Movement of Natural Persons

Presence of natural persons (“Mode 4”), as defined in the SADC Services Protocol, relates to the temporary presence of a natural person with respect to the supply of services in the territory of another Member State. Typical types of movement relate to natural persons who are  providing services in their own capacity (as independent professionals), or on account of a service provider of a Member State without commercial presence in the Member State in which the service is supplied (“contractual service suppliers”).  Also, employees of service suppliers working in its subsidiary in another Member State (“Intra-corporate transferees”) fall under this category, as well as Business visitors, moving across borders to participate in sales negotiations, to attend fairs and events, or to set up a commercial presence.   According to Article 17 of the SADC Services Protocol, measures affecting natural persons seeking access to the employment market and as well as measures regarding citizenship, residence or employment on a permanent basis are excluded.  The SADC definition of Mode 4 follows mainly the definitions of the GATS.  Click here to for more details on mode 4 in the context of GATS.

It is important to distinguish the temporary movement of persons in the context of supply of a service from the much broader concept of labour migration.  In case of Mode 4 movements, the person will either be a service supplier, or be employed for a service supplier, whereas migrant workers may work in any sector, and for any employer (mainly domestic) in the host country.  Typically, mode 4 movements relate to movement of higher skilled persons whose qualifications are in short supply in the host country, whereas migrant workers may often also engage in lower- or semi-skilled activities.

Research on mode 4 suggests that, from the perspective of the country receiving the natural persons, liberalizing mode 4 can contribute to facilitating domestic skills development where there is a shortage of adequate skills in the domestic economy; as movement remittances from labour migration (though not all of this migration relates to Mode 4 movements) is an important contribution to GDP in many countries.  Concerns related to liberalizing Mode 4 movements have been expressed by receiving countries with regard to the potential displacement of domestic workers; countries predominantly sending workers abroad have complained about brain drain, and in several cases, complaints have been registered, regarding abuse of social human rights ( especially for domestic workers), and poor treatment and working condition for workers in the host country.

Movement of persons has emerged to be a sensitive issue including in regional integration-, and bilateral services agreement such as Economic Partnership Agreements. Different regional groups have taken a different approach to mode 4 in line with the overall objective and ambition of regional integration. For example, in some agreements, the parties decided to list categories of mode 4 to which movement shall be granted, while others have agreed on a horizontal approach i.e. linking Mode 4 with movement of labour, and others agreed on a hybrid approach or sector approach.

Studies