Introduction
Against the backdrop of empires and neo-imperial legacies, extraterritorial practices that extend domestic law into the jurisdiction of another sovereign state run against the grain of contemporary international law. Even where there is consent to such encroachments, extraterritorial regimes sit uneasily within the receiving state’s legal framework and raise questions about the legitimacy and, often, constitutionality of externally imposed regulations. Yet extraterritorial regimes designed to protect the human and labor rights of migrant workers are now an accepted, if not essential, part of the international legal landscape. A closer look at how these regimes operate in the Gulf region invites scholars to reconsider the structural features of extraterritoriality and their implications for the universal and multilateral ambitions of promoting temporary labour mobility.
The extraterritorial choreographies of jurisdiction that regulate human mobility from the Global South are often viewed through Giorgio Agamben’s concept of a “state of exception” or legal “black holes” in receiving and transit countries, whereby migrants on their journey to the Global North are rendered rightless.Footnote 1 Extraterritorial regimes designed by the fictional shifting of jurisdictional frontiers to avoid responsibility for legal obligations toward migrants are a familiar feature of migration law.Footnote 2 However, demands for migrant labor and its regulation have also produced a distinctive extraterritorial legal framework for the protection of migrants’ rights.Footnote 3 Reaching into host countries with legacies of migrant labor exploitation, the extraterritorial regimes of migrant sending states function as migration control and default protection mechanisms. Alongside such bilateral state practices, the expanding domain of transnational corporate responsibility constitutes fragmented labor protection by what Harry Arthurs terms “extraterritoriality by other means.”Footnote 4
This essay considers extraterritorial migrant labor regimes operating through diplomatic and consular practices, bilateral labor agreements, and transnational corporate responsibility, and how, within these regimes, rights are recast in terms of injuries to sending states, transactional claims, and reputational risks. The language of labor and human rights law permeates policy rhetoric around migrant labor, yet these regimes drive a distinctive logic of rights that departs sharply from the universal paradigm of rights anchored in international law. The focus of the essay is on the Gulf Cooperation Council (GCC) migration corridor, which has become the epicenter of the most complex extraterritorial regulatory matrix for temporary migrant labor.
Revolving Door Mobility and Bilateral Regulation
Interest in extraterritorial migrant labor regimes in the GCC states of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates is taking place amidst two rapidly developing trends. The first is a vogue for temporary migration schemes.Footnote 5 By 2024, temporary labor as part of regular migration pathways was at a “historically high-level” in OECD member states, reflecting a 26 percent increase over five years.Footnote 6 This is consistent with the non-binding state commitment under Objective 5 of the Global Compact for Safe, Orderly and Regular Migration to “develop flexible, rights-based and gender-responsive labour mobility schemes for migrants … including temporary, seasonal, circular, and fast-track programmes in areas of labour shortages.”Footnote 7 When situated outside the territory of their countries of origin, migrant workers are unable to effectively invoke the rights or enjoy the liberties guaranteed to them under their national constitutions. Vulnerabilities to labor exploitation are intrinsic to temporary, revolving door mobility. As these schemes increase, so will the demands for extraterritorial state protection.
