2 The ILO in the lead-up to the GCM

The large movements of refugees and migrants that shook the international community in 2015, and particularly the European continent, and the policy failures in addressing the Syrian refugee crisis in the Mediterranean region led the UN Secretary-General to call for a global summit in response. To prepare the summit, the UN Secretary-General appointed a Special Advisor, Karen AbuZayd, who also supervised the preparation of the Secretary-General's report addressing large movements of refugees and migrants, published prior to the summit (UNGA, 2016).

Despite the fact that the so-called ‘refugee and migration crisis’ in 2015 presented the spectre of uncontrolled movements of people at the global level, much of international migration and mobility today continues to be orderly and lawful, and employment lies at its heart. As demonstrated in the second edition of the ILO global estimates on international migrant workers, published in 2018, 164 million people are migrant workers (including refugees who work), 96 million men and 68 million women, out of the total population of 258 million international migrants globally (ILO, 2018b, executive summary, p. ix).Footnote ¹⁰ Over 60 per cent (60.8 per cent) of all migrant workers reside and work in three regions: Northern America (23 per cent), Northern, Southern and Western Europe (23.9 per cent) and the Arab states (13.9 per cent), including the Gulf Cooperation Council (GCC) countries, which host the largest share of migrant workers as a proportion of all workers (40.8 per cent) (ILO, 2018b).

Given its social-justice and decent-work mandate, the ILO strove to ensure that this significant employment dimension of international migration was not overlooked in the UN Secretary-General's report and in the consultations on the two global compacts on refugees and migration that UN Member States committed to develop in the New York Declaration for Refugees and Migrants. In addition, it was important for the ILO that decent work was reflected in both compacts, particularly as, only one year earlier, decent work and its central role in realising development were given prominent recognition in the UN 2030 Agenda for Sustainable Development,Footnote ¹¹ and particularly in Sustainable Development Goal (SDG) 8 on economic growth, productive employment and decent work. SDG 8 also contains targets on eradicating forced labour, ending modern slavery and human trafficking, as well as on protecting labour rights and promoting safe and secure working environments for all workers, including migrant workers, particularly women migrants, and those in precarious employment (SDG Targets 8.7 and 8.8). In this regard, the role of international labour standards, which underpin decent work, required special attention. During the preparation of the UN Secretary-General's report, the ILO's tripartite constituents had developed relevant policy guidance, building on existing labour standards, concerning fair recruitment and access of refugees to the labour market,Footnote ¹² which it wished to see inform the discussions on both global compacts.

As noted in the introduction, the ILO constituents had selected the topic of labour migration for a general discussion at the 106th Session of the ILC in 2017. Its purpose was to devote particular attention to the governance of labour migration at the national, bilateral, regional and interregional levels, and to fair recruitment (ILO, 2017a, p. 1, para. 1). The emphasis given to the topic of recruitment reflected also the wider interest of the international community to address abusive and fraudulent recruitment practices that many low-wage and low-skilled migrant workers are often subjected to around the world, including the high recruitment fees and related costs they can pay to labour recruiters and intermediaries, leaving them heavily in debt when they start work at their destination. In the UN Secretary-General's report on international migration and development to the Second UN General Assembly High-Level Dialogue on International Migration and Development in October 2013, the cost of recruitment was recognised as an important cost of labour migration, alongside transfer costs of remittances, non-recognition of diplomas, qualifications and skills, and lack of portability of social security and other acquired rights (UNGA, 2013a, para. 113). The following year, in 2014, the ILO also launched a Fair Recruitment Initiative – a multi-stakeholder endeavour to address abusive and fraudulent recruitment practices based on four pillars: (1) building a global knowledge and evidence base on recruitment practices, (2) improving laws and policies on fair recruitment, (3) promoting fair business practices and (4) empowering and protecting workers.Footnote ¹³ In relation to the second pillar of this initiative, the ILO's tripartite constituents agreed to hold a tripartite meeting of experts on fair recruitment in September 2016, which resulted in the adoption of the ILO General Principles and Operational Guidelines for Fair Recruitment, approved by the ILO Governing Body for publication and dissemination in November 2016. These principles and guidelines have since been supplemented by a Definition of Recruitment Fees and Related Costs, which was discussed and adopted by a tripartite meeting of experts in November 2018 and approved by the ILO Governing Body in March 2019.

