Over the past two decades, there has been an exponential increase in the number of individuals leaving their homes for temporary work in low-wage sectors abroad. Along with this expansion has come a mounting focus on the mistreatment of low-wage migrant workers in their countries of employment, and on the need for greater employer accountability. In recent times, particular attention has been focused on low-wage migrants in the Middle East, most of whom originate from South and Southeast Asia.Footnote 1 The harms that many of these millions of men and women encounter during their employment abroad are now well known.Footnote 2
What is less well recognized is that although the employment relationship lies at the heart of labour migration, it sits within a broader transnational web of relationships, spanning countries of origin, transit, and destination, which contributes to the mistreatment of migrant workers. Scholars have only recently begun to consider the rampant, systemic abuses that migrant workers encounter during recruitment in their countries of origin. These abuses invariably form the first chapter—or in some cases, the entire book—of the migrant worker exploitation story, particularly in South and Southeast Asia. In these regions, private recruitment agenciesFootnote 3 and sub-agents have become particularly integral to international migration, and have increased exponentially in number over the past three decades.Footnote 4 It is also in these regions that abusive recruitment practices have become “endemic—the norm”.Footnote 5
As more information emerges on the impact of recruitment practices on migrant worker mistreatment globally, an obvious next question is whether a different approach to governance of recruitment could enable migrant workers’ home countries to play a more effective role in preventing the abuse of their citizens. This paper provides a preliminary answer to that question. It contends that (1) the absence of a rights-based and migrant-centred approach to the governance of recruitment in countries of origin partially explains the limited effectiveness of some recent legislative and policy efforts to curb abusive practices; and that (2) the adoption of such an approach would improve migrant worker protection and private sector accountability throughout the entire migration process.
Little has been written on what a rights-based approach to labour migration governance would mean for migrants’ home countries in practice, despite increasing recognition of its importance.Footnote 6 Therefore, this paper proposes a set of defining principles for a rights-based recruitment governance framework,Footnote 7 which may assist states and other stakeholders to translate a commitment to rights-based governance into effective regulatory reform.Footnote 8
The rights-based recruitment governance framework proposed in this paper has four key elements. The first is the entrenchment of rights-holders and duty-bearers in law. This includes the establishment of enforceable legal rights on the part of migrant workers and of corresponding obligations on the part of states and relevant private actors. The second element is the enforcement of rights and responsibilities in practice, which includes ensuring the accountability of relevant duty-bearers and access to remedies on the part of migrant workers. This requires the development of transparent and effective implementing institutions and processes. The third element is the informed and empowered participation of migrant workers in key labour migration processes and decisions. This is both at the individual level (including workers’ empowered pre-departure decision-making) and at the systemic level (including migrants’ empowered participation in labour migration policy development and recruitment agency licensing decisions). Participation is both an end in itself and a means for ensuring that the recruitment governance framework responds to migrant workers’ lived recruitment experiences, multiple vulnerabilities, and development goals. The fourth element is the incorporation of a range of international human rights and labour rights obligations and standards that apply to migrant worker recruitment, to many of which countries of origin in Asia have already committed themselves.
Section I of the paper sets out some common systemic recruitment practices in countries of origin throughout Asia and elsewhere which either render migrant workers vulnerable to mistreatment abroad or are inherently abusive. Section II illustrates the limited abuse prevention and accountability achieved by recent regulatory efforts that are not situated within a rights-based recruitment governance framework and are not grounded in migrant workers’ recruitment experiences. This includes inadequacies of public laws and regulations governing recruitment, as well as private contracts governing workers’ relationships with recruitment agencies. Section III contends that the limited effectiveness of these instruments is not inevitable. It sets out the core elements of a rights-based recruitment governance framework that would address a number of the challenges identified in the preceding section. After discussing the elements of the framework and their application, the section anticipates critiques of the framework in light of non-enforcement of existing protective laws in countries of origin. To address these critiques, it identifies a number of key structural and practical obstacles to enforcement that the framework would in fact address. It concedes that there are geopolitical and market-based structural forces that currently drive non-compliance and impede enforcement of protective laws, and that these require transnational reforms to transform migrant worker recruitment and employment business models in partnership with destination countries. However, it also illustrates that a rights-based governance approach within countries of origin is essential to that transformation, and can independently address a number of practical obstacles to recruiter accountability and migrant worker protection within countries of origin.
The paper relies on empirical studies conducted by the author and her colleagues for new in-depth analyses of the situations of migrants going from South and Southeast Asia to the Middle East along the fastest-growing migration corridor globally—a corridor in which the particular challenges to rights enforcement in destination countriesFootnote 9 amplify the need for improved protection of migrant workers by their home countries. In particular, examples and evidence from the Indonesian and Nepalese contexts, arising from the first comprehensive studies of accountability in recruitment and migrant workers’ access to justice in countries of origin, conducted by the author and colleagues between 2012 and 2014Footnote 10 will be considered. Case-studies conducted in both countries, one in South and one in Southeast Asia, are revealing because each country has made especially significant efforts over the past decade to better regulate recruitment and placement of workers overseas, and has developed processes and programmes intended to enable migrant workers to access remedies at home and through their consulates.Footnote 11 Nevertheless, in both countries, as well as other countries of origin around the region, systemic misconduct within recruitment persists, recruiter accountability remains elusive, and migrant worker protection and access to remedies remain limited.
This paper lays out the contours of a practical rights-based governance approach for recruitment that could bring countries of origin in Asia and elsewhere far closer to achieving their stated protection and accountability goals.
I RECRUITMENT PRACTICES IN COUNTRIES OF ORIGIN
Governance of migrant worker recruitment is exceptionally complex because it demands oversight over hundreds or often thousands of private actors, operating formally and informally across national and international borders. This includes private recruitment agencies (PRAs), sometimes called manpower agencies or private employment agencies, located within the capital or major cities in countries of origin. It also includes large numbers of individual sub-agents, also called intermediaries or brokers, who recruit workers at the village level. Across Asia, where privatized recruitment is most common,Footnote 12 this constellation of private actors forms a fragmented industry that has witnessed exponential growth over the past two decades, as their services have become indispensable, and indeed mandated, in many countries of origin.
Recruitment agencies and sub-agents serve an important function by enabling millions of aspiring low-wage workers to access otherwise inaccessible employment opportunities abroad. In particular, they provide aspiring workers with information about foreign employment, and assistance in obtaining necessary documentation and navigating complex government requirements for working abroad.
