This post aims to give an overview of human rights obligations of state and non-state actors involved in the mistreatment of workers employed by subcontractors of a Belgian corporation to renovate a stadium in Qatar, in the context of the FIFA men’s World Cup 2022.
Introduction
The FIFA men’s World Cup 2022 in Qatar broke all records, not only in terms of goals scored (172) but also in terms of human rights violations. Among many other serious human rights abuses that deserve attention, this post focuses on the violations of the rights of workers who participated in the construction of the infrastructure used for the event.
Since FIFA awarded it the organization of the World Cup in 2010, Qatar recruited numerous migrant workers notably from Nepal, India, Pakistan and Bangladesh, often against payment of important recruitment fees, illegally charged to the workers. Upon arrival, many of them were made to do a different kind of work and paid – often late – a lower salary than promised. Until 2020, the Kafala system made it very difficult for the workers to leave Qatar or change job. The Kafala, applicable at that time, was a sponsorship system according to which migrant workers were bound to a sponsor established in Qatar (their employer). The workers needed their sponsor’s approval for all kinds of administrative procedures, including to renew their residence permit, to change job or to obtain an exit permit, required to leave the country. In addition, workers would live and work in inadequate conditions, which caused thousands of deaths, and, in some cases, were subjected to forced labour.
Some of those abuses took place during the refurbishment of the Khalifa stadium, which hosted the petite finale (third place play-off) between Morocco and Croatia on 17 December 2022. The Khalifa stadium was completely renovated for the competition. The refurbishment started in 2014 under the coordination of the government-established Supreme Committee for Delivery and Legacy, and was carried out by a joint venture composed of the Qatari construction company Midmac and Six Construct, a subsidiary of the Belgian group BESIX. The joint venture hired a subcontractor which, itself, contracted labour supply companies. The subcontractors hired in the value chain of the joint venture have been accused by Amnesty International of severe labour rights violations in the construction work carried out at the Khalifa stadium.
The foregoing leads us to the following question: who can be held responsible for human rights violations suffered by workers in the value chain of a Belgian corporation, on a construction site located in Qatar, in the context of the organisation of a FIFA event? Without pretending to prove the factual constitutive elements of specific violations, this blog post aims to give an insight into the human rights obligations of state and non-state actors involved in labour rights abuses on World Cup-related construction sites, starting from the premise that the facts are established.
Qatar’s obligation to protect human rights
The main actor responsible for protecting the rights of the workers on the 2022 World Cup construction sites was Qatar itself. Indeed, states are under the obligation to protect the human rights of the individuals located on their territory against abuses committed by private actors such as corporations. Therefore, they must notably ensure that individuals on their territory benefit from fair wages, decent living conditions, and safe and healthy working conditions (ICESCR, Article 7). States must also ensure that individuals are free to leave the country (ICCPR, Article 12). Whereas states are not expected to prevent all abuses by private actors, they must adopt appropriate measures to effectively protect those rights against corporate misconduct and to ensure access to effective remedies to victims.
As evidenced by many sources, there is little doubt that Qatar, which joined the relevant Covenants in 2018, has failed to fulfil its obligations. While it is true that it adopted some legislative and administrative measures to improve labour conditions on its territory, especially regarding World Cup infrastructure, those measures, however, do not seem to have been implemented effectively and many abuses remained after their adoption. In addition, Qatar still falls short regarding the compensation of the families of workers who died due to the extreme working conditions.
However, neither FIFA nor corporations active in Qatar, can hide behind Qatar’s failure to respect its own obligations to justify the abuses suffered by the workers they employ.
FIFA and construction companies: corporate responsibility to respect human rights
Indeed, irrespective of Qatar’s national context, both FIFA, an Association registered in Switzerland, and BESIX, a private Belgian construction company (as an example), have the responsibility to respect human rights under the UN Guiding Principles on Business and Human Rights (‘UNGPs’). Adopted in 2011, the UNGPs provide for the corporate responsibility to respect human rights. Even though they are not formally binding, they constitute a standard of conduct for all corporations, which are expected to:
- Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur;
- Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. (UNGPs, Principle 13).
To implement such responsibility, corporations should notably perform human rights due diligence (UNGPs, Principle 17) in their activities. This means they should take measures to identify and address the risks for human rights in their entire value chain, including in the activities of their subsidiaries and subcontractors. What is concretely expected from the corporations to fulfil this obligation depends on the circumstances of each case, including on their respective size and the severity of the risk posed by their activities to human rights (UNGPs, Principle 14).
