Commissaire à l’admission aux professions

PROFESSIONAL MOBILITY AND RECOGNITION OF QUALIFICATIONS

RELEVANT INTERNATIONAL INSTRUMENTS AND DOCUMENTS

Review and Analysis By Laura Bosse Student Researcher, Office of the Commissioner

Update by André Gariépy, lawyer, F.C.Adm., Commissioner

January 2019 (Update of the November 2017 document)

ORIGINAL TEXT WRITTEN IN FRENCH

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TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................................... I

ABBREVIATIONS ...............................................................................................................III

INTRODUCTION ................................................................................................................. 1

1. UN AND ILO INSTRUMENTS AND DOCUMENTS .................................................. 3

1.1 Protection against discrimination ........................................................................... 3

1.2 The right to productive and freely chosen employment ..................................... 5

1.2.1 United Nations .............................................................................................................................. 5

1.2.2 International Labour Organization......................................................................................... 8

1.3 Taking gender into account ..................................................................................... 9

1.4 Is there an obligation to recognize professional qualifications? ........................ 9

1.4.1 United Nations instruments ..................................................................................................... 9

1.4.2 Instruments of the International Labour Organization ................................................ 12

2. INSTRUMENTS AND DOCUMENTS ON MIGRATION’S GOOD GOVERNANCE.......................................................................................................... 15

2.1 Recognition of Professional Qualifications: A Beneficial Practice .................... 15

2.2 A preference for “mutual” recognition and an enhanced role for States ........ 16

2.3 A Global Compact for Safe, Orderly and Regular Migration (2018) ................. 17

2.3.1 Background work to the Global Compact ......................................................................... 18

2.3.2 The Global Compact and the Recognition of Qualifications ...................................... 18

2.4 A Global Compact on Refugees (2018) ................................................................ 19

3. WHO INSTRUMENTS AND DOCUMENTS ............................................................ 21

3.1 The Importance of Professional Organizations for Meeting WHO’s Objectives ................................................................................................................ 21

3.2 Cooperation and agreements among countries .................................................. 22

4. UNESCO INSTRUMENTS AND DOCUMENTS ....................................................... 25

4.1 First generation UNESCO conventions ................................................................. 25

4.1.1 Recognition of qualifications for the purpose of practicing a profession ............ 25

4.1.2 Cooperation Among States .................................................................................................... 26

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4.2 Second Generation UNESCO Conventions ........................................................... 26

4.2.1 Ratification of the 1997 Lisbon Convention by Canada ............................................... 27

4.2.2 Good practice principles for recognition of qualifications and procedural equity .............................................................................................................................................. 29

4.2.3 Recommendation in the case of refugees or persons in a refuge like situation ......................................................................................................................................... 38

4.2.4 Toward a Global Convention on the Recognition of Qualifications ........................ 38

4.3 Recognition of Informally Acquired Knowledge and Skills ............................... 40

5. EQUALITY OF TREATMENT IN EDUCATION ......................................................... 43

6. EUROPEAN UNION INSTRUMENTS AND DOCUMENTS ..................................... 45

6.1 Applying compensation measures and taking professional experience into account under the 2005 Directive ................................................................. 46

6.2 A process centred on professionals and procedural fairness ............................ 48

6.3 Best practices regarding proportionality and cooperation with the competent authorities ............................................................................................ 49

6.4 European Directive on a proportionality test for the regulation of professions (2018) .................................................................................................. 49

6.5 Lessons From the European Approach ................................................................. 50

7. QUÉBEC-FRANCE AGREEMENT ON THE MUTUAL RECOGNITION OF PROFESSIONAL QUALIFICATIONS (2008) ............................................................ 51

8. COMMENTS ............................................................................................................. 55

8.1 Mutual recognition of professional qualifications ............................................. 55

8.2 Accountability of Professional Organizations ..................................................... 56

8.3 Procedure for the recognition of qualifications.................................................. 56

8.3.1 Principle of the recognition of professional qualifications ......................................... 57

8.3.2 The concept of substantial difference ................................................................................ 58

8.3.3 Compensation Measures ......................................................................................................... 61

9. THE LABOUR AND SOCIAL ASPECTS: A LINK BETWEEN ILO AND WTO INSTRUMENTS ........................................................................................................ 63

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ABBREVIATIONS

EU: European Union ILO: International Labour Organization IOM: International Organization for Migration MRA: Mutual Recognition Arrangement/Mutual Recognition Agreement UN: United Nations UNESCO: United Nations Educational, Scientific and Cultural Organization WHO: World Health Organization WTO: World Trade Organization

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INTRODUCTION

The recognition of professional qualifications can be studied from different angles thanks to the various reports, agreements and recommendations that have been produced on this subject by international organizations. This report presents a number of observations, comments, conclusions and questions that can be formulated in reading and analyzing the different documents.

The report begins with a comparison of instruments of the United Nations and the International Labour Organization that have given rise to standards for protection against discrimination, the right to work, and consideration of gender.

The report also discusses several international instruments and documents that focus on good governance of migration. These instruments shed light on the following two elements: the recognition of professional qualifications as a good practice and preference for “mutual” recognition of qualifications.

Recognition of qualifications is an issue that concerns mostly the health professions. Therefore, it comes as no surprise that World Health Organization (WHO) instruments are a source of information on recognition. Since WHO considers attainment of the highest standard of health to be a fundamental human right, it has based its objectives on this right. In its view, cooperation and agreements between countries and involvement of professional organizations are important means for achieving these goals.

UNESCO highlights the importance of recognition of professional qualifications and cooperation between states through both its first and second generation conventions. In this report, attention is focused, in particular, on the Lisbon Convention, which sets out principles and good practices for the recognition of qualifications.

The report also examines the standards and principles that stem from two specific mechanisms: the European Union recognition scheme and the Québec-France Agreement on the Mutual Recognition of Professional Qualifications. Throughout this review of international instruments and documents on the recognition of qualifications, consideration is given to the implications of the standards and principles identified for professional recognition in Québec and Canada.

Lastly, the report presents further comments on certain topics. It also discuss possible links between ILO and WTO instruments with regards to labour and social aspects.

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The office of Commissioner for Admission to Professions

The Professional Code (CQLR, c. C-26) was amended in 2009 by the Québec National Assembly in order to provide for the office of an independent commissioner responsible for various oversight activities regarding admission to regulated professions, including the recognition of professional qualifications. The functions of the Commissioner consist in examining complaints, monitoring processes relating to admission, and conducting studies and research on the subject.1

In carrying out his mandate, the Commissioner observes and analyzes the issues and the socio-economic environment with respect to admission to professions. The Commissioner’s mandate also includes the mechanisms provided for in the professional regulations dealing with labour mobility. For example, regulations made under the Professional Code implement or reflect the international instruments, the trade agreements and other agreements, and the best practices in that regard.

The Commissioner and his team also monitor international instruments and documents as well as the trade agreements’ provisions that have to do with mobility and the recognition of qualifications. This document is an element of that monitoring activity.

André Gariépy, lawyer, F.C.Adm., ASC

Commissioner

Note: This research and analysis report is a contribution to the work of the Partnership on the Analysis of Professions’ Regulations: Inclusion, Citizenship & Access (PAPRICA),2 a multidisciplinary research partnership. The Commissioner for Admission to Professions is an institutional founding member of PAPRICA. However, the content of this document should not be considered to reflect the institutional views of the Commissioner on any issue.

1 For additional information on the office of the Commissioner for Admission to Professions, his activities, reports and other publications, go to www.opq.gouv.qc.ca/commissaire.

2 In French: Partenariat d’analyse sur les professions réglementées : inclusion, citoyenneté, accès. For more information, see: http://paprica-droit.umontreal.ca/.

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1. UN AND ILO INSTRUMENTS AND DOCUMENTS

1.1 Protection against discrimination

Conventions of the International Labour Organization (ILO) repeatedly stress the importance of not discriminating against migrants on the basis of their national extraction, race or nationality. The focus is particularly on migrants in employment situations or undergoing vocational training or a process to recognize their professional qualifications. United Nations (UN) instruments also attach considerable importance to this question.

The Guide to international labour standards states that discrimination prohibited by Convention No. 1113 (ILO fundamental convention) adopted in 1958 is both direct and indirect. Indirect discrimination is defined as “apparently neutral situations, regulations, or practices, which in fact result in unequal treatment of persons with certain characteristics.“4 In its General comment No. 18,5 the UN Committee on Economic, Social and Cultural Rights provides a definition of discrimination that is very similar to that of the ILO.

The 2003 conference report Time for Equality at Work says that “the presence of intent is not necessary to identify a situation of discrimination.”6  It also explains that indirect discrimination occurs when:

Apparently neutral rules and practices have negative effects on a disproportionate number of members of a particular group irrespective of whether or not they meet the requirements of the job. The application of the same condition, treatment or requirement to everyone can, in fact, lead to very unequal results, depending on the life circumstances and personal characteristics of the people concerned.7

The 1996 report Equality in Employment and Occupation says that:

Seemingly neutral requirements that govern the possibility of acceding to or carrying on an occupation may involve indirect discrimination based on one of the grounds referred

3 International Labour Organization, Convention concerning Discrimination in Respect of Employment and Occupation, 1958 (No. 111): http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0:: NO::P12100_ILO_CODE:C111 (consulted September 12, 2016).

4 Id., International labour standards. A global approach, 2002, p. 71: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_087692.pdf (consulted September 14, 2016).

5 United Nations, Committee on Economic, Social and Cultural Rights, General Comment 18, Article 6: the equal right of men and women to the enjoyment of all economic, social and cultural rights (Thirty-fifth session, 2006), U.N. Doc. E/C.12/GC/18 (2006): http://hrlibrary.umn.edu/gencomm/escgencom18.html (consulted September 12, 2016).

6 International Labour Organization, Time for equality at work, 2003, p. 16: http://www.ilo.org/wcmsp5/ groups/public/@dgreports/@dcomm/@publ/documents/publication/wcms_publ_9221128717_en.pdf (consulted September 19, 2016).

7 Ibid., p. 20.

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to in the Convention. This is the case where the possession of certain diplomas issued by specified institutions or the fulfilment of special conditions is required for access to such varied occupations as those of hairdresser, lawyer, medical practitioner and midwife. These requirements, while applied uniformly to all candidates, nevertheless result in debarring certain persons from the occupation in question on the basis of national extraction or sex, if these persons cannot meet the conditions to obtain the necessary training. Where the exercise of an independent activity or a liberal profession is conditional on possession of a licence or title issued by a national authority or by an autonomous professional body, the authority or body must be completely objective in examining the varying professional qualifications of the different candidates.8

Based on the definition of indirect discrimination and the above excerpt from Equality in Employment and Occupation, the implementation of a system for recognizing migrants’ professional qualifications can lead, in some cases, to indirect discrimination based on social origin, which is defined by Equality in Employment and Occupation as distinctions between citizens of the same country on the basis of their place of birth, ancestry or foreign origin. This suggests, therefore, that UN and ILO instruments may be used by professionals who are seeking recognition of their qualifications and face discrimination because of the requirements imposed by regulatory bodies.

It should be noted that ILO Convention No. 111 has been ratified by Canada. Pursuant to Article 2 of this convention, it is necessary to “promote […] equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.”9  In addition, in 1998, the ILO adopted the Declaration on Fundamental Principles and Rights at Work, whose Article 2 states that:

[…] all Members, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely […]

(d) the elimination of discrimination in respect of employment and occupation

Accordingly, all ILO member states are required to eliminate discrimination in employment and occupation regardless of whether or not they have ratified the fundamental conventions to that effect. Therefore, not only must Canada comply with Convention No. 111 because it is a binding instrument, it is also morally bound by the Declaration on Fundamental Principles and Rights at Work, which identifies non-discrimination as a fundamental right. For now, this declaration is a soft legal instrument, but questions are starting to be asked as to whether it could not be part of customary law, given its widespread use.

8 International Labour Office, Equality in Employment and Occupation, 1996, p. 32. 9 International Labour Organization, Convention concerning Discrimination in Respect of Employment and

Occupation, 1958 (No. 111), op.cit.

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Lastly, in a report submitted to the ILO in 2011 in keeping with the requirements imposed by Convention No. 111, Canada described the passage in Québec of Bill 53, An Act to create the office of Commissioner for complaints concerning mechanisms for the recognition of professional competence, which amended the Professional Code (CQLR., chapter C-26), as a measure to promote equal opportunity and equal treatment for migrants.

1.2 The right to productive and freely chosen employment

This concept is used in ILO and UN instruments alike. Analyzing it will thus make it possible to determine what has been established in this regard by these two organizations. The concept is interesting because it suggests, at first sight, that the existence of a right to productive and freely chosen employment might implicitly involve a right to the recognition of professional qualifications. It could thus be of use for the recognition of such qualifications.

1.2.1 United Nations

The right to work and to free choice of employment is included in the United Nations 1948 Universal Declaration of Human Rights10 (see art. 23(1)). This right is mentioned in a number of UN instruments and some of these texts shed light on the standards defined by this organization. Therefore, various relevant instruments will now be examined with a view to gathering information on the normativity of this right.

First of all, the 1969 International Convention on the Elimination of All Forms of Racial Discrimination,11 which has been ratified by Canada, says that states must put an end to racial discrimination (art. 2) and, in keeping with that requirement, must ensure the right to work and to free choice of employment without discrimination (art. 5e(i)). Although a legal ruling has been handed down on art. 5e(i) of this convention, it did not really define the nature of this right.

In fact, the decision handed down in 1999 in B.M.S v. Australia did not enable this standard to be defined. In that decision, an Australian doctor of Indian origin, who had completed his studies in India, wanted to have his professional qualifications recognized by Australia. To that end, he sat on three occasions for the examination that must normally be passed in order to begin an internship in Australia and that is also used to rank doctors who have obtained their qualifications overseas and wish to practise in Australia. Despite his three attempts to pass the exam and that he already had 13 years of experience working as a physician, including 8 years in Australia, Mr. B.M.S did not qualify for the college of physicians. His lawyer contested the recognition process in place in Australia, saying that it violated art. 5(e)(i) of the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee deciding determined the following:

10 United Nations, Universal Declaration of Human Rights, 1948: http://www.un.org/en/universal-declaration-human-rights/index.html (consulted September 12, 2016).

11 Id., International Convention on the Elimination of All Forms of Racial Discrimination, 1969: http://www.ohchr.org/Documents/ProfessionalInterest/cerd.pdf (consulted September 12, 2016).

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The main issue before the Committee is whether the examination and the quota system for overseas-trained doctors respect the author’s right to work and to free choice of employment. The Committee notes in this respect that all overseas-trained doctors are subjected to the same quota system and are required to sit the same written and clinical examinations, irrespective of their race or national origin. Furthermore, on the basis of the information provided by the author it is not possible to reach the conclusion that the system works to the detriment of persons of a particular race or national origin. Even if the system favours doctors trained in Australian and New Zealand medical schools such an effect would not necessarily constitute discrimination on the basis of race or national origin since, according to the information provided, medical students in Australia do not share a single national origin.12

It can be concluded from this decision that there is no violation of art. 5e (i) as long as access to employment is not restricted by preference based on national origin, even though preference is given to persons who obtained their qualifications in the national system. Unfortunately, the Committee did not define the right to work or to free choice of employment.

That being said, the 1976 International Covenant on Economic, Social and Cultural Rights,13 which has been ratified by Canada, provides a sort of definition of the right to work when it describes it as “the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts” (art. 6 [1]) .

The legal doctrine text Le principe du droit au travail: juridicité, signification et normativité specifies that the right to work includes free access to and free choice of employment. It also specifies that [TRANSLATION] “the normative nature of the right to work must be based on sustainable economic and social development.“14 This links up with art. 6(2) of the international covenant, which requires states that ratify it to draw up “programmes […] to achieve […] economic, social and cultural development.” In addition, this doctrine text defines freedom to work as freedom to [TRANSLATION] “practice the professional activity of one’s choice; subject to the restrictions imposed in the interest of society as a whole.”15  It also says that this freedom does not come without certain constraints.

In 2012, to fulfil its obligations under the Covenant, Canada submitted a report to the Committee on Economic, Social and Cultural Rights in which it presented its Pan-Canadian Framework for the Assessment and Recognition of Foreign Qualifications, describing it as a measure designed to address the impact of the global economic recession. Canada thus determined that it can fulfil its obligation to implement the right to work by adopting what it calls economic development

12 Committee on the Elimination of Racial Discrimination, B.M.S v. Australia, 1999, para. 9.2., http://www.bayefsky.com/html/103_australiacerddec08.php (consulted on September 12, 2016).

13 United Nations, International Covenant on Economic, Social and Cultural Rights, 1976: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx (consulted September 12, 2016).