At the same time, systemic misconduct within the recruitment industry often creates the conditions for, or directly causes, many of the abuses that migrant workers suffer.Footnote 13 For example, recruitment agencies and individual sub-agents routinely command high fees and charges from migrant workers,Footnote 14 commonly justifying them by misrepresenting the salary or conditions of work which the prospective migrant can expect.Footnote 15 Based on the salary they anticipate receiving, migrant workers often sell personal property and take out loans from local moneylenders to cover these inflated recruitment fees and costs.Footnote 16 Such loans commonly attract high or indeed usurious interest rates,Footnote 17 resulting in many workers departing from their country of origin with high mounting debts. These debts compel workers to remain in exploitative employment situations abroad in order to pay off their loans, in circumstances that may give rise to forced labour.Footnote 18 Workers also acquiesce to poorer work conditions or lower wages than those promised by the sub-agent or recruitment agency at home in fear of deportation, as well as the double threat of debt-laden unemployment, if they complain.Footnote 19
In addition to fee and debt issues, migrant workers are also made more vulnerable to abuse abroad by recruitment agencies’ failure to provide them with required training and informationFootnote 20 ; for example, copies of key documents such as their recruitment and/or employment contract and insurance policy. Outright fraud is not uncommon, especially at the village level, with prospective workers commonly recruited (and paying fees) for positions that do not exist, or being sent abroad with falsified documentation. Finally, when these workers encounter harms, recruitment agencies commonly fail either to provide them with the compensation to which they are entitled, or to adequately account for their misconduct.Footnote 21 These practices are remarkably similar across South and Southeast Asia,Footnote 22 and indeed globally.Footnote 23
II THE LIMITATIONS OF CURRENT RECRUITMENT GOVERNANCE MODELS
A Statutory Governance of Recruitment: Licensing, Hiring Processes, and Fees
Increasingly over the past two decades, countries of origin have recognized that unchecked misconduct within the recruitment industry at home contributes to migrant worker vulnerability and exploitation abroad. Many countries of origin now have laws, regulations, and policies governing private migrant worker recruitment agencies. For example, origin countries have established licensing schemes for recruitment agencies, imposed minimum requirements for individuals to be migrant workers, established procedures for the recruitment process and related rights and obligations of various parties, and established responsible institutions and/or systems for monitoring compliance with these laws.Footnote 24 Most have established limitations on the fees which agencies may charge,Footnote 25 and prescribed documentation that agencies must provide to the government in order to send a worker abroad,Footnote 26 among other requirements. Foreign employment laws are the subject of ongoing law reform efforts in numerous countries.Footnote 27
Despite these significant advances, many regulatory frameworks still focus primarily on developing procedural machinery for the efficient export of migrant workers, rather than on advancement and enforcement of migrant worker rights.Footnote 28 As a result, current regulatory regimes still generally fail to protect workers and to hold recruitment agencies accountable for misconduct. In particular, in the absence of an overarching rights-based and migrant-centred approach to governance, many laws suffer from vagueness of responsibilities as well as ineffective implementation and enforcement processes. These shortcomings and others are best illustrated by three areas of regulation that are now included in foreign employment laws in most countries of origin: (1) recruitment agency licensing laws; (2) laws which mandate recruitment agency conduct in relation to fees and information provided to workers about prospective jobs; and (3) laws which regulate individual sub-agents.Footnote 29 Each area of regulation will be examined briefly below.
1 Recruitment agency licensing laws
Recruitment agency licensing schemes have improved markedly over recent years across both South and Southeast Asia. Nevertheless, many licensing frameworks still fail to fulfil their potential for improving recruiter accountability and migrant worker protection. This is due, in significant part, to the failure to locate licensing processes within a rights-based governance framework. Licensing schemes are generally directed towards establishing an industry of stable operators within government purview to replace the marketplace of agencies that operate in the shadows for a short period and disappear overnight when migrant workers raise claims against them—undoubtedly a fundamental advance towards recruiter accountability. For example, in Indonesia and Nepal, licensing schemes generally require recruitment agencies to establish their stability by demonstrating their financial solvency, facilities, and corporate governance, as well as by paying fees and a deposit.Footnote 30 However, in neither country is an agency required to demonstrate that it has complied with worker protection obligations and remedied worker harms in response to complaints, in order to obtain or renew a licence to send migrant workers abroad.Footnote 31 The licensing process generally remains non-transparent, with no opportunity for migrant workers or civil society to contribute information or otherwise participate in licence-granting or renewal decisions.Footnote 32 For example, migrant workers and their advocates are not informed when licence-granting or licence-renewing decisions are being made. There is no standardized procedural mechanism through which workers can inform decision-makers about an agency’s previous misconduct or non-compliance with its protection obligations, or about previous associations between the agency’s senior officials and other problematic recruitment agencies. Similarly, there is generally no automatic link between the recruitment licensing process and the complaints of mistreatment that migrant workers make to diplomatic missions abroad and to other government ministries. This further deprives licensing regulators of the opportunity to use the licensing process to exclude exploitative agencies or individuals from recruiting migrant workers in the future.
Compounded with the failure to link licensing with migrant protection and to enable meaningful migrant worker participation in licensing decisions is the fact that countries of origin have not diligently enforced existing licensing requirements. As a result, recruitment in countries of origin continues to be performed largely by unlicensed agencies operating in the shadows,Footnote 33 and by licensed agencies that routinely send migrant workers to jobs where salaries and conditions are different from those promised, and that fail to comply with their legal obligations to compensate workers for harms that occur.Footnote 34 This is true even in countries like the Philippines, which has one of the most stringent recruitment licensing regimes—one of the few that is explicitly intended to ensure that recruitment agencies cannot send migrant workers to jobs where they would face abuse and exploitation.Footnote 35 Although violation of those laws carries heavy penalties, many recruitment agencies continue to operate without a licence or to violate the conditions of their licence, because the law is not diligently enforced. The Task Force Against Illegal Recruitment, an interagency body responsible for the arrest and prosecution of illegal recruiters in the Philippines, reportedly had 20,000 unserved warrants for over two hundred large-scale illegal recruiters in 2011.Footnote 36
2 The hiring process, including information and fees
In addition to strengthening licensing laws, countries of origin have also sought to protect migrant workers by regulating recruitment agency conduct during the hiring process. This includes enacting laws which regulate information provided to migrant workers, and laws which limit fees that may be charged. However, the effectiveness of these laws is similarly limited by the lack of a migrant-centred and rights-based governance approach. For example, to address the lack of accurate information being provided to workers prior to applying for a job, a number of countries of origin have established detailed processes for recruitment agencies’ advertising of positions abroad and subsequent provision of information to migrant workers.Footnote 37 However, these do not reflect the recruitment experience of many migrant workers, and are routinely circumvented through migrants’ use of individual sub-agents at the local level. The vast majority of returned migrant workers who participated in the Nepal Access to Justice Study, to take only one example, received all information about their jobs through a local sub-agent or a contact in the destination country. Not a single participant reported going through the legislated process of applying for an advertised position,Footnote 38 resulting in none of them benefiting from the legislated advertising requirements.
