• Need for improved 'source country - host country' pacts
• Report highlights need to ensure human rights and effective enforcement for employees

In sending employees of one country to another, if there is no agreement between the source country and the labour receiving country, the employees are likely to find them in a rather peculiar situation as they would have to manage their affairs alone in a foreign country where there is a great risk of being discriminated and being treated differently and less favourably than the employees of the host country who are engaged in similar occupations. To mitigate such incidents, countries have developed a tool in the form of ‘bilateral labour agreements (BLA)’, which govern the terms and conditions of employees who migrate for employment to a host country.

While Sri Lanka too has entered into a number of BLAs of a different nature, there is a need to further improve these, and to understand that a mere BLA does not protect the country’s workers in a foreign country. This was highlighted in a recent research paper titled “Bilateral Labour Agreements between Sri Lanka and Other Jurisdictions: A Critical Legal Analysis”, authored by researchers Wasantha Seneviratne, Darshana Sumanadasa, Akalanka Thilakarathna and Ranuli Senaratne, and issued by the Centre for Migration Research and Development (CMRD).

Under international law, a bilateral treaty can be identified as an ‘international agreement concluded between two subjects of international law, each possessing treaty making capacity’. In the same manner, a BLA can be defined as an agreement between a source State and a host State concerning the mutual exchange of employees, their rights, duties, and obligations, which are common and reciprocal for both the countries.

Sri Lanka’s BLAs

With regard to Sri Lanka’s situation, the research paper explained that a bilateral treaty, which is signed by Sri Lanka with another State, would not become a part of the domestic law, which could be utilised in a court of law to vindicate her or his substantive rights as guaranteed in the bilateral agreement.

In Sri Lanka, article 157 of the 1978 Constitution allows the Parliament of the country to sign a bilateral agreement with another State concerning the development of the national economy. However, such a bilateral agreement requires the passing of it with a two thirds majority in the Parliament to be made part of the law of the country. Therefore, the research paper noted that if the Sri Lankan Government signs a BLA with another country, in order to make it legally recognised in the country, it would have to be passed by the Parliament with a two thirds majority to make it legally enforceable under the domestic law of Sri Lanka. If not, a BLA signed between Sri Lanka and another country would not become a part of the Sri Lankan law as the country follows a dualistic approach in incorporating international law into domestic law. Explaining this, it further read that therefore, the implementation and enforcement of a BLA signed by Sri Lanka could become extremely problematic.

Noting Sri Lanka’s heavy reliance on overseas employment to bring foreign exchange to the country, the research paper added that in such circumstances, the Government of Sri Lanka has taken initiatives to sign memorandums of understanding (MoUs) and BLAs to increase the opportunities that are provided for Sri Lankan migrant workers to go abroad and bring foreign exchange to the country. The research read: “It can be observed that Sri Lanka, like many other Asian countries, have preferred to sign MoUs instead of BLAs. This may be due to reasons such as the convenience of signing a MoU as opposed to a BLA, the ease at which a MoU may be re-negotiated and amended according to the changing dynamics such as economic and social needs, and also because they are more suitable with regard to low skilled employees. Regarding such MoUs and BLAs, it becomes imperative to look at the factors that would have led to signing them, key provisions in such MoUs and BLAs, how such instruments have addressed human rights pertaining to migrant workers and their impact on the sovereignty of the countries involved.”

Noting this, the research paper looked into the nature of several BLAs Sri Lanka has entered, i.e. - MoUs with Bahrain and Kuwait, and Bilateral Agreements with Qatar, Afghanistan, the Seychelles, Italy, Israel and the Kingdom of Saudi Arabia.

