Worker Rights and the Environment on the table in negotiation of US-India investment treaty

This week Inside Trade reported something that would have been unthinkable 20 years ago - that worker rights and protection of the environment are on the table in the negotiation of a bilateral investment treaty between the United States and India this summer.  Just 13 years ago World Trade Organization talks in Seattle collapsed in part because countries on the rise like India and China opposed Bill Clinton's efforts to include protection of worker rights and the environment in WTO treaty provisions.

Bilateral Investment Treaties or BITs as they are known to trade wonks generally contain arbitration clauses ostensibly intended to make it possible for multi-national and foreign companies to challenge government actions that take their property without just compensation through seizure, taxation or other measures.  Although designed to protect multi-national and foreign companies from discrimination in relation to national companies as well as from the whimsy of national court systems, BIT arbitration provisions are a sore point and major target for fair trade and anti-free trade activists, as multi-national and foreign companies frequently use - often with success - BIT arbitration as a vehicle to undermine federal, state and local laws protecting the environment, communities and worker rights.  The issue came to a heated boil in the late 1990s as companies in North America utilized NAFTA Chapter 13 - essentially a BIT within a trade treaty - to undermine health regulations in California and the efforts of a local community in Mexico to prevent the establishment of a nearby toxic waste dump.

Scholarly literature about BITS has long pointed out that developing countries are at a disadvantage when they negotiate BITS with richer countries because of their desperate desire for foreign investment to help build their economies and increase employment.  Thus they have readily acceded to provisions that they may not be pleased with such as BIT arbitration clauses that undermine the integrity of national regulatory and judicial processes even when it seemed as though such clauses go against their national interests.  Now it appears as though the U.S. government is utilizing the negotiation leverage posed by the BIT in an effort to support improvement of application of global labor and environmental standards.  Such a move is nothing than revolutionary in historic terms.

According to an April 27, 2012 report in Inside U.S. Trade, on April 20 the Obama Administration unveiled its new and improved Model BIT - the fundamental negotiation document it will utilize for all future BITs.  Under this model, both signatories to the BIT obligate themselves to not fail to effectively enforce labor laws in order to attract investment and to ensure that they do not waive or otherwise derogate from labor and environmental laws to attract investment.  Inside U.S. Trade points out that these provisions are stronger than those of the 2004 U.S. Model BIT which only required signatory nations to "strive to ensure".  The Model BIT also requires signatory states to reconfirm their commitment to respect the 1998 ILO Declaration on Fundamental Rights and Principles at Work.

Trade unions and fair trade advocates are quick to point out that the new BIT environmental and labor provisions will be difficult - if not impossible - to enforce, while their counterparts in the business sector express fear that it may indeed be possible to enforce environmental and labor provisions through the BIT.  As with the NAFTA labor side agreement itself almost 20 years ago, labor and environmental provisions in a BIT between the U.S. and India are a small step in the direction of a fair trade system - though we are still far from a global trading system that is equitable between and among nations.  Finally, one wonders whether labor provisions in the US-India BIT will serve as an effective tool for advocates striving to eradicate the endemic problem of child labor in India - or in the United States for that matter.

For more information about the US-India BIT see:

• NGOs express concern over ongoing US-India Bilateral Investment Treaty
• USTR Page on US-India BIT 

 For more information about child labor in the US, India and elsewhere see:

• Child Labor Advocates Come Together for Three Days of Sharing and Strategizing

Book Review: Social Dialogue and the International Financial Institutions: The case of Eastern Europe by Christina Hießl

     Christina Hießl's 2010 book Social Dialogue and the International Financial Institutions: The case of Eastern Europe is an important contribution to the nascent study of the inter-relationship between international financial institutions such as the World Bank and the International Finance Corporation and trade unions and employer groups.  Based on case studies, careful examination of country loan agreements and interviews with trade union officials at international confederations and in Central and Eastern European nations, the book assesses whether and to what extent the views of trade unions and workers are taken into account by IFIs in the design and implementation of country loan programs and policies.