As noted above, the ILC general discussion in 2017 was supported by a conference report on Addressing Governance Challenges in a Changing Labour Migration Landscape (ILO, 2017a). Given the developments at the UN level to address the large movements of refugees and migrants, and the New York Declaration for Refugees and Migrants adopted in September 2016, which committed UN Member States to develop the two global compacts, it was agreed that the ILC general discussion presented a good opportunity for the ILO and its tripartite constituents to provide input to the GCM consultations and negotiations (ILO, 2017a, pp. 76–77, para. 211, question 5). This input was provided in the form of a Resolution and Conclusions concerning fair and effective labour-migration governance, discussed in the ILC Committee for labour migration and adopted by the ILC plenary on 16 June 2017.

3 The GCM consultations and negotiations

In early 2017, two co-facilitators, the Mexican and Swiss ambassadors to the UN in New York, were appointed by the president of the General Assembly to lead the consultations and negotiations on the GCM. They prepared the zero draft of the General Assembly modalities resolution to define the process, which included ‘decent work and labour mobility’ as one of the six informal thematic consultation sessionsFootnote ¹⁴ and which was discussed by UN Member States. Subsequently, however, this theme was broadened, first to include expanding regular pathways for migrationFootnote ¹⁵ and then remittances,Footnote ¹⁶ irregular migrationFootnote ¹⁷ and recognition of skills and qualifications.Footnote ¹⁸ The addition of irregular migration was of some concern to the ILO because of the risk that too great a focus on irregular migration would detract from decent-work and labour-mobility issues, which should have been at the heart of the proposed thematic consultation. In the end, and as documented above, the scope of this consultation was expanded even further, with the result that the final version of this informal thematic session became: ‘Irregular migration and regular pathways, including decent work, labour mobility, recognition of skills and qualifications, and other relevant measures’. Although this was the thematic session of most relevance to the ILO, the subject of decent work was also pertinent to other thematic sessions, especially the first thematic session on the human rights of all migrants and the third session, which referred to the ‘portability of earned benefits’, among other issues.Footnote ¹⁹

The final version of the modalities resolution took note of the UN Secretary-General's intention to recommend establishing a Special Representative to the UN Secretary-General (SRSG) on International Migration.Footnote ²⁰ It also gave the International Organization for Migration (IOM), which had since become a related agency of the UN, important supporting functions (UNGA Resolution 71/280, paras 11, 15, 18, 22, respectively).Footnote ²¹ In preparation for the six informal thematic sessions, the Global Migration Group (GMG) was tasked with preparing the background papers to inform the sessions. The background paper for the sixth session that included decent work and labour mobility was prepared by the ILO and UN Women. The ILO also contributed substantively to the preparation of the other background papers. The drafts were then submitted to the Office of the SRSG for finalisation.

The modalities resolution provided for regional consultations, led by the UN Regional Economic Commissions, in collaboration with other UN agencies, and particularly the IOM (UNGA Resolution 71/820, para. 22(a)). Decent work and labour migration and mobility featured in these discussions and their outcomes. For example, in the Arab states, the Regional Consultation on International Migration in the Arab region, in preparation for the GCM, was organised by the UN Economic and Social Commission for Western Asia (UN-ESCWA), the IOM and the League of Arab States.Footnote ²² The Regional Consultation featured a panel on decent work and labour mobility, supported by an issue brief,Footnote ²³ which the ILO in large part helped to organise and in which the ILO tripartite constituents participated as speakers. The outcome of this consultation contained a section mirroring the sixth thematic consultation at the global level, namely ‘irregular migration and regular pathways, including decent work, labour mobility, recognition of skills and qualifications, and other relevant measures’. Participants agreed to work on a number of priority areas that raise concerns in the Arab region, such as the protection of migrant workers, including through the adoption of fair and ethical recruitment and the provision of decent working conditions; addressing the kafala (sponsorship) system; and development of policies for the recognition, protection and management of domestic work in accordance with international law and human rights (UN-ESCWA and IOM, 2017).

