The UAE recently conveyed its intent to impose "strict restrictions" on countries unwilling to take back their nationals working in the Gulf region, by rethinking their labour relations and cooperation in general with the particular country. This comes at a time when the entire world is amidst an unprecedented crisis.
Under international law, we often forget that the citizens of the States ratifying said law are also the subjects of the law, and not just the respective States. This theory is what jurists call monism.
The UAE in a sudden bid to control the outbreak of COVID-19 has put out a warning to all the States asking them to take migrant workers in UAE back to their own countries. Whether this action of UAE can be challenged on grounds of violation of International Law especially when UAE has not ratified most of the treaties and conventions on the subject, is something which needs to be explored.
We need to be cognisant that these are valid immigrants to the UAE. This means that they have valid visas. The forced expulsion is similar to a sovereign State going back on its word.
Provisions of the 1969 Vienna Convention on the Law of Treaties (VCLT)
The VCLT deals with the law of treaty-making in general. It inter alia also mentions the relationship between the treaties and the third parties ie non-signatories. The relevant principle is codified in Article 34, which says that a treaty does not create either obligations or rights for a third State/party without consent.
This would indicate that no matter what the case, the UAE cannot be forced to comply with international law concerning the particular subject. However, this might not be the case. An exception to the principle propounded in Article 34 lies in Article 75 of the Convention that accounts for a situation where a State must act without prejudice and aggression, and if it does, then it can be bound to act in conformity to a treaty when if it is necessary to do so, so as to conform to the UN Charter. The act of the UAE to forcibly evict immigrants can be argued as aggression.
Next, under International Law, treaties bind just signatories but customary international law, which is another source of International Law, binds everyone. These are settled principles of law, and are considered too common to not be followed by any civilised State. Most human rights, like equality, liberty and freedom to approach local courts are part of customary international law. Therefore, it doesn't matter if UAE is a signatory to a particular treaty or not, its behaviours towards migrant labour is violative of customary international law at multiple levels.
Another defence lies in the principle of jus cogens. Customary International Law, can at times be overruled if there is a treaty which exists in contravention to customary law. In such a situation the provisions of treaty will prevail over them. But, even a treaty can't exist in violation of a rule that is recognised as jus cogens. These are a set of fundamental norms that cannot be violated and have to be protected under all circumstances.
For instance, two States, even if they are not signatories to any other treaty, can't enter into a legal treaty to trade in narcotic substances, body organs or the organisation of terrorist activities. If the convention contains a principle which has become a part of jus cogens, it will naturally be self-executing and hence binding on everyone, even on third parties.
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 as peremptory norms (jus cogens) and imposed on all States, respect for workers' human rights, once an employment relationship is established.
Keeping in mind the above, a few provisions of treaties and conventions of the International Labour Organisation are laid out. Although the UAE is not a signatory, nor has it ratified these, they are still binding. to or has not ratified, but will still bind it.
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families: Article 16 of the Convention lays down a provision ascertaining a migrant's right to liberty and the scope of the same. This right extends to protection from threats by public officials which violate the liberty of an individual as can be seen to be happening in the current situation.
Further, Article 54 states that the migrant individual shall be treated as equal to the citizen of the respective host nation, in all contexts pertaining to the fields of employment, and if the same have been violated, the migrant worker has a right to appeal against the same to the concerned authorities. Therefore, forced repatriation of a migrant worker, is a blatant violation of the valid rights of a migrant working in the UAE.
Migrant Workers (Supplementary Provisions) Convention, 1975: Article 1 of this convention states that "Each member for which this Convention is in force undertakes to respect the basic human rights of all migrant workers."
Accountability of the UAE
Since the UAE is not a signatory to most treaties in the relevant field, invoking the jurisdiction of International Court of Justice (ICJ), can be tricky in this situation. The ICJ has jurisdiction only if the parties have agreed through an agreement to give jurisdiction to the ICJ. Most treaties contain a clause giving jurisdiction to the court. However, in the absence of treaty contracts, it can be a non-pragmatic way to make the UAE accountable.
However, the principle of State Responsibility can be easily invoked by India to legally enact countermeasures, if it so wishes against the UAE. The law of State Responsibility is invoked when there is a breach of an international obligation by a State. Which in this case is very straightforward, as has been enunciated above.
As per Article 22 of the Draft Articles on State Responsibility of the International Law Commission, any wrongful act of done as a countermeasure will not be a wrongful act. Therefore, any trade or diplomatic sanctions which are taken by India against this act by the UAE, will be valid under International Law.
It must be stressed that International law always operates under the realm of International Politics. It legitimises or delegitimises the actions of international politics and hence, makes them more or less defensible in front of international community. India has the mandate from International Law to impose proportionate sanctions against UAE, if there is a diplomatic dead-end to the situation. Litigation at the ICJ is not a feasible option that can be explored at this stage.
The author is an assistant professor at Maharashtra National Law University, Mumbai
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