     Social dialogue - the practice of including worker and employer representatives in the formulation of national fiscal and social policy - is as European as baseball is American.  Not only is the practice of social dialogue entrenched at the national level of many EU member states like Germany, Denmark, Spain, France and the Netherlands - it is entrenched at the EU level and in the OECD.  Thus, the question of whether Eastern and Central European nations - many of which are or aspire to be members of the EU - have strong social dialogue mechanisms is an important one to explore, as is the particular question of whether trade unions in these nations participate in social dialogue with international financial institutions such as the IMF and the World Bank which have had such a big impact on the economies of these nations since they emerged from communism in the early 1990s.

     The need for exploration of these questions is emphasized by the author, who notes that there is little written material on the subject of IFIs and social dialogue, especially in the context of the current global economic crisis when many long-established members of the EU like Greece, Italy, Portugal and Spain are in the position of having to seek aid from the IMF to bolster their faltering economies and weakened banking systems. 

     In an interesting background section, the author notes that trade unions were involved in the implementation of the Marshall Plan (overseen in part by the World Bank) in immediate post-World War II era Europe.  Later, the World Bank and IMF increasingly adopted a neoliberal economic approach while the International Labor Organization developed and advocated for an employment-intensive approach to economic growth.  The author recounts that the IFIs started taking steps in the late 1980s "in the direction of" acknowledging the importance of social policy, with a couple of meetings between the ILO and IMF.  The ILO reported on a high number of violations of the rights to freedom of association and collective bargaining in countries with IMF programs, however.  As late as 1999, the IMF had doubts about freedom of association and collective bargaining.  The author points out that since 2001, the attitudes of the World Bank and IMF have slowly begun to thaw towards these core labor rights - though complete acceptance is a distance dream.  In a milestone in the developing relationship between IFIs and social rights, since 2006 core labor standards have been a compulsory element of International Finance Corporation projects.  Despite this and a few other bright spots in the incremental (some might say glacial) process of change outlined in the book, the author found few instances of actual engagement between the IFIs and trade unions in Central and Easter European countries.  The author ascribes causation to various factors, not all arising from unwillingless on the part of the IFIs.  Some contributing factors include lack of capacity on the part of some trade unions, active interference and prohibition by governments and lack of social dialogue infrastructure in some Central and Eastern European nations.

     In examining case studies and discussing interview results, the author highlights the tension between IFI official emphasis on "rule of law" and "institution-building" while IFI policies often underming both, in contrast to EU emphasis on important educational and social dialogue infrastructure.  In doing so, she makes the important point that the process of changing the hearts and minds of IFIs like the World Bank and IMF with the goal of improving social dialogue with trade unions and employer groups in the implementation and development of loan programs and project will be a long and arduous one.  Social Dialogue and the International Financial Institutions: The case of Eastern Europe will form an important building block in making this process happen.

Crisis of Youth Unemployment in Europe

Interesting article by Walter Laqueur about the potential for the collapse of the European Union as a result of the current Euro crisis in the most recent issue of The New Republic.  Laqueur draws parallels between high youth unemployment in today's Europe with that of 1920s and 1930s Weimar Republic, and the possibility that youth with their hopes for an economic future dashed may be easily swayed by demagogues.  Not discussed in the article is the high incidence of unemployment among racial minorities and the children and grandchildren of third country national immigrants to the EU, who suffer unemployment at even higher levels than other European youth.

What does Mexico's entry into the Trans-Pacific Partnership mean for worker rights?

The race is on.  On June 18, 2012, Mexico was formally invited to join in the negotiations for the Trans-Pacific Partnership, a free trade agreement spanning 4 continents with shores touching the Pacific Ocean.  Canada received its invitation to join the negotiations the following day.  The other 9 members of the TPP are Peru, Chile, Singapore, Australia, New Zealand, Vietnam, Brunei, Malaysia and the United States.  Three weeks later, on July 9, 2012, the United States Trade Representative officially submitted its proposal for Mexico’s TPP membership to the U.S. Congress, starting the 90-day clock for the members of Congress and the public - especially worker rights groups, human and women’s rights advocates, fair trade specialists, environmentalists and other members of the free trade counter-culture - to have an impact on the way the TPP is framed and operates.

