Since Qatar won the hosting rights for the 2022 FIFA World Cup in 2010, recurrent human rights violations of migrants working on building or refurbishing new infrastructure for the tournament have been denounced (see the reports by Amnesty International here and here). As football’s governing body, FIFA should have been aware of the risk that the organisation of the 2022 World Cup could entail human rights violations in the country. Despite progress made in these past few years with regard to the rights of those migrant workers due mostly to international pressure, infringements such as limitations to the freedom of movement, violations of the right to the enjoyment of just and favourable conditions of work, which also entails a failure to guarantee the right to health, discrimination on the basis of nationality and restrictions to the right to access justice, still occur.
In this blog, I investigate how a
migrant worker could engage the legal responsibility of the different actors
involved in the organisation of the FIFA World Cup 2022. The main challenges
are the lack of regulation of private entities under International Law, the
non-existence of regional human rights courts in Asia and the difficulties
encountered to seek the protection and reparation of the rights violated at the
national level. The respect and protection of human rights can nevertheless
only be guaranteed by the availability of effective judicial remedies.
To prevent the protection of human
rights violations suffered by migrant workers to depend exclusively on the good
will of the host State or the home State, I believe shared responsibility could be a useful framework to
ensure a proper reparation to the victims as well as the accountability of the
multiple actors that have contributed to the violations of migrant workers’
rights in Qatar in the context of the build-up to the 2022 FIFA World Cup (see
Human rights violations and the 2022 World Cup in Qatar
The 2022 World Cup in Qatar introduces
major novelties: for the first time, an Arab and Middle East state organizes such
a mega-sporting event. Qatar is also the smallest country per area and
population to host the World Cup. The organization represents a huge logistical
challenge and requires a large workforce.
Since the beginning of the
construction works for the 2022 World Cup, claims of serious violations of the
migrant workers’ rights have been recurrent. Under the Kafala system (Law No. 4 of 2009 Regulating the
Entry and Exit of Expatriates, their Residence and Sponsorship, State of Qatar), the employer (Kafil) was responsible for the safety
and protection of migrant workers. The practices resulting from this system
were considered modern-day slavery and human trafficking, as migrant workers
suffered abusive conditions before, during and after their entry in Qatar as
well as in the construction field with long working hours under extreme
temperatures, low wages (or no wages if the employer decided to withhold large
portions of salary for extra charges), delays in the payment of salaries,
physical and psychological harm and deplorable housing conditions, frequently
housed in “workers camps” without necessary amenities (see here and here). In
fact, human trafficking for forced labour was the object of a complaint against Qatar filed with the ILO on
12 June 2014 relating to the violation of ILO Conventions Nos. 29 and 8. The labour reforms introduced by
Qatar led to the closure in 2017 of the complaint procedure
under Article 26 of the ILO Constitution.
However, the abolition of the direct
employer’s permission to leave the country does not seem to impair the employer’s
capacity to refuse the provision of “non-objection certificates” which are needed
for workers to change jobs before the end of the contract. Moreover, most of
the new labour legislation has not been fully implemented yet (see the reports here and here) : confiscation of passports and
harsh labour conditions are still a reality in the country; the minimum
temporary wage is insufficient to ensure a proper standard of living (the
temporary minimum wage is of QR 750 – around USD 200 – per month); the law
still provides for the need to get an employer’s “permission” to leave the
country for 5% of the workers “due to the nature of their work”; and, the newly
set-up labour courts in charge of judging the workers complaints are
overwhelmed and rather ineffective.
The differentiated responsibilities
of FIFA, Qatar and Switzerland
Qatar, the host state, ratified 6 out of the
189 ILO conventions and the core human rights treaties (including the
International Covenants on Civil and Political Rights, and on Economic, Social
and Cultural Rights). Its obligations, under International Human Rights Law, are
to respect, to protect and to fulfil human rights. The duty to protect entails
for the state to ensure the protection of individuals against human rights
abuses. Switzerland, FIFA’s home State, is actively engaged and strongly
committed to human rights. Under the ICESCR, the home State is obliged to take
steps to prevent human rights contraventions abroad by corporations, which have
their main offices under their jurisdiction. General Comment No. 31 of the Human Rights Committee declares that State parties
have the obligation to protect civil and political rights also against acts
committed by private persons or entities. The failure to take proper measures
or to exercise due diligence to prevent, punish, investigate or redress the
damage caused by such acts is also a breach of the ICCPR.