Implementation and enforcement problems similarly afflict states’ efforts to address overcharging of recruitment fees beyond legislated limits.Footnote 39 Recruitment costs have become an increasingly significant human rights and labour rights concern for numerous reasons. These include the inconsistency between the right to work and mandatory fee payment for access to a job and, at a practical level, the clear links between recruitment fees, migrant worker debt, and vulnerability to subsequent debt bondage and exploitation, as discussed earlier.Footnote 40 Although many Asian countries of origin limit recruitment fees to one month’s wages, workers are commonly charged three to four times this amount.Footnote 41 In the Philippines, for example, despite the introduction of regulations addressing recruitment fees in 2002 and 2006, instances of agencies overcharging workers beyond statutory fee limits have in fact increased over the past decade.Footnote 42 Though foreign employment laws generally establish fines and sanctions for violations of these limits and other statutory obligations, they are imposed in few cases, and recruitment agencies commonly flout their statutory obligations with impunity.Footnote 43 Moreover, fee limits are rarely accompanied by genuinely accessible procedural mechanisms through which migrant workers might recover improper fees and costs paid. For example, Nepal’s foreign employment law establishes a right on the part of migrant workers to obtain a refund of overcharged fees.Footnote 44 However, the procedural mechanism for bringing a claim against a recruitment agency is practically inaccessible to the majority of low-wage migrant workers.Footnote 45 This inaccessibility is due to a host of barriers, including: (1) the mechanism’s location in the capital far away from workers’ homes; (2) migrants’ very low awareness and understanding of their legal rights or processes for enforcing them; (3) unavailability of legal assistance; (4) fear of retaliation by the recruitment agency or individual agent; and (5) substantial backlogs and other structural problems in the operation of the procedural mechanism which undermine the availability of timely remedies.Footnote 46
The same is true of many other statutory rights and obligations concerning the hiring process that similarly lack accessible enforcement mechanisms. In Indonesia, for example, the labour migration statute provides workers with some limited but important rights, such as rights to information, to equality of treatment, to the standard wage in the destination country, to a copy of the work contract, and to “receive a guarantee of protection of the law … [for] violation of one’s rights set out in the law for the duration of the placement abroad”.Footnote 47 Yet, these rights are unenforceable in practice, because the statute and regulations fail to establish consequences for non-fulfilment of government or recruitment agency obligations, and to establish mechanisms through which rights may be enforced. For example, the statute does not set out any method through which a worker may compel action by the government or a recruitment agency, or to obtain a remedy if he or she does not receive the required information or a copy of his or her contract.Footnote 48
3 Regulation of individual sub-agents at the village level
As reflected in the discussion above, well-intentioned laws and policies governing migrant recruitment in countries of origin often fail to protect migrant workers in practice as, among other things, they do not reflect and respond to the actual recruitment experience and the vulnerabilities of low-wage migrant workers. A further key example of this problem is the singular, albeit important, regulatory focus on the conduct of recruitment agency corporations, leaving in the shadows the vast industry of individual sub-agents and other private actors down the recruitment chain who play a central role in the recruitment of migrant workers in reality.
This is a particularly significant problem in many South and Southeast Asian countries, where recruitment agencies are generally located either in the capital city or in other major cities, far from the villages and towns where most migrant workers live.Footnote 49 Though some recruitment agencies have registered sub-agents or staff operating at the village level, it is far more common for a migrant’s first point of contact to be an independent, individual sub-agent—generally someone known to the worker or introduced through friends, family, or a local figure of authority.Footnote 50 Most recruitment agencies use multiple independent sub-agents who identify workers and deliver them to the agency in the capital, often for a commission.Footnote 51 In Indonesia, for example, a migrant worker’s journey to the Middle East generally begins with a local sub-agent (known as a sponsor or calo) in her village.Footnote 52 This local sub-agent ultimately connects the worker with a recruitment agency in Jakarta,Footnote 53 entirely outside the country’s system of regulated government oversight at both regional and local levels. In Nepal, the worker generally only deals with the village sub-agent and has no contact whatsoever with the recruitment agency that ultimately sends him or her abroad.Footnote 54 A 2013 study found that half of returned Nepali migrant workers did not even know whether their individual sub-agent worked for a recruitment agency—a clear impediment to seeking remedies from the agency at a later stage.Footnote 55
Individual sub-agents commonly play a leading part in the migrant worker exploitation story. For example, in order to command higher fees from prospective migrant workers, sub-agents commonly misinform workers about the salary they will receive or the nature and key conditions of the work they will perform prior to going abroadFootnote 56 —the beginning of the cycle of migrant worker debt and exploitation. In a 2013 study of Nepalese migrant workers returning from the Gulf, Amnesty International found that ninety-three percent reported that they had been deceived as to salary, nature of the job, hours of work, overtime pay, and/or rest days they could expect.Footnote 57 Also, outright fraud and document falsification by sub-agents are not uncommon.Footnote 58 Travelling on falsified documents often results in the migrant worker falling into an irregular immigration status in the destination country, rendering him or her liable to detention and deportation and making him or her far more vulnerable to exploitation and less able to access assistance.
Implementation of an effective framework for accountability of sub-agents appears to be a task so formidable and vexed that instead of acknowledging the key role that vast numbers of sub-agents play in migrant worker exploitation and the resources required to address the challenge, states have enacted relevant laws and acquiesced to systemic non-compliance.
Indonesia has addressed this problem by banning individual agents and by establishing a criminal offence which applies to any person who individually recruits Indonesian citizens for work abroad.Footnote 59 Although migrant workers are usually recruited by a sub-agent, sub-agents are rarely if ever prosecuted.Footnote 60 As would be expected, there is generally no formalized contractual relationship between (technically criminal) sub-agents and the recruitment agencies whom they work for, and there are no specific legal provisions or processes for holding the parties liable for each other’s misconduct (though general legal principles of agency might be relevant and are yet to be tested). To the limited extent that workers might be able to pursue claims against sub-agents directly, communal relationships between workers and sub-agents commonly deter them from enforcing their rights or reporting fraud or other unlawful conduct to the authorities.Footnote 61 As a result, sub-agents generally operate with impunity, while recruitment agencies evade liability by distancing themselves from their sub-agents’ misrepresentations and fees charged to workers, leaving workers with limited, if any, avenues for redress.
In contrast, Nepal has recognized the role that sub-agents play in the recruitment process, and requires recruitment agencies to register sub-agents whom they use.Footnote 62 However, this ground-breaking law has had little impact, because agencies are not subject to any penalty for using unregistered sub-agents. As of June 2013, only 290 of Nepal’s estimated 80,000 sub-agents have been registered.Footnote 63 In a further promising development, Nepal has established procedural mechanisms through which a migrant worker might hold an individual agent directly accountable for his or her misconduct. However, these mechanisms have similarly failed to achieve accountability or deter misconduct, as they remain practically inaccessible to most low-wage migrant workers throughout Nepal.Footnote 64
The Indonesian and Nepali examples suggest that current efforts to govern individual agents are ineffective, at least in part, due to a failure to design and implement regulatory frameworks which reflect migrant workers’ experiences and vulnerabilities and that have among their goals the need to ensure accountability, non-repetition of violations, and worker remedies for misconduct. It is possible that a version of Nepal’s licensing model or an alternate model could prove far more effective in terms of migrant worker protection and recruiter accountability, if such a model employs the aforementioned and other elements of a rights-based approach set out in Section III below.Footnote 65
As this and the two preceding sub-sections illustrate, the problems of statutory governance of migrant worker recruitment stem significantly from partial enforcement by authorities, but run far deeper: there is often a disconnect between regulatory content and migrants’ recruitment experiences, a lack of detail on the scope of rights and obligations, and a lack of institutional responsibilities, resources, processes, and penalties to give content and force to the rights that have been established, including a lack of access and avenues for migrant worker participation in key governance processes and decisions. As is evident from the diverse country examples above, a number of key improvements in laws and regulations have yet to result in meaningful gains in migrant protection and recruiter accountability.
