The US has recently passed a Proclamation on 22nd June 2020, temporarily suspending till the end of the current year, several popular non-immigrant visas including the H-1B, H-2B, J and L visas. The Proclamation aims at protecting local workers who are facing unemployment due to spread of coronavirus. Apart from J visas which include certain categories of non-experienced people, all the visa requires certain expertise and higher education degree.
The present article seeks to analyze the legal validity of US’s Proclamation under the WTO Agreements, particularly General Agreement on Trade in Services (GATS) by exploring the consistency of the Proclamation with the specific commitments undertaken by the US under GATS and if the Proclamation violates such commitments, then the possible defence for this discriminatory measure under the exception clauses of GATS.
Compliance of the US with its commitments under its Schedule of Commitments
GATS contain two types of obligation– one is general obligations that apply to all members and services sectors for example- Most Favored Nation treatment, and another is specific obligations that apply only to the sectors inscribed in a member’s schedule of commitments (SoC). Commitments are undertaken in SoC concerning four different modes of service supply. Most schedules consist of both sectoral and horizontal sections. The Horizontal Commitments contains commitments/conditions that apply across all sectors subsequently listed in the schedule. Sector Specific Commitments identifies the services for which the member guarantees market access and national treatment and any attached limitations. SoC allows member to deviate from general obligation of providing non-discriminatory treatment by listing the discriminatory measures in its SoC. The Proclamation, to stand the test of non-discrimination, needs to either be covered under the US’s GATS commitment in its SoC or it must fulfill the requirements of exception clauses under GATS which provides grounds where parties can deviate from its obligations under this Agreement.
Mode 4 i.e. presence of natural persons is the relevant mode here as this mode regulates the entry of one member into the territory of another member to supply a service. In the sector-specific commitments under the SoC of the US, it has in almost all services sectors, not made any commitments except in cases where the foreign service suppliers fulfil the conditions mentioned in the horizontal section. In its horizontal commitments, the US has only laid down requirements regarding the eligibility of the foreign service suppliers for respective categories and the duration of their stay. For instance- Intra-corporate Transferees which includes managers, executives and specialists, as defined in the section, can only stay in the US for a three-year period that may be extended for up to two additional years for a total term not to exceed five years. Even in the horizontal section, no such domestic laws/regulation has been referred to which allows the US to suspend the visas temporarily.
The Schedule, nowhere, imposes any conditions where despite fulfilling the requirements mentioned in the horizontal section, the US can suspend such visas.
Compliance with the requirements of General Exception
Since there is no legal validity found in US’s commitments under its SoC, US may claim that the alleged measure, i.e. the Proclamation falls under one of the Exception clauses of GATS.
GATS provides two types of exception where the Members can deviate from its obligation undertaken in this Agreement and take such measures which violate its commitments, i.e.- General and Security Exceptions. The Security exception is only invoked when there is a risk to the national security of the nation, and it is necessary to protect its essential security interest. This exception can’t be invoked in the present case by the US as foreign service suppliers working in IT sectors or fashion designing company doesn’t pose any security risks to the US.
However, the general exception lists down 6 circumstances which includes various cases from protecting human health to preventing fraudulent practices. The Proclamation has only used the phrase “in the interest of US” and “high unemployment” as the justification for issuing such Proclamation. The relevant part of the Proclamation states- ‘I determined that, without intervention, the United States faces a potentially protracted economic recovery with persistently high unemployment if labour supply outpaces labour demand……..I have determined that the entry, through December 31, 2020, of certain aliens as immigrants and nonimmigrants would be detrimental to the interests of the United States.’ The only clause that might be invoked by the US as a ground for its GATS inconsistent measure will be – (a) necessary to protect public morals or to maintain public order or (b) protection of human, animal plant life or health.
