AN ANALYSIS OF QATAR'S MIGRANT WORKERS AND THE 2022 FIFA WORLD CUP AS AN AGENT OF CHANGE FROM AN INTERNATIONAL LAW PERSPECTIVE
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21 JUNE 2017
AN ANALYSIS OF QATAR’S MIGRANT
WORKERS AND THE 2022 FIFA WORLD
CUP AS AN AGENT OF CHANGE FROM AN
INTERNATIONAL LAW PERSPECTIVE
MARGOT LENS – 2005419
TILBURG UNIVERSITY – LLM INTERNATIONAL AND EUROPEAN LAW
Supervisor: D.M. Heerdt
Word count: 15,883Table of Content
INTRODUCTION.......................................................................................................................... 2
CHAPTER 1 – THE SITUATION OF MIGRANT WORKERS IN QATAR ............................... 5
1.1 THE KAFALA SYSTEM ............................................................................................................5
1.2 ABUSE OF MIGRANT WORKERS .............................................................................................8
1.2.1 Recruitment Phase .............................................................................................................8
1.2.2 Deployment Phase .............................................................................................................8
1.2.3 Employment Phase ............................................................................................................9
1.3 CONCLUSION ........................................................................................................................10
CHAPTER 2 – QATAR’S INTERNATIONAL LEGAL OBLIGATIONS WITH REGARD TO
ITS MIGRANT WORKERS........................................................................................................ 12
2.1 INTERNATIONAL LABOUR ORGANIZATION ..........................................................................12
2.1.1 Forced Labour Convention (C029) .................................................................................12
2.1.2 Abolition of Forced Labour Convention (C105)..............................................................13
2.1.3 Labour Inspection Convention (C081) ............................................................................14
2.1.4 Obligations ......................................................................................................................14
2.2 UNITED NATIONS .................................................................................................................15
2.2.1 Universal Declaration of Human Rights .....................................................................15
2.2.2 International Convention on the Elimination of All Forms of Racial Discrimination .....16
2.2.3 Palermo Protocol ............................................................................................................16
2.3 REGIONAL ............................................................................................................................18
2.3.1 Arab Charter on Human Rights .......................................................................................18
2.4 CONCLUSION ........................................................................................................................18
CHAPTER 3 – QATAR’S COMPLIANCE WITH INTERNATIONAL OBLIGATIONS ......... 20
3.1 ENFORCEMENT MECHANISMS ..............................................................................................20
3.2 COMPLIANCE WITH INTERNATIONAL STANDARDS ...............................................................21
3.2.1 Law No. 4 of 2009 and Law No. 21 of 2015 ....................................................................21
3.2.2 Law No. 14 of 2004..........................................................................................................24
3.2.3 Law No. 15 of 2011..........................................................................................................26
3.3 CONCLUSION ........................................................................................................................27
CHAPTER 4 – INFLUENCE OF THE 2022 FIFA WORLD CUP ............................................. 29
4.1 INTERNATIONAL PRESSURE AND ATTENTION ......................................................................30
4.2 PRESENCE OF INTERNATIONAL CORPORATIONS ..................................................................31
4.3 PRESENCE OF FIFA ..............................................................................................................34
4.3.1 FIFA’s Human Rights Agenda .........................................................................................34
4.3.1 FNV & Nadim Shariful Alam vs. FIFA at the Swiss Commercial Court .........................35
4.3.2 Specific Instance regarding FIFA submitted by the Building and Wood Workers’
International (BWI) at the National Contact Point of Switzerland (Swiss NCP)..........................39
4.4 EVALUATION & CONCLUSION ..............................................................................................41
CHAPTER 5 – CONCLUSION ................................................................................................... 43
BIBLIOGRAPHY ........................................................................................................................ 45
LAWS, CONVENTIONS AND DECLARATIONS .....................................................................................45
SCHOLARLY AND NEWS ARTICLES ...................................................................................................46
BOOKS AND REPORTS .......................................................................................................................47
OTHER SOURCES ...............................................................................................................................49
1Introduction
Over the last two decades, the Gulf state of Qatar has seen a dramatic economic transformation,
fuelled mostly by the growth of its oil and gas sector. As a result of this transformation, there
has been a massive increase in construction across the country. One of the high-profile
components of this development is the designation of the 2022 FIFA World Cup to Qatar, which
has caused an even bigger construction boom to make the country ready for this mega sports
event. Because of the expansion of the construction sector, an unprecedented population growth
occurred over the last couple of years. According to data of the Qatari government, Qatar’s
working force only consists of 71,076 ‘Qataris’, against 1,199,107 ‘Non-Qataris’ (Qatar’s
migrant population).1 This means that an astonishing 94% of Qatar’s working force is made up
of immigrants, most of them coming from the South Asian region.2
The precarious situation of migrant workers in Qatar has gotten widespread
international attention since the country was awarded the World Cup, but it is a problem that
has existed for years. Many big international organisations, like the International Labour
Organisation (ILO) and Amnesty International, are investigating the living and working
conditions of migrant workers in Qatar, and these investigations show practices of labour
exploitation and forced labour. The international human rights community cried for reform of
the Kafala system and Labour Laws, the Netherlands Trade Union Confederation (FNV) even
went further and filed a complaint against FIFA at the Swiss Commercial Court of Zürich. The
complaint concerns FIFA’s allegedly wrongful conduct and liability for human rights violations
at the construction sites of the 2022 World Cup stadiums. According to FNV supported by two
trade unions from Bangladesh, FIFA has violated applicable legal standards by assigning the
2022 World Cup to Qatar and has not done anything to exact labour reforms, through which
the migrant worker’s rights could be guaranteed.3 On January 3rd 2017, the Court rejected the
case on grounds of inadmissibility and lack of jurisdiction. However, this does not mean that
1
Qatar Census 2010
2
Amnesty International, The Ugly Side of the Beautiful Game: Exploitation of Migrant Workers on a Qatar 2022 World Cup
Site (31 March 2016, Index: MDE 22/3548/2016), London: Amnesty International, p. 4. Available online:
3
Liesbeth Zegveld & David Husmann, Case summary: FNV & Nadim Shariful Alam v. FIFA (3 October 2016) Prakken
d’Oliveira & Schadenanwaelte: Amsterdam & Zürich, p.6. Available online:
2FIFA cannot be held accountable for the human rights violations related to the 2022 World Cup
in Qatar as the Court did not make a judgement on the merits of the case.4
At the core of the human rights abuses lays the Kafala system, a sponsorship system
that is used by employers to exert control over their foreign workforce. The basis for this system
is Qatar’s Law No. 4 of 2009, which provides the legal framework. Under this system, foreign
workers are bound to a single “sponsor”, an individual or company established in Qatar. A lot
of migrant workers are lured into Qatar under false pretences, for which in some cases they
have to pay huge recruitment fees, the terms and conditions of their work are different to those
they had been promised during the recruitment process. Employers confiscate the migrant
workers’ passports and prevent them from leaving the country. Moreover, the living and
working conditions of the migrant workers are in many cases abominable, having to work
excessive hours and living in unhygienic accommodation. According to the Qatari government
the system is there to ensure a “balance between the rights of the worker and the rights of the
employer”, whilst in reality it creates an excessively unequal power relationship, in which
migrant workers, on the one hand, have limited and ineffective avenues open to them if they
are being exploited.5 On the other hand, employers have excessive powers, they can prevent
workers from moving jobs, block workers from leaving the country and have the right to
terminate a worker’s employment and have his’ or her’ residence permit cancelled by
authorities.6
The central research question of this thesis is: ‘To what extent do Qatar’s labour
standards on migrant workers comply with international human rights and labour standards,
and how could the hosting of the 2022 FIFA World Cup have an influence on Qatari standards?’
