 Okay, so I'm talking about WTO and free movement of persons in the WTO and I'm going to do this essentially by maybe a little bit boringly just setting out the framework for what one gets out of the WTO and I'm going to illustrate this with reference to the EU's commitments on free movement of persons to the outside world which might be us soon. So this is as everybody knows the default in case there's no agreement between the UK and the EU which is not impossible at all and in fact may even be desirable. The way that the WTO deals with free movement of persons is in the general agreement on trade in services, GATS, which dates from 1995 and which for those I don't know how that much people know so I'll just give the basics. Oh I don't have a presentation I don't like them. I'm going to have just the basically just some provisions that's all. So the GATS operates in parallel to the GAT and it does similar or tries to do similar sorts of things a bit mutatis mutandis as one has to do for services and it establishes four modes they're called in jargon, modes of supply, cross border that's the one which was an EU competence in opinion 194, consumption abroad that's tourists, students so on consuming in other countries of no relevance to us really at the moment. Commercial presence which is what EU law would call establishment and I as an international I would call investment in services and then the one we're interested in which is movement of persons and that is defined in article one paragraph 2d which is there, those are the modes supply of a service by a service supplier of one member through presence of natural persons of a member in the territory of any other member so there's a lot of members going on there. The key concept is that the natural persons that we're interested in here relevant through their presence in another WTO member so this means two things and I think Catherine mentioned these two options in the beginning one is that the natural persons can be service suppliers in their own rights so all of us when we do teaching in other universities around the world but also natural persons can be involved in the supply of services through their work for another service supplier doesn't have to be of their nationality either and that could be a company a juridical person in WTO jargon or of course could in theory be another natural person and this is all specified a little bit in more detail in an annex on the movement of natural persons which is no one. paragraph one is what we're looking at now which as you can see just details but I said those are two different aspects one detail on this annex is that it doesn't actually specify that the service supplier has to be a national of a WTO member other than the one in which the services are being supplied so some people have seized on this and said well Gats is a sort of all-round immigration agreement you know it applies to you yourself it's obviously ridiculous because this is only about a definition applies to the annex doesn't apply to the Gats but you know academics they will get excited sometimes so let's just ignore that WTO lawyers are surprisingly easily excitable we take what we can get so before getting more stuck into the legal aspects there's a brief word on the political and economic dimensions of mode 4 and we're coming at this from the completely opposite side of the spectrum than one does if one is moving from EU law to you know some sort of FTA concept and WTO is way on the other side of this which is you know that there is nothing essentially unless you want there to be something so the idea of mode 4 as being something even as a framework was something that was quite hotly contested in the 1990s leading up to 1995 when this agreement dates the developed countries wanted to limit this to skilled workers golden color workers maybe some high-end white color workers and developing countries obviously wanted this potentially to include everything seasonal agricultural labor and working in construction hotel whatever so essentially they want this to be a framework for an immigration agreement and on this particular point of developing countries one which is why you have mode 4 without any limitation on the sorts of services that are covered and if I from personal experience people in the European Commission have missed this point some of them because they assume that it's just white collar workers golden collar workers now as I'll explain in a moment that is true in terms of EU commitment but it's not true in terms of gaps not true in terms of what you can do in the gaps not a bit surprised to hear that but I guess people don't always update themselves you know now the idea that you can negotiate may commitments on any sorts of service in other words any sort of immigration if we can call it that is further elaborated in however three year members may negotiate specific commitment to find the movement of all categories all categories is the important thing there right so you can as a W2 member make a commitment on seasonal labor if you want perfectly possible all looking very good for the developing countries but it was a partial victory for several reasons because developed countries always win in the end and one is that in this annex if you look at paragraph 2 you can see a fairly big limitation on what was in the main body of the agreement in fact this redefines the agreement to exclude permanent movement of persons in any way so it's now very clear that we're dealing with what is we're dealing with temporary movement of person so you can see there in paragraph 2 how that is done all of you know citizenship residence permanent employment is excluded from the gaps so that's typically the way you teach the developing countries a lesson you give them a lot in the header and then you take it all the way again in a footnote so that's the politics of where we are at the moment and I'll explain how the GATS then operates this is just the definition right but doesn't actually mean anything yet it's just what's possible a small point on the economics before I get into the whole commitment side of things is that mode for amounts to about one percent of trade-in services okay so it's insignificant which gives you another sense of who won that particular tussle and what is that one percent well I'll get to that now what does it all mean in terms of obligation well the GATS divides obligations into general obligations which apply across the board to all sectors and then specific obligations which apply to sectors in which a WTO member has made a specific commitment this is unlike the GATS which has much much more well it's not unlike the GATS it is a bit like the GAT but the sorts of obligations which are for specifically negotiated sectors in GATS are taken for granted and apply across the board in GATS and that is for instance non-discrimination non-discrimination is a big one you need to negotiate on non-discrimination or there is nothing there you can do whatever you like in terms of national treatment anyway what are the general obligations was only one really of any importance and that is the MFN obligation so that's non-discrimination in a horizontal sense and everybody all you lawyers are going to have to get used to distinguishing between horizontal MFN type discrimination and national treatment discrimination because of course in EU