1/25/2022 The Plight of Domestic Migrant Workers amidst Lebanon’s Compounding Crises: A plea to dismantle the Kafala SystemRead NowThis article is authored by Vidya Kakra, Final Year Student of Law, Symbiosis Law School, Noida.
The surge of globalization across the world has led to an escalation in the demand for domestic workers owing to worldwide development affecting the economic, social and political sectors. This demand has driven millions of domestic workers to migrate in search of work outside of their own economically depressed nations, thereby increasing migration. The International Organization for Migration (IOM) World Migration Report 2020 estimates a global population of 272 million international migrants, with about two-thirds of them being labour migrants.. The key factors due to which these workers search for employment outside their own country are financial motivation, poverty and lack of employment opportunities in their home country. Due to this, workers' movements to wealthier economies such as the Middle East and Gulf nations have predominantly increased since the 1970s, owing to the thriving oil industry. Over 250,000 Migrant Domestic Workers (MDWs) are reported to reside in Lebanon, of which the majority of workers are women belonging to neighbouring Arab nations, South-East Asia, and more recently, Africa. Labour migration in Lebanon has contributed significantly to its economic growth by offering an abundance of employment opportunities, notably in construction and domestic work. This has also proven to be a significant benefit for migratory workers, who remit large sums of money home to their family and home countries. While globalisation has aided these workers' migration, it has also frequently placed them in legally and socially vulnerable and employer-controlled situations. The Kafala System, prevalent in Middle East nations, including Lebanon, is one such practice that not only creates circumstances for flagrant human rights violations but also comprehensively establishes a new group of easily exploitable workers. The Kafala (Sponsorship) System The term 'Kafala' is taken from the Islamic doctrine of legal guardianship and means 'to ensure' or 'to look after' in Arabic. This system was initially established with the objective that the state would grant sponsorship permits to the sponsor (Kafeel), who is usually the employer, to recruit immigrant workers with the intention that the sponsor ensured the safety and wellbeing of the migrant worker. However, with the advent of time and commercialisation, this objective of the Kafala system shifted to provide cheap labour during a period of rapid economic expansion in Gulf Corporation Council (GCC) nations - Saudi Arabia, United Arab Emirates, Jordan, Bahrain, Qatar, Kuwait, Oman, and Lebanon. Today, Kafala system has become a mechanism for recruiting migrant workers by creating a foundation for employer-migrant worker relationship through a labour contract and also serves as a tool for managing and controlling labour migration. By tying the entry visa of the migrant workers to an individual employer and making termination of employment and shifting jobs impossible without the employer’s approval, the Kafala system confers excessive powers in the hands of employers, leading the workers to be completely dependent on their Kafeels and lose control over their own life. Domestic migrant workers are the most disadvantaged under a Kafala agreement or contract. One of the reasons is that cohabiting with the employer enhances their level of reliance by affecting their daily subsistence and it exposes domestic workers to exploitation, aggressiveness, and isolation, as well as physical, sexual, and psychological abuse. They are subjected to racial discrimination because they work in jobs that the Lebanese community sees as substandard. Furthermore, migrant domestic workers are least protected among migrants, not only because it is far more difficult to verify what happens "behind closed doors," but also because domestic work is not protected by the country's labour regulations. Lebanon’s International Obligation While domestic laws of Lebanon do not protect domestic migrant workers from exploitation, it must be noted that Lebanon is bound by fundamental principles of International Human Rights Laws as well as International Labour Standards, particularly those conventions that it has signed and ratified. The Universal Declaration of Human Rights (UDHR), 1948 is the basis for most universally recognised human rights such as the right to life, equality, non-discrimination, right to work, freedom of expression and freedom of movement. Some abusive employers force domestic workers to work against their will and prevent them from returning to their home countries. This is incompatible with Article 13 of the UDHR, which provides for the right to free movement and the right to return to one's own country. Similarly, acts of racial discrimination such as racist speech, stereotyping, and stigmatisation, particularly against refugees and migrant workers is incompatible with Article 2 of the UDHR, which provides for the right of non-discrimination. The provisions of the International Covenant on Civil and Political Rights 1996 (ICCPR) acknowledges each individual's inherent dignity and commits to promoting conditions within states that allow the enjoyment of civil and political rights. Lebanon's kafala system has been described as