INTRODUCTION
The COVID-19 pandemic has wreaked havoc on the entire humanity. Both rich and poor are facing the brunt of this pandemic. However, it is the poor who is severely affected. Both inter-state and inter-country migration of poor workers in search of work; has stopped. Although there are no or very minimal problems faced by the workers in the former, the same is not true with the latter. This is because across the borders, there is a different economy run by an altogether different government pursuing a particular ideology.
The World Trade Organisation [‘WTO’] has recently conducted a study on the effect of pandemic on the cross border mobility of workers, ultimately impacting the trade.[1] Labour issues which come within the domain of International Labour Organisation [‘ILO’] were discussed by the WTO. This research highlights the need of making the WTO solely responsible for dealing with the cross border movement of workers that comes under ILO as of now.
Why movement of workers beyond borders has so much significance?
When a person moves from one place to another in search of work, generally he gets settled at that place for a considerable period. His stay makes him the part and parcel of that society just like the original inhabitants of that place. However, such accumulation of people with a similar background over a long period of time makes the position of these migrated citizens stronger than the local people there. They begin to dominate the economy as well as the politics of that nation. Moreover, they also play a key role in the making of policies and decisions which are in the favour of their original motherland.
Example- “The ₹ 700 crore financial assistance offered by UAE to Kerala when it was suffering from floods in the state could be one of the examples of this. This decision was taken by the UAE Government, considering the large chunk of the population of UAE has its roots in Kerala. This announcement came when the Government of India offered only ₹ 600 crore to Kerala for relief measures.”[2]
Many times, countries facing immigration are often apprehensive about the interest of their citizens. The new entrants compete with the local people for resources and opportunities. To prevent this, the governments try to build up a mechanism in order to prevent the incoming of people in search of work from outside. This includes a stricter visa regime, imposing restrictive conditions like employment to only one spouse, etc. Sometimes, these policies are meant for one or two nations, even if prima facie they appear to be applied uniformly on all nations.
Example- The measures taken by the USA to prevent the immigration of people especially the workforce is a very recent illustration. “Under its America First policy, the US has introduced a series of measures targeting the workforce of foreign origin working in the country. This has led to an increase in the number of rejections of application for the extension of H-1B visas. Moreover, a cap has also been imposed on the number of visa applications that will be accepted each year. The worst affected community by these steps is the Indian community.”[3]
Limitations of working of ILO with respect to inter-border migration of workers
ILO considers the migration of workers to be a serious issue. However, it does not have any strict rules on it. Although, it has principles on labour exodus, they are not binding.[4] Further, during this movement of workers, they face many hardships including the rampant violations of labour standards such as trafficking, child labour, etc. which the ILO has miserably failed to address. Moreover, the ILO does not have a dispute settlement forum like WTO where the member nations can resolve their conflicts amongst themselves.
WTO: The Saviour
Article 2.2 of the Marrakesh Agreement expressly provides that the law made by WTO is binding on its member nations.[5] WTO has a mandatory jurisdiction that cannot be ousted by the parties to the dispute. Moreover, member states cannot take the defence that their domestic legislations conflict with the policies decided by the WTO. It is required for the member nations of WTO to allow for the free movement of persons beyond the borders to supply the services.[6] Further, the member nations cannot accord less favourable treatment to services or suppliers of services of one nation in comparison to another.[7] Further, this cross border movement (mode 4) is recognized as one of the four modes of rendering services under General Agreement on Trade in Services.[8] This issue of cross border movement can also be enforced by the WTO through its dispute settlement mechanism after suitable modifications.
A Line of Caution
Renowned Author Jagdish Bhagwati draws a line of caution to the idea of using WTO as a means of advancing Social and Moral Agendas in his book.[9] According to him, WTO as an institution should only be utilized to ensure free trade which otherwise may lead to a situation oftrying to kill two birds (i.e. social agendas and freer trade) with just one stone (WTO treaties and frameworks) causing failure in both. He rather suggests that an attempt to develop another stone or Pellet should be made. To advance social causes, he advocates for:
- Going to an appropriate international agency to do the job; and
- Relying upon the non-trade sanctions rather than the trade sanctions.