Mexico’s membership in the TPP represents a critical moment for fair trade advocates and worker rights groups.  On the one hand, many activists deride the TPP as simply a bigger, badder version of the NAFTA.  In contrast, the USTR touts the TPP as a “high standards” free trade agreement with sophistication and minimum standards nations must meet in order to gain admission to the club.  Entrance to this club is no insignificant achievement, as TPP membership could provide access to 60% of global gross GDP.

A third alternative view might be that incorporating all three NAFTA member states into the TPP allows the Obama Administration to indirectly fulfill its campaign promise of renegotiating the NAFTA without actually tackling the messy task of re-opening a free trade agreement that is nearly 20 years old.  In fact, 20 years ago the NAFTA itself was being negotiated in the months before a major U.S. election.  Despite the fact that the NAFTA was being negotiated by a Republican administration and today the TPP is being negotiated by a Democratic administration, the debates and issues are strikingly similar.  In some areas, such as the Investor-State arbitration provisions of the foreign direct investment chapter of the NAFTA (the infamous NAFTA Chapter 13), there has been little change over the last 20 years.  Free trade advocates and critics alike note that draft TPP FDI provisions do not appear to differ much from NAFTA Chapter 13.  The final outcome appears not to be set in stone, according to news reports that the Government of Australia does not want to submit to such an Investor-State provision.  There have been significant developments in labor chapter provisions of the free trade agreements the U.S. has negotiated since the NAFTA, however.

The labor chapter of the NAFTA, which is actually a side agreement to the main FTA called the North American Agreement on Labor Cooperation, has been considered to be one of the most flawed aspects of the NAFTA arrangement.  On the one hand, the NAALC is a template for subsequent labor chapters in U.S. free trade agreements, with the NAALC’s requirement to “effectively enforce labor laws” remaining a cornerstone of labor chapters of U.S. FTAs with Jordan, Morocco, Bahrain, Oman, all 5 Central American nations and the Dominican Republic, Colombia, Panama and South Korea - as well as the labor chapters of FTAs the U.S. has with TPP member states Chile, Singapore, Australia and Peru.  On the other hand, since the U.S.-Jordan FTA was finalized in 2000, labor (and environmental) provisions have been incorporated directly into the main text of U.S. FTAs.  Post-NAFTA U.S. FTA labor chapters have also left behind the artifice of a hierarchy of labor rights set forth under the NAALC under which freedom of association, the right to collective bargaining and the right to strike form a tier of rights subject to minimal enforcement under the NAALC while minimum wage, child labor and occupational safety and health are part of a different tier of rights for which member states could potentially be liable for trade sanctions for enforcement failures (though this potentiality has never reached actuality during the 18 years of the NAFTA’s existence).

Similarly, while the NAALC does not refer to international labor standards, all subsequent U.S. FTAs obligate signatories to comply with core labor standards set forth by the International Labor Organization (freedom of association and the right to collective bargaining, protection from workplace discrimination, child labor protections and occupational safety and health protections).  While the NAALC has its own rather precious enforcement mechanism separate from the dispute resolution mechanisms of the NAFTA, subsequent U.S. FTAs make violations of the labor chapter subject to some variation of the main trade enforcement mechanism of the FTA.  For example, labor petitions under the Central American-Dominican Republic FTA are subject to international arbitration.  The arbitration process has been invoked with regard to a 2006 labor petition filed in relation to Guatemala under the CAFTA-DR.  The first tier of review of labor-related petitions under post-NAFTA FTAs is the same as that for the NAALC, however, with review conducted by “National Administrative Offices” or “National Contact Points” within member states’ labor ministries.