14 Dominic ROUX, Le principe du droit au travail: juridicité, signification et normativité, Fondements du droit au travail en droit international (Montréal: Wilson & Lafleur, 2005): http://edoctrine.caij.qc.ca/wilson-et-lafleur-livres/82/579522112/#_ftnref5311 (consulted September 12, 2016).

15 Loc. cit.

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measures and which consist in “providing $50 million over two years for a pan-Canadian foreign qualification recognition framework in partnership with provinces and territories”.16 

In addition, in its General Comment 18, the United Nations Committee on Economic, Social and Cultural Rights established that accessibility is an essential component of the right to work. Therefore, “the labour market must be open to everyone under the jurisdiction of states parties.”17  Accessibility comprises three dimensions: absence of discrimination, physical accessibility, and accessibility, that is, “the right to seek, obtain and impart information on the means of gaining access to employment through the establishment of data networks on the employment market at the local, regional, national and international levels.”18  The Committee mentioned that:

Obligations to protect the right to work include, inter alia, the duties of States parties to adopt legislation or to take other measures ensuring equal access to work and training and to ensure that privatization measures do not undermine workers’ rights. The obligation to fulfil (facilitate) the right to work requires States parties, inter alia, to take positive measures to enable and assist individuals to enjoy the right to work and to implement technical and vocational education plans to facilitate access to employment.19

Article 52 of the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families also states that “migrant workers in the State of employment shall have the right freely to choose their remunerated activity” subject to the restrictions mentioned in that article.20  Paragraph 2(b) says that this right may be restricted “in accordance with [a State’s] legislation concerning recognition of occupational qualifications acquired outside its territory.”21  However, it specifies that “States Parties concerned shall endeavour to provide for recognition of such qualifications.”22 

Pursuant to this international convention, legislation on the recognition of professional qualifications can restrict the free choice of remunerated activities, although states have an obligation of means to recognize the professional qualifications of migrant professionals. This restriction is in keeping with what is stipulated in Le principe du droit au travail: juridicité, signification et normativité, namely, that freedom of choice of a professional activity can be

16 United Nations, Committee on Economic, Social and Cultural Rights, Consideration of reports submitted by States parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights. Sixth periodic reports of States parties due in 2010: Canada 2012, p. 10.

17 Id., Committee on Economic, Social and Cultural Rights, General Comment 18, Article 6: the equal right of men and women to the enjoyment of all economic, social and cultural rights (Thirty-fifth session, 2006), U.N. Doc. E/C.12/GC/18 (2006), op. cit.

18 Loc. cit. 19 Loc. cit. 20 United Nations, International Convention on the Protection of the Rights of All Migrant Workers and Members

of Their Families, 1990, art. 52. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CMW.aspx (consulted September 12, 2016).

21 Loc. cit. 22 Loc. cit.

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restricted in the interest of society as a whole. However, it might be asked whether states that restrict the recognition of qualifications should not have to justify the need for such measures in the interest of society. In any case, Canada has unfortunately not ratified this convention and thus does not consider itself to be bound by these principles.

Based on the UN conventions, legislation on the recognition of professional qualifications seems to legally restrict the right to work, which includes, in particular, the right to practise a freely chosen profession. The right to work does not implicitly recognize a right to the recognition of qualifications. However, it might be asked whether, in the event of a dispute, the state should not be required to prove the national interest of regulations on the recognition of professional qualifications, as suggested by the legal doctrine text Le principe du droit au travail: juridicité, signification et normativité.

1.2.2 International Labour Organization

ILO Convention No. 12223 (1964), which has been ratified by Canada, states that each member state should promote full, productive and freely chosen employment (art. 1.1). Accordingly, the policy of each state must guarantee freedom of choice of employment and the opportunity for all workers to use their skills in a job, irrespective of their national extraction (art. 1.2).

In addition, the accompanying recommendation24 states that the promotion of full, productive and freely chosen employment, as provided for not only in the convention but also in the recommendation, should be regarded as the means of achieving in practice the realization of the right to work (art. 1). It is also recognized that this type of policy should target migrants (art. 39).

The concept of full and productive employment is also found in the 1944 Declaration of Philadelphia, which states that the International Labour Organization must “further among the nations of the world programmes which will achieve: […] (b) the employment of workers in the occupations in which they can have the satisfaction of giving the fullest measure of their skill and attainments and make their greatest contribution to the common well-being.”25  This declaration has thus served as the basis for Article 1.2 of Convention No. 122, which stipulates that each worker must have the opportunity to use his or skills in his or her job.

Consultation of the various ILO instruments has shown that there is very little documentation that can be used to define what is meant by productive and freely chosen employment. Therefore, it

23 International Labour Organization, Employment Policy Convention, 1964 (No. 122): http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C122 (consulted September 12, 2016).

24 Id., Employment Policy (Supplementary Provisions) Recommendation, 1984 (No. 169): http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312507 (consulted September 12, 2016).

25 Id., Declaration concerning the aims and purposes of the International Labour Organisation (DECLARATION OF PHILADELPHIA), 1994: http://www.ilo.org/dyn/normlex/en/f?p=1000:62:0::NO::P62_LIST_ENTRIE_ID ,P62_LANG_CODE:2453907,en:NO#declaration (consulted September 12, 2016).

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is hard to know if this standard can be used in the recognition of professional qualifications. Further examination of this question might well afford some valuable insights.

1.3 Taking gender into account

It can be seen from the UN instruments that considerable importance is attached to the fact that states must protect women’s right to work by enabling them to have better access to decent and productive jobs.

The 1981 Convention on the Elimination of All Forms of Discrimination Against Women 26noted that the right to not suffer discrimination in exercising the right to work and the right to free choice of a profession and employment is one of women’s fundamental rights.

It also noted that, under the resolutions of December 2012 (67/172),27 December 2014 (69/167)28 and December 2015 (70/147)29 of the United Nations General Assembly, steps must be taken to “recognize the skills and education of women migrant workers and […] facilitate their productive employment”.

1.4 Is there an obligation to recognize professional qualifications?

Following this overview of the right to non-discrimination and the right to productive and freely chosen employment, it might be asked what responsibility a State has in the recognition of professional qualifications, and whether there is an obligation to recognize them. This question will now be addressed using the instruments of the ILO followed by those of the UN.

1.4.1 United Nations instruments

(A) Analysis

We have noted that Article 52 of the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families seems to impose an obligation of means in regard to the recognition of professional qualifications. However, this obligation is not incumbent on Canada because it has not ratified this convention.

26 United Nations, Convention on the Elimination of All Forms of Discrimination Against Women, 1981, http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm (consulted September 12, 2016).

27 Id., Resolution Adopted by the General Assembly on 20 December 2012, 67/172, “Protection of migrants,” 2012: http://www.un.org/en/development/desa/population/migration/generalassembly/docs/ globalcompact/A_RES_67_172.pdf (consulted September 19, 2016).

28 Id., Resolution Adopted by the General Assembly on 18 December 2014, A/69/167, ”Protection of migrants”, 2014: http://www.un.org/fr/documents/view_doc.asp?symbol=A/RES/69/167&TYPE=&referer=/fr/&Lang=E (consulted September 19, 2016).

29 Id., Resolution Adopted by the General Assembly on 17 December 2015, A/70/147, ”Protection of migrants,” 2015: http://www.un.org/fr/documents/view_doc.asp?symbol=A/RES/70/147&TYPE= &referer=/fr/&Lang=E (consulted September 19, 2016).

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In fact, it is worth noting that the convention has been ratified by only 48 countries. This number is low compared to the number that have ratified other UN instruments (e.g. 117 in the case of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and 164 in that of the International Covenant on Economic, Social and Cultural Rights).

The low ratification rate for the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families explains perhaps why the United Nations General Assembly has adopted several resolutions in recent years to protect and promote the rights of migrants, particularly women migrants, by insisting that their qualifications be taken into account in order to facilitate their access to productive and decent employment. The resolutions adopted by the assembly have no legally binding force, but they “carry the weight of world opinion on major international issues, as well as the moral authority of the world community”.30 

The resolutions of the United Nations General Assembly impose a certain moral obligation on states, and several of them deal with issues that are of interest here. For example, in 2014, the General Assembly (resolution 69/22931) called upon states to reduce the costs related to migration by promoting mutual recognition of migrants’ professional qualifications (paragraph 13), and to cooperate on programs that enable migrants to integrate into the host society (paragraph 15). The United Nations thus sought not only to defend rights that must be protected but to build awareness among states of the importance of putting such rights in place. It is clear from the 2016 report of the Secretary General that social inclusion is in the interest of all concerned. Moreover, the Secretary General stipulated in his report that “inclusion has a basis in international law”.32  The question arises as to whether this encompasses the recognition of professional qualifications.

It cannot be determined, however, from the UN instruments whether Canada is legally bound by a right to the recognition of professional qualifications. That said, the General Assembly resolutions that enjoin Canada to recognize professional qualifications are morally binding. Moreover, in 2001, Canada took part in the world conference against racism, organized by the United Nations and during which the Durban Declaration and Programme of Action were adopted. The conclusions of this declaration are not binding, but they have strong moral value. They reiterate the importance of putting an end to racial discrimination against migrants, particularly in employment. To translate the objectives set out in the declaration’s conclusions into an action plan, the commission asked the states to “consider the question of promoting the recognition of

30 United Nations, Website of the 55th Session of the General Assembly: http://www.un.org/ga/55/bgrdga.htm (consulted September 21, 2016).

31 Id., Resolution Adopted by the General Assembly on 19 December 2014, A/69/229, “International migration and development”: http://www.un.org/en/development/desa/population/migration/ generalassembly/docs/globalcompact/A_RES_69_229.pdf (consulted September 21, 2016).

32 Id., Report of the Secretary General, “In safety and dignity: addressing large movements of refugees and migrants,” p. 16: http://refugeesmigrants.un.org/sites/default/files/in_safety_and_dignity_-_addressing_large_movements_of_refugees_and_migrants.pdf (consulted September 21, 2016).

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the educational, professional and technical credentials of migrants, with a view to maximizing their contribution to their new States of residence”.33 

(B) Instruments and the case of Canada

Several UN institutions and numerous countries called on Canada during the universal review process to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. During the first Universal Periodic Review, in 2009, the Committee on the Elimination of Racial Discrimination and the Committee on the Elimination of All Forms of Discrimination against Women recommended that Canada ratify this convention.34 During the second Universal Periodic Review, the Committee against Torture and the Committee on the Elimination of Racial Discrimination also asked Canada to ratify this convention.35

In addition, several of the countries involved in the universal review process recommended that Canada ratify this convention. This was a case of Algeria, Azerbaijan, Chile, Egypt, the Syrian Arab Republic and Mexico in 2009,36 and of Peru, Honduras, Cabo Verde, Argentina, Chile, Guatemala, Ecuador, Morocco, Sri Lanka, Sudan, Algeria and Indonesia in 2013.37

It is also worth noting that even though Canada has still not ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, it has declared that it fully supports the aims of the convention and takes the promotion of migrants’ human and labour rights seriously.38

With regard to the recognition of foreign credentials, Canada mentioned in the report that it submitted during the second Universal Periodic Review, in 2013, that it had taken measures to:

33 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban Declaration and Programme of Action, 2001: http://www.un.org/WCAR/durban (consulted September 21, 2016).

34 Human Rights Council, Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15(B) of the annex to Human Rights Council Resolution 5/1 (2008) U.N.Doc. A/HRC/WG.6/ 4/CAN/2, p. 2: http://lib.ohchr.org/HRBodies/UPR/Documents/Session4/CA/A_ HRC_WG6_4_CAN_2_E.PDF (consulted September 21, 2016).

35 Id., Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, (2013) U.N.Doc. A/HRC/WG.6/16/CAN/2, p. 4: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G13/106/65/PDF/G1310665.pdf?OpenElement (consulted September 21, 2016).

36 Id., Report of the Working Group on the Universal Periodic Review: Canada, (2009) U.N.Doc. A/HRC/11/17, para. 86(5): https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/152/99/PDF/G0915299.pdf?OpenElement (consulted September 21, 2016).

37 Id., Report of the Working Group on the Universal Periodic Review: Canada, (2013) U.N.Doc A/HRC/24/11, para. 128.3, online: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G13/152/42/PDF/G1315242.pdf?OpenElement (consulted September 21, 2016).

38 Ibid., para. 80.

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Improve the participation of newcomers in the Canadian labour market aimed at reducing barriers in the foreign credential recognition process, so that internationally trained individuals can put their education and experience to use in relevant and satisfying employment soon after arrival.39

Canada has presented its Pan-Canadian Framework for the Assessment and Recognition of Foreign Qualifications. However, Sri Lanka seems to be of the opinion that Canada is not doing enough. Indeed, it recommended during the second Universal Periodic Review that measures be taken to address problems faced by immigrant skilled workers in relation to gaining employment on par with their education, experience and skills.40 At the end of the second review process, Canada indicated that it had accepted this recommendation.41 There is thus reason to believe that it is committed to doing more.

1.4.2 Instruments of the International Labour Organization

None of the ILO conventions imposes a legal obligation on Canada to recognize the professional qualifications of migrants. However, the Human Resources Development Recommendation (2004), adopted much more recently than the Human Resources Development Convention (1975), says that:

Measures should be adopted, in consultation with the social partners and using a national qualifications framework, to promote the development, implementation and financing of a transparent mechanism for the assessment, certification and recognition of skills, including prior learning and previous experience, irrespective of the countries where they were acquired and whether acquired formally or informally (art. 11(1)).42

This recommendation also says that the assessment of qualifications must be objective, linked to standards, and nondiscriminatory (art. 11(2)). Moreover, it mentions that international cooperation should be developed to “promote recognition and portability of skills, competencies and qualifications nationally and internationally”. (art. 21).

ILO recommendations are not binding, but they are likely to guide national policies and practices. Moreover, they have a certain moral weight.

In addition, in 2006, the ILO reiterated in its Multi-lateral Framework on Labour Migration that it was necessary to foster a fair migration process by “promoting the recognition and accreditation

39 Id., National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21: Canada, (2013), U.N.Doc. A/HRC/WG.6/16/CAN/1, para. 118: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G13/108/44/PDF/G1310844.pdf?OpenElement (consulted September 21, 2016).

40 Id., Report of the Working Group on the Universal Periodic Review: Canada, (2013) U.N.Doc. A/HRC/24/11, para. 128.149, op. cit.

41 Id., Report of the Working Group on the Universal Periodic Review: Canada, (2013) U.N.Doc. A/HRC/24/11/Add.1, p. 5.

42 International Labour Organization, Human Resources Development Recommendation, 2004 (No. 195), art. 11(1): http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:55:0::NO::P55_TYPE,P55_LANG,P55_DOCUMENT,P55_NODE:REV,en,R195,/Document (consulted September 21, 2016).

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of migrant workers’ skills and qualifications and, where that is not possible, providing a means to have their skills and qualifications recognized”.43 Once again, states are not bound by this multilateral framework; however, governments and their partners are invited to give effect to the principles and guidelines it contains.

(A) What about the commitment and cooperation of professional organizations?

ILO Convention No. 143 (1975) says that, to promote the implementation of a policy of equality of opportunity and treatment in respect of employment and occupation, states must strive to obtain the “co-operation of employers' and workers' organizations and other appropriate bodies”44 (art. 12(a)). This might be taken to suggest that professional organizations are included in the list of organizations/bodies and that states are required, to an extent, to work with these organizations so that they will adopt practices that promote equality of opportunity and treatment among local and migrant workers.

Recommendation No. 151 (1975), which supplements Convention No. 143, stipulates that:

Migrant workers […] should enjoy effective equality of opportunity and treatment with nationals […] in respect of […] (b) access to vocational training and employment of their own choice on the basis of individual suitability for such training or employment, account being taken of qualifications acquired outside the territory of and in the country of employment.45

It may well be asked whether this means that states must obtain the cooperation of professional organizations so that they will take into account immigrants’ qualifications acquired overseas. It might also be asked whether this could mean that States are required to encourage professional organizations to recognize migrants’ professional qualifications.

The International Labour Organization stipulates in its guide International Labour Standards (2002) that:

One prerequisite for being able to compete with nationals in gaining access to employment is to have qualifications which are recognized in the country of employment. According to the Committee of Experts, the recognition of qualifications obtained abroad is an area in which significant changes to national policy and practice are desirable in

43 Id., ILO Multilateral Framework on Labour Migration; Non-binding principles and guidelines for a rights-based approach to labour migration, 2006, p. 24: http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---migrant/documents /publication/wcms_178672.pdf (consulted September 12, 2016).

44 Id., Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), art. 12(a), 1975: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID,P12100_LANG_CODE:312288,en (consulted September 12, 2016).

45 Id., Migrant Workers Recommendation, 1975 (No. 151), art. 2, 1975: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:55:0:::55:P55_TYPE,P55_LANG,P55_DOCUMENT,P55_NODE:REC,en,R151,/Document (consulted September 12, 2016).