According to him institutions like the ILO can be more successful in safeguarding the interests of labourers than the WTO.First, the trade sanctions are usually not well-targeted to that problem. Second, they generally harden attitudes in the targeted countries. Even if a targeted country signs an agreement, problem in timely compliances arises. Third, since the sanctions are used by government that are themselves morally imperfect, the credibility of their actions on behalf of morality is necessarily suspect and breeds cynicism and evasion.
ANALYSIS
The suggestion of the researcher to bring cross border movement of labourers is not based solely on social aspect but has economic and trade-related issues as well. The economies are heavily influenced by the idea of ‘development’ and ‘growth’. These are further fueled by the ‘Ease of Doing Business’ Reports which is often considered as contrary to labour protectionist/welfare measures. Therefore, the countries often rely on the ‘Chinese Model’ where the standards or labour laws are diluted. However, this causes a ripple effect. This ultimately affects the flow of foreign direct investment which is a part of Trade-Related Investment Measures (a WTO framework).It also affects the trade of that country often resulting in boosts in exports. Although, no WTO obligation is violated here, it still may catapult the position of a country in economic and trade terms against other countries.This will result in a ‘race to the bottom’- in terms of labour standards which cannot be allowed.This issue becomes even more important in the light of the Covid-19 pandemic where the borders were closed and workers returned to their native countries.
CONCLUSION
ILO was created to set labour standards, make policies and set programme promoting decent work for everyone.[10] However, the performance of ILO in this regard is dismal. Only one of its convention has achieved universal ratification, without which the member states do take the necessary actions.[11] On the other hand, the WTO has largely remain successful in resolving disputes and taking proactive measures. It is mandatory for the states to comply with the directions of the WTO within a specified time, otherwise resulting in sanctions. The efficacy of WTO is such that even social welfare clauses/initiatives are implemented through the WTO. The pandemic has exposed the plight of workers in the cross border movement which they have been facing for a long time. Now it is high time that serious deliberations take place on assumption of the responsibility of these workers by WTO. The study on cross border mobility of workers is a welcome step but still there is a long way to go.
[1] Cross-Border Mobility, COVID-19 and Global Trade, chrome-extension://efaidnbmnnni bpcajpcglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Fwww.wto.org%2Fenglish%2Ftratop_e%2Fcovid19_e%2Fmobility_report_e.pdf&clen=408710&chunk=true.
[2] C. Gouridasan Nair, UAE offers ₹700 crore in aid to flood-ravaged Kerala, https://www.thehi du.com/news/national/kerala/uae-extends-700-crore-aid-for-kerala-floods/arti cle24743711.ece.
[3] Why the US and the world are turning hostile to Indian workers, https://economictimes.indiat imes.com/nri/visa-and-immigration/why-the-us-and-the-world-turn-hostile-to-indian-workers/art icleshow/63579399.cms.
[4] ILO Multilateral Framework on Labour Migration, Non-binding principles and guidelines for a rights-based approach to labour migration, https://www.unicef.org/socialpolicy/files/The_ILO_ multilateral_framework_on_labour_migration.pdf.
[5] Article 2.2, Marrakesh Agreement.
[6] The General Agreement on Trade in Services (GATS): objectives, coverage and disciplines, https://www.wto.org/english/tratop_e/serv_e/gatsqa_e.htm.
[7] Article II, General Agreement on Trade in Services, chrome-extension://efaidnbmnnnibpcajp cglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Fwww.wto.org%2Fenglish%2Fdocs_e%2Flegal_e%2F26-gats.pdf&clen=178351&chunk=true.
[8] Article XVI,General Agreement on Trade in Services, chrome-extension://efaidnbmnnnibpc ajpcglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Fwww.wto.org%2Fenglish%2Fdocs_e%2Flegal_e%2F26-gats.pdf&clen=178351&chunk=true.
[9] Jagdish Bhagwati, Free Trade Today, Princeton University Press, 2002, Pg. 67-80.
[10] About the ILO, https://www.ilo.org/global/about-the-ilo/lang–en/index.htm.[11] ILO Child Labour Convention achieves universal ratification, https://www.ilo.org/global/about -the-ilo/newsroom/news/WCMS_749858/lang–en/index.htm.
Saket Agarwal, Graduate, NLU Jodhpur.
Picture Credits: Organization for Security and Co-operation in Society
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