16 Jul FIFA 2022- A Sea of Human Rights Violations
[Kamaxi Sambari is a lawyer-psychologist and is currently a Visiting Faculty member at Symbiosis Law School and Priyanka Prasanth is a final-year student at Symbiosis Law School.]
Recent reports suggest that over 6,500 migrant workers, primarily from South Asian Countries have lost their lives in Qatar just in the last decade under mysterious circumstances. This post focuses on the recent changes to the Kafala system and highlights the plight of migrant workers even post the amendments. It then analyses the scope of international law and concludes with an appeal to the international community and the sporting federation to cooperate and help improve the plight of migrant workers.
FIFA and Migrant Workers
Fédération Internationale de Football Association (FIFA) engage in a quadrennial men’s football competition which is one of the most celebrated sporting events across the world. In 2010, the Executive Committee of FIFA voted for Qatar to have the hosting rights for the 2022 event.Since then, the tournament has been engulfed by several scandals with allegations of corruption and severe human rights violations.
The Kafala or sponsorship system for migrant worker recruitment has been receiving heavy criticism, particularly after Qatar was awarded hosting rights of FIFA 2022. The hosting of the tournament created an increased demand for cheap labour in almost all economic sectors including for the construction of new stadiums, hospitality and tourism. The kafala system facilitated the process by bringing in migrant workers under the garb of providing suitable economic opportunities, only to put them in a position where they are at the mercy of their employers. Since November, 2020, several Gulf countries have announced that they shall be implementing new laws to improve the conditions of the migrant workers.
Understanding the Kafala System
The Kafala system is an ancient legal framework defining the legal relationship between employers and migrant workers in the Gulf Cooperation Council [“GCC”]. The system was said to have originated in the 1950’s with the aim of rapidly increasing temporary labour during the economic boom period and later, expelling them. Thus, the employers were responsible for the legal status and procuring the visa of their employees. All States (except Bahrain) gave the right to issue sponsorship permits for migrant workers to local individuals or companies (employers). This permit includes expenses accrued in travel and housing of migrant workers. Workers then need their sponsor’s permission in order to transfer their jobs, terminate their employment or enter or exit the host country. This system is governed by interior ministries rather than by the Ministry of Labour of the respective states thereby, providing them no protection of the labour laws. This system resulted in migrant workers finding it extremely difficult to survive in the host countries.
The lack of rules and regulations governing wages, working conditions and abuse of migrant workers has resulted in the system being heavily criticised even multinational organisations (European Union and the United Nations). Subsequently, some of the GCC countries such as Saudi Arabia, made changes to their laws thereby permitting migrant workers to leave the country without the need for their sponsor’s approval.
Qatar on its part, has announced that migrant workers are no longer required to take the consent of employers to transfer their jobs and are also entitled to minimum wages with penalties upon employers who withhold wages. Additionally, the government also announced that $137 would be provided for accommodation and $82.2 would be provided to meet food-related expenses of migrant workers if these expenses are not covered under the employment contracts.Qatar has also announced the creation of an online system for submitting notices for changes in jobs and in order to check the latest laws and regulations drafted for the protection of migrant workers. The wage protection system also makes it mandatory for employers to transfer the salary of the migrant worker through the designated bank account. Despite these regulations, workers continue to complain about obstacles they face while changing jobs such as administrative delays and threats from sponsors. Additionally, harsh penalties continue to be imposed upon workers for absconding. Workers are still not permitted to renew their residency permits. Additionally, an estimated 7,00,000 workers, one third of the total work force are not registered under the system.
The Hukoomi of Qatar has suggested in the light of labour reforms that if there are any unsettled disputes between employers and employees, the latter may file a complaint within one year of the alleged incident with the Ministry of Administrative Department, Labour and Social Affairs of Qatar or the National Human Rights Committee. The complaint will then be forwarded to the Labour Dispute Resolution Committee to address the issue and find a solution. The decision of such a committee is final and binding.
However, this suffers from several lacunas. Firstly, there is no fixed time period mentioned under the law for the resolution of dispute. Secondly, several migrant workers have been facing harassment or exploitation since several years. However, their claims are barred by limitation. Similarly, there is no provision for an adequate forum where family members of deceased migrant workers can apply for reparation. Moreover, an appellate forum is necessary for crimes of such gravity against migrant workers. The constitution of such a Committee should also be equitable to include members from international human rights organisations and/or representatives from the home countries of the migrant workers.
International Obligation of States
States are obligated to protect the rights of migrant workers, including the right to leave any country and return to their home country. The freedom to leave the country cannot be made dependent on the period of time the individual chooses to stay outside the country either (International Covenant on Civil and Political Rights, Article 12(2)). This right extends to aliens and those lawfully residing within the territory of a State. The denial of passports or such travel documents, without any valid justification is also in violation of the aforementioned right.
