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Repatriation of Migrant Workers by UAE Amidst Covid-19

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.[1] 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 to it.

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 them.

Concluding Remarks:
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.

Add to 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.

End-Notes:
  1. Juridical Condition and Rights of the Migrants, Advisory Opinion, Inter-American Court of Human Rights (ser. A) No. 18 (2003)

Written By:
  1. Animesh Upadhyay - 4th Year Law Students at Dr. Ram Manohar Lohiya National Law University, Lucknow and
  2. Shikhar Shukla- 4th Year Law Students at Dr. Ram Manohar Lohiya National Law University, Lucknow.

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