With all its faults, however, it is arguable that the NAALC is one of the few international agreements under which the U.S. is subject to any meaningful international scrutiny for its labor practices, especially those involving immigrant workers, and that the Government of Mexico is the only entity with the clout and moxy to engage in such scrutiny, no matter how diplomatically couched NAALC reports prepared by the Government of Mexico may be.  The NAALC is also the only U.S. FTA labor chapter to explicitly provide protection for migrant workers (a provision inserted by Mexico during the negotiation process), and one of a few modern U.S. FTA labor chapters that does not attempt to exclude application to sub-federal entities such as U.S. states or Canadian provinces.  Over the years, Mexico has accepted and reviewed 9 labor petitions alleging the U.S. and various U.S. states have failed to effectively enforce labor laws in connection with immigrant workers, challenging the U.S. to better protect Mexican and non-Mexican immigrant workers alike.  Currently, the the Government of Mexico is reviewing a petition filed by the Service Employees International Union that alleges recent anti-immigration legislation passed by the State of Alabama violates the NAALC.

The NAFTA member states are entering an interesting phase in their relationship with one another as they become a part of the TPP, especially when it comes to labor issues.  While the U.S. has not always recognized the fact that the Government of Mexico is more than its equal and a worthy adversary in disputes such as the NAFTA Trucking Dispute and with regard to NAALC labor petitions, Mexico’s record over the past 18 years speaks for itself, especially in the fact that Mexico boldly raised duties on U.S. agricultural and industrial products in retaliation for U.S. failure to comply with NAFTA trucking provisions.  Unfortunately for many international human and labor rights advocates, one of the areas in which the Government of Mexico has been particularly successful is in deftly blocking efforts by the U.S. Government to interfere in Mexican labor affairs.  While it has always been a misleading mischaracterization to describe Mexico as a country without labor standards, the Mexican labor market and labor administration systems have some persistent and somewhat intractable flaws, especially the widespread protection contract practice whereby employers enter into collective bargaining agreements with trade unions without genuine and effective participation of the workers themselves.  This system has remained largely intact since the advent of the NAFTA and the NAALC in part due to the deft and sophisticated maneuvering of the Government of Mexico.  This deft maneuvering is spurred in part by the well-founded fear of Mexican policy-makers that labor conditionality in an FTA with the U.S. might mean the devolution of labor laws to what many Mexicans and others throughout the world deem to be poor labor standards in the U.S. such as inadequate protection against unfair termination from employment and the lack of requirement that maternity leave be paid.

Mexico’s entrance into the TPP provides for the opportunity for a “do-over” when it comes to labor conditionality.  The timing of Mexico’s invitation to participate in the TPP is particularly unfortunate, however, as less than a month prior, the Worker Rights Center in the State of Puebla (Centro de Apoyo al Trabajador de Puebla or CAT Puebla) was forced to shut down as a result of death threats made against the leaders and personnel of the Center and their families as well as the kidnapping and beating of one of the Center’s leaders.  In 2003, CAT Puebla and its international allies filed NAALC petitions with the Canadian and U.S. labor departments regarding labor abuses in the garment manufacturing industry and failures of the Governments of Mexico and Puebla to effectively enforce labor protections.  The petitions were pending until December 2008, arguably with little benefit deriving from review by the U.S. and Canadian governments as the violence, threats and malignment of CAT Puebla and the workers the Center represents escalated in subsequent years.  In addition, in late 2011 a petition was filed with the Canadian and U.S. labor departments alleging that the Government of Mexico had not complied with its NAALC obligations when it unilaterally changed the legal structure of a government power company and by doing so dissolved one of the most power independent unions in the country.  This petition was amended in May 2012 to add more allegations relating to disability and gender discrimination.  It appears as though the Government of Mexico was not publicly pressured to address and resolve either situation prior to its invitation to participate in the TPP.

Though touted as a sophisticated high standard FTA for which countries must meet certain conditions to become members, it is unclear what standards and conditionalities Mexico had to meet in order to have its application for membership readily accepted by the existing members.  While there may have been behind-the-scenes labor-related conditionality negotiations between Mexico, the U.S. and other TPP trading partners, publicly it appears as though the Government of Mexico was invited to join the TPP without serious scrutiny of some of the country’s less desirable labor-related practices.  In contrast, labor conditionality has been a key point in incorporating Vietnam into the TPP, as U.S. Secretary of State Hillary Clinton has stated that a goal of the TPP with regard to Vietnam is to lower trade barriers and improve labor and environmental standards.  In addition, it appears that significant technical assistance and financial aid has been provided to Vietnam to help that country improve labor standards.  As labor conditionality does not seem to have played a large role in the inclusion of Mexico in the TPP by the USTR and its counterparts in the executive branches of the other TPP member states, this may be left to the legislative authorities and the public over the next 3 months.

