to migration governance and protection of the rights of migrants
2.6 Bilateral agreements
In addition to readmission agreements, which deal with the return of rejected asylum-seekers or migrants in irregular situations to their country of origin or to a third country through which they have transited, numerous bilateral agreements regulate migration between countries of origin and destination in all parts of the world. Many of these set the conditions and procedures for recruitment, admission, employment and residence, and return, for example in the case of bilateral labour migration agreements. Other bilateral agreements focus on specific protection issues, such as the portability of social security benefits.
Box 2.15 Bilateral labour migration agreements
A “bilateral labour migration agreement” is an umbrella term referring to a variety of arrangements that facilitate labour mobility between two countries, often temporarily and into specific employment sectors. These arrangements may be found in a legally binding treaty or in a less formal memorandum of understanding (MoU) or other forms of cooperation between administrations in the countries concerned. Examples of formal instruments include the bilateral labour migration agreements concluded by Spain with Colombia, Ecuador and the Dominican Republic, or the agreement on circular migration between France and Mauritius.
Examples of MoUs include those concluded by Canada with Mexico and the Caribbean States facilitating the movement of workers into the Canadian Seasonal Agricultural Worker Program (SAWP). There are also MoUs between the Gulf States and South and Southeast Asian countries, as well as a number of Asian countries and the Republic of Korea under the Employment Permit System (EPS).
A comprehensive bilateral labour migration agreement would normally contain provisions encompassing the following elements:
• Identification of the competent government authority
• Exchange of information
• Notification of job opportunities
• Pre-selection and final selection of candidates
• Medical examination
• Entry visas
• Residence and work permits
• Transportation and conditions of transport (both outgoing and return)
• Equality of treatment and non-discrimination
• Contracts of employment
• Terms of employment, including possibilities to change employment
• Working conditions, including occupational safety and health
• Trade union rights
• Social security*
• Taxation, including measures addressing double taxation*
• Accommodation
• Family reunification
• Education and vocational training
• Activities of social and religious associations
• Supervision of living and working conditions, including through labour inspection
• Remittances
• Dispute settlement procedures
• Return and reintegration
• Cooperation, usually through establishment of a joint commission/committee to – monitor the implementation of the agreement, including resolution of disputes
between the parties;
– propose amendments; and – discuss follow-up
• The applicable law and place of jurisdiction
* In practice, however, most bilateral agreements do not regulate all of these areas, and some elements, such as social security and taxation, are subject to separate arrangements.
Many of these elements are found in the Model Agreement on Temporary and Permanent Migration for Employment, which is annexed to the ILO Migration for Employment Recommendation (Revised), 1949 (No. 86) and which, as noted earlier, has been used by a number of ILO Member States as a blueprint for concluding their own bilateral labour migration agreements.
Sources:
– Migration for Employment Recommendation (Revised), 1949 (No. 86), Annex: Model agreement on temporary and permanent migration for employment, including migration of refugees and displaced persons, ILO.
– “Something is better than nothing: Enhancing the protection of Indian migrant workers through bilateral agreements and memoranda of understanding”, P. Wickramasekara, Migrant Forum in Asia, February 2012, p. 45.
– Acuerdos bilaterales de migración de mano de obra: Modo de empleo, International Migration Paper No. 65, Geneva, E. Geronimi, International Labour Office, 2004, pp. 23 – 26.
Box 2.16 Parliament influences the standards for a Philippines – Saudi Arabia bilateral agreement
In September 2013, the Philippines and Saudi Arabia announced a bilateral agreement aimed at strengthening protection of the rights of Filipino migrant domestic workers in Saudi Arabia, including complaint mechanisms, salary regulations and a 24-hour helpline for migrant workers. The standards set out in the agreement were inspired by the Filipino Republic Act No.10022, an omnibus bill entailing an array of legislative proposals that originated in the Senate and was signed into law by the President in March 2010. Replacing the 1995 Migrant Workers Act, the 2010 Act mandated increased adoption of bilateral agreements regarding overseas workers and strengthened support mechanisms to assist overseas workers in distress, including support for judicial recourse and complaints.