Despite recent labour law reforms, Qatar’s
international responsibility could still be engaged for human rights abuses on
account of the violation of its duty to protect (among others, the right to
work, the right to non-discrimination, the right to freedom of movement and the
right to access to justice). Indeed, the Qatari Supreme Committee for Delivery
and Legacy is the government agency responsible for delivering the
infrastructure required for the 2022 World Cup (see here and here). Among other tasks, it selects the
main contractors for the construction of the stadiums.
As Millward notes “corporate building contractors are
employed by the sovereign State of Qatar and then, in most cases, find
sub-contractors to deliver their projects”. Thus, it could be argued that the
wrongful actions of the contractors and subcontractors related to migrant
workers on building sites connected to the FIFA World Cup can be attributed to
the State of Qatar due to the failure of one of its organs (the Supreme
Committee) to comply with the state’s human rights obligations.
While Qatar has the power to exclude
contractors that do not respect workers’ human rights because it holds economic
(and regulatory) authority over them, FIFA could also be more proactive in pushing host countries to live by human rights
standards. Through its bidding process to host the World Cup, FIFA could have
imposed conditions related to the treatment of the workers active on construction
sites and therefore, decided to exclude the candidate countries unable or
unwilling to follow them. Even after winning the bid, the Organizing
Association Agreement, signed between the host country and FIFA, grants FIFA “a pseudo
authority inside national boundaries” by requiring the host State to pass specific
national legislations. FIFA
sets forth the list of (technical and other) requirements for the stadiums, the
plans for the construction or renovations of stadiums must be approved by FIFA and
the organization has the right to carry out stadium inspections at its sole
discretion and issue directives based thereon. FIFA can also reject the
selection of a stadium and issue new directives. So, FIFA has some leverage to
mitigate and prevent human rights abuses linked to the organisation of the World
Cup or, at the very least, there are possible ways for FIFA to increase its
leverage on the contractors and sub-contractors. That capacity has been
pointed out by FIFA’s own Human Rights Advisory Board in its Second Report of September 2018.
As mentioned above, Switzerland also
has an obligation to take appropriate measures to prevent, punish, investigate
and redress human rights abuses committed by the entities under its
jurisdiction. Although human rights conventions remain usually silent with
respect to extraterritorial application, as FIFA’s home state, Switzerland has
an obligation of due diligence over the activities of its private entities
overseas under the ICCPR and the ICESCR.
Nonetheless, when faced with the claim of Mr.
Nadim Shariful Alam against FIFA, a Swiss civil court dismissed the case (for
more details, see the blogs here and here). Mr. Alam is a Bangladeshi citizen
whose passport had been confiscated in 2014 by its employer, making it
impossible for him to travel and he was therefore totally dependent on his Kafil.
During his stay in Qatar, Mr. Alam was allegedly living in a workers camp with
2250 other migrants under miserable conditions. Due to the prohibition for
migrant workers to join trade unions, he could not ask for the protection of
his rights nor for reparation in Qatar. The claim, brought by the Netherlands Trade Union
Confederation, the Bangladeshi Free Trade Union
Congress, the Bangladesh Building and Wood Workers Federation and Mr. Alam, referred to FIFA’s obligation of due
diligence and its capacity to promote legislative and significant change in Qatar.
It alleged that:
- FIFA committed a wrongful act by selecting Qatar for
the 2022 World Cup without ensuring the proper protection of the rights of migrant
- FIFA failed to fulfill its obligation to request Qatar to protect migrant
workers and to demand legal reforms;
- Therefore, FIFA violated Mr. Alam rights and had to pay for the damage
resulting from its unlawful actions.