In October 2017, the ILO organised an Interregional Consultation on Labour Migration and Mobility from Asia and Africa to the Middle East, which focused on the particular challenges faced by the ILO's tripartite constituents in ensuring fair labour migration and mobility in an interregional contextFootnote ²⁴ – a dimension that the ILO considered needed more attention in the GCM consultations and negotiations. The consultation brought together multiple stakeholders from the three regions to discuss common issues of concern relating to migrant workers, such as fair recruitment, skills recognition, decent work and access to justice. A summary report of this consultation was prepared and shared with the Office of the SRSG (ILO, 2017c), as input also to the sixth thematic consultation on the GCM.

Decent work and labour mobility constituted also an important theme for ILO social partners and civil-society organisations. While their representatives were invited as speakers to the six global thematic governmental consultations, as well as the regional consultations, and were also able to participate as observers, there was a separate process for civil-society consultations, involving informal interactive multi-stakeholder hearings and regional civil-society consultations during 2017 and 2018.Footnote ²⁵ The global union federations, employers’ organisations and the private sector also provided their inputs throughout the consultations and the subsequent negotiations (ITUC, 2017; IOE, 2018).Footnote ²⁶

The co-facilitators’ summaries of the six sessions, the outcomes of the GCM regional consultations and civil-society consultations, as well as other relevant outcomes and documents, such as the summary report of the ILO Interregional Consultation on Labour Migration and Mobility mentioned above, were all fed into the stocktaking conference in Puerto Vallarta, Mexico. Its purpose was to provide a platform for UN Member States and other stakeholders to jointly shape a vision for the GCM and thus help the co-facilitators to prepare a zero draft of the GCM by February 2018, as required by the modalities resolution. Right before the meeting, however, the US announced that it no longer wished to take part in the process,Footnote ²⁷ which served as a precursor to resistance to the GCM from a number of other UN Member States that became more pronounced around the time of its adoption.Footnote ²⁸ The co-chairs of the stocktaking meeting prepared a summary of the discussions and proposals,Footnote ²⁹ which would inform the preparation of the GCM zero draft.

During the stocktaking meeting, six action groups were set up to discuss various dimensions of international migration that needed to be included in the GCM, namely the human and community dimensions as well as the local/subnational, national, regional and global dimensions. Decent work and migrant workers featured in five of these.

The GCM zero draft, presented on 5 February 2018,Footnote ³⁰ set out the structure of the GCM, which did not change that much from the final version agreed at the UN in New York on 13 July 2018. Most of the objectives relating to decent work and labour migration were already in the zero draft and their wording only underwent minor revisions during the negotiations, the most significant being the removal of the word ‘social’ from Objective 15, which, in the GCM zero draft, read: ‘Provide access to basic social services for migrants.’ Moreover, this objective also referred explicitly to housing and social protection, which do not appear in the final version of the GCM. The one notable difference was the addition during the negotiations, at the behest of African countries, of Objective 23, which committed to ‘strengthen international cooperation and global partnerships for safe, orderly and regular migration’. Importantly, Objective 23 underscores also the need to align the implementation of the GCM with existing international legal and policy frameworks, particularly the 2030 Agenda for Sustainable Development (GCM, Objective 23, para. 39).

During the six rounds of negotiations on the GCM in 2018, a Like-Minded Group of States on Labour Migration and Decent Work was convened under ILO auspices. It comprised an informal group of up to twenty-three UN Member States,Footnote ³¹ which prepared joint statements on issues relating to labour migration and decent work arising during the negotiations, with a view to improving the text through a more robust reference to international labour standards and the role of workers’ and employers’ organisations and social dialogue in the governance of labour migration. For example, during the sixth round of GCM negotiations, this group proposed the addition of a new action to Objective 23 that would ‘include social dialogue and the role of civil society, private sector, trade unions, and other relevant stakeholders’.Footnote ³² Unfortunately, however, this proposal was not taken up in the final draft of the GCM.