Any work or service imposed upon any person(s) which they have not voluntarily undertaken or which was undertaken under duress amounts to forced labour. This includes servitude or more subtle forms such as accumulation of debt, retention of identity papers or threats of denunciation to immigration authorities. It is therefore, the responsibility of the State to ensure that none of the aforementioned forms of violations are inflicted upon migrant workers and also to take steps to ensure that employers treat migrant workers with due respect.
Additionally, every migrant worker has the right to adequate standard of living, including adequate food, clothing, shelter and housing. This also includes the right to access natural and common resources, safe drinking water, sanitation facilities, emergency services and access to the minimum essential food which is sufficient, nutritionally adequate and safe (International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 11(2); International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families).
Qatar has ratified both the ICCPR and ICESCR is bound by its obligations under the two international instruments. Qatar has also signed a cooperation agreement with the International Labour Organisation, thereby pledging to commit to the ideals of the ILO. In December, 2016, two international trade union organisations and a Bangladeshi worker filed a lawsuit in Switzerland against FIFA, alleging their complicity in the alleged abuse of migrant workers in Qatar. The Swiss Court, in January, 2017 dismissed the lawsuit owing to “vagueness of claims.”
The Current Scenario
Reports of sudden and mysterious death of several migrant workers continue to emerge. Official data indicate the cause of death to be multiple injuries due to fall from height, asphyxia due to hanging or undetermined cause of death due to decomposition. Most often, the death is listed as natural, attributed to acute heart or respiratory failure, thereby failing to establish any legitimate cause of death. While commenting on the deaths, the event’s Organising Committee have claimed that only 37 deaths are directly linked to the construction of the stadiums out of which 34 of them are non-work related. Several organisations, including the Human Rights Watch have repeatedly urged Qatar to investigate and publicise the cause of death of the migrant workers.
Research conducted by the International Labour Organisation, supplemented with the findings of the Guardian indicate that Qatar’s intense summer heat in 2019 was a significant factor resulting in the death of several migrant workers. This “significant heat stress” was a common issue faced migrant workers for at least four months of the year.
Impact of COVID-19
The COVID-19 pandemic has worsened the woes of migrant workers in Qatar. Amnesty International reported that several unpaid Nepali workers have been illegally expelled during the pandemic. In response to the claims made by various reports, the Supreme Committee for Delivery and Legacy formed by Qatar to investigate the matter assured that all migrant workers were governed under the Workers’ Welfare Standards, enforced by the Workers’ Welfare Department. They are therefore entitled to salaries, benefits and accommodation, both specific to COVID and otherwise, as determined by the Department and Standards. The Government Communications Office of the State of Qatar also assured that special measures have been taken to ensure wage protection, re-employment of workers and protection of valuable items of workers, including the allocation of QAR 3 billion ($824 million) towards the payment of salaries to migrant workers during the COVID pandemic.
The Need for International Co-operation and Solidarity
The aim of any sporting event in the world is to promote peace, harmony and sportsmanship. The very stadium in which the football tournament is to be played is built with the blood of thousands of innocent and vulnerable migrant workers. Each game played here is a reminder of the failure of the international framework of human rights, of the system of law and justice. It is high time that the international community ensures that the condition of migrant workers in Qatar is not compromised merely for the greed of a better sporting tournament.
FIFA cannot be exonerated from the responsibility of ensuring the protection of those working towards the successful orchestration of the tournament. Moreover, given the lackadaisical attitude of the Swiss Courts towards the condition of the migrant workers, the need for strong, coercive actions by the international community is more prominent now more than ever. This may be in the form of an economic sanction, such as the withdrawal of customary trade and financial relations for foreign and security policy purposes or by all nations participating in the FIFA worldcup collectively boycotting the tournament.
Although the recent amendments made to the labour laws in Qatar has effectively abolished the Kafala system and prompted several international organisations, including the UN to laud this initiative, mere reforms are not sufficient. These reforms must be strictly implemented and equitable reparations must also be made at the earliest to those migrant workers or their families who suffered over the last 10 years owing to the harsh labour laws prevalent in Qatar. More importantly, it is also necessary that migrant workers have the right to renew their residency permits. The penalty for withholding payment of salaries must be significantly increased to act as a strong deterrent. Administrative framework regulating migrant workers must be strengthened.
It is imperative that strict measures be taken before the FIFA world cup is conducted so that States may also impose measures such as economic embargos or boycotting tourism to Qatar in order to support the rights of migrant workers in order to build pressure.