B Contractual Governance of Recruitment Agencies
In addition to the array of statutes, regulations, policies, directives, bilateral agreements, international conventions, and other public instruments that typically govern labour migration, many migrant labour relationships are also regulated by private contracts. These contracts generally govern migrant workers’ relationships with recruitment agencies, employers, and insurers. Sometimes, they also govern relationships between commercial actors themselves, such as the recruitment agency in the country of origin, the placement agency in the destination country, and the employer. Many countries of origin and destination have sought to legislate minimum rights, responsibilities, and processes associated with labour migration contracts, and in some cases contracts are the subject of bilateral agreements between origin and destination countries.Footnote 66 Although being far from perfect, many migrant worker recruitment, employment, and insurance contracts arguably provide migrant workers with stronger and clearer legal rights than can be found in many domestic laws and international instruments. Yet, across countries of origin, in the absence of a rights-based, migrant-centred approach to the content, execution, and enforcement of those contracts, such contracts invariably fail to protect migrant workers and to facilitate accountability and redress when their terms are breached. In the context of contracts between migrant workers and recruitment agencies, this is largely attributable to unmitigated power and informational asymmetries between the parties in the pre-departure contract execution process, as well as a lack of genuinely accessible enforcement mechanisms after the contract is violated.
Indonesia provides a good example of these problems, despite its relatively robust statutory requirements for recruitment contracts. Indonesia’s labour migration statute requires that a migrant worker enter into a “placement agreement” with an Indonesian recruitment agency prior to departure, separate from the employment agreement between the worker and the employer abroad.Footnote 67 The statute sets out minimum requirements for the agreement that are reflected in a promising new standard placement agreement introduced in December 2014.Footnote 68 The statute requires placement agreements to state that the recruitment agency is liable for compensating the worker if the employer does not fulfil the terms of the employer’s contract with the worker.Footnote 69 This means that if the worker is paid less, or if the conditions of the work are different from the terms of the employment contract that the worker signs pre-departure, the recruitment agency is liable for compensating the worker for his or her loss—in effect, a joint liability provision. Footnote 70
Despite this unusually forceful provision, Indonesian placement agreements have failed to protect workers in practice for several reasons. First, prior to the introduction of the 2014 regulation, most placement agreements were prepared by the Indonesian recruitment agency in collaboration with the placement agency or employer abroad,Footnote 71 and did not necessarily contain the compensation guarantee as required.Footnote 72 Yet, despite their significance, these deficiencies in the content of the agreement have not been the main impediment to rights enforcement and accountability. Migrant workers confront overwhelming practical and structural obstacles to enforcing a placement agreement, and rarely, if ever, attempt to do so. Two separate studies have found that, despite statutory obligations to the contrary, Indonesian migrant workers frequently do not receive a copy of the placement agreement at all, and are unaware of its existence.Footnote 73 Both studies found that workers were unaware of any rights they ought to have under the agreement, let alone possibilities for enforcement.Footnote 74 For the few prospective workers who do receive the agreement, it generally fails to empower them to make informed decisions about the terms of their recruitment and employment abroad. This is because the agreement is usually provided only after the worker has already paid fees and is at the training centre far from home, and the contents of the agreement are generally not explained to the worker.Footnote 75
Even for the few low-wage migrant workers who might be aware of their rights under the placement agreement, enforcement of the agreement in court would be onerous if not impossible due to systemic barriers such as the cost, time, expertise and evidence required, lack of legal assistance, and perceived or actual judicial bias and corruption.Footnote 76
In late 2013, the intergovernmental ASEAN Forum on Migrant Labour made a series of recommendations to Member States to “promote effective complaint mechanisms and grievance handling mechanisms”Footnote 77 in recognition of the inaccessibility of the courts to most Southeast Asian migrant workers. These included a recommendation that “[d]ispute resolutions, mediation, and other alternative dispute settlement mechanisms should be fully explored before administrative or judicial litigation processes”.Footnote 78 However, if based on existing models, the establishment of alternative dispute-settlement mechanisms is, in itself, unlikely to provide a solution to the problem of recruitment contract enforceability and rights protection. Though certainly more accessible than courts, existing dispute-resolution mechanisms are rarely rights-based and, as a result, are often themselves ineffective or inaccessible. In Indonesia, for example, there are substantial practical and structural barriers to accessing government-run programmes. Thus, very few workers who encounter problems attempt to recover compensation from recruitment agencies through the country’s mediation programme.Footnote 79 One of the most formidable barriers to access is geographical: mediation and other redress mechanisms are centralized in the capital city, far away from most workers’ homes. This significantly increases the time, resources, and emotional costs of pursuing a remedy which is already prohibitive to many migrant workers.Footnote 80 Migrant workers also receive limited information and assistance from embassies while they are abroad to obtain documentation to substantiate claims upon their return.Footnote 81 Moreover, the agency responsible for conducting mediations lacks the power to compel recruitment agencies’ good faith participation in the process, or to compel compliance with an agreed settlement. As a result, recruitment agencies frequently do not appear at mediation sessions, and do not pay the agreed settlement amount in a timely manner.Footnote 82
Those who do make claims inevitably receive less than what they are owed. This is in part due to the lack of resourcing and professionalization of the mediation services, and in part due to the fact that migrant workers are not empowered to enforce their rights in any dispute with a recruitment agency. Few workers are able to access legal assistance or legal advice, and the limited pre-departure information they receive does not address the substantive and procedural information necessary for accessing remedies for contractual or other rights violations.Footnote 83 As a result, the mediation process appears to be divorced from migrant workers’ legal rights. Because the power asymmetry between workers and recruitment agencies remains largely uncorrected, workers simply accept—as is rational in this skewed context—a compromised outcome where compensation is far less than the amount to which they are entitled under the contract.Footnote 84 As described by one migrant worker advocate, the experience of seeking remedies through alternative dispute resolution programmes is one where “in almost all cases the worker loses something”.Footnote 85
The situation is similar in other Asian countries of origin. Even though migrant workers may have strong legal rights, enforcement mechanisms do not provide them with meaningful access to remedies. For example, under Nepal’s Foreign Employment Act, a recruitment agency must, among other things, show the government a copy of the agreement between the worker and the agency in order to send a migrant worker abroad.Footnote 86 Although Nepali law does not specify the required content of such contracts, this appears to have little impact because, in practice, recruitment agencies do not provide recruitment contracts to migrant workers at all.Footnote 87 Nepal also imposes statutory liability on recruitment agencies if the employment conditions differ from those promised in the employment contract provided to the worker before his or her departure.Footnote 88 A recruitment agency is liable for compensating “the shortfall in remuneration and facilities”, and can be prosecuted if the agency’s staff intentionally misled the worker.Footnote 89 Even in cases where an agency did not mislead the worker, if the employment conditions differ from those promised, the agency remains liable for compensating the worker’s recruitment fees.Footnote 90 However, similar to the case in Indonesia, the procedural mechanisms through which migrant workers may enforce their rights against recruitment agencies remain inaccessible to most migrant workers, and a significant portion of migrants who do seek remedies “settle” their cases, presumably walking away with far less than their legal entitlement.Footnote 91
The “amicable settlement”Footnote 92 problem afflicts even the Philippines, often hailed as the gold standard in recruitment governance because recruitment agencies may, under law, be held jointly and severally liable for employers’ breaches of the employment contract.Footnote 93 Although the Philippines has established institutions and dedicated mechanisms for the resolution of joint and several liability (JSL) compensation claims, the adjudicating bodies for such claims are inadequately funded and slow.Footnote 94 Many migrant workers simply settle their claims at the outset for a fraction of what they are owed, and never progress to adjudication of the claim and enforcement of their legal rights,Footnote 95 presumably because immediacy of payment is of paramount importance to returned migrant workers, and also because the alternative is a prolonged and costly adversarial process. Indeed, of the 4,050 claims filed by workers in 2013, 3,000 were “resolved” through mediation before reaching the JSL adjudication mechanism.Footnote 96 As in Indonesia and Nepal, Filipino migrant workers are not entitled to free legal representation during these preliminary negotiations with recruitment agencies, and there are few sources of affordable legal assistance,Footnote 97 raising significant questions about the true amicability and fairness of settlement outcomes.