modern-day slavery by many, owing to its slave-like arrangement that binds the migrant to the employer. This makes it inconsistent with Article 8 of the ICCPR which stipulates abolition of slavery and forced labour. Likewise, the International Covenant on Economic, Social and Cultural Rights 1996 (ICESCR) governs the right to work, right to labour in decent circumstances, right to social security and social insurance, and right to a decent quality of living, all of which are tied to the welfare of foreign workers. Article 6 establishes right to labour, making it not only legal but also the sole method to make a livelihood, whereas Article 7 establishes the right to fair and beneficial working circumstances. The difficulty with the kafala system in the context of these articles is that they constrain the sponsored worker’s movement and employment choice on the kafeel’s legal permission and to labour under harsh, unfair, and abusive working circumstances. Other international human rights conventions that deal with migrants, notably migrant domestic workers who are women, are also routinely violated by Kafala. These are the Convention on the Elimination of All Forms of Discrimination Against Women (1979) and the Convention against Racial Discrimination (1965). Lebanon has signed and ratified all of these conventions. Kafala has also received several criticisms for violating various internationally recognised labour standards, which are systems and laws set by the ILO. Forced Labour Convention, 1930, Right to Organise and Collective Bargaining Convention, 1949, Equal Remuneration Convention, 1951, Abolition of Forced Labour Convention, 1957, Discrimination (Employment and Occupation) Convention, 1958, Minimum Age Convention, 1973 and Worst Forms of Child Labour Convention, 1999 are the names of a few of the many Labour Conventions that Lebonan has signed and ratified and thus. is obligated to fulfil. Lebanon’s Compounding Crises The Lebanese population as a whole, along with refugees and migrant workers, has suffered greatly as a result of the economic crisis. The impact has manifested in job loss, inability to meet basic requirements, and underpaid or drastic fall in the value of salaries owing to currency devaluation. The poverty of Lebanese people has also led to a reluctance to hire domestic servants. As a result, migrants have been unable to send money home to support their families. The economic crisis also exacerbated racial prejudice and harmed Lebanese society's perception of migrants working and receiving humanitarian relief. Moreover, because migrant domestic workers lack access to healthcare, the COVID-19 pandemic exacerbated their living conditions. Furthermore, due to the risk of disease transmission, migrants who work in many families are having difficulty obtaining jobs and supporting themselves. As a result, illegal migrant domestic workers have been evicted and forced to live on the streets in front of their embassies, requesting assistance in leaving Lebanon. This has become more prevalent since they are unable to afford a ticket to go back home or pay high costs imposed by Lebanese authorities when a migrant worker gets into an irregular position. Standard Unified Contract The Standard Unified Contract (SUC) took effect in September 2020, however it did not survive long. The Syndicate of the Owners of Recruitment Agencies in Lebanon (SORAL) filed an appeal before the Shura Council in October against the new SUC's modifications, arguing that they would be in conflict with current labour laws. SORAL's charges against the new contract were successful, thus the revisions were not implemented on the grounds that the new contract "may inflict tremendous harm to the labour recruiting business." As a result, SUC 2009 is still in use. Despite the fact that the new SUC did not provide for a substantial change in the system or procedures for enforcing the regulations, it was met with vehement hostility from the collectives who benefit from the Kafala system. Due to this, the Lebonan Court rejected the new SUC to replace the Kafala system. Conclusion With one crisis after another erupting in Lebanon, there is no doubt that the plight of domestic migrant workers has worsened. They are extremely concerned about the country's instability and limited nature of the kafala sponsorship system. NGOs have been working to eradicate kafala and in doing so interact with government agencies. However, with every step towards progress, such as SUC, being thwarted by powerful lawmakers and other interested parties, any beneficial change appear to be incredibly delayed, leaving domestic migrant labourers skeptical about Lebanon's future. The consequences of the previous year's unprecedented problems underline the necessity for swift action, beginning with revisions to the kafala sponsorship system. More improvement in Lebanon may be conceivable as a result of the region's modest but steady transition. Recognizing the international community's demands as well as progressive action in neighbouring states, Lebanon can do more to create a mutually beneficial system for impoverished foreign communities who are deprived of institutional care and are willing to treat them as hardworking individuals that they are.