Checklist for parliamentarians
How can parliamentarians contribute to improved governance of migration in accordance with international law?
5 International law, including the principle of the rule of law, international human rights law and international labour standards, should guide the governance of migration at the national level.
5 Parliamentarians can improve a state’s compliance with international law by approving proposals to ratify international treaties and conventions or by initiating their ratification. Further actions in this regard could include:
– Asking oral or written questions to the government in parliament to determine its intention to ratify a treaty or the reasons for any government inaction.
– Encouraging parliamentary debate and mobilizing public opinion.
5 International law instruments pertaining to migration consist of legally binding conventions and non-binding instruments (which can also be binding if they represent customary international law). National law, policy and practice governing migration and the protection of migrants should mainly be based on two branches of international law:
– International human rights law. Migrants are human beings and thus holders of human rights as outlined in the core UN human rights treaties.
States have to accord human rights to everyone present on their territory and thus falling under their jurisdiction. Apart from the exceptions of the right to vote and to stand for political office and the right of entry to another state, migrants enjoy the same human rights as nationals. While regulating admission of non-nationals to the territory constitutes a sovereign prerogative of states, the principle of non-refoulement, due process, the prohibition of collective expulsions, and the prohibition of discrimination have to be respected when regulating admission.
– International labour law/standards. International labour standards are adopted by ILO’s International Labour Conference. Since 1919, ILO has a constitutional mandate to protect migrant workers. Specific standards for their protection and on labour migration governance have also been adopted (Conventions Nos. 97 and 143 and accompanying Recommendations Nos. 86 and 151). All international labour standards, unless otherwise stated, apply to migrant workers. The 1998 ILO Declaration on Fundamental Principles and Rights at Work identifies eight fundamental rights conventions covering important human rights. In 2006, the ILO Multilateral Framework on Labour Migration, containing non-binding principles and guidelines supported by a compendium of best practices, was approved for wide dissemination by ILO’s Governing Body.
5 Parliamentarians should ensure that the rule of law applies to migrants in the
Priority consideration should also be given to ratification of the following three conventions on the protection of migrant workers (if not already ratified):
– The UN Migrant Workers Convention, Part III, spells out the fundamental rights that apply to all migrant workers and their families, including those in an irregular situation. At the same time, the Convention also stipulates that regulating admission of non-nationals remains a prerogative of the state (Article 79).
– ILO Convention No. 97 contains regulatory provisions and safeguards for migrant workers in a regular situation. In particular, Article 6 provides for equal treatment of lawfully resident migrant workers, vis-à-vis nationals, in a number of important areas. ILO Recommendation No. 86 provides further guidance, and its annex contains a model bilateral labour migration agreement.
– ILO Convention No. 143 was drafted at a time of growing attention to the abuses connected with irregular migration. Part I deals with migrations in abusive conditions and lays down a set of rights applicable to all migrant workers, including those in an irregular situation. Part II requires States Parties to adopt a national policy on equality of opportunity and treatment for migrant workers in a regular situation, thus facilitating their integration in the destination country. ILO Recommendation No. 151 gives further guidance on equality of opportunity and treatment, social policy, employment and residence for migrant workers.
5 Parliamentarians should also draw attention to the observations made by the UN human rights treaty bodies, the mechanisms of the UN Charter-based system of human rights protection and the ILO Committee of Experts on the Application of Conventions and Recommendations, as well as the other ILO supervisory mechanisms. These bodies and mechanisms monitor the application by States Parties of international human rights and international labour standards. For example, the human rights treaty bodies have made it clear that the core human rights treaties apply to everyone, including non-nationals, without discrimination.
5 Parliamentarians should also advocate the ratification and effective implementation of regional and sub-regional instruments pertaining to migration, including provisions relating to labour mobility in regional economic communities.