The purpose of my thesis is to do a compliance research on the Kafala system and the possible
human rights violations that occur through the implementation of that system. Although Qatar
is not party to some of the relevant human rights treaties, as the International Covenant on Civil
and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights
(ICESCR) and the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families (ICMW), it is a member state of the ILO and has
ratified several ILO Conventions. Qatar has also ratified the Protocol to Prevent, Suppress and
4
Tomáš Grell, ‘FIFA’s Responsibility for Human Rights Abuses in Qatar – Part I: The Claims Against FIFA’ Asser
International Sports Law Blog (28 February 2017).
5
Amnesty International, The Dark Side of Migration: Spotlight on Qatar’s Construction Sector ahead of the World Cup (18
November 2013, Index: MDE 22/010/2013), London: Amnesty International, p. 94. Available online:
6
Ibid.
3Punish Trafficking in Persons Especially Women and Children, better known as the Palermo
Protocol. What are Qatar’s specific international obligations under these Conventions and does
Qatar live up to them? And what is the influence of the 2022 FIFA World Cup on the situation
of the migrant workers and on Qatar’s compliance with its international obligations? All these
questions are important to ask in order to find an answer to the central research question.
The first chapter will begin with explaining the Kafala system, followed by a discussion
of the problems migrant workers are facing. In the second chapter, the legal framework that
will be used throughout this thesis to assess Qatar’s compliance with international human rights
and labour law will be set out. The main focus will lay ILO Convention No. 29 on Forced
Labour, ILO Convention No. 81 on Labour Inspection, the fundamental principles and rights
of the ILO, and the United Nation’s Convention on the Elimination on All Forms of Racial
Discrimination (ICERD) and the Palermo Protocol. In order to be able to answer the first part
of my research question the laws, principles, and practices of the Qatari government will be
valued against their international obligations. This will be done in the third chapter. In the
fourth chapter, the focus will be on the second part of my research question; the possible
influence of the 2022 World Cup on the migrant workers’ labour standards will be discussed
through looking into the roles of the Qatari government, the business community, and FIFA. In
the fifth and final chapter, a conclusion will be formulated.
The research conducted in this thesis is mainly doctrinal, as it is a systematic analysis
of Qatari domestic law, its international obligations and its compliance thereof. It is of
normative nature because it is founded on the intention that the perilous situation of migrant
workers in Qatar should be improved. The research will mainly be based on the legal analysis
of national and international laws and conventions. Furthermore, reports of various
international (human rights) organizations, law firms, and NGOs will be used, alongside articles
of scholars. To be more specific, in Chapter 1, the relevant Qatari laws, such as Law No. 4 of
2009, and Law No. 14 of 2004, and reports of Amnesty International and Human Rights Watch
will be used. In Chapter 2, information will be obtained from the relevant international
instruments, for example, ILO Convention No. 81 and the Palermo Protocol. In Chapter 3,
Observations, Direct Requests, and complaints procedures of the ILO will be used alongside
the before mentioned reports. And finally, in Chapter 4, the Ruling of the Swiss Commercial
Court, the UNGPs, the OECD Guidelines and reports of FIFA and the Supreme Committee for
Delivery and Legacy will be the main source of information.
4Chapter 1 – The Situation of Migrant Workers in Qatar
After Qatar won its bid for the 2022 FIFA World Cup, loads of new construction projects were
planned. In order to fulfil these projects, Qatar will need more migrant workers, bringing along
potential human rights abuses among those workers. In their 2017 World Report, Human Rights
Watch (HRW) once again pointed out the situation of Qatar’s migrant workers as one of the
country’s core human rights problems. According to the report, low-paid migrant workers
continued to face abuse and exploitation,7 and they face a lot of systemic policies and practices
that obstruct their access to basic labour rights.8 By percent of the population, Qatar is the top
immigration country in the world,9 as mentioned before 94% of Qatar’s workforce consists of
migrants, workers predominantly coming from South Asian countries like India, Nepal,
Bangladesh and Sri Lanka. These workers are employed primarily in construction, services,
and domestic work.10 In order to understand the origin of the migrant workers’ human and
labour rights violations, this chapter will begin by explaining the Kafala system, and its
successor, the ‘contract-based’ system. Afterwards, the difficulties that these migrant workers
face will be explained in detail. All the phases the migrant workers go through, recruitment,
deployment, and employment, will be used as a guideline to discuss the matter.