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order to ensure that regular entry migrant workers can access employment on equal terms with national workers .46

Therefore, recognition of migrants’ professional qualifications appears to be necessary for migrants to enjoy effective equality with other workers. This seems to confirm that governments will have to obtain the cooperation of partner organizations with regard to this issue if they wish to fulfil the obligations set for them in Convention No. 143 and to offer equality of opportunity and treatment in respect of employment and occupation.

Canada, however, does not consider that it is subject to this requirement since it has not ratified this UN convention.

(B) A preference for mutual recognition

The document Portability of Skills, which dates from 2007, studies the topic of skill transferability. In it, the International Labour Organization mentions the positive aspects of international portability of skills, namely, improved employability and adaptability of workers and potentially better pay. According to this document, portability is fostered by mutual recognition agreements; however, unilateral recognition of qualifications is the most common approach. Nevertheless, the report goes on to say that:

As unilateral recognition regimes are challenged, recent global initiatives call for international cooperation to promote mutual recognition of skills and certifications (from the Secretary-General’s Report for the UN High-Level Dialogue on International Migration and Development, A/60/871, paras. 65 and 215; and the report of the Global Commission on International Migration: In an interconnected world: New directions for action, Chap. 4, para. 27).47

Therefore, there seems to be a preference in this document for mutual, rather than unilateral recognition of qualifications.

The report Towards a Fair Deal for Migrant Workers in the Global Economy, dating from 2004, says that “a global system for mutual recognition of qualifications, so that an architect, doctor, or nurse would have his or her credentials recognized in all countries, has yet to be developed”.48 

46 Id., International labour standards, A global approach 2002, p. 155: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_087692.pdf (consulted September 12, 2016).

47 International Labour Office, Portability of Skills 2007, p. 13: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_gb_298_esp_3_en.pdf (consulted September 21, 2016).

48 Id., Towards a Fair Deal for Migrant Workers in the Global Economy, 2004, p. 135: http://www.ilo.org/public/english/standards/relm/ilc/ilc92/pdf/rep-vi.pdf (consulted September 21, 2016).

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2. INSTRUMENTS AND DOCUMENTS ON MIGRATION’S GOOD GOVERNANCE

Several initiatives have been implemented since 2001 to promote good governance of migration. Given that they all seem to follow the same direction, they provide an indication of the surrounding political context.

2.1 Recognition of Professional Qualifications: A Beneficial Practice

All stakeholders agree that recognition of migrants’ professional qualifications is a beneficial practice. Several documents stemming from the various initiatives provide a list of arguments in favour of recognition. For example, recognition of professional qualifications puts an end to the shortage of health professionals, eliminates brain waste, enables migrants to integrate into the host society, protects their human rights by, among other things, preventing them from being exploited in the labour market and enables migrants to take part in the economic and social development of both the host society and their country of origin.

The next several paragraphs set out a few of these initiatives that view recognition of professional skills as a beneficial practice.

The Berne Initiative, implemented in 2001, recommends the “promotion of measures for the recognition of qualifications and skills of migrants”49  in order to foster migrants’ integration and manage migration in a way that maximizes benefits. Recognition of qualifications is seen as an effective integration practice. In addition, according to the report by the Berne Initiative, “migration has to be managed in such a way as to contribute to social and economic development―for both countries of origin and destination”.50 

In a report dating from 2011 and during a workshop on the theme Economic Cycles, Demographic Change and Migration, both of which discussed the idea that migration is fundamental to economic growth and competitiveness, the International Organization for Migration (IOM) recommended that credentials be recognized so as to avoid squandering brainpower. This organization thus promotes the creation of “effective systems for the recognition of skills and qualifications and the transfer of licences and certificates”51  not only to maximize the potential of migrant workers but also to enable them to integrate the labour market. To that end, it recommends that “employers and educational institutions work together to evaluate the

49 The Berne Initiative, International Agenda for Migration Management,  ”Effective Practices for a Planned, Balanced, and Comprehensive Approach to Management of Migration,” 2004, p. 52: http://publications.iom.int/system/files/pdf/iamm.pdf (consulted September 21, 2016).

50 Ibid., p. 20. 51 International Organization for Migration, International Dialogue on Migration (No. 19), “Economic Cycles,

Demographic Change and Migration,” 2012, p. 38: http://publications.iom.int/system/files/pdf/rb19_eng_web.pdf (consulted September 21, 2016).

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compatibility of credentials and standardize mechanisms for obtaining equivalent licences and certificates”.52

The Global Migration Group handbook for decision makers also notes that recognizing the qualifications of immigrants enables them to contribute to the host society and take advantage of the opportunities offered by migration. In addition, the group recommends that migration be included in the post-2015 UN Development Agenda and stipulates that:

A broadly formulated partnership commitment on international migration and development should be underpinned by more specific indicators to measure progress regarding, for example, the […] mutual recognition of foreign educational qualifications and the portability of social security benefits, including through the conclusion of bilateral and multilateral agreements.53

2.2 A preference for “mutual” recognition and an enhanced role for States

In 2001, the IOM launched an international dialogue on migration open to member and observer states, as well as international and non-governmental organizations, migrants, and media, academic and private-sector partners. This dialogue provided an opportunity to discuss questions raised by migration governance and effective practices in this area.

During its 2006 dialogue on migration and human resources for health, the IOM concluded that improving recognition of migrant workers’ qualifications alleviates shortages of health professionals and reduce the waste of skills to a minimum. At the same time, the IOM suggested that recognition of qualifications could be improved through regional agreements, including mutual recognition agreements.

Already in 2003, as part of the Global Commission on International Migration, it was recommended that states give preference to mutual recognition of qualifications. Indeed, during the commission’s first panel discussion, which aimed to provide participants with a better understanding of the phenomenon of migration in order to maximize benefits and reduce negative effects, the commission concluded the following.

States should also enter into agreements with regard to the mutual recognition of qualifications, so as to ensure that migrants are able to practise the skills they have gained in their own country.”54 

52 Loc. cit. 53 Global Migration Group, Integrating migration in the post-2015 UN Development Agenda, 2013, p. 4:

http://www.ilo.org/wcmsp5/groups/public/@ed_protect/@protrav/@migrant/documents/genericdocument/wcms_242561.pdf (consulted September 21, 2016).

54 Global Commission on International Migration, Migration in an interconnected world: New directions for action, 2005, p. 47: https://www.unitar.org/ny/sites/unitar.org.ny/files/GCIM%20Report%20%20 PDF%20of%20complete%20report.pdf (consulted September 23, 2016).

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It can be noted in the report on the first meeting of the Global Forum on Migration and Development in 2007 that states were also asked to step up their efforts to recognize migrants’ skills.

This forum recognized the positive effects of immigration when it stated that adequate recognition of qualifications acquired abroad gives migrants greater autonomy. In its 2013-2014 report, it recommended increasing international cooperation with regard to the recognition of professional qualifications, through “bilateral recognition of qualifications agreements”.55 

In addition, following high-level dialogue on migration in 2013, the Secretary–General of the United Nations said in his report that “States should ensure mutual recognition of foreign qualifications, based on six UNESCO conventions and associated work on the recognition of qualifications.”56

The Global Compact for Safe, Orderly and Regular Migration of 2018, presented in the following section, promotes the same approach of “mutual” recognition.

Based on the above, it seems that mutual recognition of professional qualifications is the preferred approach of the various stakeholders. The Commissioner has some comments on this approach in a following section of this document.

2.3 A Global Compact for Safe, Orderly and Regular Migration (2018)

On September 19, 2016, in New York, the United Nations hosted the Summit for Refugees and Migrants.57 At the end of the Summit, a resolution by the General Assembly of the United Nations was adopted toward initiating work on that issue. One of the annexes to that resolution is entitled Towards a global compact for safe, orderly and regular migration. Article 8 of that Annex states the following:

8. The global compact could include, but would not be limited to, the following elements: […]

55 Global Forum on Migration and Development, Report of the Swedish Chairmanship of the Global Forum on Migration and Development 2013-2014; Unlocking the Potential of Migration for Inclusive Development, 2014, p. 56.: https://www.government.se/49b75a/contentassets/74f10910d68942dbad079fa3a6b2edb6/ report-of-the-swedish-chairmanship-of-the-global-forum-on-migration-and-development-2013-2014 (consulted September 21, 2016).

56 United Nations, Report of the Secretary General, International migration and development, 2013, p. 17: https://www.iom.int/files/live/sites/iom/files/What-We-Do/docs/SG-report-Intl-Migration-and-Development-2013-A_68_190-EN.pdf (consulted September 21, 2016).

57 See the Summit website at https://refugeesmigrants.un.org/summit (consulted on December 14, 2018).

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(w) Recognition of foreign qualifications, education and skills and cooperation in access to and portability of earned benefits”. […]58

2.3.1 Background work to the Global Compact

The work and negotiations for concluding a global compact were led by Mtre. Louise Arbour, a former justice of the Supreme Court of Canada and the United Nations High Commissioner for Human Rights. As Special Representative of the Secretary-General of the United Nations for International Migration, she was the conductor and facilitator of the proceedings.

During 2018, intergovernmental negotiations were held concerning successive versions of the Global Compact for Safe, Orderly and Regular Migration.59 The final draft, concluded in July 2018, was adopted in December 2018 at an intergovernmental conference in Marrakech, Morocco.60 The Global Compact was formally approved by the United Nations General Assembly on December 19, 201861.

2.3.2 The Global Compact and the Recognition of Qualifications

The Global Compact for Safe, Orderly and Regular Migration (Global Compact) presents itself as a concrete framework for international cooperation. Its text is not legally binding. However, it reflects in practice and in context the principles and obligations of existing international instruments, several of which are discussed in this document.

The text of the Global Compact shows that migration has a number of interdependent dimensions, all of which are important, i.e. the individual, societal, economic and political dimensions. Because of that interdependence, the Global Compact presents a global approach that involves all the functions of government and all of a society's stakeholders, even the migrants themselves.

The Global Compact has 23 objectives, each of which is complemented by public policy options and examples of useful and relevant practices. One of those objectives, No. 18 in the text, concerns the recognition of qualifications, and sets out relevant avenues for action. It is of note that, in the course of the work for concluding the Global Compact, technical consultations were held

58 United Nations General Assembly, New York Declaration for Refugees and Migrants, Resolution A/RES/71/1, September 19, 2016, Annex II, art. 8: www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/71/1 (consulted December 14, 2018).

59 For the intergovernmental negotiations website and the successive versions, see: https://refugeesmigrants.un.org/intergovernmental-negotiations (consulted on December 14, 2018).

60 For the website of the Intergovernmental Conference, see: http://www.un.org/en/conf/migration/ (consulted December 14, 2018). United Nations, Draft outcome document of the Intergovernmental Conference to Adopt the Global Compact for Safe, Orderly and Regular Migration: http://undocs.org/en/A/CONF.231/3 (consulted December 14, 2018).

61 United Nations General Assembly, Global Compact for Safe, Orderly and Regular Migration, Resolution A/RES/73/195, December 19, 2018: http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/73/195 (consulted January 28, 2019).

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regarding various topics, among them, a consultation in October 2017 concerning the recognition of qualifications.62

Objective 18 of the Global Compact is entitled "Invest in skills development and facilitate mutual recognition of skills, qualifications and competences". Its goal is to facilitate the mutual recognition of competence and promote their development mainly on the basis of labour-market demands. It concerns all levels of training and all public, private and community sectors.

Among the public policy options and examples of relevant practices, Objective 18 mentions:

• The development of standards and guidelines for recognition in the sectors concerned, including professional organizations. Recognition should cover formal, non-formal and informal learning outcomes.

• Work toward the compatibility of qualification frameworks.

• The conclusion of mutual recognition agreements and the inclusion of recognition provisions in other agreements, such as trade agreements.

• The promotion of access to training, particularly through global partnerships in certain sectors, cooperation between the workplace and the education systems, complementary training and context-based work environments.

• The optimization of information and documentation to promote the understanding of qualifications by the various stakeholders and the portability of qualifications.

2.4 A Global Compact on Refugees (2018)

At the September 2016 UN Summit for Refugees and Migrants63 discussion were also held on issues specific to refugees. The resolution by the General Assembly of the United Nations which has launched the work on a global compact on migration also launched the work on a Comprehensive Refugee Response Framework.64

62 See the consultations website at https://refugeesmigrants.un.org/labour-mobility (consulted December 14, 2018).

63 See note no 57. 64 United Nations General Assembly, New York Declaration for Refugees and Migrants, Resolution A/RES/71/1,

September 19, 2016, Annex I: www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/71/1 (consulted December 14, 2018).

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The Comprehensive Framework is now designated as the Global Compact on Refugees. The final text was formally approved by the United Nations General Assembly on December 17, 2018. 65 In this text, complementing the Global Compact on Migration, it can be noted that reference are made to recognition of qualification of refugees and access to training for better integration in the labour force. 66

65 Id., Report of the United Nations High Commissioner for Refugees, Resolution A/RES/71/151, December 17, 2018: http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/73/151 (consulted January 28, 2019). Id., Report of the United Nations High Commissioner for Refugees: Part II - Global Compact on Refugees, December 17, 2018, Document A/73/12 (Part II) : https://www.unhcr.org/gcr/GCR_English.pdf (consulted January 28, 2019.

66 Id. See Section B2.2 of Chapter III, entitled “Jobs and Livelihoods” (consulted January 28, 2019).

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3. WHO INSTRUMENTS AND DOCUMENTS

The World Health Organization (WHO) attaches considerable importance to the question of health workers since its objective is to ensure that all human beings enjoy the highest attainable standard of health. Indeed, this is a fundamental human right under The Kampala Declaration and Agenda for Global Action of 2008. In order for WHO to achieve its objective, there must be universal access to quality health care systems. WHO instruments have implemented a number of standards concerning the mobility of health professionals. The contribution of professional organizations and cooperation between countries play a particularly important role.

3.1 The Importance of Professional Organizations for Meeting WHO’s Objectives

In WHO’s view, professional organizations or associations are among the stakeholders that must participate in the global effort to enable all human beings to access quality health care. Professional organizations have an obligation of means to eliminate the shortage of health professionals by working to remove barriers faced by such professionals in regard to labour market access. In addition, WHO is of the opinion that professional organizations could be held accountable for their actions toward migrant professionals and are required to cooperate with public authorities.

The Kampala Declaration states that:

1.3. Leaders of professional associations, trade unions, academic and research institutions and the private sector will examine the impact of their programmes and how they can better contribute to the access for all people to health workers. They will present concrete steps they can take towards solutions to critical gaps and imbalances […]

1.5. All stakeholders will agree to create and cooperate in maintaining mechanisms to hold each other accountable for their actions. They will abide by human rights principles such as equity, mutual respect and participation, and uphold the vision of health for all.67

The declaration also says the following with regard to monitoring progress in aligning stakeholder contributions:

Each of the stakeholder groups will identify specific barriers to an effective response, specific to each group, that impact action at country, regional and global levels. Each group will be committed to sharing information on progress made in overcoming these barriers. Special attention will be given to monitoring […] the contribution of professional associations to reform and essential regulation.68

67 World Health Organization, The Kampala Declaration and Agenda for Global Action, 2008, p. 14-15: http://www.who.int/workforcealliance/Kampala%20Declaration%20and%20Agenda%20web%20file.%20FINAL.pdf?ua=1 (consulted September 13, 2016).

68 Ibid., p. 20.

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WHO’s Global Code of Practice on the International Recruitment of Health Personnel discusses the idea that health professional organizations and regulators must cooperate with one another “in the interests of patients, health systems, and of society in general”. 69 Article 8.4 of the code stipulates that:

All stakeholders referred to in Article 2.2 should strive to work individually and collectively to achieve the objectives of this Code. All stakeholders should observe this Code, irrespective of the capacity of others to observe the Code. Recruiters and employers should cooperate fully in the observance of the Code and promote the guiding principles expressed by the Code, irrespective of a Member State’s ability to implement the Code.70

It is important to note that one of the objectives of the Code mentioned in this excerpt is to enable the various health systems, both national and foreign, to benefit from the international migration of health workers.

In addition, in point 33 of its global strategy 2030, WHO said that governments must collaborate with professional organizations and other regulatory authorities to “adopt regulation that takes into account transparency, accountability, proportionality, consistency, and that is targeted to the population’s needs”.71 

3.2 Cooperation and agreements among countries

WHO encourages countries to cooperate with each other and to negotiate agreements for achieving the objectives set in its Code of practice. In fact, the Code was developed with this goal in mind. The Kampala Declaration states that “this Code should be a tool used by countries, regions and health professionals to negotiate agreements”.72

In addition, Article 5.2 of the Code of practice says that “Member States should use this Code as a guide when entering into bilateral, and/or regional and/or multilateral arrangements, to promote international cooperation and coordination on international recruitment of health personnel.”73 The article also says that this measure must allow the social and professional recognition of health personnel.