It can reasonably be argued that both FIFA, as the organizer of the largest football competition and BESIX, as the largest construction company in Belgium, had the means to influence the working conditions of the workers. In addition, the severity of human rights abuses suffered by migrant workers in Qatar has been well documented (see for example here). Arguably, a strict standard of conduct was thus expected from any non-state actors involved in the World Cup.
FIFA was, in fact, accused of failing to conduct human rights due diligence in the attribution and organization of the World Cup by the Union Federation Building and Wood Workers’ International in 2015. The claim was brought before the Swiss OECD National Contact Point, in charge of the implementation of the OECD Guidelines for multinational enterprises. A legal action was also introduced against FIFA by trade unions before a Swiss commercial Court, without success due to procedural reasons. Since then, FIFA has adopted a number of measures as it now commits to respecting and promoting human rights in its statutes and has adopted a human rights policy in which it affirms to be dedicated to implementing the UNGPs. However, this does not exonerate FIFA from addressing the violations already committed. Also, it remains to be seen how those measures will be implemented in the future.
Despite some positive steps, shortcomings have also been denounced in the due diligence process conducted by BESIX. The corporation website announces that “[t]he group requires its subcontractors to provide documentation demonstrating that they meet high standards in various areas, including living conditions and recruitment processes.” In itself, such a statement is far from meeting the standard of conduct expected from a corporation under its responsibility to respect human rights in its value chain.
Another European construction company is facing criminal proceedings for the treatment of migrant workers in its value chain in the context of building work in Qatar. Indeed, Sherpa, the Comité contre l’esclavage modern and six former workers introduced a claim against a subsidiary of the French group VINCI which is now facing a criminal indictment in France on charges of forced labour, living and working conditions contrary to human dignity, and, the payment of insufficient wages.
However, judicial proceedings against corporations for human rights abuses committed by their business partners is usually rendered complicated by a series of factors including the complexity of their value chains and the non-legally binding nature of the norms providing for the corporate responsibility to respect human rights. This is why it is paramount for the home states of the corporations to adopt mandatory legislation to ensure that corporations registered on their territory respect human rights in all their activities. This is in accordance with their own obligation to protect human rights, as we will briefly address in the next and final section.
Belgium’s (extraterritorial) obligation to protect human rights through the adoption of mandatory human rights due diligence legislation
Belgium, home state of BESIX, also has human rights obligations including the obligation to protect individuals against corporate abuses. This obligation only concerns the individuals who are under the jurisdiction of the state. The jurisdiction of a state is generally – but not always – exercised over its territory or over any territory under its effective control. However, jurisdiction can be established in other situations, depending on the circumstances. This is, for example, the case regarding transboundary environmental damage: individuals situated on the territory of state A will be considered under the jurisdiction of state B when their rights are affected by actions that take place on state B territory but that have an impact on the environment of state A.
Arguably, states also have obligations to protect human rights of individuals abroad when they are threatened by the actions of a corporation domiciled on their territory. Recent developments, including by the Committee on economic, social and cultural rights and the UN Committee on human rights support this assertion. For instance, the Human Rights Committee decided in the case Basem Ahmed Issa Yassin et al. v. Canada – concerning Canadian corporations responsible for construction work in the occupied Palestinian territories – that “there are situations where a [s]tate party has an obligation to ensure that rights under the Covenant are not impaired by extraterritorial activities conducted by enterprises under its jurisdiction.” (para. 6.5)
This would mean that Belgium has the obligation to protect workers in Qatar against abuses linked to the construction activities of BESIX, a corporation domiciled on its territory that it has the capacity to regulate. A failure to do so would entail the international responsibility of the state. One possibility available to the state in order to fulfill this obligation is to adopt legislation imposing mandatory human rights due diligence on all Belgian corporations when conducting their activities, wherever they take place, and allowing for an effective implementation of corporate responsibility. National law of this kind has been adopted in France, Norway and Germany, but not yet by Belgium, although a proposal was introduced in 2021 (this proposal is not yet adopted). A proposal is also being discussed at the EU level, although it seems there is still a long way to go before the entry into force of the future Directive on Corporate Sustainability Due Diligence.
This post showed that various state and non-state actors were under the obligation to protect the human rights of migrant workers in Qatar. Those actors cannot hide behind one another, nor behind the complexity of corporate value chains to avoid that responsibility. Whereas the World Cup has now concluded, the obligation to address and remedy the violations suffered by those workers has not.
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