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This article is authored by Harsh Mahaseth, a Lecturer at Jindal Global Law School, and a Senior Research Analyst at the Nehginpao Kipgen Center for Southeast Asian Studies and Gauri Goel, a Student of Law at Jindal Global Law School, O.P. Jindal Global University. Introduction The Prosecutors of the International Criminal Court (ICC) recently started an investigation regarding the alleged atrocities committed against the Rohingya refugee population, primarily regarding the deportation of around 600,000 - 1,000,000 refugees from Myanmar to Bangladesh. On the 14th of November, 2019, the judges of the ICC authorized the investigation, which was to be conducted regarding any crimes committed on or after the 1st of June, 2010, when Bangladesh joined the ICC. An additional question relate to jurisdiction arose seeing as a number of the committed acts of violence occurred on the Bangladesh border and Myanmar is not a part of the ICC as they have not ratified the Rome Statute. The investigation by the ICC Myanmar, on the 15th of November, 2019, rejected the investigation that was started against them by the ICC for alleged crimes against the Rohingya. They further stated that their own committees would investigate the matter if it would be needed. However, the National Unity Government of the Republic of the Union of Myanmar (NUG), has accepted the jurisdiction of the ICC. The declaration of the same was submitted under article 12(3) under the Rome statute. The submission of this declreation threatened, the impunity held by the military officials who have undertaken the crimes. This does not mean that they have become a state actor, merely that they have given jurisdiction to the ICC to investigate the crime. Hence, the success of the same will remain uncertain until Myanmar becomes a state actor under the Rome Statute. Moreover, this declaration will start a discourse in the international community over which is the legitimate government of Myanmar; whether it is the Myanmar Junta or the NUG, which is seen as the government of the people. Bringing the case to the International Court of Justice Gambia acting as a proxy for the Organisation of Islamic Cooperation (OIC) instituted a case in the International Court of Justice (ICJ) against Myanmar on the 11th of November, 2019, for violations against the Genocide Convention of the United Nations (UN) for crimes against the Rohingya people in the Rakhine State, which in the words of Myanmar Government were clearance operations. Myanmar is a party to the Genocide Convention which makes the question of jurisdiction simplified under Article IX of the same. Myanmar argued Gambia was not affected by the crimes, there wasn’t any dispute with Gambia, and reservation regarding Article VIII of the Convention for the lack of jurisdiction held by the ICJ. However, ICJ refuted most of the arguments and went forward with proceedings. ICJ ordered Myanmar in January 2020 to prevent the genocide from happening against the Rohingya. The Government was against the ruling proclaiming the information brought by the ICJ, not portraying the actual situation in the country. Their line of reasoning was that there was no genocide, but war crimes occurred, which were being investigated under their own criminal system. The former de facto leader of Myanmar argued it was an internal armed conflict initiated by the Rohingya military. The Junta currently is also breaking the provisions ordered by the ICJ against them for protection of the Rohingya with restricting their right of freedom. Loopholes to prosecution These crimes cannot be prosecuted in Myanmar for many reasons. First, that Myanmar did not have a domestic law against genocide to file crime done against the Rohingya. Hence, a new law on genocide has been made by the military after the ICJ requirements. However, the law has been made by the military for its benefit and can’t be seen by many stakeholders as a law for enforcing a judgement or proper investigation for the alleged crimes by the military. Additionally, the judiciary is seen as partial. The judiciary being influenced by the military, and impunity for officers for acts done while doing their duty is given in the 2008 Constitution creates problems for any fair trial to be created in the domestic area. The Government has created the Independent Commission of Enquiry (ICOE) to investigate these crimes, but it is argued to be insufficient by the UN Commissioner for Human Rights. Argentina’s Federal Court is also investigating the alleged crimes perpetrated by Myanmar against the Rohingya people under universal jurisdiction; which covers grave crimes that can be tried anywhere as they aren’t specific to any one country. The case was created after the request of BROUK, whose President, Tun Khin, gave testimony in the court on the 16th of December, 2021, highlighting the crimes of the military, his own experience and examples of grave crimes done against the Rohingya. When the NLD, which was backed by the military, became the Government in 2016, it posted ex-military officers on senior positions. The Chief Justice of Myanmar was not changed after the party came into power and kept the ex-general Htun Htun Oo in the position. He sent a memo to the members of the judiciary instructing them to not welcome any correspondence by the ICC or the Argentina’s Federal Court. As the judiciary is highly influenced by the military, the memo may have been ordered by top military officials in the Junta. The Independent International Fact-Finding Mission on Myanmar had released its findings in 2018 wherein they stated