of

jobs. Yet none of these factors in any way invalidates the liability for recompense.

What matters is that foreign labour is admitted to further the migrant-receiving

country's ends, at the behest of one of its economic agents and after administrative

screening and approval. In principle, recompense could be due for one day of

admittance. Whether patterns of one day or one year or ten-year employment should

give rise to differential amounts of recompense is a question to be dealt with

later.



(c) Contract migration

The first category under this heading is the one most frequently labelled

"migrant workers", namely individualswho a= decorated to perform a pre-defied

job but who are not otherwise entitled to immigrate. It includes the so-called

guest workers of Western Europe, whether they are normal, seasonal or frontier

workers; people admitted under the temporary employment visa system operated by

Canada and the non-immigrant labour system of the United States; the many Asian

sailors manning foreign-flag ships; the bulk of the migrants aiding the development

of Arab OPEC countries or Venezuela, and so on. For the purpose of recompense it is



1 Their definition is a little bit more restrictive than the general
characterisation given above. The so-called non-immigrant L-l visa class envisages
a foreigner who immediately prior to entry has been employed abroad for at least one
year by a corporation or other legal entity in an executive, managerial or
specialised knowledge capacity and who is seeking to enter the United States to
continue such service with the same employer or an affiliate (sec. 101(a) (L) of
Immigration and Nationality Act). But, in the United States, employees of
multinational organizations who qualify for entry as ordinary immigrants may very
well prefer to enter as such and continue to work for their employer. Thus, the
true number in this category might be a little larger than table 1 suggests.


E-4482-6B:12







- 39 -


irrelevant whether an active foreigner is hired under a limited time programme with

built-in return (as a seasonal in Western Europe is and a non-immigrant in the US);

whether the institutional arrangement under which he is admitted initially limits

the duration of his work permit without administratively enforcing return in the

event of expiry or unemployment (as is the rule for a normal guest worker in Western

Europe); or whether he is welcomed as a settler (as some foreigners in Venezuela

are). All movements crucially have in common the incidence of demand-determined

human resource transfer,* which justifies recompense. Table 2 provides an example

of relevant statistics for the Federal Republic of Germany, table 3 for Kuwait and

table 4 for one occupational group, nurses, admitted to the US either as temporary

workers (non-immigrants) or as settlers (immigrants), which demonstrates the

irrelevance of this distinction in the context of recompense.

Of course, it would be wholly laudable if a rich country dispensed with

requests for recompense where its citizens are engaged in a poor country a

question that will probably pose itself repeatedly in the context of recompensable

business migration but can also arise generally. Morality urges unqualified

affirmation. But this moral and diplomatic problem does not affect the justifia-

bility of recompense whenever migration is characterized by a deliberate human

resource transfer. To draw the line somewhere, and to do so with the aid of a

criteria of national economic well-being, I would suggest that countries whose per

capital income is lower than the average per capital income of developed market

economy countries should not be held responsible for recompense. Appendix (c) lists

the countries that could be the target of a demand for recompense according to the

preceding threshold definition and regardless of whether or not they are migrant-

receiving countries. Whatever might be the internationally acceptable income

threshold, United Nations and World Bank data are readily available to determine

which countries fall under it.


Liability for recompense should be ruled out where the foreigner who is

permitted to work was originally admitted on humanitarian grounds. Employment

subsequent to family reunification is an obvious example, the employment of refugees




I Simple regression analysis has confirmed the extremely close variations
between domestic labour demand and the intake of foreign labour in the case of
typical guest worker employment. Ninety-six out of 100 annual admissions in the
Federal Republic of Germany were due to variations in unfilled vacancies (see
B6hning, 1982).


E-4482-6B:12







- 40 -


another.1 Where the humanitarian resolve is the dominant factor it should entail the

right to pick up work after entry; it would be contradictory to allow access to

employment only when labour demand has first been articulated, then screened and

finally sanctioned officially. This does not rule out that such events are

bureaucratically notified and registered. At any rate, there should be no

insurmountable administrative difficulties when decisions on recompense have to be

taken. One can actually find general statistics on the lines of the distinctions

made here, as table 5 demonstrates with French data.


The second category of contract migration concerns collective moves and

consists of two kinds. The first is group contract migration for the benefit of an

employer in the immigration country, of which a legislative example was given

earlier from the UAE. Statistics do not appear to be published separately for the

persons involved, their numbers are amalgamated with those relating to individual

contracts. The rationale for issuing group contracts is administrative ease. The

underlying economic reason for calling on many foreigners at one time is identical

to that for calling on each of them separately need. Therefore, group contracts

should likewise be subject to recompense.


The same holds true for the second kind of collective moves which includes (a)

the foreign firms which provide "labour only" subcontracting services, and (b) the

foreign enterprises which successfully bid for a project and then provide their own

management and labour and sometimes also the raw material for the execution of the

project. Construction activities have lent themselves well to both "labour only"

subcontracting and the "all-inclusive" moves of enterprises. The Republic of Korea

was the first country systematically to exploit the many opportunities in the oil-

producing countries of the Middle East (see Birks and Sinclair, 1980, pp. 111-113;

and Phili.2ine Labour Review, 1979, pp. 57-66); but enterprises of market economy

countries as well as socialist countries of Europe have long been engaged in this

kind of activity, albeit on a modest scale, those from socialist countries operating

in Western Europe and vice-versa.








I The access to work by foreigners born in the country ("second generation") is
a related point.


E-4482-6B:12








- 41 -


(d) Settlement migration


Several countries follow a policy of settlement migration. Its distinguishing

characteristic is that a certain maximum number Jguotalor__a defined cateq.oy __o

foreigners is allowed into the_ country for_good, subject to formal suitability.

Economic considerations can play an important role in deciding who is to be

admitted, but the selection and entry procedure is coloured by the picture one has

of the immigrant as a future citizen rather than as a worker admitted for a limited

purpose.


The most outstanding example of settlement migration is the United States.

The briefest possible exposition of its policy is helpful in illustrating the

principles of recompense as elaborated in this monograph. The United States

Immigration Act,i firstly, allows for the unrestricted entry of the foreign parents,

spouse and children of adult United States citizens. The inspiration is obviously

humanitarian and the cases involved cannot, therefore, give rise to recompense.

Secondly, the Act makes available 290,000 immigration opportunities each year

according to five humanitarian preferences, two economic preferences and one non-

preference category,2 which are ranked in order of priority. The humanitarian

preferences aim to bring families together or permit the admission of refugees.

Again, liability for recompense cannot arise. The two economic preferences are

ranked third and sixth. The third provides up to 29,000 opportunities for members

of the professions and scientists or artists of exceptional ability, the sixth opens

the door for up to 29,000 ordinary skilled or unskilled foreigners. Immigration

candidates who appear qualified to apply under one of the economic preferences are

informed that they must first have a job offer. Additionally, their prospective

employers in the US must obtain certification from the Department of Labor that

there are no willing, able and qualified resident workers available for the

envisaged occupation and that the employment of foreigners will not adversely affect

the prevailing wages and working conditions in that occupation (see above, p. 24).

Depending on their profession or skill, the foreigners are practically sure to enter

if the Department of Labor has issued a blanket certification for the occupation

concerned. Occupations which are totally barred entail refusal of entry but

applicants can seek other employment. Employers can contest the decision of the



I Specified here in the form valid since October 1978 but disregarding the
Refugee Act of March 1980.

2 The latter enables applicants not entitled to enter under the seven
preferences to immigrate to the extent that numbers are not taken up by preference
applicants.






- 42 -


Department of Labor in the courts. Non-preference applicants are also subject to

the labour certification procedure. It follows that labour market needs are the

decisive criterion of admission under the economic preferences as well as for

economically active non-preference candidates. It is clear that all certified

labour immigration should be regarded as recompensable. Furthermore, the absence of

large-scale recruitment by US employers tends to favour the "adjustment" of

foreigners already in the country to full immigrants under the appropriate

preference. The labour certification procedure is also applied to them and

recompense would likewise be appropriate. Table 4 documents the extent of legal

immigration on economic grounds and compares it with non-recompensable cases for a

selected occupational group, nurses.


It is worth while to compare the similarities and differences between

settlement migration under economic auspices and the contract migration typical of

Western Europe and the Arab OPEC countries. The difference is basically twofold:

(i) settlement migration gives certain foreigners the right to claim a job offer,

contract migration enables employers to look for any foreigner to fill a specified

vacancy; (ii) settlement migration admits foreigners as presumed future citizens,

contract migration admits foreigners only in their capacity as economically active

persons. Quotas, by themselves, are not a differentiating characteristic; they can

also be found in Switzerland, for example. The similarity of settlement immigration

under economic auspices and contract labour migration lies in the economic

determination of whether a foreigner should be admitted. The institutional

procedures, too, resemble each other. The crucial criterion of admission is the

utility of the foreign human resources in relation to one's own labour market needs.