1.1 The Kafala System
Winning the bid for the 2022 FIFA World Cup ensured the announcement of a lot of new
development projects including the building of stadiums, hotels, transportation, and roads.
These projects are expected to cost over 200 billion dollars and will require hundreds of
thousands of workers over the decade. The Kafala system has been in place for decades, but
winning the bid in 2010 has since then caused new problems for Qatar and its sponsorship
system, as the country is suffering constant criticism from human rights groups and foreign
media. On May 14th, 2014, the Qatari government announced that it would propose
amendments to its Sponsorship Law.11 As of 14 December 2016, this new Immigration Law is
7
Human Rights Watch, World Report 2017 (12 January 2017, ISBN-13: 978-1-60980-734-4), USA: Human Rights Watch.
Available online:
8
Human Rights Watch, Building a Better World Cup: Protecting Migrant Workers in Qatar Ahead of FIFA 2022 (12 June
2012, ISBN: 1-56432-900-3), USA: Human Rights Watch, p. 51. Available online:
9
World Bank Group, Migration and Remittances Factbook 3rd Edition (2 May 2016), Washington D.C.: World Bank, p. 2.
Available online:
10
Human Rights Watch, Building a Better World Cup, p. 31.
11
Abdoulaye Diop, ‘Citizens’ attitudes towards migrant workers in Qatar’ (2017) 6 Migration and Development 144, p. 147.
5applicable in Qatar, Law No. 21 of 2015, amending the Sponsorship Law, Law No. 4 of 2009.
The Qatari government is not consistent in its messages about the impact of the reform. On the
one hand, they say the reform of the labour system is gradual, in order to be sensitive to the
effect the changes will have on Qatari society.12 On the other hand, the government says Law
No. 21 of 2015 is a sweeping significant reform.13 Whatever the Qatari government says,
international scholars agree that the new law does not significantly change the relationship
between worker and employer.14 It does, however, include some minor improvements but it
will not end the sponsorship system. In the following paragraphs, the three key shortcomings
will be discussed.
Under the new law, the Qatari government tried to move away from the sponsorship
system to a “contract-based system.15 Whilst under the Sponsorship Law employees were
bound to a sponsor, they are now bound by a contract. Under Law No. 4 of 2009 employers had
the power to block their employees from moving to another job during their time in Qatar,16
and for a further two years after they had left the country (unless the employer has given explicit
consent to an employee to go work for another employer within this period).17 Instead of this
system, the new law ties workers to their employers for the duration of their contract, therefore
it is called a “contract-based” system. In case a migrant worker wants to move jobs before the
end of the labour contract, the worker needs the approval of the employee, the competent
authority and the Ministry of Labour and Social Affairs. When a worker’s contract is expired,
the worker can switch jobs without its previous employer’s permission, but with the approval
of the competent authority and the Ministry of Labour and Social Affairs. However, if there is
no specific end date defined in the contract, a worker can only move without permission after
five years.18 In the event of workers leaving their jobs during the contract period without their
employer’s permission, the employer has the possibility to report the employees for committing
a criminal offence.19
12
‘Qatar 2022: ‘Forced labour’ at World Cup stadium’ (BBC, 31 March 2016).
13
Amnesty International, New Name, Old System? Qatar’s New Employment Law and Abuse of Migrant Workers (12
December 2016, Index: MDE 22/5242/2016), London: Amnesty International, p. 4. Available online:
14
Ibid., p. 8.
15
Ibid., p. 9.
16
Law No. 4 of 2009, Article 12.
17
Ibid., Article 4.
18
Law No. 21 of 2015, Article 21.
19
Ibid., Article 19.
6According to the Qatari government “freedom of movement is explicitly guaranteed”
by the new law.20 However, migrant workers need to notify their employer in case they want to
leave the country, and the employer is able to object to the migrant worker’s leave. The migrant
workers can file a complaint against the objection of a leave by either the competent body, or
the employer, this complaint needs to addressed at the exit permit grievances committee. 21 The
employer has to inform the authorities within 72 hours with a valid reason for objection and
present evidence to support this objection. No valid objection? The worker gets an exit permit.
However, the report of the UN Special Rapporteur gives us reason to consider the constancy of
this system. The Rapporteur states: “Often when a migrant reports abuse by their sponsor, the
sponsor retaliates by filing criminal charges against him or her.”22 Remarkably enough, Article
7 of Law No. 21 of 2015 was already amended by Law No. 1 of 2017, on 12 February 2017.
This law states that a migrant worker is entitled to exit the country for vacation, or in cases of
emergency, or for any other purpose, after notifying his employer. Whenever the employer or
the competent authority has an objection against the exit of the migrant, the migrant worker can
file a complaint about this at the Exit Petitions Committee.23 When looking at the amendment
one could say that the right to free movement of migrant workers’ is still limited.
One of the biggest setbacks of the new law is that employers have gotten the opportunity
to legally hold workers’ passports. Under the old law, it was illegal for an employer to hold the
worker’s passport, 24 although this prohibition has rarely been enforced.25 Under the new law,
employers are allowed to hold passports if the worker requests this in writing, the employers
are obliged to give it back on request of the employees.26 But practice shows that actually these
are not adequate safeguards. Employers in Qatar enjoy a disproportionate level of influence and
control over their employees. It will be very hard to affirm whether employees who have asked
their employer to retain their passport did so freely.27
Altogether, the amendments to the Sponsorship Law do not seem to change anything
about the situation of Qatar’s migrant workers. The most common issues, that will be explained
hereafter, still continue to exist. As the issue of passport confiscation, exiting the country and
moving jobs are already discussed in this paragraph they will not be further elaborated on.
20
Government of Qatar, ‘New Expat Law Awareness Campaign Proves Popular’ (1 December 2016).
21
Law No. 21 of 2015, Article 7.
22
UNGA ‘Report of the Special Rapporteur on the human rights of migrants, François Crépeau’ (2 April 2012) 26th Session
UN Doc A/HRC/26/35/Add.1, p. 12.