that the military of Myanmar exhibits great control over its subordinates which makes the officials at the top be liable for the acts by their subordinates because of the hierarchical nature of command. Moreover, the military has never been held accountable and promotes perpetrators because there is no responsibility. The current move can be seen as a way to maintain this impunity against their crimes, who are being investigated by the international courts with the senior general Min Aung Hlaing being accused in most reports and testimonies. Myanmar can take inspiration from the case of Nicaragua v. USA in the ICJ wherein the US disputed the jurisdiction of the court in the case even when it was pronounced against it. Moreover, as the ICC doesn’t have any means of enforcing their decision, it is unlikely that the military would comply with them until there is an issue of jurisdiction. The judgement can be enforced in the UNSC but as 2 veto holders, China and Russia, are allies of Myanmar military, this position would also be not possible. 1/16/2022 Position of Right to Fair Trial and Permissible State Derogation in The International LawRead NowThis article is authored by Shaivy Maheshwari, a Fourth Year Student of Law at Symbiosis Law School, Noida.
Introduction For understanding the position of fair trials in the international regime, it is pertinent to first make sense of its customary and conventional standards. The said right is considered to be one of the cardinal rights guaranteed under the rule of law[1]. Fair trial has also been a crucial fragment to guarantee human rights which were first affirmed by the UDHR[2] and then recognized by a diverse number of human rights documents such as the ACHR, ICCPR, and ECHR. These instruments carry certain minimum standards which provide procedural safeguards to guarantee a fair trial[3]. A popular view suggests that human rights treaties have the disposition of jus cogens[4] i.e any kind of suspension or limitation would be impermissible to such norms[5]. Going by this view, one can deduce that the right to fair trial assumes the character of at least a compelling legal norm. However, in practice, derogation from the right to some extent is found to be permissible given they are “proportionate, crucial and are subjected to international scrutiny”[6]. Need for addressing the issue of fair trials One of the most basic principles of rule of law is the maintenance of equality among the subjects. The right to a fair trial itself seeks to provide a level playing field to the victims as well as the accused[7]. If the core principles of a fair trial are not upheld, the rule of law is bound to lose its value. This is because the balance between the rights of both parties would not be maintained, ruling out the basic principle of equality which is key to the rule of law[8]. Further, as per the Vienna Declaration of 1993, “all human rights are universal” and the international community is obligated to treat “human rights globally in a fair and equal manner”. The complexity of the criminal procedural law in the international regime[9], possibility of lack of independence of the judiciary[10] , and the differences in the languages of the international texts guaranteeing fair trial rights may pose problems if the ascertainment of the placement of fair trial rights remains ambiguous. Further, the differences in substantive interpretations and state volitions are likely to affect uniformity in the practice of guaranteeing fair trial rights. This paper first ascertains the character and placement of fair trial rights in the international legal domain. It then determines whether the exercise of such rights is subject to some kind of permissible derogations and the extent to which such derogations have been recognized by the courts. Lastly, it tries to deduce if fair trial rights assume the character of jus cogens given their nature, position and judicial recognition in the international domain. Placement of Right to Fair Trial in International Law The substantive content predominantly reflects various normative rights to ensure a fair trial which are given due recognition in the international law[11]. For instance, to be treated as an “innocent until proven guilty” is a customary norm under the international law[12]. This is reflected by article 14(2) of the ICCPR. Article 14 in fact enumerates much of the substantive standards pertaining to the right which are accompanied with various other procedural guarantees through article 7 read with article 1 of the Convention against Torture[13]; and article 9, article 10, article 13, and article 15 of the ICCPR. The Rome Statute apart from providing several basic rights of a fair trial under part 6 provides for the “right to remain silent”[14], a notable addition that was absent in the earlier drafts. The ECHR through article 6 also protects certain minimum fair trial rights of a person. Additionally, some specific guarantees such as those provided under article 6 of the additional protocol II are found to be diffused under international humanitarian law. There are also much shreds of evidence to suggest that the right to a fair trial has attained a customary character[15]. Thus, from a fundamental principle of the rule of law to a tool to guarantee human rights, the right to fair trial can be said to have been scattered around in international law. At one place, fair trial rights have been properly specified both