Another wrinkle affecting worker rights issues and the incorporation of Mexico into the TPP is the fact that because of the 90-day period of review of the entrance of Canada and Mexico into the TPP, neither country will be able to participate in ongoing negotiations during trade rounds during this period.  Both countries agreed to be subject to any provisions of the TPP finalized before the 90-day period ends.  The next round of negotiations is scheduled to occur in Leesburg, Virginia in October 2012.  TPP negotiators hoped to finalize negotiation of a number of key chapters of the TPP, including the labor chapter, during the most recent negotiations held in San Diego, California which took place in the first week of July 2012.  While the TPP labor chapter is yet to be shared with or leaked to the public, the chapter is likely to look more like post-NAALC labor chapters than the NAALC.  The AFL-CIO has called on the USTR to negotiate a labor chapter that looks like the labor chapter in the U.S.-Peru FTA, with full international arbitration and sanctions applicable to failures to fulfill obligations set forth in the labor chapter.  According to a comprehensive special report published by Inside Trade on May 18, 2012, such a model does appear to be on the negotiation table.  According to Inside Trade, the TPP labor chapter will require member states to ensure that their laws comport with the ILO Declaration on Fundamental Principles and Rights at Work.  Vietnam and Brunei and other TPP member states has expressed reservations about making labor chapter obligations subject to binding settlement resolution, however.

Questions also remain as to whether the TPP labor chapter will be finalized by the time Mexico and Canada are fully able to participate in negotiations later this year.  Their participation and/or non-participation in this negotiation process could have significant ramifications for the content and applicability of the TPP labor chapter.  Will both nations accept the provisions as negotiated, the way new member states accept and adopt the European Union acquis of existing directives and regulations?  What will the status of the NAALC and its migrant worker protections be once the TPP is negotiated?  Will Mexico agree to be subject to labor conditionality in a TPP chapter which it did not actively negotiate?  Does adoption of the TPP labor chapter sight unseen provide the Government of Mexico political cover for a back-door renegotiation of the NAALC?  Will Mexico have an opportunity to insert protections for migrant workers in the final text of the TPP, or will the negotiation of the TPP be like the negotiation of the NAFTA, where the issue of migration is too hot to handle politically for the U.S., Canada, Australia and other migrant receiving nations in the TPP?  What of the Philippines, a geographically likely potential participant in the TPP, a country with both Asian and Hispanic roots, having once been a Spanish colony like its Latin American brethren?  The consensus of TPP partners is that the Philippines is not ready for membership in the TPP, but there is movement to provide assistance to the Philippines to meet the conditions that other South East Asian nations  (Singapore, Brunei, Malaysia and Vietnam) have met in order to join the FTA.  Immigration and migrant worker protection could be a key concern for the Philippines if it were to join the TPP.  The Philippines and Mexico, along with China and India, have the highest backlog of family-based visa applications to the United States.

While the advancement of labor and environmental conditionality in the accession to free trade agreements such as the TPP - as well as the continued growth and improvement in the comprehensiveness and quality of labor and environmental provisions - are both good signs and provide more options for advocacy and discussion in the context of free trade, it appears the fundamental mechanisms for global development have not changed much in the 20 years since the NAFTA negotiations first began.  Advancements in the comprehensiveness and quality of labor chapters may not necessarily result in the mitigation of the impacts free trade and foreign direct investment policies can have on the quality of life of people who are subject to those policies.  It remains to be seen whether the TPP is more of the same or a significant departure from the past.  Finally, the lack of public references to labor conditionality in acceptance of Mexico’s application to be a member of the TPP indicates that not much has changed since 1992.  It could be that Mexico, like Colombia, is being rewarded for its enthusiastic embrace of the U.S. War in Drugs these last few years.  Regardless of the why and how - questions that will be difficult to answer until the historical record is made public years after the less-than-transparent TPP negotiation process is finalized - it is clear that there is little time for all of the issues to be properly aired and addressed and for labor conditionality to be inserted into the process before Mexico and Canada are full partners in the free trade agreement, with all the privileges and market access that entails.

