Canada Immigration and Citizenship News

transparent criteria and procedures for temporary entry'  but simultaneously acknowledges the apparently competing needs to 'ensure border security and to protect the domestic labor force and permanent employment"' in each state party's territory."

  The frustration within chapter 16 continues with article 1602, "General Obligations," which states that each party shall apply the measures of article 1601 "expeditiously ... so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement."  This focus on expeditiously applying the measures after just reading about the focus on border security and domestic labor poses an interesting contradiction for NAFTA countries. As another scholar stated concerning chapter 16, "It reflects the tension between the goals of preserving national autonomy, border security, and protecting the permanent employment of each Party's domestic labor force on the one hand, and encouraging the liberalization of trade on the other."

  In order to understand how this contradiction came about, one would think to turn to the negotiations concerning the immigration provisions in NAFTA. However, there does not appear to have been many. While some argue this was a fault of the negotiation process, "many commentators maintain that the NAFTA was not designed with the intention of creating a freedom-of-movement-of-person regime."

    When asked specifically about immigration issues during the negotiations, the Deputy U.S. Trade Representative stated that 'the issues of immigration ... are not considered to be a subject of the free trade negotiations ... When we get into broad scale immigration, you're not dealing with trade ... you're dealing with social issues ... and we've agreed that will not be part of this negotiation.'

  It would seem to contradict all the goals of NAFTA to claim the agreement was not designed to include provisions for the free movement of people. An immigration provision is needed to make trade effective. However, "it is an agreement specifically encouraging the freedom of movement of goods, capital, and services, and which in conspicuous silence excludes persons from its regime."  In fact, in hindsight the lack of discussion seems to be almost incredulous on the part of the drafters in light of the overall goals of NAFTA.

  Although a consensus exists that such a free flow of capital, goods, and services is a desirable goal worthy of the three nations' collaborative efforts, the removal or diminution of each nation's immigration obstacles in order to facilitate the free flow of their *669 citizens within the NAFTA zone was never seriously discussed during the negotiations that led to the signing of the treaty.

  At the time, maybe immigration did not appear to be a concern in regard to NAFTA, but the United States Commissioner of the Immigration and Naturalization Service, Gene McNary, could foresee that immigration was a huge part of NAFTA. In fact, in the winter of 1992, as NAFTA was being negotiated, McNary commented that "if immigration is not formally on the table, someone at the table will sooner or later realize as a practical matter that moving goods and services in international commerce also involves moving the people who trade in those goods and services."

  Thus, if it appears so obvious that one would need to arrange for the movement of people when negotiating an agreement to move goods and services, then why was it not a focus? It has been noted that due to the "extremely volatile immigration situation in United States-Mexican relations, the parties opted to by-pass it to avoid jeopardizing the real 'directly trade related issues' at stake." This approach seems logical since it was challenging enough at the time to get NAFTA passed. Assuming immigration did cross the drafters' minds, they might have thought it would be better to leave it alone at least long enough for the agreement to get passed. Therefore, in the short term it was probably wisest that the negotiators did not dive into complex immigration issues. But the following question remains to be asked:

  How can the United States and Mexico, with a 2,000 mile common border, a combined population of over 300 million people and an annual flow of legal and illegal entrants in the millions, not openly deal with the subject of immigration? This question is particularly vital in the case of the illegal immigration, which can undercut any trade agreement and seriously impact the relations between the two countries."

Thus, unfortunately, the negotiators' "careful tactics" of ignoring the issue have created more of a divide between immigration in the United States and NAFTA.

  When looking at the overall effect of U.S. immigration in NAFTA, one can see that it is quite limited. "NAFTA does not address permanent immigration. All entries under its provisions are determined to be temporary, and business persons entering under NAFTA are presumed to return to their home countries."  In looking at the opposite side of the spectrum, NAFTA does not address illegal immigration either. It is interesting to note that although NAFTA never addressed these issues, the controversy of illegal immigration was a point of issue for the supporters and detractors of NAFTA.  "NAFTA supporters argued that the trade agreement would reduce the illegal immigration in the long run by stimulating the Mexican economy and thereby creating jobs, increasing wages and raising the standard of living for Mexicans." The argument appears somewhat logical except for the fact that immigration and complexities were not a focus in drafting NAFTA. Post-drafting, however, it turns out to be an objective of NAFTA.