in substantive and procedural terms, and at the other, these seem to be upheld because of their normative and customary character. Permissible Derogation of the Right by a State Fair trial is conventionally believed to be a well-established principle in international law from which no derogation is permissible except in accordance with the mechanism set out under various articles[16]. The presence of these substantive provisions does not however indicate that there is an absence of any kind of digression. These provisions are also prone to different kinds of interpretations and hence may have distinct applications[17]. For instance, having been created by the means of a treaty, the rights which are guaranteed under the ICC are not always inviolable[18]. Derogation to a certain extent is permissible, provided the circumstances governing the derogation follow the standards which have been enshrined under the instrument. Also, under the ICCPR, article 14 is kept outside the purview of the rights which cannot be derogated as per article 4 of the treaty. In such a case, it is important to identify the extent to which such derogation can be made possible and to see if the actual trend demonstrates the assurance of some basic minimum guarantees to a fair trial nonetheless. The Vienna Convention too allows the treaties to be interpreted by placing a good faith which should cater to the general meaning that can be given to its terms and following the object and purpose of the Convention[19]. Yet, given the nature and somewhat fragmented substantive position, a palpable way to perceive the character and disposition of fair trial rights in international law can be to observe the interpretations given by the courts. Judicial Interpretations regarding permissible derogations In the case of ICCPR, ACHR, and ECHR, certain common standards have been enumerated to justify a ‘valid derogation’ from the right. For instance, in the event of a national emergency, a state is allowed to derogate from the principle in order to balance the rights of the population with the necessity of ensuring the safety of the state itself[20]. In Lawless v. Ireland[21], the court pondered if, by the means of detaining the petitioner for five months before his trial, his fair trial guarantees which have been provided under article 5(1)(c) and (3) of the ECHR were violated. This was because bringing him before an appropriate legal authority was not the purpose of his detention. Yet, the court used the ordinary meaning of the term ‘emergency’ to suggest that the government rationally presumed the state of affairs to be an imminent state of emergency[22]. In the Greek case[23], the court concluded that political instability coupled with communist activities does not qualify as being the state of a public emergency. It becomes pertinent to note that while derogation has been made permissible to a certain extent, the states still need to justify the facts and circumstances which made them interpret the situation as one qualifying a national emergency. The courts’ interpretation also suggests that it gives due regard to the government’s discernment of considering a particular situation as that of an emergency. Furthermore, in the case of Ireland v. United Kingdom[24], the court opined that additional guarantees have to be made available to assuage the excessiveness of the derogation if the normal guarantees to a fair trial have been taken away[25].In this manner, the court sought to provide only a limited leeway to the states while striving to balance the rights of the population at the same time. Similarly, derogation of the states must be proportional to a legitimate aim which is to be pursued by the means of the limitation upon the right[26]. Conventionally, the courts believe that governments are better equipped to determine the kind of measures that are pivotal to handling the emergency[27]. In the case of Lawless, the court propounded that given the circumstances created by the situation, administrative detention was justified for handling the emergency[28]. There have been a number of several similar instances in which the court has reviewed responses of the governments. This suggests that though a margin has been provided to the governments to act according to their discretion yet international scrutiny is done to evaluate states’ action based upon acceptable limits, and to see if such action was indeed taken in good faith. The International Criminal Tribunal for the Former Yugoslavia in the Tadic case[29] indicated to some extent that digression from the procedural guarantees may be allowed even if there is no specific derogation clause[30]. This suggests that although the right to fair trial assumes a lot of importance in both substantive and customary international law, its specificity in terms of its permissible derogation is lacking. The courts’ evaluation helps in the assessment of a particular situation as to whether it qualifies as a legitimate derogation from the fair trial rights. Yet, the absence of any precise standard to review[31] to see if there was indeed necessity, proportionality and good faith on the part of government makes it difficult to sufficiently conclude whether this right can be upheld at all times. Conclusion From the above analysis, it becomes clear that any kind of derogation from the right to fair trial cannot be done arbitrarily on the part of the states but has to be legitimized. Even though