4 The GCM text, labour migration and decent workFootnote ³³

The GCM was adopted at an inter-governmental conference in Marrakech, Morocco, on 10–11 December 2018Footnote ³⁴ and was put to a formal vote in the UN General Assembly, which endorsed it on 19 December 2018.Footnote ³⁵ 152 UN Member States voted in favour of the GCM, with five voting against and twelve abstaining.Footnote ³⁶ It has been heralded as the first comprehensive global framework addressing all aspects of international migration (see e.g. Newland, Reference Newland2019, p. 2).

The GCM is explicitly presented as a ‘non-legally binding cooperative framework’ (GCM, preamble, para. 7), although it also purports to align itself with international law and rests on the purposes and principles of the UN Charter and other international law instruments (GCM, preamble, paras 1, 2), which raises questions regarding its normative potential (Vedsted-Hansen, Reference Vedsted-Hansen, Minderhoud, Mantu and Zwaan2019).Footnote ³⁷ The GCM refers to the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR),Footnote ³⁸ but only references in a footnote the remaining seven core international human rights instruments, including the ICRMW.Footnote ³⁹ While C97, C143 and the Domestic Workers Convention, 2011 (No. 189) are footnoted (GCM, preamble, para. 2), the eight ILO fundamental conventions concerning the abolition of forced labour, elimination of child labour, trade-union rights and equality of treatment and non-discrimination in employment have not been included in the final version of the text. On the other hand, the two Palermo Protocols concerned with trafficking in persons and migrant smugglingFootnote ⁴⁰ are cited in the main body of the text (GCM, preamble, para. 2, Objective 9, para. 25(a), Objective 10, para. 26(a)).

The relegation to footnotes of the three specific international instruments on migrant workers is telling and also reflects the desire of a number of governments to downplay their relevance, in stark contrast to the more widely ratified protocols on trafficking and smuggling, which appear openly in the body of the GCM text and in respect of which there are explicit calls to promote their ratification, accession and implementation (GCM, paras 25(a), 26(a)). This is despite the fact that the ICRMW and Conventions Nos 97 and 143 have recently been ratified by a number of countries.Footnote ⁴¹ Nonetheless, the inclusion of these three instruments in the GCM indicates that the legally binding framework on migrant workers certainly cannot be taken lightly, and indeed should be a source of inspiration and play an important role in informing the understanding of some of the GCM's provisions, which, as noted below, lack clarity in places and are not always fully in line with the interpretation of relevant human rights and labour standards by bodies operating under the respective supervisory systems.

The GCM is also based on a set of cross-cutting and interdependent guiding principles. These include that it is people-centred, recognises respect for the rule of law and due process, is based on international human rights law, is gender-responsive and child-sensitive, and promotes ‘whole of government’ and ‘whole of society’ approaches (GCM, para. 15),Footnote ⁴² which all resonate with the spirit of the legally binding standards and their application.

The GCM's core structure outlines commitments to twenty-three objectives supported by actions for the realisation of the commitments but, given that the GCM does not impose any legally binding commitments, it would appear that its provisions are largely optional, leaving a wide margin of discretion to Member States (Carrera et al., Reference Carrera2018, p. 3), and can arguably be applied at different times. While the GCM is aligned to the 2030 Agenda for Sustainable Development, there is no organised framework of goals, targets and indicators, as with the SDGs, that sets timelines for the achievement of the actions specified. Indeed, such a framework was proposed as a model for the GCM by Professor François Crépeau, the former UN Special Rapporteur on the human rights of migrants (UNGA, 2017).

