SAIS Review

Although the state continues to play the most important role in immigration policymaking and implementation, the growth of a global economic system and other transnational processes has transformed it. These changes have created conditions that encroach on the state’s regulatory role and its autonomy. Two aspects of this development are particularly significant to the role of the state in immigration policymaking and implementation. First, various components of state authority have relocated to supranational organizations such as the European Union institutions, the newly-formed World Trade Organization, or the international human rights code. Second, the privatization of public sector activities and economic deregulation has led to the de facto privatization of various governance functions. Privatization assumes particular meaning in the context of the internationalization of trade and investment. Corporations, markets, and free trade agreements are now in charge of “governing” an increasing share of cross-border flows, including those relating to specialized professional workers as part of the international trade and investment in services. [End Page 1]

The major implication for immigration policy is the impact these developments have on state sovereignty. Furthermore, the state itself has participated in implementing many of these new arrangements, by contributing to the formation of the global economic system and advancing the consensus regarding the benefits of economic globalization. ¹ Both the impact on the state’s sovereignty and the state’s participation in the new global economic system have transformed the state, affected the power of different agencies within it, and furthered the internationalization of the inter-state system through a proliferation of bi- and multilateral agreements.

Immigration policy is deeply embedded in the question of state sovereignty and the inter-state system. As a result, it is no longer sufficient simply to assert the sovereign role of the state in immigration policy design and implementation; it is also necessary to examine the transformation of the state and what it implies for migration policy, including the regulation of migration flows and settlement. As I argue in the book from which this paper is drawn, it is increasingly important to take into account the possibility of declining state sovereignty precisely because the state is a major actor in immigration policy and regulation. It is also insufficient simply to assert that globalization has brought with it a declining significance of the state in economic regulation; the state has participated in this process and is the strategic institution for the legislative changes and innovations necessary for economic globalization as we know it today.

Although this may seem far removed from the question of immigration policy, it is important to expand the analytic context within which we examine the options available in forming immigration policy in the most developed countries. We cannot simply use the state as a given or background fact.

A crucial issue in the transformation of the state, and therefore relevant to immigration policymaking, is the enormous need for legal innovations consistent with the formation of the global economy. ² The global economy is both a set of practices and a set of legal innovations within which to encase those practices. Economic globalization has created a new geography of power in which the state finds its sovereign power reconstituted and often diminished. By contributing to the formation of new legal regimes [End Page 2] and many legal and policy innovations, the state has, to a great extent, transfered authority away from itself.

Immigration policymaking, by contrast, has suffered from a lack of innovation in most developed countries, except within the context of the European Union (EU), and, I argue, free trade agreements such as NAFTA and the Uruguay Round of GATT. In the case of Europe, policy changes such as freedom of movement within the EU and the shift of some immigration policy components to the European level, have required considerable innovation in international law. NAFTA and WTO required the formation of specialized regimes to allow freedom of movement for service providers, including business and individuals. The regimes within NAFTA and WTO are privatized and essentially contain a kind of “migrant worker policy” addressed to highly specialized workers.

This reconfiguration has brought with it a...