WTO GATS jurisprudence shows that Article XIV provides for analysis in step-test i.e.- (i) first, the WTO Dispute Settlement Body (DSB) must determine whether the measure falls within the scope of one of the subparagraphs of Article XIV of the GATS; and (ii) after having found that the measure at issue is justified under one of the subparagraphs of Article XIV of the GATS, the DSB must examine whether this measure satisfies the requirements laid down in the introductory clause or chapeau of Article XIV of the GATS (Argentina – Financial Services).
To judge US measure’s compatibility with the requirements of Article XIV, we need to follow the two-tier analysis which involves first looking at the measure itself under the sub-paragraphs and then at how the exception is applied under the chapeau (US-Gambling).
US may invoke Article XIV (a) or (b) as a ground for protecting public order or human lives from the impact of COVID-19. However, the nature of measures falling under public order or human lives has never included anything relating to visa issues but owing to the widespread harm caused by COVID-19, it might be possible that WTO DSB finds the invocation of such clauses as valid.
To comply with the requirement of clauses of Article XIV, the US must establish the necessity of the measure in pursuing the objective that falls within the sub-clauses. The necessity test involves weighing and balancing process where three important factors are “weighed and balanced” to determine necessity, although not exhaustive factors (Korea-Various Measures on Beef, US-Gambling):
- the relative importance of the interests of values furthered by the impugned measure;
- the contribution of the measure to the realization of the ends pursued by it; and
- the restrictive impact of the measure on international commerce
Firstly, the Proclamation needs to be protecting the interests which are of relative importance. In Korea- Various Measures on Beef, the Appellate Body emphasized that the necessity requirement can be more easily satisfied when the common interests or values advanced by the challenged measure are of vital importance. Applying the same rationale in the present case, US may argue that protecting its vulnerable or disadvantageous citizen from unemployment is of vital importance, especially in the times of a pandemic and the WTO DSB may agree with this line of argument.
Secondly, the Proclamation must fulfil the means-ends test where the suitability or aptitude of a measure to achieve the ends pursued is examined. The more the challenged measure contributes to the achievement of the legitimate policy objectives, the more likely it is that the measure will be deemed necessary (Korea- Various Measures on Beef). The Proclamation seeks to address the issue of high unemployment which is adversely affecting the unemployed Americans from the threat of competition for scarce jobs. It also lists down the workers against whom the immigration is particularly harmful i.e. workers who have been disproportionately represented by historically disadvantaged groups, including African Americans and other minorities, those without a college degree, and Americans with disabilities. The objective stated in the Proclamation and the means of achieving such objective appears to be conflicting in the present situation as the Proclamation suspends entry of such professionals who have higher education college degrees and sufficient expertise in their respective field who are not in competition with the American workers that don’t possess a college degree at the moment. Also, it has been claimed by representatives of various technology related business stakeholders in the US such as- Google, Amazon, Tesla etc. that the prohibiting immigration of the professionals are more likely to affect the economic recovery of US instead of improving it.
The objective of Proclamation to protect the unemployed American workers doesn’t get fulfilled by suspending the visas of professionals who are on the contrary, helping the country in its economic recovery. As the Proclamation fails to fulfil all the elements of necessity test, it is not relevant to analyse its compliance with the chapeau.
The US has not mentioned anywhere in its SoC regarding abruptly suspending the visas through domestic laws/regulations. Nor the Proclamation fulfils the conditions of Article XIV to take recourse of general exception clause for such discriminatory measure. The impact of coronavirus on the economy is felt by every nation and citing pandemic as a reason for introducing such GATS-inconsistent Proclamation to protect the interest of its unemployed workers is not justified.
Views are personal
The hegemony of knowledge and the new world order: U.S. and the rest of the world
In today’s world, knowledge and technological advantages determine – to a large extent – differences in the management of international policy. The increase in a country’s intellectual power directly defines an increase in its economic power, thus changing its position in the international competition for dominance.
The power policy, first in the agricultural age and later in the industrial age, was characterised by military and then economic hegemony, while the power policy in the information age gradually reveals the characteristics of knowledge hegemony at both the scientific and intelligence levels.