The scope of the GCM applies to nearly all aspects of migration, with the possible exception of mixed migration,Footnote ⁴³ and is thus considerably broader in scope than the legally binding migration-specific instruments, which focus on regulating the labour-migration process and protection of migrant workers and their families. Indeed, the GCM addresses one particular area that is not the principal concern of these instruments – with the exception where they contain provisions relating to the migration process – namely the need to make available more flexible pathways for the admission of regular migrants for the purposes of employment, family reunion and study, which is articulated by its Objective 5 (enhance availability and flexibility of pathways for regular migration) (GCM, Objective 5, para. 21). Contrary to views in some quarters, however, the ICRMW, C97 and C143 do not interfere with the state sovereign prerogative to regulate the admission of foreigners into the territory. Even where the question of regularisation of migrants in an irregular situation is raised in these instruments, states parties are only encouraged to give consideration to such a possibility.Footnote ⁴⁴ Arguably, in addition to its overall non-legally binding nature, the GCM does not undertake anything similar in Objective 5. Nonetheless, some governments continued to express the view that the GCM poses a threat to the sovereign right of states to enforce their immigration laws and to secure their borders, and even that it would create a human right to immigration (Carrera et al., Reference Carrera2018, pp. 1, 6–7).

With regard to decent work, it is spread across a number of GCM objectives, in particular Objectives 5, 6 (facilitate fair and ethical recruitment and safeguard conditions that ensure decent work), 15 (provide access to basic services to migrants), 16 (empower migrants and societies to realise full inclusion and social cohesion), 18 (invest in skills development and facilitate mutual recognition of skills, qualifications and competences) and 22 (establish mechanisms for the portability of social-security entitlements and earned benefits).

As noted above, during the negotiations, some of the GCM's actions created points of tension with the interpretation of relevant human rights and labour standards. In relation to decent-work issues, these concerned the scope of fair and ethical recruitment, the application of labour rights and protections to migrant workers, and access of migrants to social rights, and particularly to those in an irregular situation (see Friðriksdóttir, Reference Friðriksdóttir, Minderhoud, Mantu and Zwaan2019 for an overview of the position of European countries at the time of the GCM's adoption with respect to the need to apply distinctions between regular migrants and those in an irregular situation in the reading and/or implementation of the GCM, pp. 328–329). Not all of these points of tension were resolved in favour of full compliance with human rights and labour standards, with the result that implementation of the GCM by UN Member States will need to be carefully reviewed with reference to their obligations under international human rights and labour law.

With regard to the scope of fair recruitment, the cost of recruitment and the extent to which workers could be expected to pay recruitment fees were subjects of the negotiations. One of the earlier draft texts of Objective 6 of the GCM referred to prohibiting recruiters from ‘charging disproportionate or hidden fees as well as related costs to the migrant worker’,Footnote ⁴⁵ which implied that workers could be charged reasonable fees or related costs but, due to the resistance of a number of governments and international agencies, including the ILO, this eventually gave way to the application of the principle that workers should not pay recruitment fees or related costs.Footnote ⁴⁶ This is in line with ILO standards,Footnote ⁴⁷ as articulated in the ILO General Principles and Operational Guidelines for Fair Recruitment and the Definition of Recruitment Fees and Related Costs (General Principle 7).

Another GCM action that attracted considerable attention during the negotiations concerned paragraph 22(i) in Objective 6 relating to labour rights and the protection of migrant workers:

