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Cornell International Law Journal Online

Navigating the Connection Between Migration Policies and International Trade: Insights from the Arab Region, Vol. 56.2

Radwa S. Elsaman

29 Dec 2023

Introduction 

While widely explored, the link between international trade and migration remains debatable. Migration patterns often vary with political and economic environment. An argument could be made that trade policies are now being shaped in response to migration challenges. For instance, trade liberalization may decrease migration by opening developed countries’ markets to exports from developing nations, thereby lessening migration pressures. The underlying premise is that liberalizing trade and capital inflows can foster job opportunities in source countries which could result in decreasing the migration flow. 

The political dynamics of the Arab world, particularly after the Arab Spring, complicate the suggestion that trade liberalization is the sole determinant of the trade-migration relationship. Many Arabic countries grapple with political instability, lack of economic autonomy, and bureaucratic hurdles. The unequal distribution of wealth in tandem with social antagonisms, high unemployment, and a lack of political engagement were pivotal in driving demands for change through the uprisings of the Arab Spring. This led to evolving migration patterns, alongside labor migration and an increase in Arab refugee numbers. Moreover, the Arab states usually trade with the world through a limited range of products, mainly focused on oil exports, which reduces their ability to fully harness the benefits of globalization and trade integration.

Diverse patterns of migration have arisen in the Middle East and North Africa (MENA). The most common classification by the International Organization for Migration (IOM) classifies Arab migrants into three categories: forced migration and internal displacement, irregular and mixed migration, and labor migration. This paper examines these migration patterns, delving into the drivers of migration from traditional source countries in the Arab region, within other Arab nations and internationally towards the West. It also assesses the trade-migration connection in the Arab world, exploring the interplay between international trade and migration and considering whether they act as substitutes or complements.

  1. Arab Region Migration Patterns

According to the International Labour Organization (ILO)’s 2019 estimate of international migrant workers, the Arab region has 24.1 million migrant workers, comprising 14 % of the global migrant workers. The region shows the highest proportion of migrant workers in relation to its overall workforce, reaching 41.4 % in 2019, in opposition to the global average of merely 5 %. According to the IOM, Arab migrants include: forced migration and internal displacement, irregular and mixed migration, and labor migration. 

Forced migration and internal displacement

While voluntary migrants are defined as individuals who optionally change their countries of residence, and refugees are defined as those who relocate due to crises in their countries, the distinction between voluntary and forced migration in the Arab region is not necessarily clear. Specifically, Arab states exhibit divergence degrees of commitment to refugee laws and policies. Forced migrants in the Arab region encompass migrants displaced internally or beyond their states’ borders due to protracted crises. Examples of these crises can be found in Syria, Iraq, Libya, Sudan, and Yemen. Notably, the Arab world stands has become the world’s largest source of refugees. Similarly, the MENA Region, in 2020, hosted a number of migrants (including refugees) of 40.8 million and 22.2 million internal displacements. 

Considering the above figures, what is particulalry surprising is the limited involvement of Arab states in the international legal instruments that grant protection to refugees and stateless individuals. In other words, the discrepancy between the substantial regional displacement challenges and the comparatively low participation in these protective mechanisms is both unexpected and concerning. For instance, only six states ratified the Convention relating to the Status of Refugees concluded in Geneva on 28 July 1951.The same applies to the Protocol relating to the Status of Refugees concluded in NY on 31 January 1967. Also, three states ratified the Convention Relating to the Status of Stateless Persons concluded in NY on 28 September 1954, with 94 parties and 23 signatories. Similarly, only two states ratified the Convention on the Reduction of Statelessness concluded in NY on 30 August 1961 with its 75 parties and five signatories.

As a result, the United Nations High Commissioners for Refugees (UNHCR) has made substantial efforts to foster support to refugees across the region.  For instance, the UNHCR signed a memorandum of understanding with the League of Arab States (LAS) to create a global cooperative framework that addresses the needs of refugees in the Arab region while facilitating increased humanitarian access and immediate emergency response. Of particular significance are the UNHCR estimates indicating that more than half of the global refugee population and 40% of internally displaced persons are hosted in the Arab world. This, in turn, underscores the substantial commitment of resources, as nearly 50% of the UNHCR’s annual budget is allocated to operations in the Arab states.

Labor migration

The most substantial segment of migrants, both regular and irregular, originating from and residing within the Arab region is comprised of migrant workers. Labor migration includes individuals working in the informal sector, with the Gulf Cooperation Council (GCC) states emerging as a predominant destination for labor migration in the Arab region. Recently, Arabic migrants started to face more challenges than in the past, with the GCC states initiating strategies to substitute expatriates with nationals.  