23
Law No. 1 of 2017, Article 1.
24
Law No. 4 of 2009, Article 9.
25
Amnesty International, New Name, Old System?, p. 14.
26
Law No. 21 of 2015, Article 8.
27
Amnesty International, New Name, Old System?, p. 14.
71.2 Abuse of Migrant Workers
1.2.1 Recruitment Phase
Most of the time, exploitation starts at the beginning of the recruitment process, in the worker’s
home country. Recruitment fees are forbidden by Qatari law, 28 but this law has no force in
other countries. Many migrants have to pay huge recruitment fees in their home countries, and
in order to be able to pay these recruitment fees many workers take out loans, a loan that may
take months or years to be repaid.29 Although recruitment fees are banned by the Qatari Labour
Law, some of the sending countries have legalized them, or foreign recruitment agencies pay
kickbacks to recruitment agencies in Qatar, thus avoiding the Labour Law.30 The exploitation
in the recruitment phase points out another side of the problem, as not only the recruitment
agencies in Qatar contribute to the issue, more frequently the recruitment agencies in the
migrant workers’ countries of origin do.
1.2.2 Deployment Phase
The exploitation continues in the phase of deployment. Once the recruitment phase is over the
visa authorization process starts, which is a complicated and time-intensive process. Therefore,
a lot of deploying migrants turn to labour brokers to support them in this process.31 This practice
creates a similar problem as in the recruitment phase, meaning the deploying migrants take out
loans to pay for the services of the labour brokers.32 Furthermore, the deploying migrants need
a demand letter, which is similar to an employment agreement, and to get one of these
manpower agencies and brokers also make them pay fees. As a result of these practices,
deploying migrants build up considerable depts.33
One of the main reasons, if not the main reason, migrant workers come to Qatar is the
prospect of lucrative work. A lot of migrant workers tend to have dependents in their home
countries who rely on remittances from the working family member. In the interviews
conducted by HRW,34 and Amnesty International,35 the most common complaint from the
workers was the delayed or non-payment of wages. The Qatari Labour Law has several
28
Law No. 14 of 2004, Article 33.
29
Amnesty International, The Ugly Side of the Beautiful Game, p. 19.
30
UN Doc A/HRC/26/35/Add.1, p. 9.
31
Sarath K. Ganji, ‘Leveraging the World Cup: Mega Sporting Events, Human Rights Risk, and Worker Welfare Reform in
Qatar’ (2016) 4 JMHS 221, p. 232.
32
Ibid.
33
Ibid.
34
Human Rights Watch, Building a Better World Cup, p. 3.
35
Amnesty International, The Dark Side of Migration, p. 40.
8provisions on the payment of wages, article 66, 67 and 70 being the most significant ones.36
Article 66 of the Qatari Labour Law provides that workers who are employed on an annual or
monthly basis must be paid at least once every month, all other workers should be paid at least
once every two weeks. Article 67 requires employers to pay the wages and any other sums the
worker is entitled to if the contract is terminated for any reason. This payment is required the
day following the date on which the contract terminates unless the worker has “absconded”
without notification than the employer must pay the wages within seven days. Article 70
provides that “any part of a wage to which the worker is entitled may not be attached and
payment may not be withheld except with the execution of a judicial decision”. Given the fact
that the majority of the claims brought to the attention of the Labour Relations Department are
wage-payment related, existing monitoring and enforcement mechanisms are not sufficient in
preventing employers from breaching the provisions of the articles.37 It must be noted that Law
No. 14 of 2004 is amended by Law No. 1 of 2015, in which the most important change is related
to Article 66. Through the adoption of the new law the Wage Protection System (WPS) was
established, which is primarily aimed at protecting workers through ensuring they receive wage
on a regular basis.
1.2.3 Employment Phase
During the phase of employment there are different aspects in which the exploitation takes
place. First: the working conditions. Although the Qatari Labour Law has specific provisions
on working conditions, there is an alleged failure by employers to safeguard migrant workers’
safety and health. Under Article 99 of the Labour Law employers have the obligation to inform
their workers of the hazards associated with the work and they must undertake safety measures
for the protection of the workers.38 Article 100 states a general duty on employers to take
precautionary measures to protect workers from any injury, disease or accident during working
hours.39 Moreover, employers must compensate workers that suffered work-related injuries.40
Especially construction workers are exposed to dangers including extreme heat and sun
exposure, hazardous chemicals, equipment malfunctions, falls on building sites, and other work
36
Law No. 14 of 2004, amended by Law No. 1 of 2015.
37
DLA Piper, Migrant Labour in the Construction Sector in the State of Qatar (25 April 2014) Doha: DLA Piper, p. 9.
Available online:
38
Law No. 14 of 2004, Article 99.
39
Ibid., Article 100.
40
Ibid., Article 110.
9related hazards.41 Nonetheless, as is seen with many protections provided under the Labour
Law, workers report inconsistent protections.42
Second: the housing conditions. “Labour camps” are the most common way of living
for migrant workers in Qatar, these are communal accommodations meant to house large groups
of workers. A migrant worker can either live in a company owned camp, or in a camp
maintained by another company. According to the interviews conducted by HRW, some
workers said they live in clean rooms with adequate space and good facilities, while other live
in cramped, unsanitary and inhumane conditions.43 Decree of the Minister of Civil Service and
Residential Affairs No. 18 of 2005 entails the regulation on the worker accommodations.
Articles 2 and 3 state that no more than four workers should be housed in a room, that space
provided for each worker must be at least four square meters, and that employers should not
provide bunk beds for workers.
Finally: the right of freedom of association and collective bargaining. There are two
main issues concerning these rights. First, there is an absence of legislation providing these
rights for the non-Qatari citizen, and second, there is an absence of appropriate legislation
prohibiting the disadvantageous treatment of collective representatives.44 Under Article 116 of
the Labour Law, only Qatari workers have the right to form workers’ association. This
restriction is contrary to several major human rights conventions and it also fails to implement
a key principle of the ILO Declaration on Fundamental Principles and Rights at Work.