On its face, this provision, due to the rather ambiguous reference to ‘contractual labour’, would appear to afford basic labour rights, which are also clearly recognised human rights, such as the right to freedom of association, only to workers holding formal employment contracts, thus excluding many migrant workers in the informal economy, including those in an irregular situation.Footnote ⁴⁸ The above narrow interpretation would not be in accordance with international human rights and labour standards, including the three specific instruments on migrant workers discussed above. For example, C143 contains a very important provision in Article 1 requiring members ‘to respect the basic human rights of all migrant workers’, which the ILO Committee of Experts on the Application of Conventions and Recommendations has clearly linked to the eight ILO fundamental conventions and the core nine international human rights instruments, including the ICRMW (ILO, 2016a, p. 90, paras 276–277), while Part I of C143 on migrations in abusive conditions applies to all migrant workers regardless of their immigration status. Part III of the ICRMW also protects the rights of all migrant workers and members of their families, including those in an irregular situation, as confirmed by the Committee on Migrant Workers, which supervises the application of the ICRMW.Footnote ⁴⁹ While both the C143, in Part II, and the ICRMW, in Part IV, afford a range of additional rights to migrant workers in a regular situation, such as rights of free access to employment and family reunification, subject to certain conditions (C143, Art. 13; ICRMW, Arts 44(2), 52, 53), the rights afforded to migrant workers in an irregular situation are not qualified depending on whether the worker in question is employed under a valid contract. Moreover, the UN Special Rapporteur on the human rights of migrants has argued that all migrants, without discrimination, are protected under the international human rights legal framework and that there are only a few and narrowly defined exceptions to this, including the right to vote and to be elected, and the right to enter and stay in a country (UNGA, 2013b, para. 28).Footnote ⁵⁰

The Committee on Economic, Social and Cultural Rights (CESCR), the treaty body supervising the ICESCR's application, has reaffirmed that the ICESCR also applies to everyone, including non-nationals, regardless of legal status in general comments relating to non-discrimination and the human rights to health and just and favourable conditions of work.Footnote ⁵¹ However, ensuring application of these rights to migrants in an irregular situation in practice is much more challenging and, as a means of achieving this objective, a number of international civil-society organisations argued that the GCM should clearly endorse the imposition of ‘firewalls’ separating the functions of enforcement authorities charged with immigration control and social, health and service providers.Footnote ⁵² In the employment context, for example, this would require labour inspectors to focus on protecting the rights and interests of all workers, and improving working conditions, rather than checking on their immigration status and enforcement of immigration law – a position endorsed by the ILO Committee of Experts when examining the application of the ILO Labour Inspection Convention, 1947 (No. 81) (ILO, 2016a, p. 153, para. 482), an important ILO governance (priority) instrument that has been widely ratified.Footnote ⁵³

While the GCM recognises the tension between access of migrants in an irregular situation to basic social rights and the need of a country's immigration authorities to address irregular migration, the final text in Objective 15 has been considerably diluted from previous versions:

In contrast, the GCM zero draft was much clearer on this question referring explicitly to ‘social services’ and the setting-up of ‘firewalls’:

5 GCM implementation

The GCM envisages a relatively flexible system for its implementation, follow-up and review (GCM, paras 40–54). States are the primary actors in this system, although the GCM also welcomes the decision of the UN Secretary-General to establish a UN Network on Migration, which is tasked ‘to ensure effective and coherent system-wide support’ for implementation, follow-up and review of the GCM (GCM, para. 45).Footnote ⁵⁵ This Network is co-ordinated by the IOM, which also provides for its secretariat (GCM, para. 45(a)). The Network brings together thirty-eight UN agencies and comprises an Executive Committee of eight agencies,Footnote ⁵⁶ which takes decisions by consensus. The Network formally commenced its operations in October 2018 and, at the first Principals’ meeting of its Executive Committee in May 2019, launched a Migration Multi-Partner Trust Fund – a component of the capacity-building mechanism established by the GCM (GCM, para. 43(b)), which will pool donor contributions that can then be channelled to support Member States’ implementation of the GCM.Footnote ⁵⁷

In addition, the GCM provides for an International Migration Review Forum (IMRF), which repurposes and renames the previous UN General Assembly High-level Dialogue on International Migration and Development. To be held at the UN General Assembly every four years beginning in 2022, the IMRF will