Both types of migration, therefore, fulfil the conditions for recompense.



(e) Freemigration

Several instances were earlier mentioned of countries that have abolished

their usual entr- and-labouLr market controls for defined_qagous of fioreiners (see

Chapter III(e)). The fact that an international treaty or a national law invests

foreigners with the right, not merely to claim entry, but actually to enter as well

as to work is obviously a deviation from the established principles regulating these

matters. The excluding function of the border and the priority of national labour

are set aside by superior values. In the cases mentioned, the wish to benefit from

the labour of certain other countries is either secondary or non-existent. At any


E-4482-6B:12






- 43 -


rate, the basic preconditions for recompense the assumption that active foreigners

are excludable and that employers' requests for them are to be filtered

administratively do not exist. Thus, free migration cannot be subject to

recompense.'



(f) Irragulaarmiqration

The corresponding earlier chapter (III(f)) already described the various kinds

of irregular migration streams found today. If one were to classify them according

to their apparent liability to recompense, one would have to put the cases of

re12_arisation s or lristiratioL first. There is little doubt that a degree of

administrative inefficiency in controlling entry to the country and labour market

is sometimes accepted, because the demand-determined nature of the migration flow

remains assured and the extent of administrative supervision of the labour market

tolerable. Those foreigners whose presence is judged desirable are regularised or

left to work, others are excluded or deported.2 Testing the availability of national

labour forms part of regularisation procedures. Therefore, when this kind of

irregular migration has been regularised the cases concerned should qualify as

recompensable. Table 6 exemplifies the extent of regularisation in France. Table

4 also contains relevant data in terms of the US adjustment practice under the

third, sixth and the non-preference category.


Where international labour flows are practically uncontrolled due to lackof

EliX_2or _lack of administrative capacity, as was the case for many South American

countries until recently, the preconditions for recompense can hardly be said to be

fulfilled. Although these particular flows were probably largely caused by economic

demand factors in the countries to which the migrants went, they were not positively

sanctioned by governments or administered by them so as to correspond to articulated

needs.


Irregular migration resulting from 2orous laws or incompatible laws is less

easy to assess. The bulk of the irregular flows of workers into the US, especially


1 See the exclusion of Danish, Irish and UK nationals from table 2 since their
countries of origin acceded to the European Communities.

2 Figures presented by Tapinos (1975, p. 103) show that in 1971 and 1972 some 11
per cent and 23 per cent, respectively, of the requests for regularisation were
turned down in France.

As the foreigners involved do not claim to be refugees, the migrant-receiving
countries are not constrained by the obligation of non-refoulement.


E-4482-6B:12










from Mexico, can be traced to deliberate employer action and, in this sense, is

demand-determined (Bdhning, 1982). Such an observation would be a necessary but

insufficient presumption in favour of recompense, and it would be contested in this

particular case. More importantly, the opposition of successive Federal Governments

to this kind of migration is a strong assumption against recompense. The lack of

success in imposing their declared will does not detract from the strength of the

presumption. The balance of the two arguments appears to swing against recompense.

Considerations of practicality weigh down on the same side.


The employment of foreigners cannot be liable to recompense where foreigners

knowingly_ circumvent unequivocal immigration or employment laws or where employers

disregard such laws, irrespective of whether economic demand in the immigration

country plays any role. Hong Kong was a prime example until it brought illegal

inflows under control in October 1980. The contravention of public policy and jthe

circumvention of the procedures foreseen go right against the basis of recompense.


Ruling out liability to recompense under certain types of irregular

immigration will not open up opportunities for evading legitimate obligations. The

rising sensitivity on immigration generally and the trend towards a clamp down on

irregular labour immigration particularly (see Chapter III(g)), will have the effect

of closing the seeming escape hatch of the system of recompense proposed here. The

financial price to pay for legal immigration can be expected to be small in relation

to the unknown economic, social and political dynamics and consequences of

unregulated inflows, which tend to be heavily negative the more so the larger the

flows and the longer they last. A welcome side-effect would be the incentive given

to emigration countries to do their best to ensure that the international migration

of their citizens takes place in the framework of regular channels.


E-4482-6B:12


- 44-






- 45 -


V. RECOMPENSE: _HY, HOWHOW MUCH?



(a) Justification


The 2rinci2al _institutional justification


Of all international resource flows, the migration of labour is the most

universally and tightly controlled by the State. The nature of the contemporary

State is responsible for this fact as is, indeed, human nature. Foreigners are non-

belongers who have no right to enter. If, exceptionally, their presence is judged

desirable, the doors open to the extent determined by the migrant-receiving country.

Backdoor entries are increasingly clamped down upon.


Foreign labour is desirable only when it is needed. Employers must

demonstrate to the competent authorities of the State that their needs cannot be

satisfied with resident labour before the foreigners will be permitted to enter.

Litigation may be involved, as in the United States. Where the economy does not

require the engagement of foreigners, their admission is undesirable and therefore

prevented. Where economic needs are identified and approved, it is in the State's

interest to see to it that they are satisfied.


It is this interplay of the nature of today's State and the satisfaction of

its economic needs which gives legitimacy to the idea of recompense. Whether, or

how much, emigration countries gain or lose from the outflow of their human

resources is not of primary importance.


Put in simple form, immirartion countriesshould arecoSmpenseto _emiarat

countries whose citizens are admitted because they are needed for the purpose9of

SEl.2ment. This is a moral position only in so far as the hitherto unrequited flow

of human resources is called into question. It is an economic position in so far as

a demonstrable need is the cause of the engagement of labour from abroad, where the

satisfaction of that need is thus programmed. In this sense, then, the call for

recompense has a readily apparent base: if one wants foreign labour one should pay

for__i. That immigration countries generally command a buyer's market is another

question, which affects perhaps the size of the payment but not its principle.


E-4482-6B:12






- 46 -


ThS4neslemaintaY economic justification

The philosophy of international distributive justice can be drawn uppn to

provide a secondary justification for recompense through an analysis of the

differential gains from labour migration between immigration and emigration

countries.

The demand-determined immigration of labour leads to a fuller utilisation of

the co-operant factors of production, i.e. local labour, capital, land and energy.

As a consequence, the national product rises in terms of both the supply of real

goods and the generation of income. Profits and investments as well as wages tend

to go up. The real goods being produced food, houses, roads, hospital services or

whatever migrants help to supply will benefit the population in the migrant-

receiving country. (Some real goods may be exported and benefit other people.) The

income being generated the remuneration of the various factors of production -

will also bear fruit largely within the immigration country. (Some of the migrants'

earnings may be remitted and, where foreign employers are involved, some of their

profits.) In the long run, when the original need for the employment of a

particular foreigner may have passed and he is employed elsewhere or unemployed or

retired, the accumulated gains may be consumed somewhat by the provision of houses,

schools and other services for him and his dependants. However, in any viable

economy the economic gains will still exceed the costs (Jones and Smith, 1970;

B6hning, 1974).1


Whereas the migration-induced distribution of real goods is rarely questioned,

the distribution of income is often seen as favouring employers' profits rather than

workers' wages in market economy countries. Such a conclusion is unwarranted when

immigration is regular(-ised)2 and demand-determined. The additional income

generated by a foreigner will get divided up like all earned income unless employers

fail to defray non-wage labour costs or violate the administrative requirement of

equal pay for equal work. Theoretically speaking, demand-determined labour

immigration corresponds to labour import in full or over-full employment conditions.


1 Social tension and political friction may provide non-economic reasons for the
reduced attractiveness of immigration. To estimate monetary values for these
phenomena, as Gehmacher (1974) tried to do, and to put the several measures on one
scale, raises more questions than it answers.

2 I will henceforth use this formula to refer to all migration denoted as
recompensable in Chapter IV. Regular migration which is not recompensable is of no
interest. Irregular migration which is not recompensable may have effects quite
different from those postulated here.


E-4482-6B:12






- 47 -


In such conditions the supply price of labour will not be depressed. This holds

true even if the country experiences aggregate unemployment; for in the real world

of heterogeneous labour one inevitably finds surplus skills, occupations, industries

or regions side by side with scarce ones. Moreover, the multiplier and dynamic

effects of demand-determined immigration inject further income and labour demand

with beneficial repercussions on growth, including growth of wages.