According to the ILO Declaration, ILO member states need to respect and promote principles
and rights in four categories whether or not they ratified the relevant Conventions, this includes
freedom of association and effective recognition of the right to collective bargaining.45
1.3 Conclusion
In this chapter, the different phases in which migrant workers can be, and are abused, are
discussed. Qatar’s Kafala system has been amended by Law No. 21 of 2015, but this law has
not completely ended the sponsorship system. Although to a lesser extent, migrant workers are
still not entirely free to exit the country whenever they want, and it has even gotten easier for
employers to confiscate the migrant workers’ passports. Furthermore, it is still difficult for
migrant workers to quit their jobs during the term of their contract. So although a new law has
41
Human Rights Watch, Building a Better World Cup, p. 65.
42
Ibid.
43
Ibid.
44
‘DLA Piper, Migrant Labour in the Construction Sector in the State of Qatar, p. 116.
45
ILO Declaration on Fundamental Principles and Rights (18 June 1988), Article 2.
10been adopted, the flaws of the old system are still affecting the lives of Qatar’s 2 million migrant
workers. Despite the Qatari Labour Law, all kinds of abuses take place in the different stages
the workers go through, ranging from the disproportionate payment of recruitment fees
resulting in major debts, to abominable living and working conditions, and the lack of the right
of freedom of association and collective bargaining. In the next chapter, the international
obligations Qatar has in addressing these abusive and exploitative practices will be qualified
through legislation of the ILO, the UN, and the Arab League.
11Chapter 2 – Qatar’s International Legal Obligations with regard to its Migrant
Workers
Given the recent reports about the situation of migrant workers in Qatar it is interesting to see
if Qatar is acting in compliance with these obligations, but before this can be done the legal
framework needs to be set out. Qatar is party to several human rights treaties and a member
state of various international organization, this of course implies certain obligations that Qatar
needs to uphold. In this chapter, these obligations will be discussed on the basis of multiple
international treaties and conventions. As mentioned before Qatar is not party to certain core
human rights treaties, it is, however, a member state of the ILO and has ratified several ILO
Conventions. Qatar has also ratified the Palermo Protocol. Being a member state of the ILO
itself brings along certain obligations in the form of the fundamental principles and rights of
the ILO, furthermore Qatar has ratified six ILO Conventions, not all of them are important in
relation to this subject, therefore the focus will be on the Forced Labour Convention (C029),
the Abolition of Forced Labour Convention (C105) and the Labour Inspection Convention
(C081). After this, the relevant UN legislation will be discussed, which consist out of the,
Universal Declaration of Human Rights (UDHR), the International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD), and the Palermo Protocol. The
ICERD sets out several core human rights that are derived from both the ICCPR and ICESCR,
and the UDHR. The Palermo Protocol will be analysed, as some scholars are of the opinion that
the situation migrant workers end up in could be defined as human trafficking. Finally, the Arab
Charter will be discussed, a regional charter adopted by the Arab League which also sets forth
some interesting rights. The reason for this order is the fact that the ILO Conventions are most
extensive, and are mainly referred to by scholars when discussing the issue of the migrant
workers in Qatar. The UN legislation and the Arab Charter are a good addition to this, as they
provide for some fundamental human rights that are not included in the ILO legislation.
2.1 International Labour Organization
2.1.1 Forced Labour Convention (C029)
The Forced Labour Convention is one of the fundamental conventions of the ILO and it was
adopted in 1930.46 The main requirement of Convention No. 29 can be found in Article 1(1)
46
Convention concerning Forced or Compulsory Labour (adopted 28 June 1930, entered into force 01 May 1932), 39 UNTS
55 (C029).
12stating that ratifying states have “to suppress the use of forced and compulsory labour in all its
forms within the shortest possible period”.47 Laws concerning either private agents or public
servants, that provide for or allow the exaction of forced labour must be repealed.48 Moreover,
states have the obligation to punish the exaction of forced labour as a penal offence, the
penalties imposed must be adequate and strictly enforced.49 One of the main issues of concern
for the ILO is the lack of adequate sanctions in practice.50 Article 2(1) states the definition of
forced labour as follows: “all work or service which is exacted from any person under the
menace of any penalty and for which the said person has not offered himself voluntarily.” This
definition contains three elements that need to be present for the situation to be classified as
forced labour. first, the exaction of work or service, second, the absence of voluntary offer
(consent) and a menace of penalty.51 In situations concerning migrant workers, the ILO
supervisory bodies identified several practices in which one can speak of forced labour.
Especially the retention of identity documents can be seen as an external constraint or form of
indirect coercion that interferes with the migrants’ freedom to offer themselves voluntarily.
Furthermore, there are cases in which consent had originally been given, but later on,
restrictions on the right to leave the job were imposed. 52 In Article 2(2) five exceptions can be
found, these exceptions refer to five specific situations and require for certain conditions to be
met.53
2.1.2 Abolition of Forced Labour Convention (C105)
Like the Forced Labour Convention, the Abolition of Forced Labour Convention is also a
fundamental ILO convention, and it was designed to supplement Convention No. 29.54 The
Convention prohibits forced labour, but it is more detailed on which sorts of forced labour it
prohibits. In the first article of the Convention, you can find five specific cases in which forced
labour must be prohibited. First, forced labour may not be used “as a means of political coercion
or education or as a punishment for holding or expressing political views or views ideologically
opposed to the established political, social or economic system”. If a country has imposed
restrictions on the freedom to express political opinions, and this restriction comes together
47
Ibid., Article 1.
48
Ibid., Article 4.
49
Ibid., Article 25.
50
Lars Thomann, Steps to Compliance with International Labour Standards: The International Labour Organisation (ILO)
and the Abolition of Forced Labour, (1st edition, VS Research 2011), p. 191.
51
C029, Article 2(1)
52
Lars Thomann, Steps to Compliance with International Labour Standards, p. 192.
53
C029, Article 2(2).