it cannot be said that such practice would help in upholding all the substantive or customary fair trial rights at all times yet it’s fairly universal character and the practice of court evaluations can help in maintaining state consciousness regarding the existence of the right. This is particularly true because fair trial rights also find their place under the UDHR. A plain reading of article 6 of the ICCPR clearly demonstrates the intention of the existing legal regime to beseech the international community against practice of death penalty and persuade it to gradually abolish capital punishments. However, there is absence of any such additional persuasion, apart from the existing legal provisions adopted in the ICCPR, to strongly advocate in favor of upholding fair trial rights in the international regime. It is pertinent to note that such absence is coupled with its non-appearance under article 4 of the ICCPR among the rights which cannot be derogated even in cases of a public emergency. Article 38(1)(d) of the ICJ statute treats the court’s discernment of a particular issue as a secondary source of law. The court interpretations discussed above are indicative of the positive trend to recognize this principle as a legal mandate wherein any kind of derogation is to be justified for its validity. Yet, due to its imprecise placement, differing interpretations, absence of clear standards of review, and the existence of discretionary power that is given to the states, a lot needs to be done before the right to fair trial assumes the character of jus cogens. As discussed in the introduction of the paper, the resulting non-observance or illegitimate derogations which can occur due to the reasons mentioned above can have persistent negative implications for the rule of law and human rights in the international platform. [1] UNITED NATIONS COUNTER-TERRORISM IMPLEMENTATION TASK FORCE, OHCHR, RIGHT TO FAIR TRIAL AND DUE PROCESS IN THE CONTEXT OF COUNTERING TERRORISM 7 (2014). [2] Louis B. Sohn, John A Sibley Lecture: The Shaping of International Law, 8 GA. J. INT’L & COMP. L.1, 18-22 (1978). [3] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 535 (1999). [4] Karen Parker, Jus Cogens: Compelling the Law of Human Rights 12 HASTINGS INT'L & COMP. L. REV. 411,417 (1989). [5] Joan Fitzpatrick, HUMAN RIGHTS IN CRISIS, THE INTERNATIONAL SYSTEM OF PROTECTING RIGHTS DURING STATES OF EMERGENCY 3841 (1994). [6] Rosalyn Higgins, Derogations Under Human Rights Treaties 48 BRIT. Y.B.I.L. 281,282-283 (1976-77). [7] The Rule of Law, FAIR TRIALS.ORG, https://www.fairtrials.org/rule-law [8] The Rule of Law, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, June 22, 2016, https://plato.stanford.edu/entries/rule-of-law/ [9] Nicolas A. J. Croquet, The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence? 11 HUM. RIGHTS LAW REV. 91, 93 (2011). [10] David Harris, The Right to a Fair Trial in Criminal Proceedings as a Human Right 16 INT COMP LAW Q 352, 355 (1967). [11] WW Burke White, Regionalization of International Criminal law Enforcement: A Preliminary Exploration 38 TEXAS INT’L LAW J. 729,760 (2003). [12] UN Human Rights Committee (HRC), CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, UN Doc CCPR/C/21/Rev.1/Add.6, (November 4, 1994). [13] CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, art. 1. [14] ROME STATUTE OF INTERNATIONAL CRIMINAL COURT, 1998 art. 67, cl.1. [15] Amal Clooney and Philippa Webb, THE RIGHT TO A FAIR TRIAL IN INTERNATIONAL LAW (2021 ). [16] Patrick Robinson, The Right to a Fair Trial in International Law, with Specific Reference to the Work of the ICTY 8 BERKELEY J. INT. LAW 1,5-7 (2010). [17] JK Cogan, International Criminal Courts and Fair Trials: Difficulties and Prospects 27 YALE J INT'L L. 111 (2002). [18] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 535 (1999). [19] VIENNA CONVENTION ON THE LAW OF TREATIES, 1969 art. 31 cl.1. [20] Joan F. Hartman, Derogations From Human Rights Treaties in Public Emergencies 22 HARV. IRR'L L.J.1, 11 (1981). [21] Lawless v. Ireland 1 ECHR 15 (1961). [22] Lawless v. Ireland 1 ECHR 21 (1961). [23] REPORT OF THE EUROPEAN COMMISSION AND THE EUROPEAN COURT OF HUMAN RIGHTS, COUNCIL OF EUROPE, THE GREEK CASE 165 (1969). [24] Ireland v. The United Kingdom 2 EHRR 25 (1977). [25] Stephanos Stavros, The Right to a Fair Trial in Emergency Situations 41 INT COMP LAW Q 343, 347 (1992). [26] Jaime Oraa, HUMAN RIGHTS IN STATES OF EMERGENCY IN INTERNATIONAL LAW 140-141 (1992). [27] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 590 (1999). [28] Lawless v. Ireland 1 ECHR 22 (1961). [29] Prosecutor v. Dusko Tadic ICL 93 ICTY (1999). [30] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 600 (1999). [31] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 597 (1999). 1/6/2022 The Nigeria-Morocco BIT: A Reformative Approach Towards the New Generation of BITs?Read NowThis article is authored by Shruti Sarkar, a Third Year Student of Law at Jindal Global Law School.