The Kafala (sponsorship) system represents the GCC’s labor migration framework. Kafala is an official policy designated to oversee and supervise all GCC-based migrants. Kafala mandates that all migrants secure local sponsors who become in charge of the migrants’ visa and residency documents within a GCC state. This system usually requires migrants to commit to two-year employment contract, accompanies by an initial probation period during which the relevant employers hold the right to termination the said employment agreements at no cost. In practice, migrants do not initiate by terminating their employment contracts, particularly because many of them fund their migration expenses through loans, leaving them with limited autonomy to sever ties with their employers. Kafala is criticized for not only granting a sponsor control over migrant workers, but also for creating a barrier by obliging foreign workers to have a national ‘kafeel’ (sponsor), who levies part of the migrant worker’s income.

Kafala could  be characterized by the substantial power it bestows upon employers at the expense of the rights and freedoms of migrant workers. This system often forces regular laborers into irregular work circumstances due to its stringent restrictions. It’s not uncommon for migrants to abscond from their employers, a behavior that frequently arises in disputes since the Kafala system severely limits employee mobility, except under highly restricted conditions.

Surprisingly, most Arab states are parties to labor migration agreements with foreign countries. Examples include the 2014 “Agreement on Labour Co-operation for Domestic Service Workers Recruitment” between India and Saudi Arabia; the 2011 Memorandum of Understanding between the Government of the United Arab Emirates and the Government of India; the 2010 Memorandum of Understanding Between the Government of the Republic of The Philippines and The Government of Hashemite Kingdom of Jordan; the 2007 Memorandum of Agreement between the Government of the Republic of the Philippines and the Government of the Kingdom of Bahrain on Health Services Cooperation; the 2005 Agreement between the Government of Nepal and the Government of the State of Qatar Concerning Nepalese Manpower Employment in the State of Qatar; the 2001 Agreement on Manpower Between the Kingdom of Spain and the Kingdom of Morocco; the 1997 Technical Cooperation Agreement between the State of Kuwait and the Arabic Republic of Egypt Concerning Labor Force Movement; and others. Most of these agreements, memoranda of understanding, and protocols have common terms of general nature on protecting migrant workers from foreign countries. 

Nevertheless, the international bodies responsible for monitoring labor conditions in the Arab states share less optimism regarding the working conditions provided to migrant laborers in the region. For instance, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) requires the member states of the ILO to present the instruments ratified during the International Labor Conference to the respective authority responsible for enacting legislation or undertaking necessary actions in the relevant domain. The Committee reported the failure of most of Arab states to submit the required instruments. Likewise, the 2019 International Trade Union Confederation Global Rights Index designates the Arab region as the most challenging region for the labor rights and well-being of working individuals. The ILO Decent Work Country Programs, particularly in the GCC, show similar results. Around 140,000 migrant workers are in an irregular situation, many of whom have entered the country through exploitative recruitment practices. 

Irregular and mixed migration

Irregular migrants can be classified into three categories: individuals who lack proper entry documents, those who exceed the allowed duration of their visas (such as overstaying a temporary visa), and unauthorized employees. Irregularity is a status that does not necessarily happen when the migrant purposely breaks the law, but also if the law changes, affecting the migrant’s status. The regulations that determine whether a migrant is irregular include the regulations about entry, residency, or work. A migrant might enter a country the right way but stay irregularly, or they could enter and stay correctly but work irregularly. Accordingly, irregularity varies depending on the place, the time, and the applicable law, with the implication that the same situation might make someone regular in one region but irregular in another if the rules on visas or work are different. 

Irregular migration is a multifaceted issue that cannot be attributed to a single cause. The combination of economic, political, social, and other factors drive individuals to leave their countries to seek better opportunities and safe living conditions. Most irregular migration occurring towards Europe, mainly from North African Arab countries (Morocco, Algeria, and Tunisia). Some other irregular migrants go to the Gulf Cooperation Council. The number of irregular migrants in the Gulf was estimated in 2001 to represent at least 10% of the population and 15% of the workforce, most of whom are lower-skilled and domestic workers. The GCC is the top destination for irregular migration in the entire Middle East, mainly from Egypt, Syria, Jordan, Lebanon, and Yemen. Five types of irregular migration in the GCC exist as follows: “i) entering unlawfully into a country; ii) overstaying a valid residency permit, iii) being employed by someone who is not the sponsor iv) running away from an employer, or absconding, and v) being born in the Gulf to parents with an irregular status.”