Immigration is sometimes said to delay the introduction of modern machinery.1

Again, however, such fears are unfounded when immigration is regular(-ised) and

demand-determined. Labour's supply price stays unchanged relative to machinery.

Furthermore, in the decentralised system of market economies it is up to the

individual employer to assess current and future supply and demand he bears the

risk and reaps the profit. He should receive undistorted market signals because the

labour maLrkt is, in principle, closed and full or over-full employment prevails in

his sector or region. The State's authority judging whether to give him access to

foreign labour is not competent to refer him to machinery instead. At best, it can

insist that labour is available in the country and that the employer should make

greater efforts to avail himself of that labour.


Not only are the gains from immigration tangible and sizeable, they are

obtained through the utilisation of a practically ready-made production factor, the

foreigner, who has cost the immigration country nothing to rear or educate.2 If

population growth could have taken place instead, the domestic formation of labour

would have involved a substantial expenditure over a period of 15 years or more

before a national could have been productive.3 Once active, the national would

continue to absorb public investments as much as the newly-entered foreigner would

if he enjoyed equal treatment in the migrant-receiving country.




1 That access to labour can encourage the introduction of new technology (see
Cohen and Jenner, 1968; Le Pors, 1977) is surprisingly neglected.

2 The rigour of this statement could be attacked on the grounds that some
migrants may have benefited from scholarships and similar financial support by
migrant-receiving countries before they took up work there, or that training
activities of the UN system are largely financed by the industrialized and migrant-
receiving countries for the benefit of developing countries which are often migrant-
sending countries. Both factors are neglected here for simplicity's sake.

3 Blitz (1977) estimated the saved subsistence and education costs of migration
into the Federal Republic of Germany during the years 1957-73. On the basis of
several simplifying assumptions (including average rather than marginal costs), the
total sum would have been equivalent to nearly DM 123,000 million at 1962 prices,
i.e. over US$30,000 million.


E-4482-6B:12






- 48 -


EriaSaion, on the one hand, can help the satisfaction of needs in the country

of origin and the development of its productive capacity. Where people leave an

underdeveloped and supply-deficient country, the lessening of the demand for food,

houses, clothes, schools, hospitals and so on will be the most direct, immediate and

beneficial impact. Unemployment will be relieved, too. Although emigration, as

such, will not (as immigration does) lead to the production of more food, etc., it

will enable non-migrants to consume what is now not needed by the persons who left.

In years hence, the non-consumed or "freed" resource pool could be invested. To the

extent that the latter happens, there would be less of the short-term consumption

effect. If one goes by the most reasonable assumption, such as the long-term

average propensity to save and invest out of income, the overwhelming proportion of

the freed resource pool would be swallowed up by consumption. A comparatively small

amount would be invested productively and help the country to meet its needs in

coming years. Where migrants remit part of their earnings (which is a common but

not a necessary feature of either contract or settlement migration) the recipient

non-migrants will be able to consume or invest them and the migrant's country of

origin will be able (other things being equal) to pay for more imports than in the

absence of emigration.* Where foreign employers have to pay recruitment fees or

contributions to domestic workers' welfare funds and are responsible for travel

arrangements as in the Philippines, for example the inflow of money will create

a little employment in the public and private sectors.


On the other hand, emigration may cut into the production of goods or the

delivery of services where the move of the farmer, worker or entrepreneur causes

dislocation and new costs.2 Dislocation will hamper production. Output will also be

forgone while replacements are trained. The training itself will require resources

that otherwise might have been put to directly productive use. This effect will be

more pronounced the more valuable or scarce the human resources that leave the



1 Remittances are not a proxy form of recompense. They are transfers between
private individuals and have absolutely nothing to do with the institutionally
derived justification of recompense payments between governments.

2 The thinning out of the labour force, changes in income distribution, return
migration and the migration-induced growth of international trade or urbanisation
would have to be assessed in a fully comprehensive balance sheet. There is
insufficient agreement on the many pros and cons involved and they will therefore be
neglected here for simplicity's sake (but see B8hning, 1975, 1978; and Stahl, 1982).
The social costs of emigration (such as the anguish faced by many migrants or that
of separated family members) and the political implications (such as the
asymmetrical dependence of any single emigration country on immigration policies)
defy translation into dollars and pence. They would balance somewhat the economic
arguments favouring emigration.


E-4482-6B:12







- 49 -


country. Moreover, a closer look at the utilisation of remittances shows that

"other things" are seldom "equal". The first point to note is that remittances

usually serve consumption needs. This has a self-evident reason: the bulk of the

migrants, indeed those who do not intend to settle abroad and who suffer hardship in

order to remit savings, want life back home tc improve straight away rather than in

the distant future. Building or improving one's house top the list of priorities.1

Conspicuous consumption out of remittances is a familiar phenomenon. Little of the

hard-earned savings is earmarked for direct investment. When it comes to that,

tractors, repair shops and transport services are among the favourite items. Small

as they are, these investments do not amount to much in the aggregate and,

individually, face an unpromising future. Spare savings might be mobilised through

the banking system. But there is another side to the coin. The additional demand

may run into domestic supply bottlenecks and induce inflationary pressure or draw in

imports. Foreign goods, with which migrants have become familiar and which often

represent a kind of status object, may be favoured. This would influence the

country's consumption pattern for the worse rather than the better. The rising

consumer goods imports will lower the productive potential of the foreign exchange

held by the central bank. More importantly, the inflow of earnings is an uncon-

trolled addition to the money supply. Whether one believes in a mechanic

relationship between money supply and inflation or the demand-pull effect of remit-

tance expenditure, either or both will fuel domestic inflation.2 The previously

strengthened balance of payments will, in turn, be weakened. Coming as it does on

top of the increased consumer goods imports, it follows that a considerable

proportion of the newly-acquired foreign exchange will be lost to the country's

productive capacity.


Apart from this there is the psychological awareness that the labour leaving

the country has been reared and educated at its cost.


As far as regular(-ised) labour migration is concerned, the many, direct and

certain economic gains of the immigration country contrast with some benefits, some

likely deleterious effects and some possible losses on the part of the emigration


I Investment in private dwellings yields a high multiplier effect during the
construction phase but its productive impact on the economy practically ceases with
the completion of building activities. Besides, this form of low productive
investment entails high costs of physical infrastructure.

2 The thinning out of the labour force in the course of emigration also tends to
induce cost-push inflation.


E-4482-6B:12






- 50 -


country. Counted migrant for migrant, or dollar for dollar, an immigration country

gains more from the human resource transfer than an emigration country.

Institutionally, the cards are stacked in its favour. Economically, it profits from

the direct link between labour inflows and production, while the productive impulses

of emigration will probably materialise in the main indirectly through the

remittance-fed increase in consumption expenditure. The emigration country will

generally be better off with than without migration, but it will not be able to

advance as fast with migration as the immigration country does. As a rule, the

transfer of a valuable and highly productive human resource benefits the receiving

country most and the sending country least. At any rate, the migration of labour

from poor to rich countries augments the economic inequalities between them.


The legal ineguity


The inequality of the production and income gains is reinforced by a legal

inequity stemming from international law. Immigration countries have the undisputed

right to close their borders to foreigners when it is in their interest to do so.

Emigration countries are denied the right indefinitely to hold back citizens who are

bona fide emigrants. Again, this provides a supplementary justification for

recompense if viewed from the standpoint of international distributive justice.

The economic and the legal inequities attaching to international labour

migration lend strong moral support to the idea of recompense.


(b) PrEcedure


A system of recompense must be solidly based to prevent a tug-of-war at the

stage of implementation. To base it on incomplete, unreliable and out-of-date

migration statistics would be extremely unsatisfactory. Statistics would be totally

lacking in many cases. As with any other kind of transfer payments so also in the

case of migration: one must be able to determine in each case whether the payment

is due or not. If the criteria are clear there should be no dispute within or

between countries.


The administrative assessment of every request for regularised labour

immigration makes a case-by-case approach possible. The need articulated by the

employer, or the potential signalled by foreign self-employed persons or

entrepreneurs, is scrutinised and approved or disapproved by the competent state


E-4482-6B:12






- 51 -


authority. Immigration visas, residence or labour permits are issued and much other

paper may be signed, stamped or exchanged. In short, there is no shortage of

administrative acts concerning each individual foreigner. The green light given by

the labour immigration machinery is the decisive step and can easily be documented.


The types of migration that should not be subject to recompense such as

official movements or free migration either will fall automatically by the wayside

because the checks of the labour procedure are not applied to them, or they can be

sorted out (see also Chapter IV).