54
Convention concerning the Abolition of Forced Labour (adopted 25 June 1957, entered into force 17 January 1959), 320
UNTS 291 (C105).
13with a penalty involving compulsory labour, Convention No. 105 is applicable. However, these
restrictions may be legitimate if they are imposed on persons who have used violence, incited
violence or engaged in preparatory acts for violence. 55 Second, forced labour may not be used
“as a method of mobilising and using labour for purposes of economic development”.
Currently, this is not a very relevant provision anymore.56 Third, forced labour may not be used
“as a means of labour discipline”, this considers both measures that ensure the due performance
of a worker under compulsion of law, or sanctions including an obligation to work imposed for
breaches of discipline. Fourth, forced labour may not be used “as a punishment for having
participated in strikes”.57 And finally, forced labour may not be used “as a means of racial,
social, national or religious discrimination.58 According to Article 2 of C108, every state that
has ratified this Convention needs “to take effective measures to secure the immediate and
complete abolition of forced or compulsory labour”.59
2.1.3 Labour Inspection Convention (C081)
The Labour Inspection Convention is a governance convention.60 It requires ratifying states to
maintain a system of labour inspection for workplaces in industry and commerce.61 There is a
possibility for exceptions with regard to mining and transport.62 The Convention provides a
series of principles respecting the determination of the fields of legislation covered by labour
inspection, the functions and organizations of the system of inspection, recruitment criteria, the
status and terms and conditions of service of labour inspectors, and their powers and
obligations. The ILO must receive an annual report of the labour inspectorate indicating the
general functioning of its services on a number of issues.63
2.1.4 Obligations
After discussing these three conventions, it would be helpful to have a clear overview on the
different obligations Qatar has as an ILO Member State and having ratified these Conventions.
Being an ILO Member State, Qatar has to promote and protect human rights, furthermore it has
to respect, promote and realize the principles concerning the fundamental rights, most
55
C105, Article 1.
56
Ibid.
57
Ibid.
58
Lars Thomann, Steps to Compliance with International Labour Standards, p. 197.
59
C105, Article 2.
60
Convention concerning Labour Inspection in Industry and Commerce (adopted 11 July 1947, entered into force 7 April
1950) 792 UNTS 4 (C081).
61
Ibid., Article 1.
62
Ibid., Article 2(2).
63
Lars Thomann, Steps to Compliance with International Labour Standards, p. 192.
14importantly the freedom of association and the effective recognition of the right to collective
bargaining and the elimination of all forms of forced or compulsory labour.64 The most
important obligations under Convention No. 29 are the obligations to supress all forms of forced
or compulsory within the shortest possible period, to criminalize, identify and prosecute forced
labour practice and to protect victims of forced or compulsory labour.65 Convention No. 108
obligates ratifying States to take effective measures securing the immediate and complete
abolition of forced or compulsory labour.66 And finally, Convention No. 81 imposes on states
the obligation to maintain a system of labour inspection for workplaces in industry and
commerce.67
2.2 United Nations
2.2.1 Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) was a ground-breaking document in the
history of human rights.68 It was adopted by the UN General Assembly (UNGA) in Paris on 10
December 1948, and addresses, for the first time, fundamental human rights to be universally
protected. It can be seen as the foundation of all human rights law developed afterwards. Almost
all articles of the Declaration, fully or partially, are applicable to migrant workers, but there are
a few that are of particular importance. All the rights and freedoms set forth in the UDHR are,
without distinction, applicable to all.69 The Declaration provides the right to leave any country
and to return to your own country.70 The right to freedom of association is also guaranteed for.71
With regard to employment, the UDHR provides several rights, beginning with the right to free
choice of employment. Followed by the right to just and favourable remuneration and the right
to form and to join trade unions.72 Also the right to rest and leisure (including reasonable
limitation of working hours and periodic holidays with pay), and the right to a standard of living
adequate for the health and well-being of the person.73 Because the UDHR is a Declaration it
is not legally binding upon Member States, it does not directly create legal obligations for
countries. It is an expression of all the fundamental values which are shared by all Members of
64
ILO Declaration, Article 2(2).
65
Ibid., Article 2(2), Article 25.
66
C105, Article 2.
67
C081, Article 1.
68
UNGA ‘Universal Declaration of Human Rights (10 December 1948) 3rd Session UN Doc A/RES/ 217 A.
69
Ibid., Article 2.
70
Ibid., Article 13(2).
71
Ibid., Article 20.
72
Ibid., Article 23.
73
Ibid., Article 24 & 25.
15the international community. Furthermore, most of the standards set out in the UDHR are now
included in the International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR) which are legally
binding, together these three documents form the ‘International Bill of Human Rights’.
2.2.2 International Convention on the Elimination of All Forms of Racial Discrimination
On 21 December 1965, the UNGA adopted the International Convention on the Elimination of
All Forms of Racial Discrimination (ICERD).74 Through the ratification of this Convention
States Parties condemn racial discrimination and undertake to pursue all appropriate means and
without delay a policy of eliminating discrimination in all its forms.75 Qatar ratified the
Convention on 22 July 1976, without any declarations or reservations. By doing so, Qatar has
accepted it needs to act in compliance with the Convention. The ICERD contains several
fundamental civil rights that are taken over from the UDHR, among which; the right to leave
the country and to return to your own and the right to freedom of association. Besides these
civil rights, the ICERD also sets out several economic, social and cultural rights, also following
from the UDHR. The Convention contains the right to work, to free choice of employment, to
just and favourable conditions of work, to just and favourable remuneration and the right to
form and join trade unions.76 It also establishes the Committee on the Elimination of Racial
Discrimination, a body of independent experts that monitors the Convention’s implementation
by States Parties.77
2.2.3 Palermo Protocol
In the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and
children, supplementing the UN Convention against Transnational Organized Crime, in short,
the Palermo Protocol, we can find the internationally accepted definition of human trafficking.78
The purposes of the Protocol are to prevent and combat trafficking in persons, to protect and
assist the victims of trafficking, and to promote cooperation between States Parties in order to
accomplish this, the 3 P’s.79 In Article 3 of the Protocol the definition of trafficking in persons
74
International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered
into force 4 January 1969) 660 UNTS 195 (ICERD).
