Blog post written by Prof. Elisa Fornalé and Ms. Aylin Yildiz (World Trade Institute, University of Bern). This post forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
The International Labour Organization (ILO) has recently estimated that around 60% of all migrants are migrant workers. For current and prospective migrant workers, the development and recognition of their skills is essential. To this end, states have expressed their commitment to invest in innovative solutions under Objective 18 of the GCM. Fulfilment of this commitment requires close cooperation among states, with the involvement of all stakeholders, including but not limited to migrant workers, employers, trade unions and educational institutions. The following obligations aim to help states to navigate their cooperative efforts to implement Objective 18.
Mutual recognition of skills, qualifications and competences
Recognition of skills, qualifications and competences can take place at multiple levels. It can happen autonomously, when a individual State chooses to recognise specified skills. It can happen bilaterally, which means that two states reach an agreement to mutually recognise specified skills. It can also happen regionally or multilaterally. The GCM specifically addresses the condition of mutuality to be attached to bilateral, regional and multilateral recognition agreements. The following instruments frame the duties of states in mutual recognition agreements.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990 (ICMWR)was adopted by the United Nations (UN) General Assembly and entered into force in 2003. This instrument plays a pivotal role in the recognition of the rights of migrant workers by preventing the exploitation of all migrant workers and members of their families throughout the entire migration process.
Article 52 (2) specifically circumscribes the recognition of skills as follows:
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.
Article 25(1) further states:
Migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and:
(a) Other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national law and practice, are covered by these terms;
(b) Other terms of employment, that is to say, minimum age of employment, restriction on work and any other matters which, according to national law and practice, are considered a term of employment.
The UN Committee on Migrant Workers, which monitors the implementation of this convention, specifically addressed this issue in its “Concluding observations on the initial report of Turkey” (CMW/C/TUR/CO/1). The Committee noted:
Strict procedural rules and challenges encountered in the recognition of professional certificates cause migrant workers to be employed in jobs that are not compatible with their professional and educational backgrounds, including as unskilled labourers.
Given this observation:
The Committee recommends that the State party take the steps necessary to ensure that its national laws and policies are in line with the provisions of the Convention and consider simplifying procedures for work permit applications and for the recognition of foreign professional certificates.
Indicator:
The rights of migrant workers are enshrined in a binding UN Convention, which was also adopted by the General Assembly. Although so far only ratified by 54 countries, the ICMWR provides a useful basis for examining national practices. The Committee on Migrant Workers monitors the implementation of this Convention, and it can recommend State parties to take the necessary steps to ensure simplified procedures for recognition, when applicable.
In addition to the ICMWR, the ILO has promoted the adoption of two binding conventions that complement the provisions of the UN Convention. Both of these ILO conventions uphold the principles of non-discrimination and no less favourable treatment for migrant workers. States should examine their national systems on recognition of qualifications at least every five years to ensure that they are transparent and accessible for migrant workers.
Migration for Employment Convention (Revised), 1949 (No. 97), ratified by 49 States,aims to ensure that each member maintains, or can satisfy itself that there is maintained, an adequate and free service to assist migrants for employment. Although there is no specific provision on mutual recognition agreements in this Convention, certain general obligations would apply. Under Article 1 of the Convention, State parties must make available to the ILO and to other members, national policies, laws and regulations concerning the employment of migrant workers. Article 6 of the Convention reiterates the non-discrimination and no less favourable treatment principles.
Article 7 of this Convention sets conditions for the provision of employment services as follows:
1. Each Member for which this Convention is in force undertakes that its employment service and other services connected with migration will co-operate in appropriate cases with the corresponding services of other Members.
2. Each Member for which this Convention is in force undertakes to ensure that the services rendered by its public employment service to migrants for employment are rendered free.
Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), ratified by 23 Member States, aims to promote equality of opportunity and treatment of migrant workers.
Article 14 of this Convention specifically refers to recognition:
A Member may:
(a) make the free choice of employment, while assuring migrant workers the right to geographical mobility, subject to the conditions that the migrant worker has resided lawfully in its territory for the purpose of employment for a prescribed period not exceeding two years or, if its laws or regulations provide for contracts for a fixed term of less than two years, that the worker has completed his first work contract;
(b) after appropriate consultation with the representative organisations of employers and workers, make regulations concerning recognition of occupational qualifications acquired outside its territory, including certificates and diplomas;
(c) restrict access to limited categories of employment or functions where this is necessary in the interests of the State.
The Committee of Experts on the Application of Conventions and Recommendations examines governments’ mandatory reports on the measures taken to implement the ILO conventions they have ratified. The Committee makes reference to the recognition of qualifications in its recommendations. For instance, following its examination of New Zealand’s Migrant Settlement and Integration Strategy, which was adopted in 2014, the Committee stated:
With reference to the recognition of overseas qualifications, the Committee notes the Government’s indication that, while the issue falls within the responsibilities of the regulator of each occupation, the Government is encouraging regulators to be mindful of the need to facilitate the international flow of people.
This indication by the New Zealand Government was not considered adequate; therefore:
The Committee further asks the Government to provide information on any developments concerning the recognition of overseas qualifications.
