The fight against Covid-19is going to be a long and harsh one. Amidst such an
international crisis, nations around the world are in a tailspin. In a bid to
secure their borders from the virus, States are throwing their weight around to
keep from increasing the chance of infections.
The UAE, in order to stop the
spread of the virus, announced a curfew on 23rd March, 2020. But even after this
the situation only kept getting worse and to further clamp down on the issue
they announced that other nations must take their workers back otherwise they
would have to take stringent measures and rethink their diplomatic ties with
those particular nations.
Till the early 70s UAE was a relatively poor and backward country after which
the economy witnessed a boom and managed to grow over 200 folds on the back of
migrant workers. In 2015 alone, the country's population of 9.3 million had
around 89% migrants, majority of them from South-East Asian countries. UAE
immigration statistics for 2015 was 8,095,126.00, a 10.64% increase from 2010.
The outbreak of the virus has led to a complete lockdown of over a third of the
world. Workers are stranded in foreign countries with no work and no way back
home because of the aviation industry's shutdown. In order to coerce nations
into taking their workers back, UAE warned that the entire work visas will be
reconsidered and most likely to be changed in case no action is taken by the
respective countries. It sure raises the question whether amidst this global
crisis the announcement made is valid in context of International Law. The
Authors in this Article try to analyze the validity of UAE's actions with
regards to International Law.
Provisions of the 1969 Vienna Convention on the Law of Treaties
Vienna Convention on the Law of Treaties was adopted with the aim of regulating
law of treaty making. Article 34 of the convention states that a third state (non-signatory)
cannot be compelled under the treaty without its consent. Therefore, it may seem
UAE is not obligated to abide by the International Law on the subject concerned.
However, Article 75 acts as an exception to Article 34. It reads as follows:
The provisions of the present Convention are without prejudice to any obligation
in relation to a treaty which may arise for an aggressor State in consequence of
measures taken in conformity with the Charter of the United Nations with
reference to that State's aggression.
It means that if a state's action happens to be aggressive and prejudiced in any
manner and form then it can be compelled to abide by the treaty so as to act in
consonance with the UN Charter. And in the case of a force majeure event as of
today, UAE's actions can be perceived as coercive and aggressive.
Jus Cogens are the principles which form the norms of international law that
cannot be set aside. No international treaty can be in a violation of these
principles. For example states cannot enter into a treaty which legalises child
trafficking; whether these states happen to be a member of an international
convention or not is of no consequence. If the convention contains a principle
which has become a part of jus cogens, it will be self-executing.
This principle in context of migrant workers has been very justly aptly together
in the Inter-American Court of Human Rights' Advisory Opinion on the juridical
condition and rights of migrants. It held that the principles of
non-discrimination, equality before the law, and equal protection before the law
quaperemptory norms (jus cogens) impose on all states respect for workers' human
rights, once an employment relationship is established.
Customary Laws are norms that are not explicitly written in any said convention
or charter but are internationally recognised as an inherent part of each of
those as they are the basic building blocks, the very basic of human rights that
have now become an integral part of our society and the modern free world cannot
function without which. Right to equality, Right against exploitation etc. have
become an indivisible part of the modern society and culture.
In times like
these when Covid-19 poses a threat to us all, it becomes equally important for
nations all around the globe to not just look after their citizens cause they
happen to be their subjects but also after every other human being, be it a
foreign national or an illegal immigrant in a detention camp as they all have
their basic human needs and the states are under the obligation to fulfil them.
The nature of International customary laws is such that they are automatically
read into treaties and conventions without their explicit mention.
The International Labour Organisation was created with a vision in mind toset
labour standards, develop policies and devise programmes promoting decent work
for all.There are conventions formulated by ILO in order to safeguard the
interests of Migrant Workers who leave their home countries in order to earn
their livelihood. UAE has been a member state of ILO since 1972 and has ratified
9 of their conventions, including 6 core conventions.
International Convention on the Protection of the Rights of All Migrant Workers
and Members of their Families, 1990
Article 16 of this Convention entitles protection to migrant workers and their
family from any arbitrary action taken by the public officials that deprives the
workers of their personal liberty. UAE's statement regarding revisiting the visa
quotas due to a force majeure event is in clear violation of this Article.
Article 54 of the convention states that the Migrant workers residing in the
country are to be treated equally by the host nation with respect to its
citizens in terms of employment and are not to be discriminated against. The
Host nation is obligated to do so pertaining to the established employment
relations. And in case of violation the migrant workers can approach the
concerned authorities to seek the redressal of their grievances. In 2001, the
UAE ratified the Discrimination Convention of 1958, which concerns
discrimination in regard to employment and occupation and their decision to
repatriate these workers on the pretext of an outbreak putting their jobs in
jeopardy happens to be in a direct violation of the same on their part.
ILO's guidelines for protection of migrant workers during covid-19 crisis
On 23rd March, 2020 the International Labour organisation issued some guidelines
related to International Labour Standards on where does the international
community stand when it comes to protecting and preserving the rights of migrant
workers during the time of a global crisis. It states that Migrant Workers in
the State whether residing legally or illegally are entitled to the same
benefits that are provided by the State to its citizens. It also states that the
State in which migrant workers and their families are residing permanently
cannot be forced to go back to their home country until and unless they consent
The Guidelines are as follows:
- As per Migration for Employment Convention, Governments shall ensure
that migrants and their families are provided with adequate health and
hygiene facilities of all sorts.
- The workers and their families shall be kept up to date and be provided
with accurate information at all times.
- Migrant workers and their families residing lawfully in the country
shall be accorded with the same benefits as are being passed on to its
citizens by the country. Measures taken for the sake of illegal immigrants
shall be no different either.
- Migrant workers unable to perform their duties due to any illness shall
not be deported back without the concerned party's consent.
- Loss of employment shall not automatically imply withdrawal of the
worker's work or residence permit.
- Migrant workers who have lost their employment should be allowed
sufficient time to find alternative employment.
- Migrants shall be treated equally as the nationals of the respective
country in respect of guarantees of security of employment, the provision of
alternative employment etc.
- If for whatever reason the migrants face expulsion, the Migrant Workers
Convention, 1975 states that the cost of the same shall not be borne by
Migration has and always will be a hot topic in the international forum. Just
like human resource is unevenly distributed across nations, so are employment
opportunities; which is why people usually cross borders to fend for themselves
and their families. Migration is not easy, for it takes one to leave his people
behind for a culture unbeknownst to them. Wages are not nearly enough, work
hours are long and often the exploitation machinery runs in full swing.
that a pandemic that leaves them unemployed and helpless in an alien country
with no way back. Hence it becomes the responsibility of that nation state to
look after those who need its help the most not just because they are bound by
some treaty or convention but because it is the only humane thing to do. Some
values need not be codified as they are universal in nature.
In light of all the
facts and Statutes the Author condemns UAE's actions with regards to Migrant
workers as it is gross violation of human rights.Instead of ensuring that jobs
are not lost and people do not run out of cash or essentials the country is
trying to shrug off its responsibilities because majority of their population
happens to be a mixture of migrant workers. These are the times in which all
nations should act in conformity to basic human rights but such actions of some
of the States' come out to be like twisting the knife in the wound.
- Juridical Condition and Rights of the Migrants, Advisory Opinion,
Inter-American Court of Human Rights (ser. A) No. 18 (2003)
- Animesh Upadhyay - 4th Year Law Students at Dr. Ram Manohar Lohiya
National Law University, Lucknow and
- Shikhar Shukla- 4th Year Law Students at Dr. Ram Manohar Lohiya National
Law University, Lucknow.