The second trend is the accelerated evolution of extraterritorial state practice that aims to both manage migration channels and provide default protection regimes for these migrant workers. More bilateral labor agreements (BLAs) between sending and host states were signed between 2000 to 2020 than in the previous fifty-five years combined.Footnote 8 BLAs have been signed with increasing frequency in Asia and within the European Union, where it is estimated that roughly 120 BLAs have been entered into by seventeen member states, the vast majority since 2020.Footnote 9 The proliferation of these agreement raises concerns about the marketing of rights in the competition between sending and destination states and asymmetries in negotiating power. The risks involved have yet to be overcome by the ILO’s soft law templates and guidelines for a harmonized rights-based approach to BLAs.Footnote 10
BLAs have come to provide the foundational structure for extraterritorial migrant labor regimes, absent a global consensus on the nature and scope of migrant rights. The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) remains the lodestar for migrant protection, yet has been ratified by only sixty states.Footnote 11 The divide in ratifications is not North-South, but rather between receiving and sending states, with non-ratifying states including South Africa, Malaysia, Singapore, Thailand, and Indonesia, as well as the GCC and EU member states, Canada, the United States, and Australia. Footnote 12 In comparison to other universal human rights treaties, the low level of state ratifications makes the ICRMW an outlier. Overall, however, the ratification rate resembles that of more than half the multilateral treaties deposited with the United Nations.Footnote 13 Because migrant rights affect politically sensitive domains of migration, labor, social, and economic policy, they trigger the same kinds of sovereign resistance that non-ratifying states display regarding other multilateral treaty regimes, such as those governing environmental protection or security.Footnote 14
The GCC migration corridor exemplifies the revolving door of temporary migrant mobility. Ten percent of the world’s migrants work in GCC states and their remittances to the sending states of the Global South were the equivalent of 29 percent of global overseas development aid in 2023.Footnote 15 While the Kafala system is commonly analyzed as an Islamic practice, it is better understood as an oppressive variation of temporary sponsorship programs in destination states. Migrant visas are tied to employer sponsors who exert considerable control over job mobility and exit rights. Worker conditions in Qatar and the UAE have improved in tandem with significant legal reforms, but there remains considerable variation across the region and sectors, and between formal law and practice on the ground. Migrant workers continue to face widespread labor abuses, including passport confiscation, wage theft, excessive working hours, substandard health and safety conditions, and threats of deportation. In the absence of a right to collective bargaining, and with restrictions on civil rights in authoritarian states, extraterritorial regimes are a backstop for migrant protection. In the GCC migration corridor, BLAs are not merely migration management instruments. They provide the primary legal architecture through which key sending states aim to protect, to varying degrees, the labor conditions, welfare, and rights of their nationals.
Diplomatic Protection
Rights Are State Responsibilities for Injuries of Foreign Nationals
Diplomatic protection is foundational to the extraterritorial migrant labor regimes in the Gulf. It rests upon a doctrine of responsibility that stretches back to the eighteenth century writings of Vattel: a sending state can invoke the responsibility of the host state for an internationally wrongful act that causes injury to the rights of its nationals.Footnote 16 The doctrine scripts the responses of migrant-sending states to injuries of their nationals, moving from protest to demands for compensation mechanisms, as for instance with the establishment of a Claims Settlement Facility to provide reparations to Pakistani child camel jockeys exploited in the UAE. Footnote 17
With the revival in the GCC of the doctrine of protection of nationals abroad, international law provides one conduit for indirect discrimination based on national origin to enter into extraterritorial regimes. Historically, the doctrine requires a violation of the international rule that aliens be treated in accordance with a “minimum standard” of “civilised nations,” which has been progressively interpreted to be in line with international human rights treaties.Footnote 18 Protection remains contingent upon the discretionary espousal of claims of injury by their respective governments. Early twentieth century objections related to the doctrine’s unequal treatment of injured aliens who might enjoy higher standards than those applied to similarly situated nationals.Footnote 19 Today, the doctrine is likely to result in disparate treatment between migrant workers of different national origins, favoring those from states inclined to protest.
Other components of extraterritorial regimes constructed within the ambit of diplomatic and consular law are norm-generating, with some states establishing extensive consular services for migrant laborers. These pioneering practices, including wage benchmarking, safe houses for distressed migrants, and the use of technology for communication, monitoring, and welfare purposes, have shaped normative expectations for extraterritorial migrant regimes. This is particularly the case with [e]lements of the extraterritorial policies of the Philippines that are considered as best practice and cited in policy discussions of other sending states as standards to be achieved.Footnote 20
Exit bans implemented by the extraterritorial regimes of the GCC corridor are a distinctive extraterritorial state practice, whereby two legally wrongful acts are claimed to make a right. The legal suspension or prohibition by the sending state of the right of migrants to work in the offending host state can constitute a violation of the International Covenant for Civil and Political Rights that prohibits collective or overbroad restrictions on the “right to leave any country.”Footnote 21 In response to grave abuses committed against their domestic migrant workers in GCC states, Nepal, Indonesia, Sri Lanka, Ethiopia, Bangladesh, and the Philippines have halted or severely restricted the deployment of domestic workers to Gulf countries over different periods.Footnote 22 In addition to operating as a sanction to host states and a protection for migrants, exit bans may also provide future bargaining leverage.
