Blog post written by Jean-Baptiste Farcy and Sylvie Saroléa (Université catholique de Louvain) and forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration.
ILO Convention No. 143 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (1975), Article 8:
1) On condition that he has resided legally in the territory for the purpose of employment, the migrant worker shall not be regarded as in an illegal or irregular situation by the mere fact of the loss of his employment, which shall not in itself imply the withdrawal of his authorisation of residence or, as the case may be, work permit.
2) Accordingly, he shall enjoy equality of treatment with nationals in respect in particular of guarantees of security of employment, the provision of alternative employment, relief work and retraining.
The aim of Objective 6 is to ensure decent work for all migrants. This requires actions to protect them against all forms of exploitation and improve recruitment mechanisms and admission systems to guarantee that they are fair and ethical. The overhaul objective is to better protect migrants at work as well as maximise the socioeconomic impact of migrants in both their country of origin and destination, according to the triple-win formula.
In order to achieve this objective, the ratification and implementation of relevant international instruments is a first step. For instance, Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights recognise the right to work and the right to the enjoyment of just and favourable conditions at work, including equal pay for equal work and safe working conditions. Soft law instruments such as the ILO operational guidelines for fair recruitment and the UN guiding principles on Business and Human Rights should also be better operationalized. Cross-regional dialogue can also enhance the respect of human and labour rights of migrant workers. When such rights are violated, employers, recruiters and any suppliers must be held accountable. In order to strengthen the enforcement of decent work norms and policies, the abilities of labour inspectors must be enhanced and, in case of exploitation, firewalls with labour inspections must be established. Specific measures include the prohibition for recruiters to charge fees to migrant workers, in line with Article 7 of the ILO Convention No. 181 (although no reference to this instrument is made), and to confiscate their identity and travel documents. States also committed to end the practice of tying work visas to a single employer or sponsor. Finally, the specific needs and contribution of female migrant workers must be taken into consideration in order to promote gender-responsive labour mobility policies.
Over the course of the negotiation, most commitments have been substantially reduced. First and foremost, the commitment to ratify and implement relevant international instruments was scaled down to ‘encourage’ and then ‘promote’ such ratification and implementation. This is a significant change since the final text does not create any new legal obligation, yet only a political commitment. While international conventions related to fair recruitment and decent work should be at the centre of the Compact, States fail to live up to expectations. Regarding soft law instruments, the final draft no longer refers to the promotion of their operationalisation and implement but simply to the need to take them into consideration when developing and improving national policies and programmes. Again, the final commitment is softer than initial one.
Another significant change relates to the practice of tying work visas to a single employer or sponsor which is found in many immigration countries. As the zero draft rightly pointed out, such practice should end in order to prevent violations of human rights and promote opportunities for decent work. As researchers have shown (Dauvergne 2016; Nakache and Kinoshita 2010), work permits tied to one employer are an obstacle to rights enforcement as migrant workers very often do not claim their rights for fear of losing their jobs. Such practice thus increases the risk of abuses and exploitation. As early as the zero draft plus, the initial commitment was substantially changed into ensuring recruitment processes that result in work visas that are portable, allowing migrants to change employers, and modifiable, allowing them to change conditions or lengths of stay, with minimal administrative processes. The final draft only refers to the development and strengthening of such recruitment processes. This means that work visas tied to a single employer or sponsor can be maintained, although change in employer and visas renewal should be facilitated. As a result, the final obligation is softer as ending the practice of single-employer work visas is no longer mentioned and any change in employer remains under administrative discretion.
While equal labour rights remains an important commitment throughout the revision process, the relevant paragraph does not explicitly refer to migrant workers in an irregular situation. The suppression of the reference to all migrant workers suggests that the paragraph is only concerned with regular migrant workers. Over the course of the negotiation, a new paragraph was added to deal specifically with migrant workers in the informal economy. In the zero draft, the establishment of firewalls with labour inspections in case of exploitation was explicitly mentioned. While States commit to offer them safe access to effective complaint and redress mechanisms and allow them to participate in legal proceedings whether in the country of origin or destination, there is no longer any reference to firewalls. However, the establishment of firewalls is a powerful measure to encourage migrant workers to claim their rights (Crépeau and Hastie 2015). Otherwise, they may not take the risk to file a complaint.
In order to enhance supply chain transparency with regard to decent work conditions, the zero draft stressed the importance to hold all stakeholders, such as employers, recruiters and subcontractors, accountable for any involvement in human and labour rights violations. Throughout the negotiations, the language used in that paragraph was also changed. The stress is no longer on accountability but rather on cooperation with all stakeholders and building partnerships to help them meet their responsibilities. In the meantime, national laws sanctioning human and labour rights violations must be implemented. Overall, this change is positive in the sense that it does not only focus on repression but also, in a complementary manner, on cooperation with employers and stakeholders who may not always be aware of their responsibilities.
Regarding the prohibition to confiscate travel and identity documents, as well as work contracts from a migrant, the second revision of the draft added the words ‘non-consensual retention’. For the rest, the paragraph remains similar in content. Yet, the prohibition should be absolute. Reference to non-consensual retention implies that consensual retention need not be prohibited. In a work context, and particularly when migrants are involved, consent should be treated with caution. An absolute prohibition, like that of the zero draft, is a better safeguard against abuse and exploitation.
While the zero draft arguably constituted a step forward, most commitments have been curtailed during the course of the negotiation. Most significantly, the ratification and implementation of relevant international instruments is no longer stated. The same is true for the abolition of tied work permits to a single employer or sponsor and the establishment of firewalls with labour inspection services. Moreover, commitments in the final draft are mostly written in an unprecise and non-legally binding manner leaving much leeway to States in their implementation. As a consequence, the added value of the final draft is limited for it does not go beyond what is already enshrined elsewhere, mostly in regional instruments (Ryan and Mantouvalou 2014).
Without a clear commitment to ratify international instruments related to labour mobility, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families is unlikely to be ratified by major immigration countries, although the convention contains provisions that are in line with Objective 6 of the global compact (such as equality among workers, non-confiscation of identity documents, work contract in a language workers understand, open work contract after two years maximum,…) without encroaching too much on State’s sovereignty (Ryan 2013; Bosniak 1991). The final draft is another illustration of the lack of political support for migrants’ rights at the international level which also explains the low ratification of that convention (Pécoud 2017).
The final draft nonetheless calls for equality between migrant workers and nationals regarding working conditions and labour rights as well as greater enforcement of decent work norms by enhancing the abilities of labour inspectors. The promise of equality is however unlikely to turn into deeds, unless it is supplemented by others safeguards, such as firewalls with labour inspection services and open work permits. As is the case today in many countries, in a complaint-driven system migrants do not claim their rights for fear of losing their job or being known to immigration services. Also, precarious work is not only the result of employers’ misconduct, it is also structurally produced by the interaction of employment and immigration law (Freedland and Costello 2014; Zou 2015). Immigration control purposes openly conflict with, and supersede, the protection of labour rights. In this regard, the global migration compact fails to provide for a shift towards an effective protection of human and labour rights of migrant workers.
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