Introduction Bilateral investment treaties (BITs) serve as an effective tool in the regulatory landscape of international investment law. It mainly encompasses the regime of bilateral and regional treaties with a focus on investment clauses that protect and promote foreign investment. Further, emphasis is also placed on compliance to the principles of customary international law that govern the BIT. With the ever-growing relevance of such treaties, we also witness an increased criticism of the BITs for their evident asymmetry, imprecision and broad provisions. While the due protection granted to investment forwards the goal of investment protection over host state regulation, the emerging trends indicate a strong inclination towards inclusion of human rights obligations in the investment treaties, thereby creating a balance between the protection of human rights and economic value of the investment. Within this setting, the Nigeria-Morocco BIT has emerged as a ground-breaking example that provides a response against the resistance offered to the BITs. The Nigeria-Morocco BIT distinguishes itself from similar BITs by ensuring protection and promotion of foreign direct investment by adopting a human rights approach. While traditional BITs impose several obligations on the host state, this BIT takes a step forward to impose obligations on the investors. By this attempt to place a multiplicity of obligations on the ‘investor’ to safeguard human rights and environmental concerns through environmental and social impact assessments, and by efficiently defending the host State’s regulatory rights in social and environmental matters, the BIT has taken a bold step in the right direction. Obligations of Investors – How heavy is the burden? At this juncture, it is pertinent to note that several clauses of the Southern African Development Community (SADC) Model BIT resemble the Nigeria-Morocco BIT, especially with regard to the obligations placed on investors. Firstly, the former, like the latter, imposes a duty on the investor to respect human rights by not acting in its contravention under Article 15(1). Secondly, both under Article 14(1) of the Nigeria-Morocco BIT and under Article 13(1) of the SADC Model BIT, even prior to their establishment, foreign investors must abide by the environmental assessment screening and evaluation processes that apply to their investments. Thirdly, Article 14(2) of the Nigeria-Morocco BIT as well as Article 13 (3) of the SADC Model BIT requires the investors to undertake social impact assessment. Both Article 14(3) of the Nigeria-Morocco BIT as well as Article 13(4) of the SADC Model BIT additionally mandate the investors to apply precautionary principle to these environmental assessments. It can therefore be derived that though the first two clauses of Article 14 of the Nigeria - Morocco BIT are regulatory in nature, the third clause embodies a positive obligation. Fourthly, with regards to domestic labour, public health and safety, or human rights, both States (Nigeria & Morocco) have agreed under Article 15 of the Nigeria-Morocco BIT to not undermine, diminish, relax, or waive their domestic labour laws or international labour and human rights instruments in order to stimulate foreign investment. Fifthly, Article 18 of the Nigeria-Morocco BIT also specifies that foreign investors have to maintain environmental management systems; comply to human rights in the host country; behave in conformity with core labour standards, and not conduct business in a way that eludes the host country’s international environmental, labour, and human rights obligations. These obligations coincide with the provisions mentioned under Article 15 of the SADC Model BIT. Furthermore under the Nigeria-Morocco BIT, Article 19 expects the investor to meet or exceed corporate governance standards which are nationally or internationally accepted and Article 24 demands compliance with all applicable laws along with engagement in “highly socially responsible practises.” The imposition of such obligations around the issue of human rights is a significant development because it sets a clear expectation as to the investor's behaviour. It is therefore critical that these instruments enter into force, as their inclusion will help to alleviate concerns about the unequal distribution of obligations between investor and state in traditional BITs. Settling the conflict between investor protection and public interest issues There has been a persisting debate over whether host countries should give preference to their international obligation of (1) protecting their foreign investors, or (2) pursuing public interest issues, like human rights and environmental concerns. This question has emerged in several disputes, and arbitral tribunals have often been faced with a dilemma on the same. This can be witnessed in the decision presented in Santa Elena v. Costa Rica, on one hand and Methanex Corp. v. United States on the other. In the former, the ICSID Tribunal was reluctant to assign special significance to the goal of environmental protection. The ruling was therefore chastised for turning a blind eye to the increasing international efforts at making environmental protection a common goal. In the latter, the tribunal ruled that the state imposed ban was non-discriminatory and for public purpose as it was based on scientific reports to protect the environment, and to prevent contamination of drinking water. It was therefore, not an expropriation and thus was not compensable. This reflects the inherent uncertainty associated with the decisions of tribunals. In this regard, the provisions of the Nigeria-Morocco BIT can be seen as an attempt to resolve the debate as it moves towards finding the right balance between protecting foreign investment and regulating the economy. Bridging the gap through regulatory discretion Commentators have argued that the host states’ regulatory