Why doesn’t international law work to regulate labor migration? Researcher and lawyer Pedro de Sena gives the answers in his dissertation, even though the outcome felt a bit like ‘shooting yourself in the foot as a lawyer’. He explains in his dissertation the reasons for states preferring political frameworks instead of legal ones.
How did you get interested in labor migration?
‘I lived in Asia for 25 years and I witnessed the way labor migration was regulated. I saw how it was in place, or in some cases how it was not in place. It puzzled me. Labor migration is important for economics, people’s work and personal lives, and yet it’s sometimes so loosely regulated. In most cases international law is involved when it comes to exchanges between states. I wanted to know why international law is not effective when it comes to regulating labor migration.’
What did your research show?
‘That states are willing to cooperate on labor migration if the obligations they assume are less stringent. That’s why States prefer political frameworks instead of legal ones. These political frameworks might be less formal and have less legal force, but they are more effective. States become more willing to cooperate when they are not obligated to comply. Nonetheless, this type of cooperation ends up having some legal effects, since it helps to spread new norms, which are standards of behavior for states. That is what happened with the Global Compact on Migration: States established relevant political objectives, while keeping the freedom to choose the way how to achieve these goals.’
What would change if labor migration was regulated better?
‘A clear and strong legal framework would promote the interests of countries of origin and destination but above all the rights of migrant workers. A successful example is the efforts being made towards the implementation of the idea that workers should not support the costs with their recruitment. The Colombo Process, a Regional Consultative Process, bringing together countries of origin in Asia, has helped to diffuse this idea, with several countries adopting new laws with such goal.’
In what way does that change the situation for migrant workers?
‘Their situation can change quite a bit. In Asia there is a clear division between skilled and unskilled workers. The skilled workers are hired by headhunters, but it works very different for unskilled workers. They need to pay a lot of money to secure a working position in another country. So when they start, they are often already in huge debt. It’s hard to complain in that position because you can easily be replaced, and you want to get rid of your debt. Even if they are protected by law, these people are not able to defend their rights. This is a clear example of how a new norm about recruitment fees can benefit the workers. And states also benefit from placing more nationals abroad, benefitting, for example, from higher remittances.’
Pedro Pereira de Sena is an external PhD candidate researching on the general topic of international labor migration law at ACELG and the Department of Constitutional Law. He holds two master’s degrees: one LLM in Information Technology and Intellectual Property Law from the University of Hong Kong and an LLM on Public International Law from the University of London. De Sena now works in Portugal as a chief of staff at the state Secretary for Civil Protection. He will defend his thesis on 26th of April.
Is it hard to let go of that legal framework as a lawyer?
‘Recognizing the limitations of international law in the field of labor migration is a change in mindset. As a lawyer it feels a bit like shooting yourself in the foot. But we should recognize that the traditional solutions based on international law are not working when it comes to labor migration. The proof is the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which was a milestone but remains largely ineffective. So maybe we should shift our attention when it comes to creating an international legal regime in this field. It might not be relevant if states do something because they must comply with legal obligations or because they want to, if in the end they reinforce the legal regime on labor migration.’