Blog post written by Elisa Fornalé, Aylin Yildiz and Federica Cristani (University of Bern) 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.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMRW, 1990) art. 52 (1 and 2a,b):
1. Migrant workers in the State of employment shall have the right freely to choose their remunerated activity, subject to the following restrictions or conditions.
2. For any migrant worker a State of employment may:(a) Restrict access to limited categories of employment, functions, services or activities where this is necessary in the interests of this State and provided for by national legislation;
(b) Restrict free choice of remunerated activity in accordance with its legislation concerning recognition of occupational qualifications acquired outside its territory. However, States Parties concerned shall endeavour to provide for recognition of such qualifications.
The International Covenant on Economic, Social and Cultural Rights, Article 6 (1): The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
The International Covenant on Economic, Social and Cultural Rights, Article 6 (2): The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.
Introduction
Objective 18 gives prominence to the concrete actions required to pave the way to cross-border mobility by focusing on “innovative solutions” that would facilitate the “mutual recognition of skills, qualifications and competences”.
The overall aim is to design a comprehensive framework of commitments that could link the fragmented practices of states and ensure genuine progress. Accordingly, three key dimensions have been outlined: First, the promotion of “normative” dynamics, such as the development of standards and guidelines for the mutual recognition of foreign qualifications and conclusion of mutual recognition agreements. Second, strengthening of the “infrastructural” environment, such as the use of technology and digitalisation to evaluate skills. Third, ensuring the “participation” of diverse actors, such as the private sector and trade unions to support a whole-of-society approach envisaged throughout the GCM.
Objective 18 goes hand-in-hand with numerous other objectives identified in the GCM, particularly Objective 5 on enhancing availability and flexibility of pathways for regular migration, and Objective 6 on facilitating fair and ethical recruitment and safeguarding conditions that ensure decent work. Importantly, the Objective encompasses; (i) migrant workers at all skills levels, and (ii) employability – understood as not merely the ‘ability’ to get a job, but as also to acquire and/or develop skills and competences for being and remaining employed, managing also to match the labour market needs – of migrants.
“Mutuality, cooperation and human dimension in skills development and recognition of skills, qualifications and competences”
This objective has undergone significant changes during the negotiations process that reflect a growing acknowledgement of its crucial role.
First, the requirement for reciprocal recognition of skills, qualifications and competences has been recognised by the addition of the word “mutual”; this addition occurred with Revision 2, and has maintained its place all the way to the Final Draft. Mutuality finds expression in the context of two relationships. The first is the state to state relationship, conducted, for instance, through concluding bilateral, regional or multilateral skills recognition agreements that are mutually beneficial. The second is the relationship between prospective or actual migrant workers and other actors, such as the private sector and educational institutions. For instance, Art. 34(a) of the Final Draft refers to developing standards and guidelines for the “mutual recognition of foreign qualifications and non-formally acquired skills in different sectors in collaboration with the respective industries with a view to ensuring worldwide compatibility based on existing models and best practices”. Standards and guidelines for certain sectors in certain countries and/or regions already exist. For example, the Blueprint for Sectoral Cooperation on Skills is the EU framework to address short and medium-term sector-specific skills solutions. It currently has six pilot sectors, including space, textile and tourism. However, the GCM aims to reach beyond region specific partnerships, and aims “worldwide compatibility”.
Undeniably, the human dimension has been reinforced by the adoption of a new commitment (Art. 34 I, This commitment was originally introduced Draft Rev.2 as Art.33(i), then rephrased under Art.34(i) in the Final Draft) that aims to ensure that migrant workers are able to transition from one job or employer to another, which thus far has posed a great challenge, especially for migrant workers employed under temporary or seasonal workers’ schemes. For instance, the EU’s Seasonal Workers Directive (2014/36/EU) currently governs the conditions of entry and stay of non-EU seasonal workers. Art. 31 of the mentioned Directive allows for the change of employer by the seasonal worker, to “serve to reduce the risk of abuse that seasonal workers may face if tied to a single employer”.
Other changes include providing the opportunity to engage in entrepreneurship after the successful completion of programmes, promotion of the economic empowerment of women, and the commitment to ensure decent work in labour migration, which were added to Draft Rev.2 in Art. 33(g), Art. 33(h) and Art. 33 respectively. These additions remain in the Final Draft under Art. 34(g), Art. 34(h) and Art. 34, respectively. The acknowledgement of these principles in the objective can encourage them to trickle down from the global to the national level.
The Future
Overall, the objective successfully identifies normative, infrastructural and interactional measures that must be developed, promoted or concluded to facilitate the mutual recognition of qualifications at all skills levels. It makes references to the rest of the GCM, especially to Objective 6, by calling for the recognition of decent work in labour migration. Under Art. 34(f) of the Final Draft, it also draws on the knowledge and best practices gathered under the Global Forum on Migration and Development (“GFMD”). In particular, the Business Mechanism promoted by the GFMD to engage governments, businesses and other stakeholders to facilitate coherent and comprehensive regulatory frameworks under four headings: skills mobility, responsible recruitment, pathways to labour markets and entrepreneurship and development (objective 18). These qualities bring the objective up to date with the recent challenges and developments in the recognition of skills, qualifications and competences.
However, we foresee some potential challenges in its effective implementation. It is crucial that the mutuality in the recognition of skills in state-to-state relationships is not limited to demand-driven work opportunities being offered. The progressive development of a mutual framework is needed to strengthen concrete opportunities for individuals and to foster the recognition of their foreign qualifications. Moreover, Revision 3 introduced the notion of employability of migrants in “formal” labour markets, which narrowed the scope of Objective 18 to formal labour markets only – this scope is also accepted under the Final Draft. While the Objective aims to cover formally and non-formally acquired skills at all levels and in different sectors, these skills must be employed in formal labour markets.
Finally, for the effective implementation of this Objective, additional efforts need to be developed to ensure that domestic rules, regulations and practices are consistent with its spirit or its wording. If adopted by the United Nations General Assembly, the GCM will be a non-binding document. Its implementation will be based on a voluntary basis. Minding this, the commitments under the GCM must not be taken lightly. Art. 34(a) of the GCM Final Draft refers to enabling “mutually beneficial skills development opportunities for migrants, communities and participating partners”. This mutualised understanding of labour mobility is based on a cooperation inclusive of migrants. There is a human-centred frame of reference to the “cooperative” nature of the commitments adopted. This is clearly in line with the overall principles of the GCM, and it confirms the need that member states contribute both to the creation of appropriate standards and mechanisms and to share the responsibility for their development.
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