Hot topic: Employment rights of Foreign Service Nationals working for Diplomatic Services

Check out the June 2012 edition of the Foreign Service Journal, devoted to Foreign Service Nationals working for U.S. diplomatic missions around the world, highlighting the establishment of the innovative and pathbreaking global group International Foreign Service Association.  Over half of the dedicated professionals working for U.S. diplomatic missions abroad are foreign nationals.

New report documents increased violence against women in Mexico, Guatemala and Honduras

Today's edition of Tell Me More with Michelle Martin discusses Nobel Women's Initiative's New Report on Violence against women in Mexico and Central America, especially Honduras and Guatemala.  The United States has extensive trade relations with all three of these countries.  At present, the US Department of Labor is investigating labor petitions of each of these 3 countries. Violence against women is a predominate factor in each petition, as well as in the earlier NAFTA labor petition on working conditions in garment factories in Puebla, Mexico.  The Nobel Women's Initiative report From Survivors to Defenders: Women Confronting Violence in Mexico, Honduras and Guatemala demonstrates that violence against women human and labor rights defenders is an issue that needs to be addressed by the US Department of Labor reports and that women's issues should be squarely tackled in the negotiation of future free trade agreements like the Trans-Pacific Partnership.

CAFTA-DR Labor Petition Filed against Government of Honduras

Here is a link to my piece in the June edition of the International Employment Committee Newsletter regarding the recent labor petition filed under CAFTA-DR against the Government of Honduras:  Honduras - CAFTA-DR Labor Petition Filed against Government of Honduras . This is the third labor petition filed under the CAFTA-DR.  As in Mexico, Guatemala, Colombia and elsewhere in Latin America and the world, violence against women struggling to improve their lives at work and at home continues unabated.

Human rights implications of migration management policy in the European Union

    In 1939, Captain Gustav Schröder of the M.S. St. Louis crossed the Atlantic Ocean from Hamburg to Halifax, Nova Scotia seeking refugee for 937 German Jews on board.  The ship was turned away by the Canadians, the Americans and the Cubans, forcing it to return to Europe where almost half of its passengers died in concentration camps.  Since World War II, an extensive framework of international instruments and institutions has been established to protect refugees and asylees from such atrocities and to prevent and sanction nations that return them to be tortured or killed in their home countries or in third countries.

    In today’s Europe, refugees from the Maghreb and sub-Saharan Africa, the Middle East and elsewhere make dangerous crossings by boat across the Mediterranean Sea or by foot through the mountains on the border between Turkey and Greece.  Like the Jews on the M.S. St. Louis, these refugees are turned back, sometimes at sea before they have reached European shores.  They may also be remanded to detention centers in Europe or North Africa, where they are subjected to cruel and degrading treatment by their captors.

    As part of the move to increase integration in the European Union, member states in 1999 endeavored to establish an EU-wide asylum law system.  In 2003, the European Council enacted Council Regulation No. 343/2003, referred to as the Dublin Regulation.  The Dublin Regulation, amended in 2008, sets criteria by which EU member states may determine which among them is responsible for examining applications for asylum and refugee status.  While the goals of the Dublin Regulation and its successor Dublin II Regulation were to avoid duplication of efforts by different member states addressing the same application for asylum or refugee status, the application has had serious human rights implications.

    In addition to enacting legislation, the EU also developed a joint institution to manage the EU’s borders.  In 2004, the European Council enacted Council Regulation 2007/2004, establishing the European Agency for the Management of Operation at the External Borders of the Member States of the European Union (Frontex).  Frontex is an EU-wide border patrol agency with international staff and member state detailees which is designed to oversee and coordinate common border management operations.  Like the Dublin II Regulation, Frontex operations have had serious human rights impacts in recent years.