Rights and obligations 

In analysing the contents of these BLAs, the research paper said that it was noted that none of the agreements pose a general or specific threat to the sovereignty of the country. It added however that some of the BLAs, such as the agreement with Qatar, prohibit the enjoyment of religious and political rights by migrant workers, which may hinder the possibility of any Governmental intervention if such rights are violated. Also, the BLA between Sri Lanka and Saudi Arabia does not protect the migrant workers from the application of Sharia laws as illustrated in the case of Rizana Nafeek. In contrast, the BLAs between Afghanistan and Sri Lanka, and Italy and Sri Lanka attempt to protect the rights of the migrants far greater than other BLAs discussed in this analysis. “However, when one compares the developments that have occurred regarding the protection of the rights of migrant workers at the international sphere in treaty law, customary law, and case law, the above discussed BLAs do not reflect the influence of such progress. Particularly, international human rights law and international labour law have a great impact on the protection of the rights of migrant workers. The international obligations undertaken by States parties under these international instruments and other sources of law require stringent commitment and appropriate actions from them as sending, receiving or transit countries. Yet, none of these international instruments have influenced the wording and substance of the BLAs from which such obligations are largely absent.”

Sri Lanka is a State party to several International Labour Organisation (ILO) Conventions. According to ILO sources, Sri Lanka is a Party to eight core ILO Conventions but not to the ILO Conventions, No. 97 (Migration for Employment Convention [Revised]) and 143 (Migrant Workers [Supplementary Provisions] Convention). Therefore, Sri Lanka has undeniable obligations to implement its treaty commitments through domestic laws as well as the BLAs signed with other countries, as per the research paper, which added that in light of the present situation, it is certain that Sri Lanka should pay a lot of attention to implementing international obligations effectively in all the actions that it takes. It further said that therefore, in entering to BLAs with other States, the country is undertaking an undeniable responsibility to uphold the commitments under those international obligations, and that the said BLAs should include stringent provisions to protect the rights and interests of the migrant workers who migrate to engage in remunerated activities in those host countries, which have signed the BLAs with Sri Lanka.

Conclusions

The research paper, in analysing the contents of the said BLAs, noted that none of the agreements pose a general or specific threat to the sovereignty of the country, and that therefore, it could be stated that Sri Lanka has paid careful attention to safeguard its national interests and national security in entering into the BLAs with other jurisdictions. Nevertheless, it has been observed that none of the above discussed agreements contain any mention of gender or gender specific provisions or agreements, which the research paper said is clearly a serious impediment and a lack of respect to Sri Lanka’s international obligations. It further observed that some of the BLAs do not protect the human rights and labour rights of the migrant workers as guaranteed under international human rights instruments and treaties adopted by the ILO. “Although Sri Lanka maintains an illustrious record of being a State party to several core human rights Conventions including the International Convention on the Protection of the Rights of All the Migrant Workers and the Members of Their Families of 1990 and relevant ILO Conventions, the BLAs signed by Sri Lanka hardly stipulate stringent provisions to guarantee those rights. It is clear that the BLAs under examination have not assured the right to equality and the freedom of non-discrimination of Sri Lankan nationals who migrate to foreign countries as workers,” notes the research paper, adding that, it is an apparent failure on the part of Sri Lanka in effectively discharging its international obligations undertaken at the international level by being a State party to those important international treaties.

It added that the BLA between Sri Lanka and Qatar is an example that depicts the inability of Sri Lanka to ensure the enjoyment of religious and political rights of the Sri Lankan migrant workers in Qatar which has placed the Sri Lankan workers in a fragile situation in the host country, and that the BLA between Sri Lanka and Saudi Arabia too reflects its inability to protect the migrant workers from the arbitrary application of Sharia laws to non-national workers in the host country. Despite the few satisfactory provisions included in the BLAs between Sri Lanka and other jurisdictions, it was explained that the said BLAs do not reflect the influence of the international obligations undertaken by Sri Lanka through its membership in several international treaties and customary laws.

Bullet points

“Some BLAs do not assure the right to equality and freedom from non-discrimination for Sri Lankan nationals who migrate to foreign countries as workers.”

“BLAs are a mirror, which reflects the country’s commitment to protect its own people abroad to earn remuneration for the betterment of themselves, their families, and the country at large.”