69 Id., WHO Global Code of Practice on the International Recruitment of Health Personnel, 2010, p. 5: http://www.who.int/hrh/migration/code/full_text/en/ (consulted September 21, 2016).

70 Ibid., p. 9. 71 Id., Global Strategy on Human Resources for Health: Workforce 2030, 2016, p. 20:

http://apps.who.int/iris/bitstream/handle/10665/250368/9789241511131-eng.pdf?sequence=1 (consulted September 21, 2016).

72 Id., The Kampala Declaration and Agenda for Global Action, 2008, p. 18: http://www.who.int/workforcealliance/Kampala%20Declaration%20and%20Agenda%20web%20file.%20FINAL.pdf?ua=1 (consulted September 13, 2016).

73 Id., WHO Global Code of Practice on the International Recruitment of Health Personnel, 2010, p. 6: http://www.who.int/hrh/migration/code/full_text/en/ (consulted September 21, 2016).

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The importance of cooperation between the source and destination (host) countries also is clearly mentioned in the User’s Guide to the Code:

To that end, destination countries are encouraged to collaborate with source countries so that both can derive benefits from the international migration of health personnel (Article 5.1). This can be referred to as the principle of mutuality of benefits. For example, the Code proposes organizing international recruitment of health personnel through bilateral or multilateral arrangements. Such arrangements could include measures that allow source countries to also benefit from international recruitment, for example through support for training, access to specialized training, technology and skills transfers and the support of return migration, whether temporary or permanent (Article 5.2).74

The doctrine on the evolution of health diplomacy makes the same observation, namely, that the instruments put in place by WHO are intended to be used in negotiations.

74 Id., User’s Guide to the WHO Global Code of Practice on the International Recruitment of Health Personnel, 2010, p. 28: http://whqlibdoc.who.int/hq/2010/WHO_HSS_HRH_HMR_2010.2_eng.pdf?ua=1 (consulted September 21, 2016).

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4. UNESCO INSTRUMENTS AND DOCUMENTS

UNESCO also proposes standards that should be taken into account by professional mobility stakeholders.

4.1 First generation UNESCO conventions

4.1.1 Recognition of qualifications for the purpose of practicing a profession

An analysis of the first generation of UNESCO regional conventions75 shows that they all require states to recognize studies, diplomas, degrees and certificates in order to enable migrant professionals to continue practising a profession.

Ever since Canada ratified the Convention on the Recognition of Studies, Diplomas and Degrees concerning Higher Education in the States belonging to the Europe Region in 1979, it has been subject to this requirement, which is set out in Article 5 of the convention. Canada has ratified the 1997 Lisbon Convention in June 2018.

However, under article 1, paragraph 1(b) of the 1979 Convention:

Such recognition does not exempt the holder of the foreign certificate, diploma or degree from complying with any other conditions for the practice of the profession concerned which may be laid down by the competent governmental or professional authorities.76

This requirement to recognize studies for the purpose of practising a profession is also mentioned in the 1993 Recommendation on the Recognition of Studies and Qualifications in Higher Education, which states in article 10 that:

Member States should take all feasible steps within the framework of their national systems and in conformity with their constitutional, legal and regulatory provisions, to facilitate recognition of preparation at the higher education level for the practice of a profession as defined in paragraph 1(h). To that effect, policies should be evolved, in co-operation with all the parties concerned (such as higher education institutions, professional associations, governmental bodies and employers' associations) that favor

75 The first generation of UNESCO conventions aimed to “promote international cooperation in higher education and to reduce obstacles to the mobility of [teachers and other] highly skilled workers, students and graduates.” Although the second generation of conventions pursued the same objectives, they were adapted to address the new challenges of skills recognition: “’massification’; diversification of provision and providers; employability; quality assurance; and the introduction of qualifications frameworks. Fraudulent qualifications, such as those from ‘degree mills’, have been a growing and troublesome issue for Member States.” See UNESCO, Evaluation of UNESCO’s Regional Conventions on the Recognition of Qualifications in Higher Education, June 2016, http://unesdoc.unesco.org/images/0024/002452/245223E.pdf (consulted June 13, 2017).

76 UNESCO, Convention on the Recognition of Studies, Diplomas and Degrees concerning Higher Education in the States belonging to the Europe Region, 1979, http://portal.unesco.org/en/ev.php-URL_ID=13516&URL_DO=DO_TOPIC&URL_SECTION=201.html (consulted September 13, 2016).

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objective evaluation of skills and qualifications obtained abroad with a view to enabling people to practise the professions for which they have been trained or which they have already practiced, and in order to favor optimum use of human resources available and the full integration into society of all of its members.77

This recommendation, which was made in the wake of the first attempt to adopt a universal convention on the recognition of studies and degrees in higher education, added certain elements to the requirement contained in the regional conventions. It also said that policies should be worked out in cooperation with professional associations/organizations to ensure that professional qualifications are assessed objectively so that human resources can be used to their full potential.

4.1.2 Cooperation Among States

All of UNESCO’s regional conventions are based on the idea that Contracting States must pledge to cooperate with each other so that the educational and research resources available to them may be used more effectively. To that end, they undertake to recognize studies, certificates, diplomas and degrees and other qualifications. They also undertake to promote regional interregional and worldwide cooperation regarding recognition of studies and academic qualifications.

Article 9 of the 1983 Regional Convention on the Recognition of Studies, Diplomas and Degrees in Higher Education in Asia and the Pacific78 specifies that Contracting States must also cooperate with other relevant stakeholders at the national level, such as “validating bodies”. In fact, the states must pledge to “entrust the study of the problems involved in the application of this Convention to appropriate national bodies with which all the sectors concerned will be associated and which will propose appropriate solutions”. In addition, paragraph 2 of this article states that “the Contracting States shall co-operate with each other to collect all information of use to them in their activities relating to studies, diplomas and degrees in higher education and other academic qualifications”.

4.2 Second Generation UNESCO Conventions

Certain changes can be seen between the first and second generation UNESCO conventions. Certain good practice standards and rules of procedural equity have been added to the new conventions. For example, the Recommendation on the Recognition of Joint Degrees (2004) says

77 Id., Recommendation on the Recognition of Studies and Qualifications in Higher Education, 1993: http://portal.unesco.org/en/ev.php-URL_ID=13142&URL_DO=DO_TOPIC&URL_SECTION=201.html (consulted September 13, 2016).

78 Id., Regional Convention on the Recognition of Studies, Diplomas and Degrees in Higher Education in Asia and the Pacific, 1983: http://portal.unesco.org/en/ev.php-URL_ID=13523&URL_DO= DO_TOPIC&URL_SECTION=201.html (consulted September 13, 2016).

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the following about the Lisbon Convention79, the first of the second generation conventions to be adopted:

In a broader sense, the Convention also serves as a guide to good practice, and in this sense, its provisions may, mutatis mutandis, be applied to all higher education qualifications, regardless of their origin. In this sense, the Council of Europe/UNESCO Recognition Convention is in fact used as a standard well beyond its strictly legal function.80

Also in reference to the Lisbon Convention, the 2004 report Higher Education in a Globalized Society says that:

It represents a significant landmark in recognition practices in Europe through the introduction of key concepts listed below […] 1) it shifted the focus in favour of the applicant in the process of recognition by entitling them to a fair recognition of their qualifications within a reasonable time limit, according to transparent, coherent and reliable procedures; 2) one of the basic principles put forward was that recognition should be granted unless substantial differences can be shown; 3) it also emphasized the importance of information and networking at the expert level, in particular through national information centres and the ENIC network that meets annually; 4) though it offered a solid legal framework, it also promoted recognition practices through instruments of a lesser binding nature such as codes of good practice or recommendations and guidelines.81

4.2.1 Ratification of the 1997 Lisbon Convention by Canada

Canada signed the Lisbon Convention in 1997, but has not completed the process of formally ratifying before June 2018. For Canada’s signature to have full effect, all Canadian provinces and territories must give their assent to the convention since they have exclusive jurisdiction over its content.82 In fact, the Supreme Court of Canada has recognized that the right to work falls under the purview of the provinces pursuant to paragraphs 92(13) and 92(16) of the Constitution Act, 1867.83

79 Id., Convention on the Recognition of Qualifications concerning Higher Education in the European Region, 1997: http://portal.unesco.org/en/ev.php-URL_ID=13522&URL_DO=DO_TOPIC &URL_SECTION=201.html (consulted September 13, 2016).

80 UNESCO and Council of Europe, Committee of the Convention on the Recognition of Qualifications concerning Higher Education in the European Region, Recommendation on the Recognition of Joint Degrees, 2004, p. 6: https://rm.coe.int/16807465b8 (consulted September 21, 2016).

81 UNESCO, Higher Education in a Globalized Society, 2004, p. 22: http://unesdoc.unesco.org/images/ 0013/001362/136247e.pdf (consulted September 21, 2016).

82 Conseil interprofessionnel du Québec, Reconnaissance des diplômes internationaux, Adhésion du Québec à la Convention de Lisbonne, 2011, p. 1.

83 Revue québécoise de droit international, “La doctrine Gérin-Lajoie et le domaine du travail: une relation retrouvée,” p. 209, 2016: http://www.sqdi.org/wp-content/uploads/205-225-HSG_10_inte%CC%81 gre%CC%81_OK.pdf (consulted September 21, 2016).

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On January 12, 2011, Québec agreed to be bound by this convention under order in council 4-2011, published in the Gazette officielle du Québec on February 2, 2011.84

This order in council reflects Québec’s commitment to facilitating the recognition of diplomas:

[TRANSLATION]

WHEREAS the Gouvernement du Québec is of the view that studies and diplomas must be recognized as widely as possible in order to ensure greater international mobility of persons under the Lisbon Convention.

Québec’s power to give its assent to the conclusion of treaties by Canada stems from the Gérin-Lajoie Doctrine and its statutory entrenchment.85 The third paragraph of section 22.1 of the Act respecting the Ministère des Relations internationales states that:

3. The Government must, in order to be bound by an international accord pertaining to any matter within the constitutional jurisdiction of Québec and to give its assent to Canada’s expressing its consent to be bound by such an accord, make an order to that effect.86

However, as the Doctrine states, the legal effect of such orders in council per se is not very clear. Charles-Emmanuel Côté, professor of international law and constitutional law, summarizes it as follows:

[TRANSLATION]

At the very least, Québec uses this means to announce its intention to implement or not implement the treaty that Canada intends to ratify. According to one author, an order in council signifies that the federal government is merely communicating Québec’s decision to be bound by the treaty to its depositary. According to another author, it even obliges the government to put in place administrative and legislative mechanisms for implementing the treaty. This opinion seems to be shared by the Ministère des Relations internationales et de la Francophonie, which considers that the Québec government thereby commits to applying the treaty and “will be obliged to do so.” The main impact of an order in council is no doubt symbolic. It is above all an instrument for applying the passive component of the Gérin-Lajoie Doctrine.87

Nevertheless, it appears that some of the Lisbon Convention’s standards have already been adopted by Québec before the ratification in 2018, given that the Ministère de l’Immigration, de

84 Gazette officielle du Québec, Order in Council 4-2011, Vol. 143, No. 5, February 2, 2011: http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=1&file=54999.pdf (consulted September 19, 2016).

85 Revue québécoise de droit international, op. cit.: http://www.sqdi.org/wp-content/uploads/205-225-HSG_10_inte%CC%81gre%CC%81_OK.pdf (consulted September 21, 2016).

86 Act respecting the Ministère des Relations internationales, R.S.Q., c. M-25-1.1, s. 22.1, par. 3: http://legisquebec.gouv.qc.ca/en/showDoc/cs/M-25.1.1?&digest (consulted September 21, 2016).

87 Revue québécoise de droit international, op. cit., pp. 213 and 214.

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la Diversité et de l’Inclusion (the Québec’s Ministry of Immigration) is using them as a model for issuing comparative evaluations of studies done outside Québec.88

Moreover, the effects of the Lisbon Convention also seemed to have been recognized already in Ontario, given that the Superior Court of Ontario recognized in Siadat v. Ontario College of Teachers (2007) that the College of Teachers in that province had violated its obligations under this convention when it refused to offer an alternative to a refugee who was unable to provide her original documents in order to gain recognition of her qualifications.89

Ratitification of the Convention by Canada was formalized in June 2018, becoming legally binding in August of the same year.

4.2.2 Good practice principles for recognition of qualifications and procedural equity

The 2015 Draft Preliminary Report Concerning the Preparation of a Global Convention on the Recognition of Higher Education Qualifications lists eight differences that can be observed in comparing the first and second generation conventions. These differences include:

1. A shift in focus in favour of the applicant: In the second generation of conventions, the applicant is entitled to fair recognition of their qualifications within a reasonable time limit, according to transparent, coherent and reliable procedures; the reasons for refusal have to be stated; the applicant has the right to appeal; and the principle of substantial differences is introduced. The principle of substantial differences dictates that recognition should be granted unless substantial differences apply. […] This shift in focus is important because it brings forward more clearly the overall aim of equity and non-discrimination. […]

2. More consciousness of the wide diversification between systems of higher education: […] It is important that recognition conventions take diversity into account and create a legal framework for the respect of diversified higher education systems.

3. The importance of access to reliable information: […] Accessible, comparable and reliable information on higher education systems, higher education institutions and higher education degrees and diplomas of other Parties has, through the 1997 Lisbon Convention in particular, proven to be one of the most central enablers of a functional cross-border recognition system. Access to such information will not only raise the quality of recognition processes, it will also significantly contribute towards reducing the time that has to be spent on such procedures by the competent recognition authority and/or higher education institutions in the Parties to the convention.

88 Conseil interprofessionnel du Québec, op. cit., p. 2. 89 Office of the Manitoba Fairness Commissioner, Position Statement: Alternative Documentation, July 2014,

p. 3.: http://www.manitobafairnesscommissioner.ca/wp-content/uploads/OMFC-Position-Statement-Alternative-Documentation.pdf (consulted September 21, 2016).

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4. Academic qualifications vs. professional qualifications: While first generation conventions also specifically included recognition for professional purposes, i.e. access to the labour market, the second generation deals with academic recognition only. The exception is the 2014 Addis Convention, which has a broader scope. […] This is not to say that the 1997 Lisbon Convention or the 2011 Tokyo Convention cannot be used for recognition with the purpose of entry into the labour market. Competent recognition authorities may provide recognition of academic qualifications irrespective of whether recognition is sought for further study or for employment purposes. The issue at stake is primarily that the conventions do not concern the recognition of qualifications for access to and the right to the pursuit of regulated professions and secondly, that legal instruments on academic recognition should not interfere with, or conflict with, national labour market legislation.90

The next section will be devoted to studying the differences that interest us the most and whose content might be of interest to professional organizations.

(A) Objective treatment of applications

Article III.1 of the Lisbon Convention91 states that:

1. Holders of qualifications issued in one of the Parties shall have adequate access, upon request to the appropriate body, to an assessment of these qualifications.

2. No discrimination shall be made in this respect on any ground such as the applicant's gender, race, colour, disability, language, religion, political or other opinion, national, ethnic or social origin, association with a national minority, property, birth or other status, or on the grounds of any other circumstance not related to the merits of the qualification for which recognition is sought. In order to assure this right, each Party undertakes to make appropriate arrangements for the assessment of an application for recognition of qualifications solely on the basis of the knowledge and skills achieved.

The explanatory report to this convention sets out the duties and obligations that arise from this standard:

This article states the obligation of all Parties to provide for a fair assessment of all applications for the recognition of studies, qualifications, certificates, diplomas or degrees undertaken or earned in another Party. The assessment shall be given upon request by the individual concerned for the qualifications included in the request. […] The assessment should be based on adequate expertise and transparent procedures and criteria, and it should be available at reasonable cost and within a reasonable time. […] The Article further states the obligation of Parties to provide for such an assessment on a non-discriminatory basis. Recognition cannot be denied for the sole reason that the

90 UNESCO, Draft Preliminary Report Concerning the Preparation of a Global Convention on the Recognition of Higher Education Qualifications, 2015, pp. 10-13: http://unesdoc.unesco.org/images/0023/002347/234743E.pdf (consulted September 21, 2016).

91 Id., Convention on the Recognition of Qualifications concerning Higher Education in the European Region, 1997: http://portal.unesco.org/en/ev.php-URL_ID=13522&URL_DO=DO_TOPIC&URL_SECTION=201.html (consulted September 13, 2016).

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qualification is a foreign and not a national one and circumstances unrelated to the academic merits of the qualifications may not be taken into consideration. […] The concept of fairness applies to the procedure and criteria for recognition.92

The standard according to which all applications for recognition must be studied objectively, considering only the knowledge and skills achieved by migrants, is included in Article III.3 of the Asia‐Pacific Regional Convention on the Recognition of Qualifications in Higher Education,93 (2011) and Article IV.2 of the Revised Convention on the Recognition of Studies, Certificates, Diplomas, Degrees and Other Academic Qualifications in Higher Education in African States (2014).94

(B) A transparent process

Article III.2 of the Lisbon Convention states that “each Party shall ensure that the procedures and criteria used in the assessment and recognition of qualifications are transparent, coherent and reliable.”

