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12 Feb 2019

Linde Bryk, LLM, Legal Advisor on Business and Human Rights, ECCHR

A supply chain of complicity: Labour exploitation in Qatar and migrant workers' access to justice

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This quote from a Kenyan worker in Qatar illustrates the precarious situation low-skilled migrant workers face, having to choose between staying in their home country with few opportunities for work, or taking a job abroad where they risk forced labour or other forms of labour exploitation.

Forced labour is a global phenomenon that often goes hand in hand with transnational business activities and long labour supply chains. Forced labour risks are particularly high in sectors that rely on outsourcing their operations, such as the construction sector.

A recent report by the Business & Human Rights Resource Centre (BHRRC) found that construction companies with operations in Qatar ahead of the World Cup show little transparency or engagement on their actions to safeguard migrant workers’ rights. These include European companies like Bouygues in France, Cimolai in Italy, and Consolidated Contractors Company in Greece.

Prompted by the regional boost in construction activity in the Gulf involving European companies, and increased scrutiny of conditions for migrants, the European Center for Constitutional and Human Rights (ECCHR) investigated the legal responsibility of companies for labour exploitation along their supply chains.

In the resulting 2018 study, Accountability for forced labor in a globalized economy, we looked at labour exploitation of migrant workers in the Gulf, whether European companies directly or indirectly cause or contribute to labour exploitation, and how they might be held legally accountable.

To assess if a transnational actor, an individual or a corporation, is criminally liable in its home jurisdiction, requires identifying whether their conduct contributed to the commission of a crime.

We considered the following scenarios:

A Nepali recruiter signs up a worker from Nepal for construction in Qatar with the promise of a certain salary for a certain number of working hours. The recruiter charges the migrant worker a fee of €2,000, which is significantly higher than is legally allowed in Nepal. But it is the only offer, so the migrant worker takes out a loan or sells his land to pay the fee. When he is finally ready to depart to Qatar at the airport, the recruiter replaces the work offer with a new contract stipulating half the salary. However, due to his debts the migrant worker has no choice but to board the flight.

In this example, the recruiter might be criminally liable in Nepal for fraud and depending on the circumstances for human trafficking. In Qatar, the Qatari construction company that directly employs the Nepali worker might be directly committing the crimes of forced labour and human trafficking if: the worker is not paid overtime; is subject to long working hours; is paid a low salary; and has no possibility to change employer when the employer refuses to provide the necessary non-objection certificate.

The Indian construction company, which has contracted the Qatari construction company to work on the project, could also be criminally liable for complicity in forced labour and human trafficking if it effectively facilitates, encourages or instigates forced labour, or does not prevent the crime from occurring when it lies within its power to do so. Suppose that the Indian construction company was hired by a German-Malaysian Joint Venture. The German and the Malaysian company, even though they are not directly involved in the labour exploitation, might still be complicit depending on the circumstances and the laws in their jurisdiction, and in particular, on the quality of their human rights due diligence.

With the range of actors involved, the Nepali worker in theory could seek remedy in Nepal against the recruiter, in Qatar against his employer, in India against the contractor and in Germany and Malaysia against the main contractors. However, in reality, structural obstacles stand in the way of migrant workers’ access to justice:

  • Workers’ vulnerability. Often migrant workers are not aware of their rights or remedies in the country where they work. At the same time they fear repercussions such as losing their job, which is existential for them, and being blacklisted from future work.
  • No (access to) trade unions. Migrant workers are unable to organize in trade unions in Qatar, and many other countries. As a consequence, migrant workers lack access to information about their rights, a platform for collective action and support for filing complaints.
  • Long supply chains. Transnational corporations’ business structures often mean that headquarters are far away from where the labour exploitation takes place. This makes it difficult to identify and attribute individual actions and responsibilities. In the example cited above, the German company might escape any liability, as it might be too difficult for the Nepalese migrant worker to prove knowledge on the side of the German company. This despite the fact that it is the transnational corporation that benefits from the cheap labour force supplied by its subcontractor, and at the same time has the leverage to demand a change of working conditions.

To remove or overcome these obstacles to migrant workers’ access to justice, here are a few points to consider for the actors involved:

  • Trade unions can coordinate their strategies and campaigns across workers’ destination and origin countries, pushing for mandatory recruitment standards and providing of pre-departure trainings;
  • Countries of origin of migrant workers can prosecute those charging illegal recruitment fees, and negotiate bilateral agreements with destination countries that offer dispute resolution mechanisms for migrant workers;
  • Destination countries of migrant workers can strengthen enforcement and labour inspections, and guarantee freedom of association and collective bargaining; and
  • Home states of transnational companies can adopt mandatory human rights due diligence and liability legislation, and investigate and prosecute transnational corporations for forced labour.

Lastly, to prevent and mitigate human rights abuses such as labour exploitation, companies need to carry out human rights due diligence along their supply chain which should consider local realities.

For examples of human rights due diligence in the context of forced labour risks in transnational supply chains and additional suggestions to actors involved, see ECCHR’s recent study.