The hegemony of knowledge in contemporary international relations manifests itself specifically as unequal exchange in international trade, exploitation of high-value information and various conditions related to technological production. Hence, we see the transfer of polluting industries from privileged to poor countries: energy-consuming and high-intensity activities.
Western culture and values are disseminated vigorously, through the so-called soft power in information and mass media, and take on obsessive and oppressively hypnopedic forms.
Developed countries have patents in the use of outer space, as well as in the development of deep sea resources and in the production of environmental resources that pollute, while developing countries can only sigh as they look at other’s oceans and satellites, which fly around, do reconnaissance activities and monitor them.
The resources of the great and deep seas – which should be shared by mankind as they belong to everybody like the air, the moon and the sun – are instead exploited by the developed countries. On the contrary, they freely and ‘democratically’ share with the wretched ones only the evil consequences of environmental pollution.
With specific reference to sanctions and armed interference in international relations, the technique of violent and conscious bullying is adopted: whoever is militarily stronger imposes the validity of their interests, also at legal level.
The root cause for generating knowledge hegemony lies in the polarisation of the intellectual status of the nation-State. Western developed countries have already crossed the threshold of an information society, while developing countries are still struggling to climb towards industrial civilisation from the most primitive and closed state of existence. Although developing countries hold most of the world’s natural and human resources (just think of Africa), they are far behind in science and technology. Just look at the continental histogram of the 207 Nobel Prizes in Physics from 1901 to 2017 (winners are counted by country of birth except for the Algerian Nobel Prize winner Claude Cohen-Tannoudji , who was born when Algeria was a French territory):
Source: Nadua Antonelli <<Africana>> XXIII (2017) page 12
If they have no means to study, even the greatest and most brilliant brains cannot make discoveries or file patents, looking only at the sky and the earth.
About 80 per cent of science and technology staff and their achievements are concentrated in developed countries. The knowledge advantage gives developed countries the right to set the rules of the game and of communication for all global knowledge production and dissemination. In particular, the developed countries’ knowledge advantages in the military and high-tech media enable them to expand their influence on the civil and military fronts and achieve their strategic objectives.
Developing countries wander between traditional society, modern industrial civilisation and post-industrial civilisation, and are often challenged and oppressed by the third party’s hegemony of knowledge.
The new economy created by the information revolution is still a ‘rich-country phenomenon’, the core of what is called ‘advantage creation’, under the cover of ‘competitive advantage’, or rather: competitive towards those who cannot compete.
The country leading the information revolution is the United States, which is the biggest beneficiary of these achievements. The digital divide highlights the status of the US information superpower. In the global information sector, in 2000 the central processing unit production in the United States accounted for 92%, and software production for 86%.
IT (Information & Technology) investment in the United States was 41.5% of global investment, Microsoft’s Windows system accounted for 95% of global platform applications, while the US Internet users accounted for more than half of global Internet users, and 58% of all e-mail goes through US servers.
E-commerce is worth 75% of the global total and US commercial websites account for 90% of the planet.
Currently, there are almost three thousand large-scale databases in the world, 70% of which are in the United States. There are 13 top-level domain name servers in the world and 10 of them are located in the United States.
The above figures far exceed the share of US GDP, which is 28% of the world total. The United States is far ahead of all countries in the world, including the other developed countries. The leading position in information technology allows the United States to control the basics in the field of information with its strong economic and talent advantages, as well as to master the actual rights, and to set standards and formulate rules and regulations.
The status as cradle of the information revolution has brought enormous wealth and development benefits to the United States. Since the 1990s, the development of information technology and the rise of the related industry have become an accelerator of further economic advancement in the United States.
In the growth of US GDP – from 1994 (the beginning of the Internet) to 2000 – the share of the information industry in the value of the country’s total output has caused the economy to rise from 6.3% to 8.3%, and the contribution provided by the information industry development to the actual US economic growth is estimated at 30%.