Article III.2 of the 2011 Asia‐Pacific Regional Convention on the Recognition of Qualifications in Higher Education states that the procedures and criteria must also be fair and non-discriminatory.

This is repeated in Article IV.3 of the Revised Convention on the Recognition of Studies, Certificates, Diplomas, Degrees and Other Academic Qualifications in Higher Education in African States (2014).

(C) Reasonable time limits, reasoned decisions and appeal of decisions

Article III.5 of the Lisbon Convention states that:

Decisions on recognition shall be made within a reasonable time limit specified beforehand by the competent recognition authority and calculated from the time all necessary information in the case has been provided. If recognition is withheld, the reasons for the refusal to grant recognition shall be stated, and information shall be given concerning possible measures the applicant may take in order to obtain recognition at a later stage. If recognition is withheld, or if no decision is taken, the applicant shall be able to make an appeal within a reasonable time limit.

The explanatory report to this convention specifies that:

92 Council of Europe, Explanatory Report to the Convention on the Recognition of Qualifications concerning Higher Education in the European Region, 1997, pp. 11-12: https://rm.coe.int/CoERMPublicCommon SearchServices/DisplayDCTMContent?documentId=09000016800ccde6 (consulted September 21, 2016).

93 UNESCO, Asia-Pacific Regional Convention on the Recognition of Qualifications in Higher Education, 2011: http://portal.unesco.org/en/ev.php-URL_ID=48975&URL_DO=DO_TOPIC&URL_SECTION=201.html (consulted September 21, 2016).

94 Id., Revised Convention on the Recognition of Studies, Certificates, Diplomas, Degrees and Other Academic Qualifications in Higher Education in African States, 2014: http://portal.unesco.org/en/ev.php -URL_ID=49282&URL_DO=DO_TOPIC&URL_SECTION=201.html (consulted September 21, 2016).

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Parties are encouraged to make public, and inform applicants of, what they consider to be a "reasonable time limit" with respect to Articles III.4 and III.5 of this Convention. […] While a decision in the applicant's favour does not have to be justified, the reasons for a decision to the applicant's disadvantage should be stated.95

The same standards are also found in Article III.5 of the Asia‐Pacific Regional Convention on the Recognition of Qualifications in Higher Education and Article IV.6 of the Revised Convention on the Recognition of Studies, Certificates, Diplomas, Degrees and Other Academic Qualifications in Higher Education in African States.

(D) Substantial differences: the only factor that can limit recognition of qualifications

Article VI.1 of the Lisbon Convention states that:

To the extent that a recognition decision is based on the knowledge and skills certified by the higher education qualification, each Party shall recognise the higher education qualifications conferred in another Party, unless a substantial difference can be shown between the qualification for which recognition is sought and the corresponding qualification in the Party in which recognition is sought.

In that regard, the explanatory report to this convention says that:

While acknowledging that recognition decisions may entail other factors than the knowledge and skills certified by the higher education qualification, this Article states the basic principle that Parties should recognize higher education qualifications earned in the higher education system of any other Party unless a substantial difference can be shown between the qualification for which recognition is sought and the corresponding qualification in the country in which recognition is sought. It is underlined that the difference must be both substantial and relevant as defined by the competent recognition authority.96

This standard is also found in Article VI.1 of the Asia‐Pacific Regional Convention on the Recognition of Qualifications in Higher Education and in Article III.2.1 of the Revised Convention on the Recognition of Studies, Certificates, Diplomas, Degrees and Other Academic Qualifications in Higher Education in African States.

In addition, the concept of “substantial difference” is defined in the Revised Recommendation on Criteria and Procedures for the Assessment of Foreign Qualifications, adopted in 201097.

95 Council of Europe, Explanatory Report to the Convention on the Recognition of Qualifications concerning Higher Education in the European Region, 1997, p. 13: https://rm.coe.int/CoERMPublicCommon SearchServices/DisplayDCTMContent?documentId=09000016800ccde6 (consulted September 21, 2016).

96 Ibid., p. 18. 97 UNESCO and Council of Europe, Revised Recommendation on Criteria and Procedures for the Assessment of

Foreign Qualifications, 2010: https://www.cicic.ca/docs/lisboa/recommendation-foreign-qualifications-2010.en.pdf (consulted September 21, 2016).

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Articles 36 and 37 of this revised recommendation discuss the concept of “substantial difference” as it is set out in the Lisbon Convention. The recommendation will thus help to guide the competent authorities who will have to analyze recognition applications.

Article 36 of the revised recommendation states that:

Qualifications of approximately equal level may show differences in terms of content, profile, workload, quality and learning outcomes. In the assessment of foreign qualifications, these differences should be considered in a flexible way, and only substantial differences in view of the purpose for which recognition is sought (e.g. academic or de facto professional recognition) should lead to partial recognition or nonrecognition of the foreign qualifications.

The explanatory memorandum appended to this recommendation says the following with regard to Article 36:

Differences in the content, learning outcomes and profile of qualifications may concern e.g. the degree of specialisation or general education, requirements for independent written work (such as papers, dissertations, thesis), the inclusion of practice periods, laboratory experience or similar requirements (e.g. in medical or natural sciences), or the inclusion of non-academic elements (such as sports or vocational training) in the qualification. What may be defined as "substantial differences", which may lead to partial recognition or to non-recognition, will to a large extent depend on the purpose(s) for which recognition is sought, for example recognition for the purpose of pursuing further studies or for access to a non-regulated professional activity. In some contexts, a broadly based education may be desirable, whereas, in other contexts, a considerable degree of specialisation may be required.

Some examples of learning outcomes are provided after this paragraph.

In addition, Article 37 of this recommendation stipulates that:

37. Recognition of foreign qualifications should be granted unless a substantial difference can be demonstrated between the qualification for which recognition is requested and the relevant qualification of the State in which recognition is sought. In applying this principle, the assessment should seek to establish whether:

(a) the differences in learning outcomes between the foreign qualification and the relevant qualification of the country in which recognition is sought are too substantial to allow the recognition of the foreign qualification as requested by the applicant. If so, the assessment should seek to establish whether alternative, partial and/or conditional recognition may be granted;

(b) the differences in access to further activities (such as further study, research activities, and the exercise of gainful employment) between the foreign qualification and the relevant qualification of the country in which recognition is sought are too substantial to allow the recognition of the foreign qualification as requested by the applicant. If so, the assessment should seek to establish whether alternative, partial and/or conditional recognition may be granted;

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(c) the differences in key elements of the programme(s) leading to the qualification in comparison to the programme(s) leading to the relevant qualification of the country in which recognition is sought are too substantial to allow the recognition of the foreign qualification as requested by the applicant. If so, the assessment should seek to establish whether alternative, partial and/or conditional recognition may be granted. The comparability of programme elements should, however, be analysed only with a view to the comparability of outcomes and access to further activities, and not as a necessary condition for recognition in their own right;

(d) competent recognition authorities can document that the differences in the quality of the programme and/or institution at which the qualification was awarded in relation to the quality of the programmes and/or institutions granting the similar qualification in terms of which recognition is sought are too substantial to allow the recognition of the foreign qualification as requested by the applicant. If so, the assessment should seek to establish whether alternative, partial and/or conditional recognition may be granted.98

The explanatory memorandum says the following with regard to this article:

The paragraph underlines that if a competent recognition authority wishes to withhold recognition―entirely or partially―of a foreign qualification, it is the duty of the competent recognition authority to demonstrate that this decision is justified. This is in accordance with the principles of the Lisbon Recognition Convention as well as the European Union Directives on professional recognition.

First of all, it can be noted that the Lisbon Convention, unlike the instruments of the European Union and the Québec-France Agreement on the Mutual Recognition of Professional Qualifications99 (hereinafter the “Québec-France Agreement”), does not introduce an obligation for States to take into account the professional experience and lifelong learning of a professional in order to determine if that experience and learning can compensate for a substantial difference. The mere existence of a relevant substantial difference is enough to prevent professional qualifications from being recognized; it can also simply lead to their partial recognition. The difference between the two systems may be explained by the fact that the Lisbon Convention was adopted to ensure recognition of qualifications for the purpose of fostering access to higher education. The goal was not to ensure recognition for professional purposes, as in the case of the Québec-France Agreement.

It is also interesting to note that differences between the quality of programs and/or institutions at which foreign qualification is awarded and the quality of programs and/or institutions granting similar qualification in the country where recognition is sought may be taken into account to establish the existence of a substantial difference. Differences in quality seem more subjective than other types of differences and documentary evidence must be provided. There is no mention

98 Ibid., pp. 9-10. 99 Entente entre le Québec et la France en matière de reconnaissance mutuelle des qualifications professionnelles,

2008 : http://www.mrif.gouv.qc.ca/Content/documents/fr/2008-12.pdf (in French) (consulted September 21, 2016).

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of the quality of programs in the instruments of the European Union or in the Québec-France Agreement.

(E) Recognition of studies for the purpose of pursuing a profession

Article VI.3 of the Lisbon Convention states that:

Recognition in a Party of a higher education qualification issued in another Party shall have one or both of the following consequences […] (b) the use of an academic title, subject to the laws and regulations of the Party or a jurisdiction thereof, in which recognition is sought. In addition, recognition may facilitate access to the labour market subject to laws and regulations of the Party, or a jurisdiction thereof, in which recognition is sought.

The explanatory report to the convention says that:

Recognition cannot be withheld for reasons immaterial to the qualification or the purpose for which recognition is sought […] In addition, and especially in the case of regulated professions, the competent bodies of the Parties may stipulate other requirements for the recognition of final higher education qualifications for employment purposes, such as requirements regarding practice periods as additional or posterior to the higher education programmes or sufficient competence in the official or regional language(s) of the country in which recognition is sought. Such additional requirements for the recognition of final higher education qualifications for employment purposes are not covered by the present Convention.100

This standard is also found in Article VI.4 of the Asia‐Pacific Regional Convention on the Recognition of Qualifications in Higher Education.

Article III.2(4) of the Revised Convention on the Recognition of Studies, Certificates, Diplomas, Degrees and Other Academic Qualifications in Higher Education in African States is slightly different:

Parties agree to take the necessary measures to ensure that the qualifications issued by an accredited institution of higher education of a Party are recognized for the purpose of employment in conformity with labour laws in the receiving Party.

Therefore, it seems that the African Convention enables studies to be recognized for the purpose of pursuing a profession, while the other second-generation conventions mention recognition solely as a mechanism for facilitating access to the labour market.

100 Council of Europe, Explanatory Report to the Convention on the Recognition of Qualifications concerning Higher Education in the European Region, 1997, pp. 18-19: https://rm.coe.int/CoERMPublicCommon SearchServices/DisplayDCTMContent?documentId=09000016800ccde6 (consulted September 21, 2016).

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(F) The case of refugees:

Article VII of the Lisbon Convention states that:

Each Party shall take all feasible and reasonable steps within the framework of its education system and in conformity with its constitutional, legal, and regulatory provisions to develop procedures designed to assess fairly and expeditiously whether refugees, displaced persons and persons in a refugee-like situation fulfill the relevant requirements for access to higher education, to further higher education programmes or to employment activities, even in cases in which the qualifications obtained in one of the Parties cannot be proven through documentary evidence.

This rule stipulates that refugees and displaced persons may see their file treated even in cases where the qualifications they have obtained cannot be proven through documentary evidence. Article VII suggests that there are exceptions to Article III.5 of the Lisbon Convention, which states that decisions on recognition must be made within a reasonable time, calculated from the time all the information needed to examine an application has been provided. In our opinion, this seems to indicate that, in certain exceptional circumstances, it is not necessary for all documents to be provided for a file to be studied or a decision to be made.

This rule has started to become an integral part of Canadian practice even though the Lisbon Convention has not been officially ratified yet. In fact, the Manitoba Fairness Commissioner recommends that professional regulatory bodies take reasonable measures to offer alternative forms of documentary evidence to individuals who, for good reasons, cannot submit the documentation requested.101

In addition, as mentioned earlier, the Superior Court of Ontario, in Siadat v. Ontario College of Teachers (2007), reversed the decision of the College of Teachers of that province, which did not want to consider the qualifications of a refugee professor of Iranian origin who could not submit originals of the documents attesting to her qualifications. Nor did the college want to give her the option of submitting alternative forms of documentary evidence. The Court concluded that the College should adapt its procedures by taking into account the special circumstances of refugees and, therefore reconsider Ms. Siadat’s application. The judge based his decision partly on the Lisbon Convention.102

In June 2017, the Québec Professional Code was amended to, among others, incorporate principles and modalities inspired by the Lisbon Convention allowing recognition of qualifications

101 Office of the Manitoba Fairness Commissioner, Position Statement: Alternative Documentation, July 2014, p. 1.: http://www.manitobafairnesscommissioner.ca/wp-content/uploads/OMFC-Position-Statement-Alternative-Documentation.pdf (consulted September 21, 2016).

102 Ibid., p. 3.

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of people unable to provide documentary evidence usually required to obtain a licence for regulated professions103.

In October 2017, the Canadian Information Centre for International Credentials (CICIC)104 has published a best practices and guidelines document for an alternative qualification-assessment procedure without access to verifiable documentation105. CICIC has also launched an initiative on the topic to support assessors and stakeholders106.

In November 2017, the Lisbon Convention Committee adopted the Recommendation on the Recognition of Refugees’ Qualifications Under the Lisbon Recognition Convention.107.

(G) Recognition of qualifications free of charge

The 2010 Revised Recommendation on Criteria and Procedures for the Assessment of Foreign Qualifications, which is a subsidiary text to the Lisbon Convention, includes a recommendation on the recognition of qualifications free of charge. The recommendation states that:

21. The competent recognition authorities should consider whether it is possible to provide for assessment of foreign qualifications as a public service free of charge. Where this is not feasible, fees should be kept as low as possible and should not be so high as to constitute a barrier to the assessment of foreign qualifications […]

23. Requirements for the translation of documents should be carefully weighed and clearly specified, especially as concerns the need for authorised translations by sworn translators. It should be considered whether requirements for translation could be limited to key documents, and whether documents in certain foreign languages, to be specified by the competent recognition authorities, could be accepted without translation. The countries concerned are encouraged to revise any current laws preventing the acceptance of documents in non-national languages without translation .108

103 See Section 94, par. 2 of the Professional Code, CQLR., chapter C-26, (http://legisquebec.gouv. qc.ca/en/ShowDoc/cs/C-26), amended by An Act to amend various legislation mainly with respect to admission to professions and the governance of the professional system, QL 2017, chapter 11 (http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=5&file=2017C11A.PDF) (consulted November 27, 2018).

104 CICIC, created by the Council of Ministers of Education Ministers (Canada): https://www.cicic.ca. 105 Id., Assessing the Qualifications of Refugees: Best Practices and Guidelines, Final Report, 2017:

https://www.cicic.ca/docs/2017/Best_Practices_and_Guidelines.pdf (consulted November 27, 2018). 106 See https://www.cicic.ca/1637/get_more_information_about_the_assessing_the_qualifications_of_refugees_

initiative.canada (consulted November 27, 2018). 107 See section 4.2.3 below. 108 UNESCO and Council of Europe, Revised Recommendation on Criteria and Procedures for the Assessment of

Foreign Qualifications, 2010, pp. 6-7: https://www.cicic.ca/docs/lisboa/recommendation-foreign-qualifications-2010.en.pdf (consulted September 21, 2016).

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This recommendation on free recognition is not included in regional conventions. We don’t know whether it will be discussed when a global convention is adopted and thus become a legally binding standard for States.

4.2.3 Recommendation in the case of refugees or persons in a refuge like situation

At its extraordinary session on November 14, 2017, the Lisbon Convention Committee adopted the Recommendation on the Recognition of Refugees’ Qualifications Under the Lisbon Recognition Convention.109 The goal of the recommendation is to facilitate the recognition of qualifications held by refugees as well as displaced persons or people in a refugee-like situation, when their qualifications cannot be adequately documented. It sets out the way in which some basic provisions of the Lisbon Convention should be applied to the recognition of refugees’ qualifications, particularly with regard to the assessment of qualifications, background documents as an alternative to formal statements, and information on the process.