The kinds of human resources that should not be liable to recompense such as

students entering institutions of higher learning, housewives or old-age pensioners

- are not normally caught up in the labour immigration procedure. Where that is the

case they can be endorsed out in accordance with the principle that the bounds of

recompense extend merely to economically active persons (see Chapter III(c)). Where

inactive persons are permitted incidental employment not subject to labour market

tests for instance, students during holidays their cases should not be liable to

recompense. However, if they become active and undergo labour market screening -

for instance, graduates who take up a teaching position liability to recompense

would arise. Migrants originally admitted to the country through the family

reunification procedure or on other humanitarian grounds should nevertheless be

exempted, the second generation of foreigners also.


The fact that the notion of economic activity defines the scope of recompense,

means that low-skilled workers as much as own-account workers, seasonal labourers as

much as entrepreneurs rather than merely salaried professionals or some such

arbitrary group are recompensable. Canada, for example, encourages the permanent

inflow of self-employed persons and entrepreneurs who show promise of successful

establishment in their occupation and business. Canada obviously expects to see its

resources more fully utilised and thereby to satisfy more of its needs, which is at

the heart of the justification of recompense.


Two reasons suggest that recompense should consist of a single payment at the

moment of entry. Firstly, a second or nth payment of recompense would be severed

from its justification where renewals of work or residence permits are not subject

to the usual labour market procedures. The labour market tests may be eased or

dropped and permits may be renewed on humanitarian grounds. Secondly, several

immigration countries, such as the United States, currently do not keep tabs on


E-4482-6B:12







- 52 -


foreigners once they are admitted. It would be unreasonable to call for changes in

the name of recompense which affect ingrained and deeply-held political convictions.

It might deal a death blow to recompense altogether.


Fortunately, the derivation of the idea of recompense from the nature of the

State and of economic immigration implicitly favours the once-and-for-all assessment

on a case-by-case basis at the time of entry. This may occasionally incur problems

of double payment where a foreign worker was first and rightly denoted as

recompensable when he entered through one particular immigration channel and

subsequently switches over to another category of'labour immigrant after passing

through a further labour market test.' However, it should not be impossible to find

an appropriate solution. Perhaps one should draw the line where the foreigner has

to leave the country before being readmitted to a promised job.


A similar question can arise when foreigners leave the migrant-receiving

country for a lengthy period and seek to re-enter its labour market. The

administrative ruling concerning recompense should logically follow the ruling

concerning readmission. Where absence for a certain number of months or years or on

compassionate grounds or for a defined purpose such as military service, does not

invalidate the terms of stay, the foreigners are effectively continuing residents.

Where their re-entry is subject to the labour immigration procedure, recompense

would have to be paid once more.


Where the permission to work is granted prior to entry and recompense is

determined at that stage, the payment should become due only if the migrant actually

enters the country of employment and becomes economically active.


Verification against misuse may be necessary if it is feared that a migrant

who has been assessed, and for whom recompense has already been paid, could leave

the country in order to make room for a further admission. For instance, one could

rule out two or more payments for the same job in any one year.


It goes without saying that the government rather than the employer or the

migrant has to pay for recompense. It is the government which is responsible for

allowing the foreigner into the country. The employer and the migrant merely ask


I The statistics on nurses shown in table 4 illustrate this point (see footnote
5). Seasonals accepted for year-round work in Switzerland are another case in
point.


E-4482-6B:12







- 53 -


for permission and cannot act lawfully without the authority of the State in these

matters.


Identification of nationality, country of tirth or departure will be

indispensable to the administration of recompense if any money is to be transferred

to the migrant's country of origin. The formal and legal expression of a migrant's

affiliation, i.e. his nationality may not always correspond to his country of birth

or last residence. The latter could be designated as recipient of recompense,

although one would normally expect this to be the country whose nationality the

migrant bears. In case of double foreign citizenship the payment could be split.



(c) Amount

Abortion of the basic _wae


The answer to the question "how much?" should form a coherent whole with the

justification and procedure of recompense. Unfortunately, the justification derived

from the nature of the State does not indicate what amount might be right or just.

The objective of this section is to show that the case-by-case procedure for

admission and recompense can serve as a basis for a pragmatic and flexible solution

that might also be rationalised as adequate and reasonable. (Whether one could use

the economic concept of human resources flow accounting as a crutch will be explored

later.)

At the moment of entry the competent authorities examine, firstly, whether

suitable resident labour is available and, secondly, whether the wages and

conditions offered to a foreigner are not less favourable than those obtaining in

the area for the same or similar work.' I would suggest making the once-and-for-all

payment of recompense a function of the second assessment. More specifically, I

would suggest that the amount of recompense should be equivalent to a portion of the

basic wage or salary concerned. One month's basic wage or salary would appear





I There is, to my knowledge, only one exception to the rule that foreigners
should enjoy the same wages as nationals for work of equal value. This is laid down
in a recent decree authorising Greek shipowners to conclude bilateral crewing
agreements with seamen's unions in the developing countries. According to the
decree, foreign seamen will be paid no less than the rates paid in their own
countries or the going rate on ships of other major maritime nations. The Times
(London), 26 January 1981.


E-4482-6B:12










appropriate. It is an obvious and the most available point of reference.'

Deductions for social security or taxes should not enter into consideration nor

should overtime earnings or family allowances, etc.


A month's basic wage or salary can be multiplied or divided by whichever

factor the negotiating parties might agree upon in special circumstances.


The advantages of such a scheme are multiple and powerful. It represents, as

it should, a case-by-case determination and does not have to rely on unreliable or

unavailable migration statistics. It is easy and cheap to administer. The data

must already be in the hands of the competent authorities where duties are performed

correctly. It would incur but a minimal cost and practically no additional labour

to include the assessment for recompense in the labour immigration procedure and to

note the amount of basic wage or salary in each approved case.2 The system would be

verifiable domestically and even by emigration countries. This would inspire public

confidence, guard against national maladministration and reduce to a minimum the

dissension between immigration and emigration countries that may potentially afflict

the implementation of agreements on recompense. Another important advantage is that

wages or salaries can be assumed to reflect better than other indicators any or all

of the matters economists worry about: (a) the value, analytically speaking, of the

human resource being transferred, (b) the gain reaped by the immigration country in

terms of real product and income, (c) the impact on the emigration country in terms

of real product and income, and (d) the costs of rearing, educating and training a

migrant.


Taking a month's wage as a yardstick also enables a solution of the temporary

migration phenomenon consistent with the earlier consideration that temporariness is

immaterial to the principle of recompense (see, for example, pp. 38-9). I would define

"temporary" as "passing" or "transient" and differentiate it from "seasonal" and

"permanent" or "ordinary" in relation to the job for which the foreigner has been

admitted rather than in relation to administrative decisions regarding the length of

stay. Entertainers are typically engaged temporarily. Seasonal workers, on the

other hand, do not occupy a transient post but labour on a job that will normally



1 In the exceptional case mentioned in the previous footnote, the domestic wage
would be replaced by whatever figures have been chosen. They cannot be a trade or
tax secret.

2 The odd case of unpaid family members, who are economically active and subject
to recompense where their labour market entry is controlled, would not pose any
problem as they do not receive a basic wage.


E-4482-6E:12


- 54 -







- 55 -


have to be done again next year, and thereafter, i.e. on a job which is recurrent

and regular and in that sense ordinary. Foreign contract migrants admitted for a

standard period of 12 months are mostly employed on ordinary work places of a

permanent nature in so far as anything economic can be permanent. At any rate, the

work does not disappear after a predictable period of 12 months. A suitable

description of temporary moves has been given in the context of the categories

excluded from the ILO Migrant Workers (Supplementary Provisions) Convention, 1975,

Article 11(2) (e), namely:


Employees of organizations or undertakings operating within the territory of
a country who have been admitted temporarily to that country at the request of
their employer to undertake specific duties or assignments, for a limited and
defined period of time, and who are required to leave that country on the
completion of their duties or assignments.

The words "at the request of their employer" do not confine temporariness to

workers who are posted abroad for a short while by employers from the country of

origin to carry out a job on their behalf. The passing nature of the job itself is

the crux of the matter. If, when migrants are admitted on temporary work places, a

notion must take the place of a standard maximum length of time, one could fix the

amount of recompense so as to correspond to the fraction of a year specified for the

completion of the job. If, for example, it were a case of three months, a quarter

of the otherwise payable month's basic wage or salary would be appropriate, in the

case of seven months, 7/12ths of the amount. It would be inconsistent with the

ordinary cases of recompense to ask for the full amount unless 12 months of work are

foreseen.' It would be incongruous to ask for more when truly temporary work lasts

longer than twelve months. Similarly, if the extension of the work proves

indispensable to the completion of the work for reasons that could not be foreseen

at its beginning, recompense should not be paid for a second time, even if the

continuation of employment requires the agreement of the immigration country's

competent authority. Ordinary migrants do not give rise to two payments, either,

when their employment is extended.