law this is all blurred but in in fact quite horrifically so no in in Dassenville but but in WTO law this there's a very sharp distinction between horizontal and vertical non-discrimination and MFN discrimination is applies across the board even without having made any commitments in any sectors and that's in article 2 paragraph 1 of GATS there are carve-outs from the MFN obligation and some this was all done in 1995 following negotiations and I'll give you now start referring to the EU schedule of concessions which is where all the WTO members say what they're going to promise within the framework of the GATS and it's the same for GATS with concessions and goods it's basically tariffs for goods doesn't have to be but it is and for GATS it's obviously everything else it's all regulatory so here are some EU exemptions Italy has an exemption for measures based upon bilateral agreements between Italy and third countries guaranteeing work permits for seasonal workers in other words Italy can give these work permits to countries with which it has these agreements without also having to give work permits to other nationals of other countries yep it's an MFN exemption that's right yep that's right the qualification on a permanent basis that applies to residents as well well no I mean you can interpret this as you like because no one's ever there's no authority on this nothing there was a committee that looked at it once and then decided not to I think the official reason was that it's all dealt with sufficiently in the commitments so I don't know your guess is good as mine yeah well I think lawyers play with commas just to get into all things to do yeah okay all right so I don't know depends who's paying you so another one another exemption is the UK for citizens of Commonwealth countries with a grandparent born in the UK so that's a famous right of the boat there's an exception there I mean one of those conditions and then we have this was for all sectors but it says mainly construction and hospitality measures based upon bilateral agreements between community member states and European and Mediterranean countries guaranteeing work permits for the purposes of temporary contract work on the basis of contracts between an employer of the third country concerned and a company in the member state concerned and which permit limited numbers of workers from the country's concern to be employed in certain service sectors the numbers are subject to variation according to criteria established in the agreement sort of open end and fluctuate you call this a variable levy if you were dealing with with goods it's sort of like a variable levy on on contract so there's I mean this would be music to the ears of the Conservative Party this is almost like good immigration policy for them so that's sort of where we're coming from in terms of MFM but when there is no exemption the MFM obligation applies across the board so if the UK post-Brexit decides that it wants to let in fruit pickers from Morocco in the summertime it also has to let in fruit pickers from everywhere else because the UK doesn't have the Italian exemption and won't inherit it if anyone's interested I can go on about the position of the UK and WTO I've been working on this for a while now but anyway there are two overarching exceptions to the MFM obligation one is for regional trade agreements so that's the EU at the moment gets shall not prevent regional trade agreements they've got to cover substantially all service sectors to qualify and the other is for labour markets integration agreements which abolish work permits and residency requirements so if you have a properly integrated agreement you have exception but this doesn't cover everything anyway and it covers measures that are necessary for these types of agreement which arguably does not cover mutual recognition of qualifications for instance not necessarily necessary then we come to the specific obligations and here the EU has commitments for horizontal commitments for three categories of national persons inter-corporate transfer is senior management or important people for a company business visitors who want to set up shop turn up and set up shop and then contractual service suppliers which are employees of a juridical person they can come from maximum of three months a year there's a list of sectors in which they can come which has professional services research and development higher education will be pleased to hear travel agencies and tour operators entertainment probably overlaps with higher education to some degree and then sales unless there are more conditions in the specific schedule of services so here I had a look at higher education and it's actually unbound apart from what I just said except for some conditions that we have and it may not surprise anybody to know that it is France which has some specific conditions you need a contract nine months tops economic needs test unless professors designated directly by minister in charge of higher education and just does a cherry on top recruiting institution must pay a tax to the international migration office so that's what happens if we want to go and teach in France and then there are overall exceptions and this is the end of it very quick one is something that will be in article 14 of gaps that applies to everything be familiar to EU lawyers although not from the services area measures to protect public health public morals consumer protection safety it's not very interesting for the time being more interesting is paragraph four of the annex there which has an exception for measures necessary to so border measures right this is enforcement of border measures then you have an exception to that provided that such measures are not applied in such a manner as to nullify or impaired benefits accrue into any member under the terms of a specific commitment and then it says somethings about visas from one country versus visas for sorry visas for nationals one country versus visas for national another country that itself is okay how does one interpret all of this it's an exception shall not prevent his exceptions language and the WTO has a very strict much stricter I should say than in the EU these days strict version of the necessity test so necessity really does mean necessity I mean in German terms but they take it seriously as seems to happen anymore in that regional agreement and so this well looking at it from that perspective probably boils down to us you know reasonable sort of exception you you can look you can have your immigration controls but you can't use them to abuse the commitments that you've made so to sum up the WTO doesn't give you a free trade agreement on services it gives you a framework apart from the MFN aspect for negotiating free trade on services and so far in practice not just the EU but most countries but I thought I'd talk about the EU seeing as that's gonna be of most interest the commitments apply pretty much to high-end white collar and golden collar workers not the lower end and that is I think going to be the default position for the UK as well which the EU will then benefit from all of which is probably not a bad framework as a starting point at least for an immigration policy that dehumanizes and etc etc but it's not to say that you can't do more you can do more and this is just the basics of what's been done so far