Melbourne Law School - Theses

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End date: 2009 × Type: PhD thesis × Subject: 1994 × Subject: Government policy ×

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    International law, economic liberalization, and the movement of natural persons
    Kordvani, Amir Hossein ( 2007)
    The movement of natural persons constitutes one of the modes of supply for services identified under the General Agreement on Trade in Services (`GATS'). However, entry regulations have been recognised as a major barrier to such movement. Proponents of strict visa requirements often justify their position by invoking the sovereign right of states to adjudicate the entry of foreigners into their territory to protect the welfare of their society. Highlighting the cumbersome nature of procedures for the application and processing of these visas through an examination of the immigration laws of the US, Britain, Germany, France, Canada, and Australia, this thesis argues that the administration of that right in an unreasonable, subjective and discriminatory manner is inconsistent with Members' specific commitments on Mode 4 and the provision of art VI(1) of the GATS. It is argued that the general and security exceptions embodied in arts XIV and XIV bis of the GATS should not be seen as allowing Members the right to adopt any measure they wish domestically, even if it is welfare-related, to regulate the movement of natural persons. Such an interpretation could render unenforceable the specific commitments and relevant WTO obligations on Mode 4 of service supply. The thesis further suggests that the psychological nature of the barrier on the movement of natural persons from developing to developed countries may not be given expression through legal reasoning. In order to support this argument, a case study of Australian business visa requirements will be offered to give an account of the administration of the sovereign's right to adjudicate the entry of the foreigner at the moment of the encounter between the foreigner and the host. The host (abuses) his or her right to interrogate the foreigner to establish the foreigner's `genuineness', by, asking questions for which honest answers are not easy to provide. This encounter will be discussed through engaging with Jacques Derrida's reading of Immanuel Kant's right to hospitality. The findings of this research can prove significant given that the impasse on the liberalisation of the movement of natural persons was one of the difficulties that resulted in the collapse of the Doha Development Round of multilateral trade negotiations.