4.2.4 Toward a Global Convention on the Recognition of Qualifications

The work leading to a global convention on the recognition of professional qualifications has gained momentum in recent years and several documents have been published in this regard. For example, the Draft Preliminary Report Concerning the Preparation of a Global Convention on the Recognition of Higher Education Qualifications published in 2015 contains suggestions on the basic principles on the recognition of qualifications in higher education. These suggestions include:

5.2 Respect and Recognition of the Diversity of National Higher Education Systems and Academic Autonomy

[…]

5.3 The Role of Trust and Ethics in Recognition Practices: The role of a global convention would be to establish commonly agreed principles and procedures for the recognition of qualifications in higher education. Successful practice of such procedures will depend on the trust and ethics within the system […] The importance of making available reliable and updated information through established national information centres or national information services is a common measure included in the revised recognition conventions in order to facilitate transparency and build trust between the Parties […]

The global higher education community also needs to create measures to fight the growth of fraudulent qualifications practices that are negatively affecting recognition in higher education worldwide. Through commitment from the Parties to the convention, a global convention could be an important instrument in the global fight against such fraudulent

109 Id., Recommendation on the Recognition of Refugees’ Qualifications Under the Lisbon Recognition Convention, 2017: http://www.enic-naric.net/fileusers/1251_Recommendation_on_Recognition_of_Qualifications_ Held_by_Refugees_Displaced_Persons_and_Persons_in_a_Refugee_like_Situation.pdf (consulted November 23, 2018).

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and unethical activities which severely threaten the trust in the global higher education community.110

The draft preliminary report goes on to say that:

As mentioned in Section 3.1.2 above, a key lesson from earlier experience and a relevant factor for success will be to concentrate on academic recognition. Hence, the global convention will not be designed to regulate recognition for the purpose of entry into a profession. Although recognition for labour market entry is an important field, it would severely complicate both the development and the implementation of this normative instrument if recognition for the purpose of pursuing certain professions were to be included as a binding modality within the convention. Notwithstanding, it is important to note that rules and regulations for different types of recognition should all work in concert to provide streamlined recognition, and the principles and practices established through a global convention can voluntarily be used by Member States to facilitate professional recognition if deemed appropriate by the individual Member State.111

Through Resolution 37 C/Resolution 15, the 2015 General Conference of UNESCO recognized the benefits of a global convention on the recognition of higher education qualifications, and invited the Director General to initiate the process of elaborating a global convention.112 The Director General then appointed a drafting committee and tasked it with preparing a preliminary draft of the global convention.113

The adoption of a global convention will introduce international standards in several areas, and these standards will be binding for the States that ratify the convention. The standards referred to in the draft preliminary report are not final, but they provide some idea of the objective of this global convention and the issues it might address and regulate. The Executive Board has stressed the importance of basing the global convention on quality assurance, transparency, equity and reciprocity, with due attention being paid to academic freedom, institutional autonomy and accountability.114 Moreover, it is clear that the main objective of the convention will be to regulate the recognition of higher education qualifications in order to foster the mobility of students and academics and not to facilitate entry into the labour market.115 However, as noted by UNESCO, it will be possible to use the rules put in place by this global convention to ensure recognition for professional purposes because the rules are similar. As the draft preliminary report says:

110 UNESCO, Draft Preliminary Report Concerning the Preparation of a Global Convention on the Recognition of Higher Education Qualifications, 2015, pp. 20-21: http://unesdoc.unesco.org/images/0023/002347/ 234743E.pdf (consulted September 21, 2016).

111 Ibid., p. 18. 112 UNESCO, General Conference, Preliminary Report Concerning the Preparation of a Global Convention on the

Recognition of Higher Education Qualifications, 2015, p. 1: http://unesdoc.unesco.org/images/0023/002352 /235261e.pdf (consulted September 21, 2016).

113 Ibid., p. 2. 114 Ibid., p. 1. 115 Ibid., p. 3.

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“Academic recognition could facilitate labour market entry, but entry into certain professions remains of national regulation or is governed through other international agreements.”116

Several meetings have been organized with the Drafting Committee for a Global Convention on Recognition of Higher Education Qualifications set up by the Director General. The first meeting was held on May 11 and 12, 2016 with educational experts. The discussions at this first meeting focused not only on the preamble and the definition of terms, but also on the convention’s objective. According to the web page on the committee, “the objective is that a global convention should be to support mobility for studies, research and job seeking ensuring the right to applicants to get their higher education qualifications assessed and enhancing international cooperation in higher education”.117  A second meeting held on September 19 and 20, 2016 discussed mainly the basic principles related to the assessment of qualifications, the obligations of the parties, implementation mechanisms and final clauses.118 The committee held two more meetings before submitting a text in August 2017. The text was revised at the 39th session of the UNESCO General Conference in November 2017.119

The General Conference of November 2017 approved the continued preparation of the new convention.120 A series of consultations on a third draft of the Global Convention121 will be held with the member States starting in 2018. The objective is the adoption of the draft text by the member States during UNESCO’s 40th General Conference in November 2019.

4.3 Recognition of Informally Acquired Knowledge and Skills

Many of the UNESCO instruments consulted in writing this report refer to the importance of recognizing prior learning acquired by adults through professional experience or informal methods. In 1997, the various stakeholders involved in the Hamburg Declaration on Adult

116 Loc. cit. 117 UNESCO, First Meeting of the Drafting Committee for a Global Convention on Recognition of Higher Education

Qualifications, 2016: http://www.unesco.org/new/en/member-states/single-view/news/first_meeting_of_the_drafting_committee_for_a_global_convent/ (consulted October 12, 2016).

118 Id., The Second Meeting of Drafting of the Global Convention on Recognition of Higher Education Qualifications Takes a Step Forward, 2016: http://www.unesco.org/new/en/media-services/single-view/news/the_second_meeting_of_drafting_of_the_global_convention_on_r/ (consulted October 12, 2016).

119 Id., General Conference, Progress Report on the Preparation of the Draft Global Convention on the Recognition of Higher Education Qualifications, August 8, 2017, p. 2: http://unesdoc.unesco.org/images/0025/002530/ 253046e.pdf (consulted November 20, 2017).

120 See UNESCO press release on November 11, 2017: https://en.unesco.org/news/academic-mobility-convention-green-light-unesco-s-member-states-possible-adoption-2019. (consulted November 20, 2017).

121 See communication of March 2018 and the third draft (July 2017) of the UNESCO Global Convention on the Recognition of Higher Education Qualifications: http://unesdoc.unesco.org/images/0026/002617/ 261727e.pdf (consulted November 27, 2018).

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Learning, pledged to develop “methods for the recognition of [adults’] experiential and prior learning”122  and to ensure that “knowledge and skills informally acquired are fully recognized”.123

More recently, in 2009, when the Belém Framework for Action was adopted, the various stakeholders committed to “developing or improving structures and mechanisms for the recognition, validation and accreditation of all forms of learning by establishing equivalency frameworks” 124 (point 12).

The UNESCO Guidelines for the Recognition, Validation and Accreditation of the Outcomes of Non-formal and Informal Learning, published in 2012, state that it is necessary to “promote the equal value of learning outcomes of formal, non-formal and informal learning”125 and that “competences that every individual has accumulated through non-formal and informal learning should be treated on a par with those that are obtained through formal learning”.126 They also say that a system should be put in place to assess individuals’ learning, regardless of whether it has been acquired in a formal or an informal setting. In addition, UNESCO has pledged in the guidelines to create an observatory on the recognition, validation and accreditation of all forms of practical learning outcomes, for the purpose of collecting and disseminating best practices in this field.

In 2015, the Incheon Declaration and its framework for action stipulated that lifelong learning must be fostered and that there is thus a need to strengthen “links between formal and non-formal structures, and recognition, validation and accreditation of the knowledge, skills and competencies acquired through nonformal and informal education”.127

Most of the declarations and commitments analyzed above were made in the course of discussions on adult education.

Article III.4 of the Revised Convention on the Recognition of Studies, Certificates, Diplomas, Degrees and Other Academic Qualifications in Higher Education in African States (2014) also contains a reference to this standard regarding informally acquired knowledge and skills:

122 CONFINTIA, Adult Education: The Hamburg Declaration, 1997: http://unesdoc.unesco.org/images/0011 /001161/116114Eo.pdf (consulted September 14, 2016).

123 Loc. cit. 124 UNESCO, The Belém Framework for Action: Harnessing the power and potential of adult learning and

education for a viable future, p. 3: https://www.unesco.de/fileadmin/medien/Dokumente/Bildung/ CONFINTEA_VI_Belem_Framework_for_Action_Final.pdf (consulted September 14, 2016).

125 Id., UNESCO Guidelines for the Recognition, Validation and Accreditation of the Outcomes of Non-formal and Informal Learning, 2012, p. 4: http://unesdoc.unesco.org/images/0021/002163/216360e.pdf (consulted September 14, 2016).

126 Loc. cit. 127 UNESCO, Education 2030: Framework for Action: Towards inclusive and equitable quality education and

lifelong learning opportunities for all, p. 33: http://unesdoc.unesco.org/images/0024/002456/245656E.pdf (consulted September 14, 2016).

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Parties agree, with a view to promoting adult education and lifelong learning, to adopt procedures, criteria and standards that allow the validation of acquired relevant experience and prior learning for access to higher education programmes.

It is worth noting the importance attached to the recognition of such competencies and to the implementation of a recognition system and an observatory on this question. Structures and mechanisms for the recognition, validation and accreditation of informally acquired learning could be a useful source of inspiration for professional regulatory bodies that wish to recognize informally acquired learning.

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5. EQUALITY OF TREATMENT IN EDUCATION

Various international organizations recognize equal treatment regarding access to education as a right. Pursuant to this right, migrants must be treated in the same way as nationals when they apply for training programs.

Article 43 of the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families stipulates that migrant workers must enjoy equality of treatment with nationals when it comes to access to educational and vocational training institutions and that States Parties must strive to “promote conditions to ensure effective equality of treatment”.

In addition, Article 7 of the 1969 UN International Convention on the Elimination of All Forms of Racial Discrimination specifies that “States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, […] with a view to combating prejudices which lead to racial discrimination.”128

Access to education without discrimination is also discussed in the Durban Declaration and Programme of Action, adopted by the UN in 2001. 129

Several UNESCO instruments also defend this right. For example, Article 3 of the UNESCO Convention against Discrimination in Education130 enjoins states:

(a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education;

(b) To ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions;

[…]

(e) To give foreign nationals resident within their territory the same access to education as that given to their own nationals.

In addition, according to Article 4 of this convention, states must “undertake furthermore to formulate, develop and apply a national policy which, by methods appropriate to the circumstances and to national usage, will tend to promote equality of opportunity and of treatment in the matter of education”.

128 United Nations, International Convention on the Elimination of All Forms of Racial Discrimination, 1969: http://www.ohchr.org/Documents/ProfessionalInterest/cerd.pdf (consulted September 14, 2016).

129 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban Declaration and Programme of Action, 2001: http://www.un.org/WCAR/durban (consulted September 21, 2016).

130 UNESCO, Convention against Discrimination in Education, 1960, http://portal.unesco.org/en/ev.php-URL_ID=12949&URL_DO=DO_TOPIC&URL_SECTION=201.html (consulted September 14, 2016).

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This issue is also discussed in other UNESCO instruments, such as the 1960 Recommendation against Discrimination in Education131 and the 1998 World Declaration on Higher Education for the Twenty-First Century, which states in Article 3 that “no discrimination can be accepted in granting access to higher education on grounds of race, gender, language or religion, or economic, cultural or social distinctions, or physical disabilities”.132

Therefore, the principle of the right to education without discrimination is well established and it should be possible for all migrants to exercise it.

131 Id., Recommendation against Discrimination in Education, 1960, http://portal.unesco.org/en/ev.php-URL_ID=13065&URL_DO=DO_TOPIC&URL_SECTION=201.html (consulted September 14, 2016).

132 Id., World Declaration on Higher Education for the Twenty-First Century: Vision and Action, 1998, art. 3: http://www.unesco.org/education/educprog/wche/declaration_eng.htm (consulted September 23, 2016).

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6. EUROPEAN UNION INSTRUMENTS AND DOCUMENTS

The free movement of workers was introduced in the European Union as of its creation. Article 3(c) of the Treaty of Rome of 1957 stipulates that the European Community (now European Union) includes a common market characterized by the elimination of obstacles to the free movement of persons.133 Article 49 of this treaty provides that the Council may adopt, by means of directives or regulations, measures to introduce the free movement of workers. The provisions of the fundamental treaties of the European Union concerning the internal market and the free movement of persons and services were improved over the years134.

Directives were adopted for ensuring the free movement of workers. The Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (hereinafter the “2005 Directive”), aimed at eliminating all of the requirements of states with regard to the training of employed and self-employed persons that might remain and create obstacles to the freedom of establishment of persons.135 The 2005 Directive was amended over the years136 and established rules for recognizing professional qualifications acquired in one or more member states. The goal of such recognition was to enable professionals to practise in a host member state of the European Union the same profession as that for which they were qualified in their home member state.

The European Union has implemented three professional qualifications recognition systems, whose structure is clearly defined by the 2005 Directive:

A system of automatic recognition of qualifications based on shared principles of training in at least two member states under Chapter III, applicable to doctors, nurses, dental practitioners, veterinary surgeons, midwives, pharmacists and architects. This system is often referred to as recognition of the sectoral professions.137

133 Treaty establishing the European Economic Community, 1957, art. 48(1): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A11957E%2FTXT (in French) (consulted November 27, 2018).

134 Treaty on European Union (consolidated version 2016), OJ C 202, 7.6.2016, p. 1–366 (EN)”: https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A12016M%2FTXT (consulted November 29, 2018). Treaty on the Functioning of the European Union (consolidated version 2016), OJ C 202, 7.6.2016, p. 1–388 (EN), p. 1–388 : https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12016E/TXT&from=EN (consulted November 29, 2018).

135 Recognition of professional qualifications: http://www.europedia.moussis.eu/books/Book_2/3/6/05/2/ ?lang=en&all=1&s=1&e=10 (page consulted September 30, 2016).

136 Directive 2005/36/EC of the European Parliament and of the Council of September 7, 2005, on the recognition of professional qualifications (consolidated version 2017): https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02005L0036-20171201&from=EN (consulted November 29, 2018).

137 Swiss Confederation, Office fédéral de la formation professionnelle et de la technologie, Nouvelle directive européenne sur la reconnaissance des qualifications professionnelles, p. 10: https://www.admin.ch/ch/i/gg/pc/documents/1509/Bericht.pdf (consulted October 3, 2016).

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A general system for the recognition of professional qualifications (hereinafter the “general system”) under Chapter I.

A system of recognition based on professional experience, corresponding previously to Directive 99/42/CE, under Chapter II.138 That directive was introduced mainly for industrial, commercial and craft activities.

The system of recognition that interests us the most here is the general system for the recognition of professional qualifications. It is the most relevant to our research because it provides a basis for drawing comparisons with the other recognition systems studied in this report. Moreover, it is the system that is the most compatible with the professional system in effect in Québec. Therefore, the analysis set out in this section will focus on the rules governing this general system of recognition.

In October 2007, the Council of Europe met in Lisbon and approved the Treaty of Lisbon, which introduced modifications to both the Treaty on European Union (Maastricht Treaty) and the Treaty establishing the European Community (Treaty of Rome). The Treaty of Lisbon was ratified by 27 member states and came into effect on December 1, 2009.139

The Treaty of Lisbon is the most recent, major European treaty to be adopted and ratified. It consolidates the founding treaties and maintains the spirit of the Treaty of Rome with regard to the will to abolish obstacles to the free movement of persons. In fact, it specifies in the second paragraph of Article 26 that “the internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties”.140 Article 53 of the treaty stipulates that:

In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.

6.1 Applying compensation measures and taking professional experience into account under the 2005 Directive

Article 13 of the 2005 Directive stipulates that the basic principle of the general recognition system is the recognition of professional qualifications:

138 Ibid., p. 10. 139 Fondation Robert Schuman, Understanding the Lisbon Treaty: https://www.robert-

schuman.eu/en/understanding-the-lisbon-treaty (consulted November 29, 2018). 140 Treaty on the Functioning of the European Union (consolidated version 2016), OJ C 202, 7.6.2016, p. 1–388

(EN), p. 1–388, art. 26(2) : https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12016E /TXT&from=EN (consulted November 29, 2018).

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1. If access to or pursuit of a regulated profession in a host Member State is contingent upon possession of specific professional qualifications, the competent authority of that Member State shall permit applicants to access and pursue that profession, under the same conditions as apply to its nationals, if they possess an attestation of competence or evidence of formal qualifications referred to in Article 11, required by another Member State in order to gain access to and pursue that profession on its territory.141

This same article provides that, in cases where a profession is not regulated in the country of origin, access to the pursuit of the profession must nonetheless be granted to applicants who have pursued the profession concerned on a full-time basis for one year during the previous 10 years.

However, the rule set out in Article 13 is subject to one exception. Under Article 14 of the directive, host member states may require an applicant to compete a compensation measure, in the form of an adaptation period or an aptitude test, when there exists a substantial difference between the training received by the applicant in the home country and that offered in the host country.