It is clear from the discussion above that neither courts nor alternative dispute resolution programmes are systemically enabling migrant workers to enforce their contractual rights in relation to recruitment agencies. Current regulatory instruments do not adequately address the implementation and enforcement of laws regulating the content, execution, and enforcement of contracts. The lack of a migrant-centred approach to contractual regulation is similarly reflected in the failure to design contract oversight and enforcement mechanisms with the actual experiences, needs, and vulnerabilities of migrant workers in mind. In turn, this has left migrant workers un-empowered to demand, understand, or enforce their contractual rights, and has enabled recruitment agencies to continue to violate workers’ legal rights with impunity.
III A RIGHTS-BASED APPROACH TO THE GOVERNANCE OF RECRUITMENT
This section outlines the defining principles of a rights-based recruitment governance framework in countries of origin,Footnote 98 and considers how such a framework might address the particular challenges to migrant worker protection within the recruitment regulatory contexts outlined above. Anticipating scepticism about the practical viability of a rights-based approach, this section goes on to identify a number of structural and practical barriers to enforcement of existing protective laws and policies, and illustrates how they could be addressed within the framework.
A Key Elements of a Rights-based Recruitment Governance Framework
1 Establishment of rights-holders and duty-bearers in law
A rights-based approach to labour migration governance begins with a legally and socially entrenched conceptualization of migrant workers as rights-holders. Though it may sound tautological that regulations focused on migrant workers should be migrant-centric, in reality, such migrant-centric regulation remains uncommon in many countries of origin, where regulation of recruitment is still primarily directed to maximizing numbers and the efficiency of worker placement abroad.Footnote 99
Therefore, a rights-based recruitment governance strategy must begin with the development of regulatory frameworks which place primary significance on the protection of migrant workers. This includes the establishment in law of specific rights held by migrant workers, and well-defined duties owed to migrant workers by the state and by recruitment agencies, individual sub-agents, and other private actors. State responsibilities should be clearly assigned under law to particular accountable government ministries or institutions, with delineated responsibility-sharing in the case of overlap. To enable enforcement and remedies for breaches, laws and regulations should establish the consequences for non-fulfilment of state and non-state actor responsibilities, such as those for a recruitment agency that fails to provide a worker in a timely manner with his or her contract or with mandated pre-departure information, as well as mechanisms through which those consequences are triggered.
Legal rights and responsibilities should reflect the realities of migrant workers’ recruitment experiences. For example, laws regarding information that must be provided to prospective workers about positions abroad should account for the fact that workers often make the decision to migrate based on information provided by individual agents and brokers as opposed to recruitment agencies.Footnote 100
Finally, if there is to be any realistic prospect of implementation, responsible actors must know and understand the content their obligations and how they ought to apply in practice. Both recruitment agencies and the government agencies overseeing them would benefit from clearer and more detailed information and training on their responsibilities, including guidance on forms of mandatory, permissible, and impermissible conduct.Footnote 101 Such guidance can also be provided in the form of codes of conduct for the migrant worker recruitment industryFootnote 102 that expand upon the content of core legal obligations. With respect to female migrant workers, the Committee on the Elimination of Discrimination Against Women (CEDAW) recommends that states “[r]equire recruitment agencies to participate in awareness-raising and training programmes and sensitize them on the rights of women migrant workers, the forms of sex- and gender-based discrimination, the exploitation women could experience and responsibilities of agencies towards the women”.Footnote 103
2 Enforcement of rights and responsibilities: ensuring transparency, accountability, and access to remedies
A central tenet of a rights-based approach is the enforceability, and enforcement, of migrant workers’ rights and the obligations of the state, as well as states’ enforcement of the legal responsibilities of recruiters and other non-state actors. This requires the development and adequate resourcing of necessary institutional infrastructure to enforce laws governing recruitment industry conduct, including ongoing monitoring and investigation—both routine and in response to migrant worker complaints. Institutions must also be capable of ensuring the accountability of agencies and individuals responsible for misconduct. This includes accountability for misinformation, for deception of workers in relation to salary and conditions of work abroad,Footnote 104 and other fraudulent conduct such as charging of improper fees and costs. Under the UN Migrant Workers Convention, states are also required to prevent private agencies and others from confiscating workers’ identity documents, and to ensure that workers can access remedies when this occurs.Footnote 105 Similarly, accountability is critical for other kinds of non-monetary harm, such as physical confinement or abuse in recruitment agency training centres.