The disadvantages of implementing recompense through a basic wage scheme are

threefold. Firstly, the amount is determined pragmatically if not arbitrarily.

However, the alternative methods of human resource flow accounting are riddled with



1 The monthly pay packet of seasonal workers in the construction industry is
sometimes said to reflect the fact that they are out of work for a time. Seasonal
wages in agriculture more generally reflect low producer prices. However that may
be, seasonal employment is regular and recurrent rather than transient and,
therefore, should qualify for full recompense.


E-4482-6B:12






- 56 -


problems and, in the final analysis, rest on several arbitrary decisions. Of two

second-best solutions, preference should be given to the one which is easiest to

administer, flexible and least likely to sow discord, which is the basic wage

scheme. Secondly, when self-employed persons or entrepreneurs cross borders the

amount of recompense cannot be determined straightforwardly. This hurdle can be

surmounted, for instance, by reference to average entrepreneurial income in the

migrant-receiving country or a calculation of the per capital amount of recompense

for wage and salary earners, to be applied to the number of own-account workers.

Thirdly, when contract migration takes the form of collective moves under the

auspices of a firm or enterprise from the country of origin (see p. 40), the

migrant-receiving country may not be concerned to test and ensure that the wages and

conditions of the foreigners' employment are similar to those of resident labour.

Nevertheless, the sovereign immigration country could request information on basic

wages and salaries (it may do so in any case for tax purposes), and the emigration

country could under its own law oblige the firms and enterprises to volunteer the

data.



HiEothetical illustrations

It might be interesting to speculate which order of magnitude of payments our

proposal would have yielded in a recent year if it had been applied in typical

immigration countries or occupations of migrants. Appendix (b) provides the details

of the selected cases. The hypothetical nature of the demonstration must be

stressed. Information on basic wages and temporariness of the job is, of course,

not published on a case-by-case basis. The illustrations assume that known or

estimated average basic wages are the appropriate point of reference and that no

foreigners are employed on temporary work places as defined here. The amounts

supposedly destined to individual nations or regions supplying labour are probably

further off the mark than the over-all sum, because differences in the educational

endowment and relative remuneration of individual nationalities could not be taken

into account.


The calculations for the Federal Republic of Germany (table 7) yield a

sizeable figure for 1979, about US$41 million. The country's high basic wage level

(estimated as US$1,093 per month) is responsible for this rather than the number of

migrants. The figure might actually have been very slightly higher, but it is


E-4482-6B:12







- 57 -


impossible to account for the few recompensable frontier workers and British

nationals.


In the example of Kuwait (table 8) the known average monthly basic salary

received by foreigners presumably over-estimates the level of recompense, because

newcomers tend to get less well-paid than older established persons. The figure of

US$6 1/2 million might also be reduced by the incidence of truly temporary

migration, which in Kuwait is marked but not always of less than 12 months' duration

and cannot be documented statistically. The notable differences in the total amount

of recompense between Kuwait and the Federal Republic of Germany (well over 80 per

cent), where numbers of admissions are not very far apart (about 20 per cent), can

be explained partly by the lower wage levels of Kuwait and partly by the

comparatively smaller portion which the basic salary forms of total remuneration.

In 1976 the non-Kuwaiti's basic salary of US$214 per month was about half of their

total salary of US$424.


The nurses admitted to the United States on economic grounds might have

brought their countries of origin (not identified in table 9) some US$4 million

worth of recompense. The truly temporary cases among the 2,857 contract migrants

would depress this figure to the extent to which they were employed for less than 12

months. The non-preference admissions or adjustments that are subject to the labour

certification procedure and therefore recompensable would boost the amount of

recompense due.


The three examples clearly show the influence of the factors that determine

the size of recompense payments according to the system which, in my opinion, would

be the best. The number of migrants admitted plays a role as well as the basic wage

or salary they will receive at the beginning in their different jobs. Because true

temporariness of the workplace is mostly of minor importance, the over-all level of

recompense can be anticipated with a fair degree of accuracy.


Imputinn values to human resource flows


Does the new art of human resource flow accounting provide an alternative

method of fixing the amount of recompense? Its basic line of reasoning is that the

family and/or the State have expended much money in rearing, educating and possibly

training the emigrant. When he moves to another country this expenditure will bear

fruit there. At first sight it would be a small step from calculating either the


E-4482-6B:12






- 58 -


past expenditure or the profits it will generate to holding up the results of the

calculation as the appropriate amount of recompense. One might be tempted to go

even further and label the emigration country's expenditure as a loss that should be

compensated or the value created by it in the immigration country as a gain that

should be shared.


That the immigration country gains is undoubted. That the emigration country

suffers is on balance unlikely, it is possible in exceptional circumstances but

impossible to demonstrate on a case-by-case basis with acceptable, all-embracing

concepts and methods. The investment costs of subsistence, education and training

are historical or "sunk" costs which rarely create obligations between the parties

involved and cannot create obligations towards third parties. International

reimbursement could conceivably be claimed where an agreement required the

emigration country to supply specified quantities and qualities of labour and where

this country would have to set up institutions or courses in order to fulfil the

agreement. Outside such an eventuality, when an emigrant leaves and the human

capital embodied in him goes with him, this does not by itself cause a loss or

represent the loss of past expenditure. Remaining at home would not as such signify

a gain either. What matters is how much the human resource produces, if anything,

relative to what it consumes; and further, whether it might not help the country's

population and the emigrant more if he were employed abroad. To cut a long story

short, human resource flow accounting may be able to estimate how much things have

cost or how much they are worth, but it cannot tell what can justifably be taken

into account for the purpose of either compensation or recompense. It could be all

or nothing.


If the justification of valuing human resources for the purpose of recompense

were not flawed, could the values nevertheless be estimated reliably and serve as a

basis for an agreement on sharing the costs or benefits? Two methods have gained

currency: the calculation of "historic costs" and of "present worth". The basic

question for both is what one should take into account. The following list shows

that the answers would continuously border on arbitrariness and probably be guided

by the availability of data. In the case of historic costs, should one take account

of:


all or part (which?) of the money parents spend on children?


E-4482-6B:12







- 59 -


all or part (which?) of the money countries spend on education or training?

all or part of the health and welfare services aiding the formation of human
capital?

regional, rural or urban costs?2

average or marginal costs?3

actual expenditure in the past, duly deflated, or current replacement costs?

periods spent outside the country of origin?

the prices of the immigration or of the emigration country, and at which
exchange rate?

opportunity costs in terms of taxes and social security contributions forgone
during education and training?

In the case of present worth, should one take account of:


averaged or grouped net income?

working life up to retirement or adjusted for mortality?

variable or fixed (by whom?) rates of discount?

the prices of the immigration or of the emigration country, and at which
exchange rate?

the possible return of the migrant (whc knows?) from the immigration country?

It is evident from this incomplete list that the imputation of values to human

resource flows requires several quite arbitrary decisions.4 While these questions

could be settled by convention between countries, most of the data needed would have

to be collected first, and the administration of recompense payments on this basis

would be nothing short of a nightmare impracticable, costly and contentious.












1 Should one disregard the portion of expenditure destined to research rather
than teaching?

2 Espenshade (1980, p. 11): "Expenses will depend upon the region of the country
in which the family lives, the race of the head of household, educational levels of
the parents, and the tasks and preferences for alternative lifestyles".

3 The marginal costs of public services are below average costs. The upbringing
of children also has economies of scale. As The Times (London), 8 September 1980,
reported: "For a couple with average earnings a child could cost more than 32
thousand pounds over an 18-year period... Having two children could cost about 48
thousand pounds."

4 Witness the proliferation of caveats in the literature, for instance, in Toh
(1977).


E-4482-6B:12







- 60 -


Furthermore, a case-by-case calculation of historical costs, if not beyond the realm

of possibilities, would be totally cost-ineffective. The present discounted value

is in any case a function of guesses. Finally, whether the reimbursement of

investment should be staggered or take place once and for all, or whether future

returns should be shared indefinitely, cannot be deduced with certainty from the

framework of human resources flow accounting. It is no match for the basic wage

scheme.