The cases where compensation measures may be required are clearly defined. Two in all, they are listed in paragraph 1 of Article 14 of the 2005 Directive. A substantial difference exists if:

the training covers substantially different matters than those covered by the evidence of formal qualifications required in the host member state;

the regulated profession in the host member state comprises one or more regulated professional activities which do not exist in the corresponding profession in the applicant's home member state and which cover substantially different matters.

The expression “substantially different matters” is defined in paragraph 4 of Article 14 as follows:

[…] matters in respect of which knowledge, skills and competences acquired are essential for pursuing the profession and with regard to which the training received by the migrant shows significant differences in terms of content from the training required by the host Member State.

In addition, if a substantial difference is noted, there is some flexibility in the awarding of compensation measures. Under paragraph 2 of Article 14, the applicant must be able to choose between an adaptation period of up to three years and an aptitude test. However, States may derogate from this requirement under certain conditions.

Under paragraph 5 of Article 14, the principle of proportionality applies to compensation measures. Also, before Member States require professionals to complete a compensation measure, they must take into account not only the professionals’ work experience but also the

141 Directive 2005/36/EC of the European Parliament and of the Council of September 7, 2005, on the recognition of professional qualifications (consolidated version 2017), op. cit., art. 13.

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knowledge, skills and competencies that they have acquired through learning in which they have participated and which has been formally validated by a relevant body:

Paragraph 1 shall be applied with due regard to the principle of proportionality. In particular, if the host Member State intends to require the applicant to complete an adaptation period or take an aptitude test, it must first ascertain whether the knowledge, skills and competences acquired by the applicant in the course of his professional experience or through lifelong learning, and formally validated to that end by a relevant body, in any Member State or in a third country, is of such nature as to cover, in full or in part, the substantially different matters defined in paragraph 4.

In the European system, States have to consider the professional experience already acquired by professionals and adjust compensation measures accordingly. They have to verify whether the knowledge that professionals have acquired in the course of their professional experience will compensate in whole or in part for any substantial differences observed.

Individuals who received training in a state that does not regulate their profession must be treated in the same way as professionals who were trained in a country that regulates the profession concerned, provided they have one year of professional experience.

6.2 A process centred on professionals and procedural fairness

Article 51 of the 2005 Directive introduced good practices and rules of procedural fairness for the recognition of professional qualifications. This article stipulates that professionals must be informed of any missing documents upon receipt of their application. In addition, it provides that decisions on applications for recognition must be made as quickly as possible and be duly substantiated if they are negative. It is estimated that decisions must be made within three months after the date on which an applicant’s complete file has been submitted.

Paragraph 6 of Article 14 says that decisions by the state to impose a compensation measure must be duly justified. Applicants must be provided with the following information:

(a) the level of the professional qualification required in the host Member State and the level of the professional qualification held by the applicant in accordance with the classification set out in Article 11; and

(b) the substantial differences referred to in paragraph 4 and the reasons for which those differences cannot be compensated by knowledge, skills and competences acquired in the course of professional experience or through lifelong learning formally validated to that end by a relevant body.

Paragraph 7 of Article 14 stipulates that applicants must have the opportunity of taking an aptitude test not later than six months after the initial decision imposing the test was made by the State.

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6.3 Best practices regarding proportionality and cooperation with the competent authorities

A code of conduct was adopted following the introduction of the 2005 Directive. This code specifies that the competent authorities must fulfil certain obligations when they take part in the process of recognition of professional qualifications. It is stipulated that in cases where information is lacking on a migrant’s training, “it is the duty of the competent authority to look for this information through administrative cooperation”.142 It had previously been established that a professional’s application could not be refused on account of a lack of information. The underlying principle is thus fleshed out by this code of conduct.

The code also provides that, in situations where the competent authority has not obtained from a migrant or through the contact point or the competent authority of the home member state or any relevant body in the home member state any information on training followed by the migrant within one month following receipt of the declaration, the migrant must be informed of the reasons for the delay. If the problem cannot be resolved rapidly, the competent authority must make a decision on the basis of the documents and information available.143

The competent authorities must cooperate with other states and institutions, as well as with professionals requesting recognition of their qualifications.

In addition, as seen earlier, the competent authorities are required to award proportionate compensation measures. However, they must first determine whether such measures are necessary and adjust them accordingly by considering and assessing the professional experience already acquired by applicants during their lifetime, along with their validated learning outcomes. The 2005 Directive as amended over the years brings out the notion that that only proportionate compensation measures adapted to the needs of individual professionals are beneficial.

6.4 European Directive on a proportionality test for the regulation of professions (2018)

On June 28, 2018, the European Union has adopted a Directive on a proportionality test for the regulation of professions.144 This document discusses several aspects of the regulation of professions and the recognition of qualifications. The proportionality test to be applied to

142 Code of Conduct Approved by the Group of Coordinators for the Directive 2005/36/EC on the Recognition of Professional Qualifications, 2005, O.J.- L 255, 30.09.2005 pp. 6-7: https://ec.europa.eu/ docsroom/documents/14981/attachments/1/translations/en/renditions/pdf (consulted September 23, 2016).

143 Ibid., p. 12. 144 Directive (EU) 2018/958 of the European Parliament and of the Council of 28 June 2018 on a proportionality

test before adoption of new regulation of professions, OJ L 173, 9.7.2018, pp. 25–34 EN: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018L0958&from=EN (consulted November 29, 2018).

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regulated professions is in keeping with the 2005 Directive on the recognition of professional qualifications145 and the 2006 Directive on services in the internal market.146

The proportionality test of this recent directive is based on several considerations related to social policy, human rights, recognition of qualifications, movement of persons, fair competition and trade liberalization. With it, the European Commission is rolling into a single assessment process questions on the regulation of professions which bring into play several sectors of society.

With the proportionality test, Member States of the European Union have to justify the need to regulate a profession. If regulation is warranted, the terms and conditions of such regulation will also have to be justified.

6.5 Lessons From the European Approach

Some lessons can be drawn from the European approach. The following are particularly interesting:

• Compensation measures are very limited and may only be awarded in cases where substantial differences have been observed. These measures must be proportional;

• The professional experience and learning that professionals have acquired in their lifetime must be taken into account in imposing compensation measures;

• All decisions rendered must be duly substantiated, particularly if they are intended to impose compensation measures. They must identify the substantial differences and explain why they cannot be offset by professional experience or prior training;

• The competent authorities, including professional organizations, must take part in searching for information on migrants’ training so that migrants do not have to bear this burden on their own. If they are unable to find the information, they must make a decision on the basis of the documents and information available;

• Regulatory bodies must be held accountable for their treatment of requests for qualification recognition of professionals.

145 Directive 2005/36/EC of the European Parliament and of the Council of September 7, 2005, on the recognition of professional qualifications (consolidated version 2017), op. cit.

146 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ L 376, 27.12.2006, pp. 36–68: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32006L0123&from=EN . (consulted September 14, 2016).

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7. QUÉBEC-FRANCE AGREEMENT ON THE MUTUAL RECOGNITION OF PROFESSIONAL QUALIFICATIONS (2008)

Another document can be discussed in this presentation of international instruments and documents on the recognition of professional qualifications, namely, the Québec-France Agreement on the Mutual Recognition of Professional Qualifications (hereinafter the “Québec-France Agreement”), signed in 2008147. This agreement entered into by the Prime Minister of Québec and the President of the French Republic, [TRANSLATION] “takes a much more direct approach to the removal of labour market barriers affecting migrant professionals”.148 The objective of this agreement can be summarized as follows:

[TRANSLATION] Mutual recognition arrangements (MRAs) must be concluded between orders so that guidelines can be set beforehand for any additional training conditions that migrant professionals will eventually have to meet in order for their professional qualifications to be recognized by the other party. Only insurmountable differences can be an impediment to the conclusion of an MRA.149

The common procedure for the mutual recognition of professional qualifications by competent authorities set out in an Appendix of the Québec-France Agreement is very similar to that implemented by the 2005 European Directive on the recognition of professional qualifications. Section 2 of the common procedure stipulates that scopes of practice, formal qualifications or learning programs cannot be recognized as being equivalent if there is a substantial difference between them.150 The expression “substantial difference” is clearly explained, and the definition provided is very similar to that contained in the 2005 European Directive.

Section 3 of the common procedure of the Québec-France Agreement provides for three situations where substantial differences are deemed to exist. Concerning the scope of practice of a given profession or trade, the first paragraph of section 3 of the common procedure sets out:

147 Entente entre le Québec et la France en matière de reconnaissance mutuelle des qualifications professionnelles, op. cit.

148 Revue québécoise de droit international, op. cit., p. 224. 149 Ibid., p. 224. 150 Entente entre le Québec et la France en matière de reconnaissance mutuelle des qualifications professionnelles,

op. cit, Appendix I, s. 2.

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[TRANSLATION] 1. A substantial difference exists concerning the scope of practice when one or more of the activities covered by a profession or a regulated trade on the host territory do not exist in the corresponding profession or trade on the territory of origin and when this difference is characterized by specific training required on the host territory on subjects that differ substantially from those covered by the training on the territory of origin.

Concerning the formal qualifications (i.e. diploma, degrees) for a given profession or trade, paragraph 2 of section 3 of the common procedure sets out:

[TRANSLATION] 2. A substantial difference exists concerning the formal qualifications when matters covered by the formal qualifications on the territory of origin and that required on the host territory differ significantly in terms of duration and/or content (training cycles, overall training axis, broad matters and topics) and knowledge of these matters is essential for pursuing the regulated profession or trade

The difference in duration is deemed significant if it amounts to at least one year.

As for the content of a formal qualification, we see that one should focus the analysis on overall training axes. For a difference to be qualified as substantial, it has to relate to matters essential for pursuing the profession or trade.

Lastly, where a learning program prepares for a given profession or trade, paragraph 3 of article 3 of the common procedure states:

[TRANSLATION] 3. A substantial difference exists concerning a learning program when there is a significant difference in terms of duration and/or content between learning programs on the territory of origin and those on the host territory, and when these elements concern

The difference in duration is deemed significant if it amounts to at least one year.

In addition, like the 2005 European Directive, section 4 of the common procedure of the Québec-France Agreement states that when there is a substantial difference in formal qualifications or learning programs, the competent authorities must determine if the applicant’s professional experience can compensate for the difference. If it cannot be compensated for through experience, a compensation measures may be determined (section 5, paragraph 1 of the common procedure).

In case of substantial differences not compensated for through experience, three compensation measures may then be considered: an adaptation period, an aptitude test or additional training (section 5, paragraph 2 of the common procedure). It is interesting to note that preference is given to adaptation periods and that additional training must be reserved for situations [TRANSLATION] “where such training is the only way to protect the public and, particularly, public health and

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safety”.151 As in the 2005 European Directive, compensation measures imposed under the Québec-France Agreement must be proportionate and as non-restrictive as possible (section 5, paragraph 3 of the common procedure).

Recognition is the rule under the Québec-France Agreement. According to section 7 of the common procedure in an appendix of the Agreement, [TRANSLATION] “if an applicant’s scopes of practice, formal qualifications or learning programs are equivalent overall, the competent authority must recognize the applicant’s professional qualifications”. In addition, in cases where there is a substantial difference in formal qualifications or learning programs, the competent authorities must always give precedence to the possibility that the applicant’s work experience could compensate for the difference. If the applicant’s experience is sufficient, the competent authority must then recognize his or her professional qualifications (section 9 of the common procedure).

151 Ibid., s. 5(2).

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8. COMMENTS

8.1 Mutual recognition of professional qualifications

It is interesting to note that, internationally, there is an emphasis on mutual rather than unilateral recognition of professional qualifications. Indeed, the ILO, UNESCO, WHO, the IOM and several groups working on migration good governance endorse this idea. This preference is also found in the Global Compact for Safe, Orderly and Regular Migration adopted in December 2018.152

According to the ILO, certain recent global initiatives call for international cooperation encouraging the mutual recognition of competence and accreditation. The IOM, for its part, has said that recognition of qualifications can be improved under regional agreements concerning, for example, mutual recognition agreements. The Global Commission on International Migration has also recommended that states give preference to the mutual recognition of qualifications. This idea has been taken up by the Global Forum on Migration and Development, which has recommended the development of international cooperation in regard to professional qualifications through bilateral agreements for the recognition of such qualifications. In addition, WHO’s Global Code of Practice on the International Recruitment of Health Personnel mentions setting up bilateral, regional or multilateral mechanisms to promote international cooperation and coordination in the international recruitment and recognition of health personnel153. Lastly, UNESCO treaties are based on this mutual approach.

Mutual recognition of qualifications is believed to be a positive mobilization vector toward a more widespread recognition in the world. It is definitely a step in the right direction. However, “mutual” recognition presents the risk of a perverse, even reverse, effect. Isolationist and protectionist attitudes can possibly morph mutual recognition into reciprocal recognition. In a reciprocal approach, discussions are more concerned with commercial negotiations of interests (access to territories and markets) rather than with rational and objective analyses of the existence of a substantial equivalence or difference between the professions and trades of two territories.

Individuals are often forgotten in a reciprocal approach. As a principle, a person's qualifications cannot be denied in advance because, on grounds of commercial interests, narrow-mindedness or even a discriminatory attitude, there is no willingness to consider that person's true worth in terms of competence.

Competence is a state of facts for an individual, who cannot be denied his or her personal attributes of skills and competence documented by both training and experience (qualifications). International instruments and documents support this vision of competence as one of an

152 See objective 18 of the 2018 Global Compact for Safe, Orderly and Regular Migration. The qualifier "mutual" appeared in the text and was systematically juxtaposed to the word "recognition" starting with the second revision of the draft text of the Compact dated May 28, 2018 (consulted December 14, 2018).

153 World Health Organization, WHO Global Code of Practice on the International Recruitment of Health Personnel, 2010, p. 8: http://www.who.int/hrh/migration/code/full_text/en/ (consulted September 21, 2016).

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individual's attributes. Principles, standards and obligations are defined in terms of the individual and of the fair, transparent and objective processing of his or her application for recognition. Those instruments and documents constitute a corpus that could even determine a right to the recognition of qualifications.

“Mutual” recognition adds a modality to the recognition scheme. It runs the risk of drifting into a mere discussion of reciprocity, which would reduce aspirations in matters of recognition of qualifications. The mutual approach should not preclude the possibility for States, their institutions or other entities to further inscribe their actions within the principles, standards and obligations of international instruments and documents, thereby leading also to autonomous and unilateral recognition.

It would be preferable to promote the recognition of qualifications by combining all the approaches, whether they be mutual or autonomous/unilateral. All recognition systems must be based on principles of fairness and on objective criteria. Conditions for recognition must strive to be the product of a credible analysis of reality, not the product of preferences or interests.

Of note with regard to trade in services, the 1994 General Agreement on Trade in Services sets out the principles favouring the recognition of qualifications, whether on a mutual or unilateral basis.154

8.2 Accountability of Professional Organizations

A study funded by the European Commission and carried out by the IOM discusses the accountability of relevant authorities in regard to their treatment of immigrants. In fact, in this study, a direct recommendation was made to Canada―namely, that it pays more attention to the accountability of regulatory bodies in regard to their treatment of immigrants. Indeed, it has been determined that “increased accountability of regulatory bodies and increased transparency in licensure policies and practices can help facilitate the recognition processes for immigrants”.155 

8.3 Procedure for the recognition of qualifications

In this section, we will compare three professional qualification recognition models studied in this report to further understanding. They are the one introduced by UNESCO with the Lisbon Convention, the one introduced by the European Union and detailed in the 2005 Directive and the one introduced by the Québec-France Agreement

154 General Agreement on Trade in Services, World Trade Organization, 1994, paragraph 1 of article VII: https://www.wto.org/english/docs_e/legal_e/26-gats.pdf (consulted November 30, 2018).

155 Independent Network of Labour Migration and Integration Experts, Recognition of qualifications and competences of migrants, 2013, p. 249: https://publications.iom.int/fr/system/files/pdf/recognition _qualifications_competencesofmigrants.pdf (consulted September 14, 2016).

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8.3.1 Principle of the recognition of professional qualifications

The principle of the three models that we will now examine is that professional qualifications should be recognized unless a substantial difference can be shown to exist.

Article VI.1 of the Lisbon Convention states the following:

To the extent that a recognition decision is based on the knowledge and skills certified by the higher education qualification, each Party shall recognise the higher education qualifications conferred in another Party, unless a substantial difference can be shown between the qualification for which recognition is sought and the corresponding qualification in the Party in which recognition is sought.156

The explanatory report to this convention stipulates that the difference must be both substantial and relevant for it to constitute an impediment to recognition.