powers to enforce measures protecting human rights, public health, and the environment, are often adversely affected by the conventional interpretation of the BITs, which discourages countries to pursue international investment arbitration. However, Article 23(1) of the Nigeria-Morocco BIT, empowers the States to introduce new policy measures by applying their regulatory powers in order to meet the national policy objectives, implying that the host State has the liberty to deviate from their primary obligations in cases where non-economic policy aims take precedence over investment protection. Further, Article 13 allows the host state to exercise discretion regarding regulatory compliance, investigative, and prosecutorial concerns when it comes to environmental regulation. Article 13(4) further lays down that a host State can undertake measures that it deems suitable for carrying out investment activities in a non-discriminatory manner that is sensitive to environmental and social concerns. The regulatory powers of the host state is a helpful tool that permits them to undertake actions to achieve non-investment goals while avoiding liability under the BIT. While this marks a deviation from standard BIT drafting norms, which are frequently seen as limiting the host State’s powers to regulate, of recent, international investment tribunals exhibit an inclination towards supporting such rights of host countries to apply regulatory powers to preserve the environment and human rights. In Chemtura v Canada, for example, the Tribunal concluded that Canada’s implementation of environmental measures was a permissible exercise and within its regulatory powers, notwithstanding the fact that the measure harmed the foreign investor’s profit. Similarly, in Philip Morris v Uruguay, the Tribunal gave significant deference to the sovereign state’s decisions to adopt public health measures in good faith. In line with these rulings, the Nigeria- Morocco BIT’s clear and unambiguous inclusion of regulatory discretion displays an attempt to address the conflict between an investor’s legitimate expectations of legal framework stability and the host state's right to determine its own legal and economic order. Subjected to reasonable restrictions, the obligations clearly serve as a defence in favour of the host state in case of disputes arising out of the exercise of regulatory power. A bit of BITterness amidst greater possibilities Despite its innovative stance, the Nigeria-Morocco BIT has been subjected to several criticisms for favouring the interest of the host state over that of the investor. The language of the clauses pertaining to the host state’s regulatory powers makes it difficult for the tribunals to evaluate if the regulatory measure’s impact on investor rights is proportional to the host state’s aims. Consequently, the host State alone would be able to determine whether something is an issue in the public interest, and this in turn could lead to regulatory abuse, lack of good faith and absence of due process. There are also concerns about the need to redefine ‘human rights’ before imposing human rights responsibility on the investors. Also, though crystallization of the host state’s regulatory power and introduction of the series of investor obligations create the illusion of a balance treaty, uncertainty lures about titling the scale too much in favour of the host state which will lead to undermining of the interests of the investor, as BITs with limited protection and enhanced obligation will not attract investors due to the fear of governmental intervention in their business activities. On one hand such BITs can produce regulatory chill on the part of the host State by favouring investment protection, and on the other, they can subdue the objective of investment protection by favouring the host State’s right to regulate, thereby reducing the protection offered to foreign investors. As a result, the drafting of the BITs should take place in a way that balances the host State’s regulatory powers to protect the environment and human rights without jeopardising foreign investors’ interests. Finding the appropriate balance has served as a source of enigma to the tribunals as well, as noticed from the lack of uniformity in their rulings. Furthermore, there may be doubts about whether the right to regulate is sufficient, as Article 13(4) lays down that the measures have to be consistent with the agreement. Such clauses can be viewed to obstruct a state’s ability to take appropriate measures in public interest due to the traditional role of the BITs where investment protection occupies the centre stage. Therefore, there is a greater possibility that commitments to safeguard foreign investors often trump host governments’ measures designed to preserve public interest concerns. However, it can be claimed that the case of the Nigeria-Morocco BIT might be different since its original purpose was to establish a balance between the economic interest of the investor and the public concerns of the host state in international investment law. In essence, eventhough the Nigeria-Morocco BIT has encountered several criticisms, it still continues to mark the commencement of a new generation of BITs which emphasise on environmental and human rights obligations of the investor, with an objective of balancing the investor’s obligations and investment protection. |
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