A rights-based approach also requires that states ensure non-repetition of rights violations by preventing agencies and individuals who repeatedly engage in such conduct from future involvement in the recruitment of migrant workers. This can be achieved by making renewal of recruitment licences contingent upon compliance with migrant protection responsibilities which extend beyond current basic corporate governance and financial solvency requirements, and by developing the institutional capacity necessary to conduct ongoing compliance audits. Resources should also be allocated to achieving greater transparency in licensing by ensuring that individuals associated with deregistered agencies cannot form new agencies, and making publicly available current lists of compliant and deregistered agencies.Footnote 106
It is critical that such institutional processes and incentives operate as intended. In order to strategically regulate recruitment, countries of origin must understand the dynamic underlying conditions that drive or enable rights violations. In particular, they must understand and address migrant workers’ lived recruitment experiences as well as recruitment business models. This includes developing an effective governance framework for sub-agents,Footnote 107 as well as detecting and addressing unintended consequences of regulation and new business practices that emerge to circumvent regulation and that undermine rights protection.Footnote 108 This requires rigorous data collection and analysis. For example, state parties to the UN Migrant Workers’ ConventionFootnote 109 should be receiving, recording, and reporting information on migrant workers’ experiences, particularly regarding travel, migration-related fees and debt, and issues of rights and access to justice.Footnote 110 Data should be sufficiently detailed and disaggregated to enable a meaningful assessment of whether laws and policies are in fact protecting migrant workersFootnote 111 —a process that does not appear to be currently taking place in many South and Southeast Asian countries of origin.Footnote 112 The UN Committee on Migrant Workers also encourages states to develop systems for recording and reporting information on recruitment agencies, including through easily accessible web-based formats, focusing in particular on migrant worker complaints.Footnote 113 Civil society organizations (CSOs) and trade unions have already undertaken innovative recruitment data collection and dissemination programmes, and can serve as valuable partners of the state in these efforts.Footnote 114
Finally, a rights-based governance framework requires the creation of institutions and processes that enable and ensure that migrant workers can enforce their contractual and other legal rights.Footnote 115 This includes ensuring that workers can obtain remedies both at home and abroad for violations of the obligations of government and the private sector, including remedies provided by recruitment agencies.Footnote 116
Access to remedies requires more than just the mere existence of redress mechanisms. Under a rights-based governance approach, remedies must be meaningfully accessible in practice, in terms of geography, practical constraints, legal assistance, and transparent procedures. States must also ensure that migrant workers understand and are aware of procedures for accessing remedies.Footnote 117 Redress must be timely, recognizing that compensation is needed immediately to remedy the economic strain of migration debt that saddles underpaid or injured workers and places them at risk of falling back into poverty. Redress mechanisms must also be grounded in migrant workers’ legal rights, so that mediation and dispute-resolution schemes do not systemically result in recruitment agencies paying migrant workers less compensation than they are due by exploiting migrant workers’ desperation for a timely payment.Footnote 118 Remedies must be enforceable and subsequently enforced by state authorities when granted.Footnote 119
3 Migrant worker empowerment and participation
Under a rights-based approach, the content and implementation of relevant laws and policies must also address the structural and multilayered vulnerability and exclusion of prospective, current, and returned low-wage migrant workers and their families.Footnote 120 It must emphasize their participation and empowerment throughout the migration process.Footnote 121 For example, participation of migrant workers, civil society organizations, and trade unions is especially important in the context of the licensing and investigation of recruitment agencies. Such participation would enable those processes to better reflect agencies’ treatment of migrant workers in practice.Footnote 122
In order to enable migrant workers’ participation and empowerment within governance regimes, states must also address information and power asymmetries between migrant workers and recruitment actors that create the conditions for abuse. In the longer term, this might involve states exploring the use of technology or other means to enable migrants to directly access the job market and other information, as well as exploring government-to-government recruitment schemes to decrease reliance on recruitment intermediaries. In the immediate term, this requires addressing the vulnerabilities of particular groups of migrant workers, including women, when regulating workers’ access to information pre-departure and while abroad, in order to prevent rights violations. Provision of information to prospective migrant workers is a core state obligation under the Migrant Workers Convention, and applies to all prospective, current, and returned migrant workers regardless of whether they travel through regular or irregular migration channels.Footnote 123 Critically, states must ensure that every migrant worker receives and understands his or her recruitment and employment contract before agreeing to work abroad, and that workers and their families retain copies of those contracts.
4 Incorporation of international human rights and labour rights standards
According to the UN Office of the High Commissioner for Human Rights, a human rights-based approach is one that provides practical guidance and concrete tools to enable states to implement the fundamental normative principles contained within the human rights legal framework.Footnote 124 In the labour migration context, this legal framework incorporates core labour rights,Footnote 125 human rights,Footnote 126 and anti-traffickingFootnote 127 conventions, supplemented by a range of relevant non-binding UN and International Labour Organization (ILO) instruments as well as key non-binding subregional instruments.Footnote 128 Collectively, these instruments provide migrant workers with rights that are specific to the labour migration context,Footnote 129 as well as general rights to equal treatment, to due process before the law, and to remedies for rights violations, among others.Footnote 130
A number of international legal instruments and non-binding regional instrumentsFootnote 131 directly address states’ obligations with respect to migrant worker recruitment. For example, the 2014 ILO Protocol to the Forced Labour Convention requires states to prevent abusive practices in recruitment and to ensure migrant workers’ access to appropriate and effective remedies, including compensation.Footnote 132 The associated 2014 ILO Forced Labour Recommendation sets out relevant measures that states should undertake, including ensuring that workers receive detailed and transparent contracts, and establishing adequate and accessible complaints mechanisms.Footnote 133 The 2011 ILO Domestic Workers Convention similarly requires states to “ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers”.Footnote 134 Most South and Southeast Asian countries of origin have not yet ratified the Forced Labour Protocol and other key ILO instruments that directly address recruitment.Footnote 135 However, the Protocol is relevant to states’ obligations regarding the prevention of forced labour under the underlying ILO Forced Labour Convention, to which most countries of origin are parties.Footnote 136
A number of UN human rights treaties also establish obligations and guidance to states on migrant worker recruitment, and have been more widely ratified by Asian countries of origin than relevant ILO instruments. For example, the Migrant Workers Convention, ratified by four major South and Southeast Asian countries of origin,Footnote 137 requires states to effectively license, regulate, supervise, and monitor recruitment agencies, brokers, and other intermediaries to ensure they respect the rights of migrant workers.Footnote 138 This includes establishing a range of formal, regular, transparent, and state-regulated mechanisms for supervising recruitment, among other things.Footnote 139 Though it does not explicitly address migrant recruitment, the widely ratified Convention on the Elimination of All Forms of Discrimination Against Women has been interpreted by its supervising treaty body as requiring States Parties to regulate and monitor recruitment, and to provide training and other protective measures in order to fulfil women migrant workers’ fundamental human rights.Footnote 140 This includes the decentralization of training and other services in order to fulfil obligations to women in rural areas.Footnote 141
Migrant workers’ testing and enforcement of their convention rights in relation to countries of origin have generally remained limited within international forums.Footnote 142 Nevertheless, states are receiving increasingly detailed practical guidance on the implementation of their treaty obligations from the ILO and the human rights treaty bodies that can support the application of a rights-based governance framework in practice. This includes General Comments specific to particular groups of migrant workers such as women and workers in an irregular status,Footnote 143 as well as Concluding Observations to particular states under various human rights treaties that evaluate migrant worker recruitment laws and practices and make recommendations for reform.Footnote 144
B Overcoming Structural and Practical Impediments to Enforcement
Sceptics may reasonably question whether a rights-based approach to governance can have an impact in countries of origin beyond hortatory inspiration, given that many protective laws already exist in these countries and are not enforced, and that non-compliance with current laws is often driven by entrenched structural and commercial forces operating transnationally. This section tackles each of these challenges by identifying key obstacles to enforcement, and by indicating ways in which the proposed framework can in fact enable more effective solutions than are available via current approaches.