E-4482-6B:12







- 61 -


VI. IN LIEU OF CONCLUSIONS: OUTLINE OF A MODEL AGREEMENT



This section depicts a model agreement on recompense. It will necessarily

have to ignore the numerous peculiarities of individual countries and the

differences between legal, monetary and administrative systems. Only the essential

elements of recompense can be incorporated. The quasi-legal language forces one to

deal precisely and concisely with a number of points not yet touched upon, for

instance, whether countries should be liable to recompense for past migration (they

should not). The terminology is that of a layman trying to make himself

intelligible rather than that of a governmental draftsman guarding against juridical

pitfalls. One simplification introduced is that immigration countries should

recompense countries of origin for all of their citizens, irrespective of their

place of birth or departure. A reciprocal rather than unilateral scheme is

presented.




MODEL AGREEMENT ON RECOMPENSE



Preamble



The contracting parties, guided by the desire to strengthen the relations

between their people in the spirit of mutual benefit and solidarity, have decided to

establish by common agreement the conditions of recompense when citizens of one

country are admitted to another country for economic purposes.




Article 1. Access to territory and activity



1. The countries deem it to be their sovereign right to control the access

to their respective territories and to economic activity within them.


2. If henceforth a country admits a citizen of any other country which is

a party to the agreement it shall hereinafter be referred to as "the immigration

country" and the person concerned as "a migrant". The country whose citizenship a

migrant bears shall be referred to as "the country of origin".


3. The countries agree, with regard to their respective territories, to

take all practical steps to ensure that a migrant uses the regular channels foreseen

for migration and that irregular migration is suppressed.


E-4482-6B:12






- 62 -


4. Nothing in this agreement shall affect the terms of stay of the persons

who are legally resident in the immigration country at the coming into force of this

agreement. The mere fact of such residence shall not give rise to recompense.



Article 2. Procedcedure concerningEm ment



1. The employment of a migrant is subject to the decision of the competent

authorities of the immigration country. The decision can be positive if there is a

demonstrable need for employing a migrant or as otherwise determined by the

legislation or public planning procedure of the immigration country. Requests shall

be addressed to the said authorities in accordance with the following procedure:


(a) employers resident in the immigration country shall notify the vacancies
concerned;


(b) non-resident firms or enterprises which have successfully bid for a project

located in the immigration country shall submit a list of the workplaces and

citizenships involved in the execution of the project;


(c) self-employed persons or enterpreneurs from the country of origin who wish to
work or establish themselves in their occupation or business in the

immigration country shall furnish appropriate documentation.


2. Each request under paragraph 1 shall include details of the temporary,

seasonal or other nature of the prospective employment and, in the case of temporary

activity, of its probable duration. Each request under paragaphs 1(a) and (b) shall

also present information on the conditions of remuneration, including the monthly

basic wage or salary, and shall further indicate what steps have been taken to

attract resident labour.


3. Nothing in this article shall prejudice the conditions to be met under

government-sponsored or private recruitment between countries.



Article 3.__ Liabilitv for recomoen.seh



1. The immigration country shall be liable to recompense where:


E-4482-6B:12







- 63 -


(a) requests have been granted in accordance with article 2 except when a migrant,
voluntarily or for reasons for which he is not responsible, fails to commence

employment;


(b) persons regarded as in irregular or illegal situations have their situation

regularised in analogy with article 2.


2. Incidental employment of a migrant not subject to the procedure of

article 2 shall not be liable to recompense.


3. The parties hereby jointly declare that the immigration country shall

not be liable to recompense where internationally accepted statistics of the UN

system show that its per capital income is lower than the average per capital income

of developed market economy countries.



Article 4. Catesgries exempt from recompense



The following categories shall not come within the meaning of recompense under

article 3:


(a) refugees and assimilated persons;


(b) students and trainees;


(c) persons entitled by law or treaty to free migration;

(d) diplomatic, consular and assimilated personnel;


(e) persons belonging to religious bodies and assimilated personnel;


(f) transport or media representatives;


(g) entertainers or sportsmen;

(h) persons joining relatives in the immigration country under the family

reunification procedure;


(i) a migrant's children born and resident in the immigration country;


(j) any other category which may be agreed upon at the international level.


E-4482-6B:12






- 64 -


Article 5, Procedure concerninqrecoP sense



1. Where a request under article 2(1)(a) and (b) has been determined as

recompensable the immigration country shall pay the country of origin the equivalent

of:


(a) a migrant's monthly basic wage or salary if the job concerned is not temporary

in nature or if the temporary job is foreseen to last 12 months or longer;


(b) the portion of a migrant's monthly basic wage or salary corresponding to the

fraction of a year specified for the completion of the temporary job.


2. Where a request under article 2(1) (c) has been determined as

recompensable the immigration country shall pay the country of origin the equivalent

of the average per capital amount assessed under paragraph 1(a) of this article

during the relevant interval.


3. A payment of recompense shall be made only once in any one year for a

job. If a migrant leaves his job or the employment is terminated, there shall be no

further liability for recompense if the job is filled again with non-resident labour

during the same year.


4. A payment of recompense shall be made only once for a migrant in respect

of whom a payment was already determined upon first admission and employment,

provided that:


(a) he is entitled or allowed to take up new employment in the immigration country

without having to leave and to return thereto under the procedure in article

2;


(b) he is a continuous resident who is not subject to the procedure in article 2.


5. Nothing in this agreement shall be construed as giving any government a

right to hold a migrant or his employer responsible for the payment of recompense.




Article 6. Transfer and use of funds



1. The immigration country shall transfer the sum total of recompense at

agreed intervals and in agreed currencies to a body designated by the country of

origin.


E-4482-6B:12







- 65 -


2. The country of origin and the immigration country shall form a joint

committee to advise the aforementioned body on the beneficiaries of the funds

received. The committee shall aim to ensure that the funds generally serve the

social progress of the country of origin and particularly its education and training

institutions.




Article 7. Dispute settlement



Disputes shall be settled amicably.


E-4482-6E:12










APPENDICES


(a) Tables: Statistical examples of hypothetical numbers of cases liable to recompense
inthe pas (according to the criteria given in the text).


Table 1: Business migration: intra-company transferees admittedto the USJ_by
region of birthfiscal years 1971-78t


1971 1972 1973 1974 1975 1976 July-Sept. 1977 1978


Africa 55 97 147 196 254 158 75 422 499

America-North 977 1 375 1 875 2 256 2 341 3 699 1 208 3 001 2 733
-South 180 397 727 1 312 1 227 2 091 554 1 601 2 941

Asia 271 477 898 1 400 1 290 1 255 395 1 694 1 736

Europe 1 997 3 549 4 927 6 862 6 933 7 247 3 450 10 205 12 955

Oceania 138 203 319 452 524 662 165 750 631

Total2 3 618 6 098 8 893 12 478 12 569 15 112 5 847 17 673 21 495

1 Ending 30 June 1971-76 and 30 September 1977-78.

2 These figures also contain the few nurses who are identified separately in table 4 below.

Source: Immigration and Naturalization Service, Washington.


E-4482-6CApp-A:12













- 68 -


g.nfrect aireatJg;. foreign workers admitted to the Federal republic of


1971 1972 1973 1974 1975 1976 1977 1978 1979
1971 1972 1973 1974 1975 1976 1977 1978 1979


893

42 000

327

17 946

37 530

112 144


911

24 666

412

16 476

28 657

96 210


5 903 5 823

113 323 75 501


9 548 1 773


257

81 504


69

7 655


660 831 1 100 789 777


244

546

1 965


42

3 037


138

659

2 642


40

2 067


135

446

3 317


34

2 845


58

275

1 480


n.d.

2 600


97

232

5 676


n.d.

5 730


34 982 29 725 27 463 15 170 7 179 8 408 10 547 6 517 13 982


Denmark2

Greece

Ireland2

Portugal

Spain

Turkey

United
Kingdomm,

Yugoslavia

Other
European

Non-
European

Subtotal

Frontier
workers*

Totals


9 140 10 965 7 675 11 006

23 925 29 389 19 394 37 500


(7 018) (5 718) (8 686) (2 698) (1 474) (1 726) (1 625) (1 363) (3 014)

(397 360) (307 908) (327 414) (48 758) (23 199) (25 651) (31 014) (20 757) (40 514)


n.d. = no data given in original source.

I Data for original members of European Communities not included because their cases are not
considered liable to recompense since the coming into force of the free migration provisions in 1968.

2 Since the accession of Denmark, Ireland and the United Kingdom to the European Communities on 1
January 1973, figures discontinued for those of their nationals who are entitled to free movement (but see
also footnote 3).

3 British nationals lacking the right of abode in the UK and the right to free migration in the
European Communities (see Bdhning, 1972).