In its judgement of 3 January 2017 , the Commercial Court of the Canton of Zürich dismissed the claim of Mr. Alam on the motive that the case was not a commercial dispute that fell within the jurisdiction of the tribunal and that the claim was not enforceable and specific enough. However, it would have been impossible for the plaintiffs to bring the case before a Swiss Labour Tribunal due to the fact that FIFA was not the direct employer of Mr. Alam. The tribunal would certainly have dismissed his claim (Art. 34 Swiss Code de Procédure Civile). Thus, it seems that Swiss courts do not have jurisdiction to decide on claims of migrant workers against FIFA alleging labour rights violations in Qatar connected to the organisation of the FIFA World Cup. Should the popular initiative to amend the Swiss Constitution become a reality, private companies will have an obligation, under Swiss law, to respect, protect and monitor human rights abroad. The new Article 101a of the Constitution would certainly help to clarify the legal situation and allow Swiss courts to establish jurisdiction in case of human rights abuses overseas. It remains unclear however if Article 101a could apply to FIFA’s actions bearing in mind that the organization has been formally created as an association under Article 60 and seq. of the Swiss Civil Code (Article 1 FIFA Statutes). With a revenue of 484 million USD and a total projected investment/expenses of 1108 million USD for 2020 (see here), FIFA is, for Bean, a “non-listed, economically significant” company or organization under the Swiss Code of Best Practices for Corporate Governance. Should the Constitution be amended, Swiss courts will clarify the scope of Article 101a. However, that future discussion does not diminish the actual obligation Switzerland has to ensure to victims access to proper remedies to claim reparation for human rights violations linked to Swiss corporations or associations (such as FIFA).
Towards an effective shared responsibility between FIFA, Qatar and
situations of “governance gaps” (multiple actors are unable or unwilling to effectively
protect human rights), shared responsibility might be a useful framework to
better allocate international responsibility among multiple actors. With regard to the 2022 World Cup, Qatar,
FIFA and Switzerland have contributed to a single harmful and undesirable outcome
(systematic abuses of the rights of migrant workers) that took a variety of
forms (discrimination, unlawful restrictions to freedom of movement, violations
of the right to work, the right to health and the right to be free from forced
labor, non-access to justice). However, they did not act as a collective entity
(human right abuses do not result from instructions jointly issued) and they are
not bound by the same obligations (Qatar had a duty to protect human rights in
its territory, Switzerland did not provide access to justice to rights holders
to claim reparations from a Swiss private entity (FIFA), and FIFA failed to
exercise proper leverage before and after the selection of Qatar as the host
State of the 2022 World Cup). Nonetheless, each of the actors were fully aware
of the consequences of the lack of prevention and punishment of the recurrent
As Qatar and Switzerland are responsible in respect to the same injury, I believe both of them have the obligation to provide reparation. Furthermore, the responsibility of each of the states will not be diminished by the involvement of the other state (diffusion of responsibility has to be prevented).
With regard to the exercise of jurisdiction, it
seems Qatar faces huge difficulties to properly address the claims of the
migrant workers. Thus, the possibilities for migrant workers to obtain
reparation before Qatar’s national courts seem non-existent at this time.
Concerning the jurisdiction of international courts, it is likely that migrant
workers could only be able to access the European Court of Human Rights for the
breach of the due diligence obligation of Switzerland. The absence of regional human
rights courts in Asia leaves only the (highly unlikely) possibility that the
home states of migrant workers (Bangladesh, Nepal, Philippines, etc.) exercise
diplomatic protection and claim reparation on their behalf before an international
It is though more difficult to address a shared responsibility between both States and FIFA. As mentioned above, no primary rules of International Law are per se binding on FIFA (despite the breach of its soft law obligation of due diligence). The absence of any “hard direct corporate responsibility” entails that FIFA has no direct human rights obligations under International Law.
Consequently, trying to establish and to hold private entities responsible for human rights abuses to which they have contributed is exasperatingly difficult. The non-existence of binding international rules on the matter diverts the discussion towards state responsibility and highlights the limited possibilities to activate human rights enforcement mechanisms. Many are the obstacles standing in the way of the victims. While, the impact of public shaming by NGOs on the reputation of the actors involved could be significant, much remains to be done in order to ensure the protection of the migrant workers in Qatar.