1 Transnational structural drivers of non-compliance and inflated recruitment costs
Oversight of recruitment is undermined by structural forces that drive non-compliance, undermining protection and fulfilment of migrant workers’ rights. These forces include a dense nesting of poverty and unemployment at home, wage differentials between origin and destination countries, the oversupply of migrant labour compared with the demand in low-wage industries,Footnote 145 large numbers of recruitment intermediaries competing for a limited supply of overseas jobs, and a business culture in which employers and their suppliers do not expect to bear the costs of recruiting low-wage migrant workers. These factors create fertile ground for deceptive and extortionate conduct throughout the transnational migrant labour recruitment web. In particular, they enable destination country recruiters and employers to demand fees, bribes, and kickbacks from their origin country counterparts (or directly from workers themselves)Footnote 146 in order to obtain access to jobs for which recruitment agencies compete across Asia and globally. This commonplace extortion is fuelled by charges passed down the recruitment chain to workers, undermining the commercial competitiveness of “ethical” origin country recruiters that do not charge workers fees, pay bribes to destination country agents, or require the end user in the destination country to bear the costs of migrant recruitment. This situation is replicated in the relationships between origin country recruitment agencies and individual sub-agents at the village level, who compete for access to overseas jobs and commissions that local recruitment agencies control.Footnote 147
This context presents significant obstacles to the elimination or substantial reduction of recruitment fees,Footnote 148 including the need for transnational structural reforms to migrant worker recruitment and employment business models. Such reforms must involve governmentFootnote 149 and industry in destination countries, and are difficult if not impossible for countries of origin to implement alone.
Attempts at innovative reform are beginning to take place in destination countries. These include anti-trafficking and anti-forced labour initiatives by a variety of multinational companiesFootnote 150 and state procurers of goods and services,Footnote 151 which require that no actor in their supply chain charge migrant workers fees. These schemes could create a market for non-fee-charging recruitment agencies in countries of origin, realistically enabling countries of origin to enforce their legislated fee limitations. However, the schemes can only succeed if industry expectations are transformed and destination country corporations and state procurers expect to bear the legitimate costs of recruiting low-wage migrant workers, as they already do for mid- and high-wage foreign workers.Footnote 152
Industry reform must also be underpinned by governance initiativesFootnote 153 in countries of destination and origin to commercially incentivize regulatory compliance, and to systemically penalize misconduct. To this end, scholars have recommended joint liability regimes that make beneficiaries of migrant labour responsible for misconduct in recruitment within their supply chain.Footnote 154 Though driven from the destination country, such approaches will only work when regulation is effective in countries of origin: employers in destination countries are only able to ensure that their suppliers are not charging fees if, in fact, a market of non-fee-charging agents exists in countries of origin and is effectively monitored by those governments, all the way down to the village level. Therefore, countries of both origin and destination have indispensable roles to play in overcoming present obstacles to recruitment fee elimination through governance frameworks that transform recruitment business models. These may be reflected or initiated through bilateral agreements between countries of origin and employment.Footnote 155
Finally, there may be opportunities for countries of origin and destination to address fee charging more transparently and systematically by addressing statutory and contractual governance of the transnational commercial relationships between recruitment and placement agencies in countries of origin and destination.Footnote 156 This is an area that has received particularly limited consideration within the scholarly literature, and is rarely addressed within bilateral agreements entered into by Asian countries of originFootnote 157 as money continues to change hands across borders in a manner that is opaque and underregulated.
2 Local structural and practical challenges to enforcement within countries of origin
Transnational structural challenges related to perverse fee incentives for the various actors are not the only barriers to the implementation of a rights-based recruitment governance framework. There are numerous other practical and political obstacles which impede recruiter accountability and undermine migrant worker empowerment and rights protection that, in contrast to fee elimination, can be unilaterally addressed by countries of origin.
First, countries of origin can take a more systematic, co-ordinated, and transparent approach among government ministries and institutions responsible for oversight of recruitment and migrant protection. This includes better integrating the services and responsibilities of foreign affairs ministries, labour or manpower ministries, and specialized labour migration bodies, as well as law enforcement agencies with jurisdiction over the investigation and prosecution of labour trafficking cases. In numerous countries of origin, current jurisdictional and functional overlaps and gaps among these institutions and between levels of government (national, state, local) result in diminished oversight of recruitment actors and weaker protection and support for migrant workers to enforce their rights.Footnote 158
Countries of origin can also ensure that institutions tasked with overseeing recruitment and handling of worker claims are adequately resourced, and that they have the capacity, procedures, support schemes, and expertise necessary to ensure that migrant workers can meaningfully access remedies against recruitment agencies,Footnote 159 and/or access insurance payouts to which they are entitled.Footnote 160 States can ensure that government pre-departure services and redress mechanisms address worker experiences and vulnerabilities, and are effectively decentralized and accessible to the vast majority of migrants who live far from the capital.Footnote 161 They can also ensure that recruitment agency licensing is linked with migrant worker protection, and accompanied by procedures that are transparent and robust, and which engage migrant workers in decision-making and outcomes.Footnote 162 Compliance with licensing conditions can be enhanced by introducing, alongside penalties for non-compliance, regulatory incentives for recruitment agencies that comply with (or go beyond) minimum protection requirements contained in regulations or in industry self-regulation codes or independent monitoring frameworks. For example, agencies could be offered rewards such as streamlined licence extensions, waivers of certain compliance requirements, tax incentives, expedited processing of employment contracts, public listing as a recommended agency, reduced monitoring supervision after a period, or offers to fill quotas under bilateral agreements.Footnote 163
On a related note, states can better target government services and oversight to address the different recruitment experiences and vulnerabilities of certain groups of migrant workers, including female workers and workers travelling along particular migration corridors or working in particular sectors, consistent with non-discrimination obligations and state responsibilities to ensure women’s attainment of substantive equality.Footnote 164 For example, local branches of Indonesian national government ministries have important oversight functions concerning recruitment, but they have historically failed to oversee the recruitment process for the particularly vulnerable group of workers from poor communities going to the Middle East (mostly women), because Middle East recruitment agencies are based only in the capital, Jakarta, and have no local presence.Footnote 165
Countries of origin can develop oversight and accountability mechanisms for sub-agents that more effectively protect migrant workers by ensuring that such frameworks reflect the realities and diversity of migrant workers’ actual recruitment experiences, and are designed to promote systemic accountability, non-repetition of harms, and access to remedies. This includes taking into account the impact on governance of, for example, the social ties that many migrant workers have with their respective sub-agents. As noted in Section II.A.3 above, it is possible that the Nepalese model, or an alternative model,Footnote 166 could be designed, implemented, and enforced in a manner that achieves these goals. Further research and pilot projects are required to determine the form of regulatory model(s) that would most effectively ensure accountability and worker protection in relation to sub-agents, and how such a model ought to be operationalized and enforced in the light of migrant worker experiences. Given the commonality of this challenge across South and Southeast Asia in particular, this is an area that would especially benefit from collaborative approaches to research and development of good practice among countries of origin.
To address the inevitable limitations in foreign employment laws and their implementation, countries of origin can also examine the role that other areas of domestic law can and should play in a rights-based approach to the regulation of recruitment and labour migration more broadly. These include rights, responsibilities, and remedies under employment and workplace law, immigration law, criminal law (including general crimes such as fraud, as well as specific anti-trafficking laws), contract law, commercial law, financial and lending regulatory law, insurance law, industry-specific laws (including laws regulating travel agencies, transport companies, medical examination providers, and training service providers), and potentially consumer protection law in relation to misleading or deceptive information provided to prospective migrant workers. Each of these areas of law offers further potential to give content and force to the rights of migrant workers in contexts in which law, processes, institutions, and expectations of enforcement may be more robust than in the foreign employment arena.