Each edition of the IMRF will result in ‘an intergovernmentally agreed Progress Declaration’ (GCM, para. 49(e)). The GCM also invites relevant subregional, regional and cross-regional processes, platforms and organisations, including UN Regional Economic Commissions or regional consultative processes (RCPs) on migration to review GCM implementation in respective regions, starting in 2020 (GCM, para. 50). Some of the RCPs are particularly relevant to the governance of labour migration and mobility, such as the Abu Dhabi Dialogue and the Colombo Process,Footnote ⁵⁸ which both focus on labour migration to the Middle East, especially GCC countries. Other inter-governmental dialogues on migration taking place among states, such as the Global Forum on Migration and Development (GFMD), are also requested to provide a space for annual informal exchange on GCM implementation and to contribute to the IMRF (GCM, paras 51, 52). The GCM encourages all UN Member States

The modalities for the IMRF and review at the regional level were agreed in July 2019.Footnote ⁵⁹ Given the non-legally binding nature of the GCM, it is difficult to see the development of processes of review that are anything but voluntary, or to subject any voluntary reporting by UN Member States to independent scrutiny.Footnote ⁶⁰ UN Member States will continue to be subject to the human rights supervisory system, namely (1) supervision by the treaty bodies set up to monitor the application of the core international human rights instruments they have ratified and (2) the system of review under the UN Charter under the auspices of the Human Rights Council – the two principal mechanisms being the Universal Periodic Review and the Special Procedures of the Council, which include the thematic mandate of the UN Special Rapporteur on the human rights of migrants.Footnote ⁶¹ The ILO has also established an elaborate supervisory system to monitor the application of ILO Conventions, based on reports submitted to the ILO Committee of Experts, which issues observations and direct requests to states parties. A select number of observations are subsequently discussed by the Committee on the Application of Standards at the annual ILC, to which the governments concerned are required to respond and which often result in follow-up action by the ILO. In addition, the ILO Constitution provides for a system of complaints and representations that can be brought against individual states by ILO tripartite constituents in the ILO Governing Body (ILO, 2019b).

The interaction between the human rights and ILO supervisory systems and the modalities for the implementation, review and follow-up of the GCM at global, regional and national levels will be an interesting dynamic. While there are clearly opportunities for establishing synergies between the two systems, some challenges can also be foreseen in terms of possible unnecessary duplication of efforts, which may stretch the capacity and resources of poorer countries, and the risk of a watered-down interpretation of international human rights and labour law as this relates to the governance of international migration and the protection of migrants.

6 GCM implementation, with specific reference to the Arab states region

The GCM is not a legally binding instrument. This has raised valid questions as to its potential impact and enforcement, and the key to its success will lie in its effective implementation by UN Member States and the readiness of governments to address some of the most acute challenges of migration governance.

Most of the Arab states in the Middle East and North Africa voted in favour of the GCM at the UN General Assembly in December 2018.Footnote ⁶² In terms of the governance of labour migration, there are acute challenges in the Arab states relating inter alia to the operation of the kafala (sponsorship) system, abusive and fraudulent recruitment practices, violations of fundamental human rights, such as forced labour and trafficking and denial of or restrictions to the enjoyment of the right to freedom of association, as well as a range of other decent-work deficits (ILO, 2017b; 2017c; Jureidini, Reference Jureidini2016). These concern delayed or non-payment of wages, long working hours, inadequate safeguards to ensure occupational safety and health, and a lack of social protection. Low-skilled and low-wage workers, in sectors such as agriculture, construction, manufacturing and domestic work, are most likely to be subject to such deficits.

The GCM offers promise for the necessary policy reforms provided that there is a demonstration of political will and resources are channelled to support such reforms. Over the past few years, the kafala system, comprising a mix of legislative measures, policy and practices by which migrant workers’ employment and immigration status is tied to their kafeels or sponsors, has been subject to reform in a number of countries in the Middle East (ILO, 2017b), with some governments, such as that of Qatar, supporting its outright abolition (ILO, 2018a, pp. 2–3, paras 13–15). Reforms have included the suppression of exit visas for workers covered by the labour law (ILO, 2018a, para. 13; 2019a, p. 4, para. 17), enabling workers to terminate their employment contracts and transfer more easily between employers (ILO, 2017b, pp. 13–14; 2019a, p. 4, para. 18), and the introduction of ‘sponsorless’ work permits.Footnote ⁶³ In this regard, the GCM contains an important action that could help to loosen the bonds between workers and their employers and sponsors, and facilitate greater internal labour-market mobility:

The region is also beset by abusive and fraudulent recruitment practices, with migrant workers in some migration corridors between South-Asia and the Middle East paying up to an average of ten months’ wages in recruitment fees and related costs (Abella et al., Reference Abella, Martin and Yi2016; ILO, 2016b; see also Jureidini, Reference Jureidini2016). The GCM's clear prohibition on worker-paid recruitment fees and costs, as discussed earlier, sends a strong message on the required policy response, which needs, however, to be supported by harmonised measures in both destination and origin countries as well as improved business practices to enhance human rights due diligence in recruitment supply chains.

The GCM also reiterates that all workers are entitled to enjoyment of their fundamental rights, such as the right to be free from forced labour and to enjoy the rights to freedom of association and collective bargaining, including the right to join and participate in trade unions (GCM, Objective 6, para. 22(c), (f), (i)). The existence of forced labour in the region is closely connected to abusive and fraudulent recruitment practices and the operation of the kafala system, as described above. For many migrant workers, freedom of association is not an option or heavily curtailed, although efforts are being undertaken to enable migrant workers to participate in trade unions where these exist,Footnote ⁶⁴ or, where there are no trade unions, to give them a greater voice through mechanisms such as joint worker–management committees in private companies (ILO, 2019a, paras 34–36). If serious attention is paid to GCM implementation, greater efforts in these areas should be forthcoming.

Social protection is an important pillar of decent work and access to social protection for migrant workers is severely restricted in the region. With the exception of health care, which migrant workers can access in most instances, largely on the basis of private insurance paid by the employer, their enjoyment of other social-security rights, particularly those relating to long-term benefits such as a retirement pension, are very limited. Unless they pay contributions through a social-security scheme in their country of origin, they are likely to return home with limited funds for their retirement, which will normally be paid in the form of end-of-service payments that they might have accrued on completion of their employment contracts in the destination country.

The COVID-19 pandemic has given sharp focus to the situation of migrant workers in the Arab states region regarding their access to health care, labour and social protection, and adequate housing. A number of countries have responded positively, guaranteeing access to free COVID-19 testing and treatment to all migrants, including those in irregular status.Footnote ⁶⁵ In terms of labour and social protection, however, the economic fallout of the crisis and the resulting job losses have increased the risk of migrant workers not receiving their due wages and end-of-service benefits. The cramped and overcrowded accommodation conditions that many workers experience, for example in the garment sector in Jordan, where they live in communal dormitories in qualified industrial zones and in labour camps in GCC countries, which house large numbers of migrant construction workers, have drawn attention to the acute challenges of alleviating such conditions to curb the spread of COVID-19 (Business and Human Rights Resource Centre, 2020).

The GCM underscores that all migrants, regardless of their migration status, should have access to basic services, including health care and education (GCM, Objective 15, para. 31), and that migrant workers at all skill levels should have access to social protection in countries of destination (GCM, Objective 22, para. 38). In this regard, the GCM action to ‘establish or maintain non-discriminatory national social protection systems, including social protection floors for nationals and migrants’, in line with the ILO Social Protection Floors Recommendation, 2012 (No. 202), is particularly important (GCM, Objective 22, para. 38(a)). However, the remaining actions in the GCM on the portability of social-security rights, while applicable in those labour-migration corridors that have functioning social-security administrations covering both nationals and non-nationals, are less relevant in the context of the Middle East, and particularly in the GCC. It remains to be seen what the longer-term impact of the COVID-19 pandemic will be on labour-migration trends to the Arab states, and particularly the GCC, given the economic downturn that has already resulted, and whether the lessons learned will give rise to an improved system of labour-migration governance affording greater protections to migrant workers, in keeping with the GCM commitments.