75
Ibid., Article 2.
76
Ibid., Article 5.
77
Ibid., Article 8.
78
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, supplementing the UN
Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003)
2237 UNTS 319 (Palermo Protocol).
79
Ibid., Article 2.
16can be found. This definition contains three elements that need to be fulfilled in order to speak
of trafficking. The first element is the act (what is done), this can be “the recruitment,
transportation, transfer, harbouring, or receipt of persons”. The second element is the means
(how it is done). These means can be “the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of
the giving or receiving of payment or benefits to achieve the consent of a person having control
over another person”. The third and final element is the purpose (why it is done), the purpose
of the exploitation can be “the prostitution of others or other forms of sexual exploitation, forced
labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.80
There is no requirement for the purpose to have been achieved, a person is rescued before
exploitation is still a victim of human trafficking. In summary, Qatar’s main obligation under
the Palermo Protocol is the following; to prevent and combat the trafficking in persons by
protecting and assisting the victims thereof and promote the cooperation amongst state parties.
Qatar’s definition of trafficking is in compliance with this definition. This definition can be
found in Qatar’s anti-trafficking law, Law No. 15 of 2011, which prohibits all forms of sex and
labour trafficking.81
Furthermore, the Protocol obligates States Parties to not only criminalize human
trafficking but also the attempt thereto, as well as being an accomplice in the offence, or being
the organizer or director of the offence.82 It also requires States Parties to provide and strengthen
the training of law enforcement officers, immigration and other relevant officials.83 Within the
scope of application of the Protocol fall the human trafficking cases that are of transnational
nature and involve an organized criminal group. An organized criminal group is defined in
Article 2(a) of the UN Convention against Transnational Organized Crime. In order to speak of
an organized criminal group there needs to be “a structured group of three or more persons,
existing for a period of time and acting in concert with the aim of committing one or more
serious crimes or offences […] in order to obtain, directly or indirectly, a financial or material
benefit”.84
80
Ibid., Article 3.
81
Law No. 15 of 2011, Article 2.
82
Palermo Protocol, Article 5.
83
Ibid., Article 10.
84
Convention against the Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September
2003) 2225 UNTS I-39574, Article 2.
172.3 Regional
2.3.1 Arab Charter on Human Rights
In 1994 the first Arab Charter on Human Rights was adopted, despite severe critique from
human rights organisations both within and outside of the region as failing to meet international
human rights standards. As a result not one state ratified the Charter. In 2003, the Council of
the Arab League gave the order to modernize the Charter so that it would correspond with the
international human rights standards.85 The new Charter was adopted in 2004, and entered into
force on 15 March 2008. The Charter seeks to place human rights at the centre of the key
national concerns of Arab States and is based upon the provisions of the ‘International Bill of
Human Rights’.86 Qatar is State Party to the treaty since 2009. The Charter states the
internationally acknowledged principle that all human rights are universal, indivisible,
interdependent and interrelated,87 and affirms current international human rights standards.88 It
furthermore states that “no citizen shall be arbitrarily or unlawfully prevented from leaving any
Arab country, including his own”.89 It guarantees free choice of work and prohibits forced
labour.90 All citizens have the right to freedom of association, the right to form trade unions
and the right to strike.
2.4 Conclusion
In this chapter, the multiple obligations Qatar has under international law, have been set out.
As a signatory state to several ILO and UN Conventions Qatar has to uphold the highest
standards with regard to international human rights and the core labour international principles.
In order to fulfil its obligations under Convention No. 29 and Convention No. 105, Qatar has
to suppress all forms of forced labour and has to take effective measures securing the immediate
and complete abolition thereof. Compliance with Convention No. 81 could be of big support in
achieving this. Besides the ILO Conventions, Qatar also has obligations under UN legislation.
The Palermo Protocol provides the definition of human trafficking, which is different from
forced labour. Human trafficking is the process through which a person is brought in
exploitative or abusive circumstances. In order to fulfil its obligation under the Protocol, the
85
Mervat Rishmawi, ‘The Revised Arab Charter on Human Rights: A Step Forward?’ (2005) 5 HRLR 2005 361.
86
Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2018) 12 International Human Rights
Reports 893 (Arab Charter).
87
Ibid., Article 1.
88
Ibid., Article 43.
89
Ibid., Article 21.
90
Ibid., Article 31.
18Qatari government needs to achieve the goals of the 3 P’s; promote, protect and prosecute. The
UDHR provides all fundamental human rights, but it is non-binding. However, Qatar is not
party to the other Conventions with whom the UDHR forms the International Bill of Human
Rights, the ICCPR and the ICESCR. The ICERD forms a good addition to this as it is a binding
instrument that contains most of the cultural and political rights that are also in the UDHR, but
is not specifically focussed on cultural and political rights and thus provides not the same
protection as the International Bill of Human Rights does. Besides the ICERD, the Arab Charter
also provides several cultural and political rights, though international legislation has
supremacy over the regional legislation of the Charter. In the following chapter, Qatar’s
compliance with these obligations will be discussed.
19Chapter 3 – Qatar’s Compliance with International Obligations
Under the ILO and UN Conventions States Parties have different obligations they must
maintain. States Parties are given a lot of discretion on how to implement these international
obligations in their national legislation, however, there are certain specific requirements they
need to meet. In order to monitor States’ efforts with regard to implementation, the ILO and
UN have specific enforcement mechanisms that monitor the implementation of their
Conventions. In this chapter, Qatar’s compliance with its international obligations will be
investigated by looking into different national instruments and state practice. The specific laws
that will be considered are Law No. 21 of 2015 amending the Sponsorship Law (Law No. 4 of
2009), Law No. 14 of 2004 (the Labour Law), and Law No. 15 of 2011 (the Combatting
Trafficking in Persons Law). But first, to be able to do a better compliance research and for the
better understanding of this research, the enforcement mechanisms of the ILO and the UN, as
well as from the Arab League, will be explained. After this the compliance with the different
international and regional Conventions, discussed in Chapter 2, will be addressed.