4 Nationalities not available. Presumably mostly citizens of European Communities who are not
recompensable, hence the brackets.

s Excluding unknown nationalities and stateless persons but including non-recompensable frontier
workers.

P2B3IS: Bundesanstalt for Arbeit, Nuremberg.


25 294 23 809 22 058 13 612 8 052

390 342 302 190 318 728 46 060 21 725


Germany, by nation 9


'- --"---"'I -'


'" "


Q






Table 3: Contract migration: foreignersgranted labour permits, Kuwait,
yln at ion ali ty _1974- 78


1971 1972 1973 1974 1975 1976 1977 1978


Egypt 1 730 1 998 2 379 2 284 4 164 6 336 6 723 7 258
India 2 439 3 467 3 412 3 136 4 479 5 772 6 075 6 345
Iran 2 079 3 780 4 311 3 883 3 787 2 990 2 370 2 437
Iraq 1 479 1 292 939 944 874 942 849 1 049
Jordan and Palestine 5 975 4 808 4 678 5 135 5 533 5 042 4 674 4 742
Lebanon 1 007 835 920 748 843 1 204 1 264 1 346
Pakistan 1 623 2 102 2 454 2 103 3 059 4 097 4 074 4 104

Sudan 68 54 51 62 84 n.d. n.d. n.d.
Syrian Arab Republic 1 631 1 429 1 751 1 898 1 762 1 475 1 559 1 692
United Kingdom 250 230 146 135 227 n.d. n.d. n.d.
Arab Gulf States 2 349 2 181 2 342 2 300 2 433 1 914 1 657 1 651
Other 178 164 236 301 460 1 010 1 551 2 168
Total 20 808 22 340 23 619 22 929 27 705 30 782 30 796 32 792
n.d. = no data given in original source.
Source: Kuwait Annual Statistical Abstracts.


E-4482-6CApp-A:12









Table 4: Contract and set1ement _igration:
fiscal_years 192l-781


nurses admitted tcthe OS,_bycateg ry,


1971 1972 1973 1974 1975 1976 July-Sept. 1977 1978


Contract migration in
the form of2,s

worker of distin-
guished merit (H-1)

exchange visitor

other "temporary"
worker (H-2)

intra-company
transferee*

Subtotal recompensable

Settlement migration in
the form of3,s

3rd pref. admiss.

3rd pref. adjust.

6th pref. admiss.

6th pref. adjust.

Subtotal recompensable

Other*,s

Total


I Ending 30 June 1971-76 and


1 486

382


2 673

424


2 096

313


19 17 22 63


5

1 307


984

276

262

1C8

1 630 1

(4 826) (4

(7 763) (8

30 September


0

1 885


2

3 121


961

527

167

202

857

998) ((

740) (

1977-78.


54

2 526




1 688

355

32

62

2 137

(3 248)

(7 911)


2 These are the so-called non-immigrants, i.e. persons admitted temporarily. The H-I and H-2 cases correspond to the
legislation quoted above, pp. 38-39, the intra-company transferees to the section mentioned on p. 38. The exchange visitors
scheme has de facto become a labour immigration programme (see North, 1980). Non-immigrant trainees are included in "other"
because trainees are not held subject to recompense.

3 See explanation for admission preferences and adjustment in ch. IV(d). As adjustments are counted against preference
quotas they are shown here rather than in a separate *able for irregular migration.

4 Most nurses enumerated here were admitted under the humanitarian preferences which means they should not be considered
liable to recompense, hence the brackets. However, there is also an unknown but small number of non-preference admissions or
adjustments subject to labour certification, which would be recompensable.

s There is an unknown extent of double counting because some 3rd or 6th preference adjustments, as well as non-preference
adjustments, included in the "ether" figures, are likely tc have first been admitted to the US with contracts as non-immigrant
workers.

6 Also included in table 1 above.

Source: Adapted from North, 1980.


E-4482-6CApp-B:12


2 084

213


1 409

192


2 504

167


6 32


2 744

105


6


2

2 857


10

2 313




1 980

451

59

66

2 556

(3 591)

(8 640)


2

1 635




2 004

715

11

33

2 763

(3 664)

(8 062)


2

906




423

53

2

5

483

(880)

(2 269)


14

2 699




1 342

445

29

23

1 839

(3 991)

(8 539)





- 71 -


Table 5: Contract migration: foreign workers admitted to France Jand labour permits
issued to "second generation" forei qers or persons earlier admitted through
family reunificationLwhBere biity to reccmoense should nct a rise[j_b
snationality,- 1975-91


1975 1976 1977 1978 1979


Admitted with annual contracts
from2

Morocco 1 663 839 578 20 23
Portugal 31 31 27 23 28
Spain 32 29 246 116 83
Tunisia 221 153 21 7 9
Turkey 10 3 4 6 7
Yugoslavia 14 13 5 10 7

Subtotal 1 971 1 068 881 182 157

Other 685 623 883 897 849

Total 2 656 1 691 1 764 1 079 1 006

Admitted with seasonal contracts
from

Morocco 10 515 11 472 11 247 11 745 12 597
Portugal 2 138 2 946 3 802 5 478 8 235
Spain 109 215 104 5o5 94 310 102 816 101 098
Tunisia 973 1 291 1 250 1 282 1 504
Yugoslavia 259 28H 27 27 2

Subtotal 123 1C0 120 563 110 879 121 597 123 689

Other 478 602 886 784 801

Total 123 578 121 165 111 765 122 381 124 490

"Second generation"/family members
permitted to work from3

Morocco (2 876) (4 158) (4 796) (4 334) (4 587)
Portugal (14 862) (17 652) (19 244) (19 035) (18 511)
Spain (6 661) (8 243) (8 366) (7 739) (6 988)
Tunisia (1 422) (2 275) (2 530) (2 375) (2 296)
Turkey ( 477) ( 752) ( 859) ( 937) ( 937)
Yugoslavia ( 999) (1 336) (1 296) (1 051) ( 888)

Subtotal (27 297) (34 416) (37 091) (35 471) (34 207)

Others (4 052) (4 940) (6 068) (10 626) (7 789)

Total (31 349) (39 356) (43 159) (46 097) (41 996)

1 Data for members of European Communities not included because their cases
are not considered liable to recompense. Refugees are also excluded.

2 Introduced through the Office National d'Immigraticn. Cases regularised
after entry are not included here but shown separately in table 6 below.

3 Comprises essentially young foreigners who have left the french educational
system and wives who have joined their husbands under the family reunification
procedure. The brackets are meant to indicate that these cases should be exempted
from recompense. Algerian nationals not included in original source.

Source: Direction de la Population et des Migrations, Ministere du Travail, Paris.


E-4482-6CApp-C:12









Table 6: Ieqular migration: foreigners whose em1oyment was regularised after entry
into Frances_ by nationalit._ 1975-79'



1975 1976 1977 1978 1979


Morocco
Portugal
Spain
Tunisia
Turkey
Yugoslavia

Subtotal


1 242
4 915
1 018
599
191
228

8 193


963
4 185
700
730
195
225

6 998


722
2 190
455
349
169
162

4 047


231
345
121
99
102
74

972


177
204
75
83
177
64

780


Refugees2
Others3


Total*


(1 818)
(3 092)

(13 103)


(5 748)
(2 816)

(15 562)


(5 361)
(3 077)

(12 485)


1 Statistics concerning admissions from abroad are shown in table 5.

2 Not subject to recompense.

3 Includes an unknown number of so-called quasi-refugees (apparently
asylum seekers who have not asked for or obtained the status of refugees.
matter of course, i.e. without being subject to labour market tests. The
cases are not liable to recompense.


(5 524)
(2 446)

(8 942)


(5 607)
(1 832)

(8 219)
I


over 500 annually). These are
They are given employment as a
brackets indicate that their


Includes both refugees and quasi-refugees.

Source: Direction de la Population et des Migrations, MinistAre du Travail, Paris.


E-4482-6T:12









(b) Tables: Statisticalexamples of_ hypothetical amount of recompense due in a recent year
(according to the criteria given in the text).


Table 7: Federal Republic of Germany: estimate of identifiable amount of recom2ense L b
recipient country or region _l1979



Recompensable nos. Average monthly basic Amount of recompense
admitted in 1979 wage in DM (estim.)--------

in Deutsche Mark in US Dollars


(a) (b) (c) (d)


Greece 777 2 000 1 554 000 849 200
Portugal 97 2 000 194 000 106 000
Spain 232 2 000 464 000 253 550
Turkey 5 676 2 000 11 352 000 6 203 300
Yugoslavia 5 730 2 000 11 460 000 6 262 300
Other European 13 982 2 000 27 964 000 15 280 850
Non-European 11 006 2 000 22 012 000 12 028 400
Sum 37 500 75 000 000 40 983 600

1 See table 2. Frontier workers and British nationals who are recompensable cannot be identified
and have been disregarded.