Section 7 of the common procedure set out in an Appendix of the Québec-France Agreement states that [TRANSLATION] “if the scopes of practice, formal qualifications or learning programs are globally equivalent, the competent authorities may recognize the applicant’s professional qualifications”. 157

Article 13 of the 2005 European Directive on recognition of professional qualifications reads as follows:

If access to or pursuit of a regulated profession in a host Member State is contingent upon possession of specific professional qualifications, the competent authority of that Member State shall permit applicants to access and pursue that profession, under the same conditions as apply to its nationals, if they possess an attestation of competence or evidence of formal qualifications referred to in Article 11, required by another Member State in order to gain access to and pursue that profession on its territory.158

Article 14 of this directive goes on to say that Article 13 does not preclude the host member state from requiring the applicant to complete a compensatory measure if there is a substantial difference between the training provided in that state and the training available in the home member state.

156 UNESCO, Convention on the Recognition of Studies, Diplomas and Degrees concerning Higher Education in the States belonging to the Europe Region, 1979, art. VI.1: http://portal.unesco.org/en/ev.php-URL_ID=13516&URL_DO=DO_TOPIC&URL_SECTION=201.html (consulted September 13, 2016).

157 Entente entre le Québec et la France en matière de reconnaissance mutuelle des qualifications professionnelles, op. cit., Appendix I, s.7.

158 Directive 2005/36/EC of the European Parliament and of the Council of September 7, 2005, on the recognition of professional qualifications (consolidated version 2017), op. cit., art. 13.

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8.3.2 The concept of substantial difference

A comparison of the three qualification recognition models discussed in this report (the Lisbon Convention, the 2005 European Directive and the Québec-France Agreement), shows that there is a significant difference in the way one of these models defines the expression “substantial difference” and that this affects the way in which qualifications are recognized. The models in the 2005 Directive and in the Québec-France Agreement are fairly similar because they have the same objective, that is, the recognition of regulated professions so as to improve access to the labour market. However, the model in the Lisbon Convention pursues a slightly different objective and provides a different definition of the expression “substantial difference”.

- The 2005 European Directive and the Québec-France Agreement

The Québec-France Agreement was drawn up with the goal of setting in advance any additional training conditions that migrant professionals will eventually have to meet in order for their professional qualifications to be recognized by the other Party. The objective is to make it easier for professionals trained in Québec to enter the labour market in France and vice versa. The European directives, for their part, were implemented in response to the will expressed by various European treaties to abolish obstacles to the free movement of workers. They thus make it possible for practices in European countries to be standardized so that professionals can move to different countries within the European Union and have their qualifications recognized.

The definitions of substantial difference in the two above-mentioned models are very specific. The difference between the European Union model for the recognition of professional qualifications and that introduced by the Québec-France Agreement is that the former does not explicitly consider significant differences in the duration of training received by migrants in the home member state and that required in the host member state to be substantial differences, whereas the Québec-France Agreement considers them to be so. Under the 2005 European Directive, compensation measures may be granted only when matters covered by training in the home member state and that required in the host member state show significant differences in terms of content for matters in respect of which knowledge and competencies are essential for practising the profession.159 In comparison, the Québec-France Agreement stipulates that:

[TRANSLATION]

There is a substantial difference in formal qualifications when the matters covered by training on the territory of origin and that required on the host territory show significant differences in terms of duration and/or content and when knowledge of these matters is essential to the practice of a profession or regulated trade. A difference in terms of duration of at least one year constitutes a significant difference.160

159 Ibid., art. 14, par. 1 and 4. 160 Entente entre le Québec et la France en matière de reconnaissance mutuelle des qualifications professionnelles,

op. cit., Appendix I, s. 3(2).

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Under the 2005 European directive, compensation measures may also be granted when:

[…] the regulated profession in the host Member State comprises one or more regulated professional activities which do not exist in the corresponding profession in the applicant’s home Member State, and the training required in the host Member State covers substantially different matters from those covered by the applicant’s attestation of competence or evidence of formal qualifications.161

As shown by the following, a similar idea is present in Québec-France Agreement:

[TRANSLATION]

A substantial difference in scopes of practice exists when one or more of the activities covered by a profession or a regulated trade on the host territory do not exist in the corresponding profession or trade on the territory of origin and when this difference is characterized by specific training required on the host territory on matters that differ substantially from those covered by the training on the territory of origin.162

The other difference noted in situations leading to the implementation of compensation measures concerns learning programs. Under section 3(3) of the common procedure of the Québec-France Agreement, significant differences in terms of the duration and/or content of programs on the territory of origin and those required by the host territory constitute substantial differences if these elements concern requirements that are essential to the practice of a profession or a regulated trade. In terms of duration the difference is significant if it amounts to at least one year.

Under the Québec-France Agreement, the expression “learning program” is defined as a program containing the learning conditions required for the recognition of professional qualifications. This type of program is generally set up for trades or similar occupations. The 2005 European Directive does not contain any mention of this type in regard to differences in learning programs.

- The Lisbon Convention

The expression “substantial difference” is not defined as clearly in the Lisbon Convention163. Situations are assessed on a case-by-case basis and, as established by articles 36 and 37 of the Revised Recommendation on Criteria and Procedures for the Assessment of Foreign Qualifications, several different scenarios are possible. Under Article 37(a), a substantial difference may exist if “the differences in learning outcomes between the foreign qualification and the relevant

161 Directive 2005/36/EC of the European Parliament and of the Council of September 7, 2005, on the recognition of professional qualifications (consolidated version 2017), op. cit., art. 14, par. 1 subpar. (b).

162 Entente entre le Québec et la France en matière de reconnaissance mutuelle des qualifications professionnelles, op. cit., Appendix I, s. 3(1).

163 UNESCO, Convention on the Recognition of Qualifications concerning Higher Education in the European Region, 1997: http://portal.unesco.org/en/ev.php-URL_ID=13522&URL_DO=DO_TOPIC&URL_ SECTION=201.html (consulted September 13, 2016).

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qualification of the country in which recognition is sought are too substantial to allow the recognition of the foreign qualification as requested by the applicant”.

Pursuant to the rest of article 37, a substantial difference may also exist if:

• the differences in access to further activities (such as further study, research activities, and the exercise of gainful employment) between the foreign qualification and the relevant qualification of the country in which recognition is sought;

• the differences in key elements of the program(s) leading to the foreign qualification in comparison to the program(s) leading to the relevant qualification of the country in which recognition is sought;

• the differences in the quality of the program and/or institution at which the qualification was awarded in relation to the quality of the programs and/or institutions granting the similar qualification in terms of which recognition is sought, are too substantial.

For a clear understanding of Article 37, it must be interpreted in light of Article 36, which reads as follows:

Qualifications of approximately equal level may show differences in terms of content, profile, workload, quality and learning outcomes. In the assessment of foreign qualifications, these differences should be considered in a flexible way, and only substantial differences in view of the purpose for which recognition is sought (e.g. academic or de facto professional recognition) should lead to partial recognition or nonrecognition of foreign qualifications.

The explanatory memorandum on this article provides certain clarifications with regard to its content.

In the Lisbon Convention context, the expression “substantial difference” is understood as a ”difference in key elements of the programme(s) leading to the qualification in comparison to the programme(s) leading to the relevant qualification of the country in which recognition is sought”. This definition is similar to that given in the Québec-France Agreement and the 2005 European Directive, according to which a substantial difference in terms of content exists between the training offered on the territory of origin and that required by the host country when the difference concerns matters in respect of which knowledge and competencies are essential to the practice of a profession. The other differences set out are not really related to those contained in the Québec-France Agreement and the 2005 European directive. It is interesting to note that the explanatory memorandum of the Lisbon Convention provides for a difference that is subjective and difficult to implement, namely, a difference in the quality of programs.

It is also interesting to note that, based on Article 40 of the Revised Recommendation on Criteria and Procedures for the Assessment of Foreign Qualifications, we can say that the Québec-France Agreement is the only instrument or document that explicitly takes into account the duration of training for the purpose of determining whether or not a substantial difference exists:

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40. Competent recognition authorities should be encouraged to focus on the learning outcomes, as well as the quality of the programme and to consider its duration as merely one indication of the level of achievement reached at the end of the programme. The assessment process should acknowledge that recognition of prior learning, credit transfer, different forms of access to higher education, joint degrees and lifelong learning will all shorten the duration of some academic qualifications without diminishing the learning outcomes and a decision not to grant recognition should not be motivated by duration alone164.

8.3.3 Compensation Measures

Additional education is the only compensation measure provided for under the Lisbon Convention, whose aim is to enable professional qualifications to be recognized for academic rather than professional purposes. According to paragraph 43 of the explanatory memorandum of the Revised Recommendation on Criteria and Procedures for the Assessment of Foreign Qualifications, the indications referred to in Article 44 of the recommendation concern:

Additional education applicants may take in order to improve their chances of obtaining recognition at a later stage. The competent recognition authorities should assist these applicants by obtaining as precise indications as possible on measures to be taken or, as appropriate, refer applicants to relevant written information or contact persons at higher education institutions or other relevant bodies.

In contrast, Article 14 of the 2005 European Directive provides that applicants can choose between two compensatory measures165. They may complete an adaptation period of up to three years or take an aptitude test. However, the article also says that States may derogate from this principle and stipulate the compensation measure to be followed. That being said, the States must justify their decision by overriding reasons of general interest. In some situations, they may impose both an adaptation period and an aptitude test.

Three compensatory measures may be imposed under the Québec-France Agreement166. However, adaptation periods are the preferred compensation measure under section 5 of the common procedure of this agreement. If completion of an adaptation period is not a viable option for applicants, it is recommended that they take an aptitude test. Lastly, [TRANSLATION] “additional training may also be required insofar as it is the only way to protect the public and, particularly, public health and safety”. Compensation measures are thus ranked in order of priority and imposed to applicants in that order and not according to the applicants’ preference.

164 UNESCO and Council of Europe, Revised Recommendation on Criteria and Procedures for the Assessment of Foreign Qualifications, 2010, art. 40: https://www.cicic.ca/docs/lisboa/recommendation-foreign-qualifications-2010.en.pdf (consulted September 21, 2016).

165 Directive 2005/36/EC of the European Parliament and of the Council of September 7, 2005, on the recognition of professional qualifications (consolidated version 2017), op. cit., art. 14.

166 Entente entre le Québec et la France en matière de reconnaissance mutuelle des qualifications professionnelles, op. cit., Appendix I, s. 3(1).

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Regardless of the compensation measure imposed, it must be proportionate under both the European system and the Québec-France Agreement. The 2005 European Directive established this principle in Article 14 (5), which in turn gave rise to the obligation for States to determine whether a substantial difference can be compensated for, in whole or in part. Paragraph 3 of section 5 of the common procedure of the Québec-France Agreement stipulates that all compensation measures must be proportionate and as non-restrictive as possible. It should be noted in the Lisbon Convention context that no reference is made to proportionality; moreover, this does not seem to be a condition for the imposition of compensation measures.

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9. THE LABOUR AND SOCIAL ASPECTS: A LINK BETWEEN ILO AND WTO INSTRUMENTS

When the first attempt was made to create a world trade organization, through the Havana Charter at the end of the Second World War, a social clause was included to ensure that the benefits of a trade agreement could be withdrawn from a party if it did not fulfil certain obligations related to workers’ rights. The Havana Charter never came into effect, owing to a lack of support from the United States of America. The question of inserting a social clause was discussed again during the various rounds of negotiations on the creation of a World Trade Organization (WTO), but it was strongly contested by developing countries, which saw the clause as a disguised form of protectionism. When the WTO was created in 1994, no social clauses were included in its constituent treaty.

This topic was revisited at the Conference of Singapore167 in 1996 and even though participants refused to include the question of labour law and standards at that time, the resulting declaration included a commitment on the part of WTO member countries to observe internationally recognized core labour standards.168 In 1998, as mentioned earlier, the ILO established four categories of fundamental principles and rights in its Declaration on Fundamental Principles and Rights at Work169 that all member states would have to comply with. Today, these principles and rights are interpreted as being those which the members of the WTO must comply with. In short, the Conference of Singapore closed the door to social considerations; however, it transferred this question to the ILO. Today, there is an institutional debate on whether the WTO can consider objectives other than those related to the free market and, therefore, whether the WTO is an appropriate forum for discussing work-related issues and rules.

The WTO is based on two fundamental principles: the most-favoured-nation principle, according to which an economic concession offered to one foreign country must be offered to all other countries, and the national treatment principle, according to which foreign products must be treated like national products on the national market.

167 World Trade Organization, The First WTO Ministerial Conference: https://www.wto.org/english/thewto_e/ minist_e/min96_e/min96_e.htm (consulted November 30, 2018).

168 Jean-Marc SIROEN, “Labour provisions in preferential trade agreements: Current practice and outlook” (2013) 152, International Labour Review 93, 94: https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1564-913X.2013.00170.x (consulted September 21, 2016). See Declaration on World Trade Organization Web Site : https://www.wto.org/english/thewto_e/ minist_e/min96_e/wtodec_e.htm (consulted November 30, 2018).

169 International Labour Organization, Declaration on Fundamental Principles and Rights at Work, 1998: https://www.ilo.org/declaration/thedeclaration/textdeclaration/lang--en/index.htm (consulted November 30, 2018).

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So far, WTO standards have not dealt with labour. However, Article XX of the General Agreement on Tariffs and Trade170 provides for certain exceptions to WTO fundamental principles and some authors are of the view that these exceptions could be used as a tool for ensuring that labour standards are observed. Indeed, under that article, States can take measures necessary to protect public morals (art. XX(a)) and human and animal life or health (art. XX(b)), as well as measures relating to the products of prison labour (art. XX(e)). However, such measures must be applied with caution because, according to the chapeau of Article XX, they should not constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.

The jurisprudence has interpreted the paragraph allowing the protection of “public morals” (art. XX(a)) as covering [TRANSLATION] “a set of values determined by a community” and it seems that this interpretation could include violations of universal fundamental rights.171 That being said, there is a problem of enforcement here. As discussed by the doctrine, it might well be asked whether it is possible to adopt regulations under this article that would distinguish between products on the basis of criteria that are not directly related to the nature of the products.172 Indeed, working conditions affect the conditions in which a product is made, but not its nature. Given that under the GATT and the most-favoured-nation principle, two identical products cannot be treated differently,173 the question arises as to whether two physically identical products can be considered as being different based on the way in which they were made and, therefore, based on whether or not they were made under adequate working conditions for employees.174 Developing countries are usually against this interpretation.175

In the event of a dispute, the WTO must determine if a national policy constitutes an unjustifiable restriction on international trade. The WTO thus has a major influence on the limits set by governments with regard to their roles and functions. Therefore, the WTO’s dispute settlement system could be required to play a role in the assessment of policies relating to labour law and standards. Mrs. Gabrielle Marceau, a specialist on this question, has written about a dispute over an exception to article XX.

[TRANSLATION]

170 General Agreement on Tariffs and Trade, 1947-1994, World Trade Organization Web site: https://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm (consulted November 30, 2018).

171 Gabrielle MARCEAU and Aline DOUSSIN, “Le droit du commerce international, les droits fondamentaux et les considérations sociales” (2009) 2 L’Observateur des Nations Unies 241, par. 35. : http://data.over-blog-kiwi.com/0/57/30/82/20150504/ob_0cdcf6_telechargement-fichier-fr-le-droit-du.pdf (in French) (consulted September 21, 2016).

172 Gabrielle MARCEAU, “Trade and Labour”, in The Oxford Handbook of International Trade Law (Oxford: Oxford University Press) 2009, p. 545: http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/ 9780199231928.001.0001/oxfordhb-9780199231928-e-19 (consulted September 21, 2016).

173 Ibid., p. 546. 174 Loc. cit. 175 Loc. cit.

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A commercial restriction arising from the application of a measure conditional on respect for fundamental rights, the WTO judge would logically have the jurisdiction to rule on the interpretation and application of Article XX. In using the June 2008 Declaration, it would be advisable for the WTO judge to consult the ILO authorities.176

This same author concludes that the jurisprudence developed on this question [TRANSLATION] “thus seems to allow members to make access to their internal markets conditional on respect for universal fundamental rights”.177 Logically, discrimination in employment and occupation could thus be considered a violation of a fundamental right that would justify the imposition of trade restrictions.

There are also generalized systems of preferences within the WTO. Through this type of agreement, better trade conditions can be offered to developing countries under the WTO trade system by granting them exemptions from the most-favoured-nation principle. Therefore, some countries use such agreements to encourage developing countries to respect workers’ fundamental rights. In fact, fundamental rights can be referred to in this type of agreement, and maintenance of better trade conditions can be contingent on respect for these rights, as well as on ratification of the eight conventions of the 1998 ILO Declaration.178

The various trade agreements will have to be studied in order to determine what occurs in the realm of trade and specifically concerning professional services and their providers. Furthermore, how would this affect recognition of professional qualifications under these agreements?

176 Gabrielle MARCEAU and Aline DOUSSIN, op. cit., para. 37. 177 Ibid., par. 38. 178 Jean-Marc SIROEN, “Labour provisions in preferential trade agreements: Current practice and outlook”

(2013) 152, International Labour Review 93: https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1564-913X.2013.00170.x (consulted September 21, 2016).