3.1 Enforcement Mechanisms
First, the enforcement mechanisms of the ILO. Once a country has ratified an ILO Convention
it needs to report to the ILO on a regularly basis on measures it has taken to implement it, in
support of this the ILO has two supervisory bodies.91 First, the Committee of Experts on the
Application of Conventions and Recommendations (CEACR), and second, the Conference
Committee on the Application of Standards (CAS). The CEACR’s role is to provide ILO
Member States an impartial and technical evaluation of its application of international labour
standards. It can issue two kinds of comments: observations (on fundamental questions) and
direct requests (on technical questions or requests for further information). These direct requests
are sent directly to the government concerned, and the Observations are included in the
Committee’s annual report. The CAS examines these annual reports in a tripartite setting and
selects a number of observations for discussion.92
91
Constitution of the International Labour Organization (adopted 1 April 1919, entered into force 28 June 1919) 15 UNTS 35
(ILO Constitution), Article 22.
92
ILO, Rules of the Game: A Brief Introduction to International Labour Standard (revised edition 2014, ISBN: 978-92-2-
129064-3) Geneva: International Labour Office, p. 102-103. Available online:
20Second, the enforcement mechanisms of the relevant UN Conventions. In the ICERD,
the Committee on the Elimination of Racial Discrimination is established. All States Parties are
obliged to submit a report to this Committee every two years on how the rights of the ICERD
are being implemented. Through concluding observations, the Committee addresses its concern
and recommendations to the State Party.93 In the form of the early-warning procedure, the
examination of inter-state complaints and the examination of individual complaints, the
Committee has several other options to monitor the compliance of States Parties.94 The
monitoring body of the Palermo Protocol is the Conference of the Parties to the UN Convention
against Transnational Organized Crime and the Protocols Thereto. It was established to improve
the capacity of States Parties to combat transnational organized crime and to promote and
review the implementation of this Convention.
Third, through the Arab Charter the Arab Human Rights Committee was established,
however, it took another year for the Committee to be formed. States need to report to the
Committee on a regular basis, on the measures they have taken to implement the rights and
freedoms of the Charter and on the progress made on the implementation thereof. The
Committee’s main task is to focus on monitoring implementation by States Parties through the
consideration of these reports, it needs to make an annual public report on its comments and
recommendations.95 It is, however, not clear to which extent these comments and
recommendations are binding, since there is no mention of any kind of judicial system.
Furthermore, there are no provisions in the Charter on individual or State communications or
complaint mechanisms.
3.2 Compliance with international standards
3.2.1 Law No. 4 of 2009 and Law No. 21 of 2015
In June 2014, the International Labour Conference (ILC), filed a complaint against the
government of Qatar relating to the violation of Convention No. 29, and Convention No. 81.
The complaint states that the problem of forced labour affects the roughly 1.5 million (this
number has increased since 2014 to 1.7 million) migrant workers in the country.96 As already
explained in Chapter 1 of this thesis, the moment the migrant workers start seeking work in
Qatar, they are drawn into a highly exploitative system that facilitates the exaction of forced
93
ICERD, Article 9.
94
Ibid., Article 11.
95
Arab Charter, Article 41.
96
ILO Committee of Experts, Individual Observation concerning the Forced Labour Convention (No. 29) Qatar (adopted
2016, published 106th ILC session 2017).
21labour. According to the CEACR, the Qatari government is failing to maintain a sufficient legal
framework that protects the rights of migrant workers as set out in the Conventions.
Furthermore, the government is failing to enforce the legal protections that currently do exist.
The Committee was particularly concerned about Law No. 4 of 2009, establishing the Kafala
system.97 In the beginning of March 2016, a high-level tripartite visit was paid to Qatar,
assessing the measures taken to address the issues raised in the complaint, among which the
effective implementation of the newly adopted Law No. 21 of 2015.98 The CEACR also offered
the government of Qatar technical assistance to support the process of abolition of the
sponsorship system, the improvement of labour inspection, and help giving a voice to the
migrant workers. Since Law No. 15 of 2015 has amended the original Sponsorship Law (Law
No. 4 of 2009), the Committee has evaluated this new law. Article 22 of the law allows for the
temporary transfer of a migrant worker to another employer in certain special circumstances,
and Article 21(1) provides the opportunity for a migrant worker to transfer to another employer
upon approval of his current employer, the competent authority and the Ministry of Labour and
Social Affairs. However, similar provisions already existed under the old Sponsorship Law,
and so, are not an improvement.99 There is one important main future of the new law, namely,
the fact that workers may change jobs without the employer’s consent at the end of a contract,
or after 5 years if the contract has no specific end date. The CEACR is not satisfied with this
provision, as it does not seem to foresee termination by the migrant worker before the expiry
date of the contract without the approval of the employer, nor does is set out any reasons or
conditions which need to be met for termination in general.100 The government of Qatar needs
to ensure that the regulations of Law No. 21 of 2015 contain clear and objective criteria on the
grounds and reasons for termination of the employment. Besides the fact that these provisions
of the new law are in violation of ILO Conventions No. 29 and No. 81, they also interfere with
the rights set forth in the ICERD and the Arab Charter, specifically with the right to free choice
of employment. However, the Committee on Elimination of Racial Discrimination and the Arab
Human Rights Committee never made any noteworthy statements on the situation of migrant
workers in Qatar, and how this situation might violate the rights of the ICERD and the Arab
Charter.
With regard to the procedure for issuing exit visas, the CEACR also has some critical
notes towards Law No. 21 of 2015. Although the migrant worker no longer directly needs to
97
Ibid.
98
Report of the high-level tripartite visit to Qatar (1-5 March 2016) GB.326/INS/8(Rev.).
99
ILO Committee of Experts, Individual Observation concerning the Forced Labour Convention (No. 29) Qatar, (i).
100
Ibid., (ii).
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