Finally, countries of origin can institute measures to tackle corruption and collusion at various levels of government and the recruitment industry that undermine accountability. Most of the countries from which migrant workers originate are developing countries that lack robust judiciaries, government transparency, and entrenched rule of law principles to guard against corruption. This presents formidable obstacles to the enforcement of a rights-based recruitment governance framework, as migrant worker protection continues to be significantly undermined by systemic corruption and collusion between recruitment agencies and government, and by collusion between recruitment agencies and other merchants of labour in the destination country and at the village level at home. For example, in March 2014 the Cambodian Labour Minister announced that promising new recruitment agency regulations will be enforced and that inspections will be conducted.Footnote 167 The manager of a Malaysian-owned recruitment agency operating in Cambodia reportedly responded: “As we know, in Cambodia, everything can be bought. None of the local [recruitment] agencies will fail the inspection—they know how to do business.”Footnote 168
Corruption is a complex and systemic phenomenon that requires broad anti-corruption programmes and the political will to tackle its pervasive influence. However, there are specific measures to reduce corruption within the recruitment industry that—focused on relevant agents, processes, and incentives for realizing rights—are not complex to introduce, and would have a significant effect. For example, the Philippines prohibits government officials and their families from holding financial interests in recruitment agencies as a condition for licensing,Footnote 169 and prohibits recruitment agency directors from involvement in the management of a travel agency.Footnote 170 Measures may also include disintermediation initiatives that enable migrant workers to access job information and services directly online,Footnote 171 reducing opportunities for corruption and forcing recruiters to compete for transparency and the quality of services they provide. Migrant workers’ access to technology may also reduce fraud and corruption issues related to the withholding, falsification, and substitution of migrant workers’ contracts and identity documents.
Ultimately, overcoming any of these obstacles will depend on political will within the countries of origin. Though corruption certainly contributes to weak political will to meaningfully address misconduct in recruitment, it is not the only factor. Countries of origin compete with each other for access to labour markets and remittance opportunities abroad, and may be reluctant to undermine their desirability as a worker source country if they enforce recruitment restrictions that make recruitment from their country more difficult for employers.Footnote 172 Even when there is political will for stronger governance, there are limited resources available in developing countries for the enforcement of recruitment regulations amid competing domestic priorities.
However, even on purely economic terms, political will for a rights-based recruitment governance framework may be strengthened by promoting the strong national interest in reducing the social and economic costs of abusive recruitment practices that impede sustainable development. These include the long-term economic costs to migrant workers, their families, communities, and indeed the national economy of inflated fees paid to private recruiters and related high-interest debt, of receiving wages (and remittances) lower than those promised to the worker when she decided to migrate at significant cost, and of having no accessible means for seeking compensation for those losses. These financial costs sit alongside the social and economic burden of unremedied physical and psychological injuries sustained abroad as a result of abusive recruitment practices or inadequate preparation for migration, often with long-term consequences for the worker’s future earning capacity and social relationships. Studies which quantify these costs and demonstrate the scale of recruitment abuses may increase political will to institute rights-based reforms, as opportunities to access the expanding marketplace of jobs within transnational supply chains requires fair recruitment practices.
These economic bases for reform may lend support to both law-makers and policy-makers who are already championing reform.Footnote 173 Indeed, within most if not all countries of origin, there are growing pockets of political will for reform that can be supported and expanded, particularly if accompanied by increased popular support for fairer recruitment practices. This is a longer-term challenge for migrant worker advocates who could be aided by a change in public discourse and media coverage beyond harms perpetrated against origin country nationals by employers abroad, to focus on abuses inflicted or enabled at home, and the personal as well as systemic social and economic impact of failures to adequately address them.
IV CONCLUSION
A rights-based framework for labour migration governance has the potential to significantly improve migrant worker protection and the accountability of state and non-state actors for rights violations. Presently, while the tendency of scholars and states has been to focus on destination countries, this paper has articulated why any such framework must take into account the fact that every labour migration story begins and ends at home, in migrant workers’ countries of origin—and much that is protective and enabling of migrant workers can be achieved in these contexts.
All countries of origin in South and Southeast Asia have developed laws, regulations, policies, and contractual frameworks to govern migrant worker recruitment. Yet, as this paper and the new empirical studies it references illustrate, in the absence of a migrant-centred and rights-based approach to regulation, these legal instruments often fail to adequately protect migrant workers and to prevent misconduct in recruitment. They are equally failing to achieve accountability within the recruitment industry and to provide workers with remedies when their rights are violated. Even the best designed of these instruments are often not implemented and enforced by governments, and the burden placed on migrant workers to enforce their contractual rights and the obligations of relevant private actors cannot be met.
A rights-based recruitment governance framework is neither a panacea that will end all ills overnight. Nor does it simply involve the creation of rights and obligations under law—though this is a critical component. Rather, it provides a lens through which the impact of governance frameworks on vulnerable migrant worker groups can be better understood and addressed. Viewed through that lens, countries of origin would observe, for example, that the actual recruitment experience of many workers differs from the hypothetical experience on which laws and policies are based, including the central role played by unaccountable individual sub-agents at the village level. Countries of origin would appreciate the overwhelming importance of timely and full compensation, as well as other remedies to migrant workers who have been underpaid or mistreated abroad, and who risk falling back into poverty upon their return home. Additionally, countries of origin would recognize the limited value of redress mechanisms that are practically inaccessible (due to factors such as cost, geography, and lack of legal assistance), ineffective (for example, due to skewed power relationships and lack of decision-maker expertise), or that do not enable workers to obtain timely payment from recruitment agencies or insurers (typically due to poor institutional processes, inadequate resourcing, and lack of oversight).
Countries of origin would also recognize where the agency of potential and current migrant workers could be drawn on and supported to powerful effect. Such states would observe, for instance, that migrant workers and their families and representatives know the most about the performance of particular recruitment agencies and sub-agents, and could contribute information to the licensing, investigation, and oversight of the recruitment industry that would ensure better protection and accountability if such processes were transparent and allowed for workers’ participation.
Countries of origin would understand the importance of ensuring that migrant workers receive the information they need before departure, while abroad, and upon their return, in order to understand their legal rights and be in a position to enforce them. This includes ensuring that workers receive and understand their recruitment and employment contracts before they decide to migrate abroad, and that copies of those documents are readily available to workers and their families throughout the migration process. It also includes ensuring that job-related information provided to migrant workers by sub-agents and recruitment agencies is correct, and that recruitment agencies and individual sub-agents are held accountable to migrant workers and the state for deliberate misinformation or deception about salary or other conditions of work, as well as for improper fee-charging.
There are certainly formidable challenges to the implementation and enforcement of rights-based recruitment governance frameworks in migrant workers’ countries of origin, not least the need for transnational collaboration with destination countries on efforts to restructure recruitment business models in order to eliminate recruitment fees and bribery. Nevertheless, this paper has elaborated a range of measures within the jurisdiction and control of countries of origin that would go a long way towards fulfilling the international obligations of origin countries and towards improving migrant worker protection and accountability within recruitment in the short and medium term. Leaders in countries of origin do have a path forward in the face of multidimensional challenges that are sometimes taken to be insuperable, if those leaders truly wish to look beyond their countries’ labour export goals and to prioritize the protection and fulfilment of the human rights of their migrant workers within an equitable sustainable development strategy.