Finally, a significant provision on the role of mutual recognition in the context of the movement of natural persons was included in the General Agreement on Trade in Services (GATS) by the Members of the World Trade Organization (WTO).
Article VII(1) of the GATS envisages mutual recognition agreements as follows:
For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation, licensing or certification of services suppliers, and subject to the requirements of paragraph 3, a Member may recognise the education or experience obtained, requirements met, or licenses or certifications granted in a particular country. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement with the country concerned or may be accorded autonomously.
Article VII(2) of the GATS obliges the Member(s) that have entered into a recognition agreement to afford the same opportunity to other interested Members. Therefore, the recognition afforded must not be exclusive. The relevant provision reads as follows:
A Member that is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity for other interested Members to negotiate their accession to such an agreement or arrangement or to negotiate comparable ones with it. Where a Member accords recognition autonomously, it shall afford adequate opportunity for any other Member to demonstrate that education, experience, licenses, or certifications obtained or requirements met in that other Member’s territory should be recognized.
Furthermore, according to Article VII(3) of the GATS, Members are not allowed to accord recognition in a manner that would constitute a means of discrimination or a disguised trade restriction “between countries in the application of its standards or criteria for the authorization, licensing or certification of services suppliers”.
When applying Article VII of the GATS, the general exceptions stipulated in Part II of the Agreement must be borne in mind. These state that, regardless of the relevant GATS obligations, in specified circumstances Members are allowed to restrict trade in the event of serious balance-of-payments difficulties, or health and other public policy concerns, or to pursue essential security interests.
Furthermore, the Annex on Movement of Natural Persons specifies that member states are free to take measures regarding citizenship, residence or access to the employment market on a permanent basis. In the case of autonomous recognition of the skills of services suppliers, member states are advised to inform the WTO for reasons of transparency.
On 29 May 1997, the Council for Trade in Services of the WTO adopted voluntary guidelines for recognition agreements in the accountancy sector (S/L/38). These guidelines can be used by states as a template.
Indicator:
WTO Members can enter into mutual recognition agreements to recognise the skills of services suppliers. However, such agreements must not constitute a means of discrimination or a disguised trade restriction. Other Members must be afforded the same opportunity to enter into a recognition agreement; hence, the recognition process must not be exclusive.
Skills development
Skills development stems from the full realisation of the right to work.
Article 6(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states that:
The steps to be taken by a State Party to the present Covenant to achieve the full realisation of this right [the right to work] 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.
The UN Committee on Economic, Social and Cultural Rights is responsible for monitoring ICESCR. General Comment no. 18 (E/C.12/GC/18) expresses that effective implementation of Article 6 depends on, inter alia, the following conditions:
- The principle of non-discrimination with respect to migrant workers is applicable to the interpretation of Article 6. This principle is enshrined in Article 2.2 of the ICESCR, and Article 7 of the International Convention on the Protection of the Rights of All Migrant Workers and Their Families. The Committee underlines the need for national plans of action to be devised to respect and promote this principle by all appropriate measures, legislative or otherwise.
- Obligations to protect the right to work include, inter alia, the duties of States parties to adopt legislation or to take other measures ensuring equal access to work and training and to ensure that privatisation measures do not undermine workers’ rights.
- Ensuring the right of access to employment, especially for disadvantaged and marginalised individuals and groups, permitting them to live a life of dignity.
- Availability: States must have specialised services to assist and support individuals in order to enable them to identify and find available employment.
- Accessibility: The labour market must be open to everyone under the jurisdiction of States parties. This has three dimensions. First, there is a prohibition on any discrimination in access to and maintenance of employment on grounds such as national or social origin, and social or political status. Second, physical accessibility, including for persons with disabilities, must be safeguarded. Third, the right to seek, obtain and impart information on the means of gaining access to employment through the establishment of data networks on the employment market at the local, regional, national and international levels must be upheld.
- Acceptability and quality: States must be vigilant about the several components of the protection of the right to work, including the right to just and favourable conditions and safe working conditions.
However, as further explained in the Statement of the Committee on “The Duties of States Towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights” (E/C.12/2017/1), there is one limited exception to the principle of non-discrimination on grounds of nationality. That exception applies only to developing countries and it concerns only economic rights. The Committee further elucidated this exception as follows:
While acknowledging the concerns related to the protection of access to employment by nationals, the Committee would note, however, that a migrant who has access to employment, or to self-employment, generally will contribute to the domestic economy (whereas he or she may require social assistance if left without any means of earning an income). It also notes that, whereas education has sometimes been described as an economic right, the right of each child to education should be recognised by States independently of the nationality or the legal status of his or her parents.
Indicator:
The law expresses that the right to work can be fully realised through skills development. The principle of non-discrimination applies to the interpretation of this right, and provides protection for migrant workers. Availability, accessibility, and acceptability and quality are three general obligations which States must fulfil when entering into cooperative agreements or adopting measures to develop migrant workers’ skills. However, in the case of developing states, there is an exception to the application of the non-discrimination principle with regards to some economic rights (for example, this excludes the right of each child to education).
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