(a) = source table 2.

(b) = own estimate.

(c) = (a) x (b).

(d) = $1.00/1.83 DM. Rounded to the nearest 50.
---------------------------------------------- ---------------------


E-4482-6T:12









Table 8: Kuwait: estimate of amount of recompenseLy recipient country_ or re_ onlA 1976.

------------------ ------ --------- ----------- -------------
Recompensable nos. Average monthly basic Amount of recompense
admitted in 1976 wage in KD

in Kuwait Dinar in US Dollars


(a) (b) (c) (d)


Egypt 6 336 62 392 850 1 355 250
India 5 772 62 357 850 1 234 650
Iran 2 990 62 185 400 639 550
Iraq 942 62 58 400 201 500
Jordan and Palestine 5 042 62 312 600 1 078 500
Lebanon 1 204 62 74 650 257 550
Pakistan 4 097 62 254 000 876 350
Syrian Arab Republic 1 475 62 91 450 315 500
Arab Gulf States 1 914 62 118 650 409 400
Other 1 010 62 62 600 216 050
Sum 30 782 1 908 500 6 584 300

(a) = source table 3.

(b) = average monthly basic salary of non-Kuwaiti in February 1976. Source: Annual Statistical
Abstracts.

(c) = (a) x (b) Rounded to the nearest 50.

(d) = $3.45/1,00 Dinar. Rounded to the nearest 50.


E-4482-6T:12








Table 9: United States: estimate of identifiable amount of recom ense fornurses_bycateorof
admissionr.fiscal ear 1978,

----------------------------------------------------------------------------------- ---------------

Fecompensable nos. Average monthly basic Amount of recom-
admitted in 1978 wage in US$ (estim.) pense in US$


(a) (b) (c)
--------------------------------------------------------------------------- -------

Contract migration in the form of:
worker of distinguished merit (H-l) 2 744 1 000 2 744 000
exchange visitor 105 950 99 750
other "temporary" worker (H-2) 6 650 3 900
intra-company transferee 2 700 1 400
Subtotal recompensable 2 857 -2 849 050

Settlement migration in the form of:
3rd pref. admiss. 731 850 621 350
3rd pref. adjust. 238 900 214 200
6th pref. admiss. 45 750 33 750
6th pref. adjust. 479 800 383 200
Subtotal recompensable 1 493 -1 252 500
Sum 4 350 -4 101 550

1 See table 4. Recompensable non-preference admissions or adjustments disregarded. Double
counting, which would give rise to double payment, assumed to be nil.

(a) = source table 4.
(b) = hypothesised and deliberately differentiated so as to reiterate the importance of a case-by-case
approach. The nurses surveyed in 1978 by North (1980, p. 138) earned a median monthly wage in
excess of US$1,000. They were "non-immigrants" and would fall under contract migrants according to
the terminology used here.
(c) = (a) x (b).
---------------------------------------------------------------- ------------------


E-4482-6T:12









- 76 -


(c) list of countries-i^.hPl2h2Sil
1-iaiH2_-ssjnqsqa&snse

The threshold is fixed at the average per capital income of developed market
economy countries. These are the countries of Europe, North America (Canada and the
United States), Oceania (Australia and New Zealand) and Israel, Japan and South
Africa. Countries are free from the liability for recompense if their per capital
income falls below the threshold. The latest available statistics are taken from
the UN Yearbook of National Accounts Statistics, 1979, Vol. II: International
tables (New York), 1980).


Per capital Gross Domestic
Product in. urchasers' values
(current US dollars)

Developed market economies:


1977 = 6 650; 1978 =


7 920


Per capital national income
in market pricess (current
US dollars)

Developed market economies:
1977 = 5 880; 1978 = 7 000


Australia:

Belgium:

Brunei:

Canada:

Denmark:

(Finland:


France:

Federal
Republic of
Germany:

Iceland:

Japan:

Kuwait:

(Libyan Arab
Jamahiriya:

Luxembourg:

Netherlands:

Norway:

Qatar:

Saudi Arabia:

Sweden:

Switzerland:

United Arab
Emirates:

United
States:


1978

1978

1975

1978

1978

1977
1978

1978



1978

1978

1978

1977

1977
1978

1978

1978

1978

1975

1977

1978

1978


126

848

107

735

958

654
132)

851



419

904

476

884

386
262)

748

383

487

882

319

543

335


1978 = 19 380


1978 = 9 687


Australia:

Belgium:

Brunei:

Canada:

Denmark:


France:

Federal
Republic of
Germany:

Iceland:

Japan:

Kuwait:

(Libyan Arab
Jamahiriya:

Luxembourg:

Netherlands:

Norway:

Qatar:

Saudi Arabia:

Sweden:

Switzerland:

United Arab
Emirates:

United
States:


1978 =

1978 =

1975 =

1978 =

1978 =


1978 = 7 918


1978

1978

1978

1975

1977
1978

1978

1978

1978

1975

1975

1978

1978


= 9

= 8

= 7

= 11

= 6
= 6

= 10

= 8

= 7

= 9

= 6

= 9

= 12


278

392

153

431

440
335)

040

509

949

929

089

274

408


1978 = 16 665


1978 = 8 612


E-4482-6C:12








- 77 -


(d) Biblio9a2hl

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- 81 -


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E-4482-6C:12












International migration and

development in the Arab region

In 1975 over two-and-a-half million Arab workers and their dependants, as well as
another half-million non-Arabs, were living in Arab countries other than their home-
land. Migration on such a scale is largely the result of economic forces, in particular
the apparently insatiable demand for labour in oil-exporting, capital-rich States
such as the Libyan Arab Jamahiriya and Saudi Arabia.
In this well researched book the authors examine the volume and pattern of
international migration for employment to, from and between the Arab States of
the Middle East and analyse the factors underlying it. In so doing they draw atten-
tion to the advantages and disadvantages of these flows both to the countries of
origin and to the countries of employment, and suggest what might be the conse-
quences of the ever greater recourse now being had by the migrant-receiving
countries to labour from the Indian subcontinent and the Far East. The book con-
cludes by setting out a number of courses that the Arab migrant-sending countries
might consider in order to improve their position vis-A-vis the capital-rich
States.
xii +175 pages 25 Swiss francs ISBN 92-2-102251-X (limp cover)
35 Swiss francs ISBN 92-2-102252-8 (hardcover)








Black migration to South Africa

A selection of policy-oriented research
Edited by W R Bohning

The results of research initiated by the ILO in 1976 into the whole question of Black
migration to South Africa are brought together in this study, which is published
with the financial support of the UN Fund for Population Activities. Taking as their
starting-point the assumption that Black migration to the Republic of South Africa
should be eliminated on both moral and political grounds, the researchers set
themselves two aims: first, to examine how the working and living conditions of
both the migrants and their dependants can be improved as long as migration con-
tinues; and second, to discover what means there are of reducing the dependence
of the migrant-sending countries on job opportunities in South Africa and, in partic-
ular, to consider how the existing migration link can be used to relieve these coun-
tries of their need to send workers to South Africa. The final chapter suggests a
possible plan for the gradual phasing-out of migration over a period of 15 years.

20 Swiss francs ISBN 92-2-102759-7 (limp cover)
30 Swiss francs ISBN 92-2-102758-9 (hard cover)








Trade in place of migration
An employment-oriented study with special reference to the Federal
Republic of Germany, Spain and Turkey
By U. Hiemenz and K. W. Schatz
An important feature of a new international economic order would be an efficient
international division of labour that would encourage a mutually profitable revival of
world trade. The present book is one of a number of case studies carried out under
ILO auspices to quantify some of the factors involved.
After examining in some detail the competitiveness of the industries of the
Federal Republic of Germany, in particular, which is one of the developed countries
already most integrated in world trade, the study estimates the effects of a liberali-
sation of the country's imports on employment in the Republic by industry, by area,
and by the skill, sex and nationality of the workforce. The possibilities of re-employ-
ment in their own countries for the Spanish and Turkish migrant workers who
might well be displaced by such a liberalisation are assessed in a concluding sec-
tion, which contrasts the economic policies recently followed in Spain and Turkey
and points to their employment implications.

x + 118 pages 17.50 Swiss francs ISBN 92-2-101865-2 (limp cover)
27.50 Swiss francs ISBN 92-2-101864-4 (hard cover)












































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