Bilateral Labor Agreements
Rights Are Transactional
The role of bilateral negotiations in extraterritorial migrant labor governance embeds a transactional approach to rights that is reflected in the regulatory matrix of the GCC migration corridor. As instruments of migration management, BLA provisions on rights are typically formulaic and fail to address effective enforcement.Footnote 23 Sending states leverage the labor rights of workers to advance national strategic interests in maintaining migrant labor diaspora as part of national development strategies, as safety valves for high domestic unemployment, and, critically, as a source of remittances.Footnote 24 Conditions for migrant workers in host countries are subject to extensive negotiations between host and sending countries, a process distorted by the unidirectional flow of migrants and differences in negotiating power.Footnote 25 These dynamics also persist outside of formal governmental arrangements. In 2015, Saudi Arabia entered into a reported agreement with the Bangladeshi Association of International Recruiting Agencies (BAIRA), conditioning the sending of two male workers for every female domestic worker. In 2016, the Saudi embassy imposed a 25 percent female quota for male worker visas that was widely denounced as a break of official government agreements.Footnote 26
Rights Are Transparent Only by Discretion
Bilateral treaties are generally a source of law that remains “under the radar,” as Gabriella Blum has observed, with states failing to deposit the vast majority of bilateral treaties within the UN depository.Footnote 27 The extraterritorial regulation by sending states of migrant labor is notably opaque. Transparency regarding the conditions in BLAs according to which workers are recruited and employed, and their related rights in host and sending states, is discretionary unless mandated by domestic laws.
Rights Are Discriminatory by National Origin
Extraterritoriality through bilateral agreements constructs migrant mobility regimes with differential levels of protection. The transactional nature of rights and the uneven negotiation powers of sending states translate into differential conditions for migrant workers leading to endemic wage discrimination by national origin. For example, [t]he websites of Indian embassies in GCC states post “referral” wage benchmarks by sector for its migrant workers.Footnote 28 Platforms for domestic worker agencies explicitly stratify migrant domestic workers’ wages by nationality. Filipinas are typically in the highest tier for domestic workers, with higher compensation than “African,” Ethiopian, Sri Lankan, Bangladeshi, or Indonesian women performing the same services. The pay differential between tiers, by national origin, can approach 30 percent.Footnote 29 Extraterritorial regimes can entrench inequality among workers performing identical work.
Transnational Corporate Responsibility
Rights Are Risks
The cost of reputational damage to transnational entities is entwined with the concept of corporate human rights due diligence.Footnote 30 As labor standards are projected extraterritorially by non-state actors, the risks of their violations are classified, audited, and mitigated by compliance offices and an industry of specialized consultants.
The normative contours of extraterritorial regimes constructed around reputational risks have been shaped in the Gulf by the short-term hosting of global mega-events and the long-term establishment of transnational cultural and educational institutions where reputational risks are outsized. The façading of labor rights in these processes is often critiqued as various forms of “washing.” Nevertheless, extraterritorial migrant labor regimes are generating a complex process of normative change. The quest of GCC states to become global hubs in areas such as finance, sports, education, and AI means that their economic strategies rest heavily on international image. The 2022 Qatar World Cup offers a high-water mark and regime template for the interplay between UN bodies, the ILO, corporations, unions, and civil society actors in pressuring for labor reforms and rights enforcement.Footnote 31 Reputational risks also underlie extraterritorial regimes operating around educational and cultural institutions such as New York University Abu Dhabi, the Abu Dhabi Louvre, and Guggenheim. Following scandals regarding the mass abuse of migrant labor rights during construction, these institutions established enhanced codes of supplier conduct and compliance regimes.Footnote 32 Yet risks and standards are assessed differently by various transnational actors and local employers. When the stakes attached to reputational risk are high, and in the absence of genuine governmental transparency in the region, a transnational industry of compliance consultants assumes an amplified role in setting institutional labour standards and can engage in opaque forms of data collection, including with respect to recommended wage bands for migrant workers. Notwithstanding inherent conflicts of interest and the resulting risks of data distortion, this industry remains a low-visibility yet significant actor in the extraterritorial regimes around labour rights. Absent legal reforms and the political will of the host state to enforce strengthened and uniform labor standards, the exercise of transnational corporate responsibility can promise little more than fragmented pockets of enhanced protection for migrant workers.
Conclusion
The case study of extraterritoriality and migrant labor mobility in the GCC is a cautionary reminder of the impact of the underlying structural features of extraterritorial regimes that rest upon the bond of citizenship, bilateral bargaining, and state and corporate discretion. These regimes drive a logic of rights that is a distant relative of the paradigm of universal rights anchored in international law. They also illustrate the versatility of extraterritorial state practice in a world moving toward revolving door mobility, and the enduring precarity of migrant labor rights.
Open access