As previously mentioned, one of the prevailing causes of irregular migration in the GCC is the “free visa” system. The term “free visa” applies to a system wherein the Kafel (sponsor) offers visas to migrants in exchange for levying fees or annual levies, with a primary intent not to employ the migrants but, rather, to grant them access to the country, allowing them to seek employment with a different employer. However, this practice conflicts with the Kafala policy. The outcomes include the fact that migrants who engage in such arrangements breach immigration laws, potentially exposing themselves to detention or deportation upon detection. It’s worth noting that in some instances, migrants might remain unaware of their involvement in a free visa system until they arrive in the country.

  1. The Interplay between Trade and Migration In The Arab States

Several Arab nations are parties to bilateral as well as multilateral trade agreements, reflecting their willingness to foster economic cooperation and integration. For instance, most Arab states in the Pan-Arab Free Trade Area Agreement, which aims at liberalizing trade exchange among Arab states. In addition, the GCC member states have, al-together, entered into the GCC Economic Agreement that serves as the regulatory framework governing trade exchange among the GCC countries. Meanwhile, as a unified entity, the GCC has established its presence in a number of free trade agreements, including the European Free Trade Association. Also, various Arab states have formed bilateral free trade agreements with key partners such as the European Union. Examples include Algeria, Egypt, Lebanon, Morocco, and Syria. Other countries have entered into free trade agreements with the United States, such as Oman, Jordan, Bahrain, and Algeria. 

Notably, a limited number of agreements including Arab states involve provisions on workers’ protection or labor mobility. The term “movement of workers” is explicitly features in the free trade agreements concluded between the European Union and the countries of Morocco, Egypt, and Algeria. These agreements mandate the signatory parties to engage in a dialogue on relevant social aspects addressing workers’ mobility and equal treatment of social integration for nationals. This dialogue shall encompass various issues such as living conditions of the migrants’ communities, migration dynamics, the challenges posed by illegal migration, and initiatives taken to promote equal treatment and prevention of discrimination. In addition, the European Union/Algeria agreement has a clause that specifically addresses the movement of natural persons providing services between Algeria and the community. As a result, national laws and regulations concerning entry, residency, employment, and labor conditions continue to apply further underscoring the nuanced nature of these agreements with regard to labor mobility and workers’ rights. 

Similarly, the US/Bahrain and Canada/Jordan free trade agreements incorporate distinct labor sections that call for a commitment to International Labor Organization requirements and the efficient enforcement of national labor laws. Remarkably, these agreements emphasize promoting trade by streamlining protections found in domestic labor laws. To ensure the implementation of these provisions, the US/Bahrain agreement outlines the establishment of a joint committee tasked with addressing relevant matters and evaluating the enforcement of these regulations. Finally, the GCC Economic Agreement briefly hint to the member states’ responsibility in adopting policies aimed at optimizing the employment of foreign workers. These elements collectively illustrate the nuanced approach taken by these agreements in addressing labor standards and promoting economic cooperation. 

  1. Conclusion 

The main pattern of migration in the Arab region is intraregional, involving movement from one Arab country to another, but there is also a growing trend of irregular migration towards the European Union. Intraregional migration can have economic and trade benefits. For example, irregular labor migration to the Gulf Cooperation Council (GCC) countries is driven by the preference for taking legal risks, such as potential detention or deportation, over the limited economic and employment prospects in their home countries. Employers, in turn, gain access to a workforce at reduced hiring costs. However, these migrants, particularly those in irregular status, often lack legal protection and are denied fundamental human rights, placing them in a precarious legal situation. This highlights the complex trade-offs and vulnerabilities that migrant workers face in the Arab region, with economic considerations sometimes taking precedence over their legal and human rights.

Yet, management of migration by European Union (EU) member states in the Arab region is usually conditioned upon implementing readmission agreements to foster stability and development in the region. Also, the conclusion of bilateral youth mobility is expected in addition to some job opportunities to the youth coming from the region but educated within the EU member states. 
Conducting comparative studies that juxtapose migration and trade policies among Arab states themselves and between the Arab region and Western countries can contribute significantly to the promotion of stability and development, not only within the region but on a global scale. By offering legal pathways for migrant workers, the proportion of immigrants participating in the formal economy is likely to increase, thereby enhancing their contributions to the host states’ economies. This dual approach aligns with efforts to create a more stable and prosperous future, both regionally and globally.

Radwa S. Elsaman is an adjunct professor of law at Cornell Law School who focuses on the Middle East and North Africa. She is also a lawyer and the rule of law advisor who has advised numerous governmental agencies including the World Bank Group, the USAID, IDLO, and the European Investment Bank as well as private sector entities in the MENA Region. Her research and practice areas include commercial law, international comparative law, international sustainable development, and gender equality.