At the beginning of the 21st century, the United States – with its strong national-global power and the relative hegemony of knowledge/information – was already ready to build a new world order.
Knowledge is also the soul of military hegemony. Since the 1990s the United States (after the USSR’s demise) has taken advantage of its absolute leadership in information technology to vigorously promote a new military revolution and equip its armed forces with a large number of modern sophisticated weapons, especially cyber weapons: an overwhelming advantage in the conventional field, clearly overtaking the Third World, as well as its Western allies.
The US superiority in equipment ranges from one to two generations (i.e. from 15 to 30 years) over developing countries and from 0.5 to one generation over allies. All this has established the hegemonic status of the United States as the world’s number one military power.
Gulf Wars II (1991) and III (2003) (the first was the Iran-Iraq War in 1980-88), the Kosovo War (1999), the Afghanistan War (2001- still ongoing), and the Iraq War (2003-2011) were four localised wars that the United States fought to establish a new world order after the Cold War. During those events, the US hegemony was strengthened on an unprecedented scale and its attempt to establish a new order made substantial progress.
Moreover, backed by strong military advantages (scattering the planet with its own bases and outposts), as well as economic and technological advantages, those events ensured that the United States had and still has a leading position in the world, thus making the White House a planner and defender of the new world order. (1. continued)
Hardened US and Iranian positions question efficacy of parties’ negotiating tactics
The United States and Iran seem to be hardening their positions in advance of a resumption of negotiations to revive a 2015 international nuclear agreement once Iranian President-elect Ebrahim Raisi takes office in early August.
Concern among supporters of the agreement to curb Iran’s nuclear program which former US President Donald J. Trump abandoned in 2018 may be premature but do raise questions about the efficacy of the negotiating tactics of both parties.
These tactics include the Biden administration’s framing of the negotiations exclusively in terms of the concerns of the West and its Middle Eastern allies rather than also as they relate to Iranian fears, a failure by both the United States and Iran to acknowledge that lifting sanctions is a complex process that needs to be taken into account in negotiations, and an Iranian refusal to clarify on what terms the Islamic republic may be willing to discuss non-nuclear issues once the nuclear agreement has been revived.
The differences in the negotiations between the United States and Iran are likely to be accentuated if and when the talks resume, particularly concerning the mechanics of lifting sanctions.
“The challenges facing the JCPOA negotiations are a really important example of how a failed experience of sanctions relief, as we had in Iran between the Obama and Trump admins, can cast a shadow over diplomacy for years to come, making it harder to secure US interests,” said Iran analyst Esfandyar Batmanghelidj referring to the nuclear accord, the Joint Comprehensive Plan of Action, by its initials.
The Biden administration may be heeding Mr. Batmangheldij’s notion that crafting sanctions needs to take into account the fact that lifting them can be as difficult as imposing them as it considers more targeted additional punitive measures against Iran. Those measures would aim to hamper Iran’s evolving capabilities for precision strikes using drones and guided missiles by focusing on the providers of parts for those weapon systems, particularly engines and microelectronics.
To be sure, there is no discernable appetite in either Washington or Tehran to adjust negotiation tactics and amend their underlying assumptions. It would constitute a gargantuan, if not impossible challenge given the political environment in both capitals. That was reflected in recent days in Iranian and US statements.
Iranian Spiritual Leader Ayatollah Ali Khamenei suggested that agreement on the revival of the nuclear accord was stumbling over a US demand that it goes beyond the terms of the original accord by linking it to an Iranian willingness to discuss its ballistic missiles program and support for Arab proxies.
In a speech to the cabinet of outgoing President Hassan Rouhani, he asserted that the West “will try to hit us everywhere they can and if they don’t hit us in some place, it’s because they can’t… On paper and in their promises, they say they’ll remove sanctions. But they haven’t lifted them and won’t lift them. They impose conditions…to say in future Iran violated the agreement and there is no agreement” if Iran refuses to discuss regional issues or ballistic missiles.
Iranian officials insist that nothing can be discussed at this stage but a return by both countries to the nuclear accord as is. Officials, distrustful of US intentions, have hinted that an unconditional and verified return to the status quo ante may help open the door to talks on missiles and proxies provided this would involve not only Iranian actions and programs but also those of America’s allies.
Mr. Khamenei’s remarks seemed to bolster suggestions that once in office Mr. Raisi would seek to turn the table on the Biden administration by insisting on stricter verification and US implementation of its part of a revived agreement.
To achieve this, Iran is expected to demand the lifting of all rather than some sanctions imposed or extended by the Trump administration; verification of the lifting; guarantees that the lifting of sanctions is irreversible, possibly by making any future American withdrawal from the deal contingent on approval by the United Nations Security Council; and iron-clad provisions to ensure that obstacles to Iranian trade are removed, including the country’s unfettered access to the international financial system and the country’s overseas accounts.
Mr. Khamenei’s remarks and Mr. Raisi’s anticipated harder line was echoed in warnings by US officials that the ascendancy of the new president would not get Iran a better deal. The officials cautioned further that there could be a point soon at which it would no longer be worth returning to because Iran’s nuclear program would have advanced to the point where the limitations imposed by the agreement wouldn’t produce the intended minimum one year ‘breakout time’ to produce enough enriched uranium for a bomb.
“We are committed to diplomacy, but this process cannot go on indefinitely. At some point, the gains achieved by the JCPOA (Joint Comprehensive Plan of Action) cannot be fully recovered by a return to the JCPOA if Iran continues the activities that it’s undertaken with regard to its nuclear program…The ball remains in Iran’s court, and we will see if they’re prepared to make the decisions necessary to come back into compliance,” US Secretary Antony Blinken said this week on a visit to Kuwait.
Another US official suggested that the United States and Iran could descend into a tug-of-war on who has the longer breath and who blinks first. It’s a war that so far has not produced expected results for the United States and in which Iran has paid a heavy price for standing its ground.
The official said that a breakdown in talks could “look a lot like the dual-track strategy of the past—sanctions pressure, other forms of pressure, and a persistent offer of negotiations. It will be a question of how long it takes the Iranians to come to the idea they will not wait us out.”
Wendy Sherman’s China visit takes a terrible for the US turn
US Deputy Secretary of State, Wendy Sherman, had high hopes for the meeting in China. At first, the Chinese side did not agree to hold the meeting at all. The reaction had obvious reasons: Antony Blinken’s fiasco in Alaska left the Chinese disrespected and visibly irritated. This is not why they travelled all the way.
So then the State Department had the idea of sending Wendy Sherman instead. The US government actually needs China more than China needs the US. Sherman was in China to actually prepare the ground for Biden and a meeting between the two presidents, expecting a red carpet roll for Biden as if it’s still the 2000s — the time when it didn’t matter how the US behaved. Things did not go as expected.
Instead of red carpet talk, Sherman heard Dua Lipa’s “I got new rules”.
That’s right — the Chinese side outlined three bottom lines warning the US to respect its system, development and sovereignty and territorial integrity. In other words, China wants to be left alone.
The bottom lines were not phrased as red lines. This was not a military conflict warning. This was China’s message that if any future dialogue was to take place, China needs to be left alone. China accused the US of creating an “imaginary enemy”. I have written about it before — the US is looking for a new Cold War but it doesn’t know how to start and the problem is that the other side actually holds all the cards.
That’s why the US relies on good old militarism with an expansion into the Indo-Pacific, while aligning everyone against China but expecting the red carpet and wanting all else in the financial and economic domains to stay the same. The problem is that the US can no longer sell this because there are no buyers. Europeans also don’t want to play along.
The headlines on the meeting in the US press are less flattering than usual. If the US is serious about China policy it has to be prepared to listen to much more of that in the future. And perhaps to, yes, sit down and be humble.
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