    The purpose of this post is to explore and discuss the implications of international standards for European migration law, in particular the application of the Dublin II Regulation and the operation of Frontex.  The paper will first give a broad overview of the international human rights law framework that applies to the European Union and to member states.  It will then examine the application of human rights law in the context of the Dublin II Regulation and Frontex by the European Court of Human Rights (ECtHR) in the 2011 case Belgium and Greece v. M.S.S. and the 2012 case Hirsi v. Italy.  Finally, the paper will explore the potential application of these two decisions to the set of facts described in the 2011 Human Rights Watch report The EU’s Dirty Hands:  Frontex Involvement in the Ill-Treatment of Migrant Detainees in Greece, specifically focusing on whether Frontex, an inter-governmental agency established by the EU, may be held liable for human rights violations resulting from its border control activities. 

General Human Rights Framework

    Human rights norms governing EU member states derive from both international and European sources.  Article 14 of the 1948 Universal Declaration of Human Rights recognizes the right of persons to seek asylum and refugee status.  This right is codified in the 1951 United Nations Convention related to the Status of Refugees and its 1967 Protocol.  The United Nations High Commissioner on Refugees (UNHCR) is tasked under the Convention and Protocol to monitor and supervise ratifying states’ application of refugee protection norms.#  According to UNHCR, a refugee is defined as someone who is unable or unwilling to return to their country of origin due to a well-founded fear of being persecuted for reasons of face, religion, nationality, membership in a particular social group or political opinion.#  A fundamental and non-derogable right set forth in the Convention is the principle of non-refoulement, whereby no one may expel or return a refugee against his or her will to a territory where he or she fears threats to life or freedom.#  Refugees and asylees are also entitled to minimum human rights standards, such as access to courts, primary education, work and the provision of documentation.
 
    The International Convention on the Protection of the Rights of all Migrant Workers and their Families went into force in July 2003, but few if any EU member states have signed or ratified this treaty.
 
    Within Europe, the human rights framework is multi-layered and complex, governed by instruments emitting from both the Council of Europe and the European Union.  The primary human rights instrument applicable to EU member states is the European Convention on Human Rights (ECHR) which entered into force in 1953.  The ECHR is applied, interpreted and implemented by the European Court of Human Rights (ECtHR).  The ECHR applies to all EU member states through individual ratification, as well as to a number of non-EU member European states.  The primary human rights instrument in the EU is the 2000 Charter of Fundamental Rights of the European Union (EU Charter).  Since the entry into force of the Lisbon Treaty in December 2009, the EU Charter constitutes binding law not only on member states but on EU bodies and agencies such as Frontex.#  In light of the status accorded to the EU as an independent entity by the Lisbon Treaty, the EU entered into discussions with the Committee of Ministers of the Council of Europe on May 26, 2010 to develop a legal instrument for the EU to accede to the ECHR.#  The most recent meeting of the working group was in October 2011.  Once the Parliamentary Assembly of the Council of Europe, the Court of Justice of the European Union (CJEU) and the ECHR have commented on and approved the accession agreement, it will be open for ratification by the EU.
 
    In addition to these two primary over-arching European human rights instruments, a number of EU Directives governing immigration matters such as the Reception Directive contain human rights norms that apply to immigrants.  These provisions, as well as general human rights provisions applicable to migrants in Europe, will be addressed in the context of their application in two recent ECtHR cases in the section below

Human Rights and EU Migration Law and Institutions:  Belgium and Greece v. M.S.S. and Italy v. Hirsi

    Since 2000, the EU has spent a significant amount of energy in the interception and exclusion of unauthorized immigrants from its territory.  Many among these migrants are refugees and asylees.  This process has been enhanced with the enactment of the Dublin Regulation in 2003 and the creation of Frontex in 2004.  The internationalization of migration law in the EU has created complexities in allocating responsibility for potential human rights violations arising from the operation of the Dublin Regulation and the activities of Frontex, an inter-governmental organization.  Furthermore, EU member states and Frontex have taken the additional step of entering into bilateral agreements with non-EU member states like Libya to assist them in intercepting and excluding foreign nationals.  Ska Keller et al. of Migreurop describe this process as the detrritorialisation of operations, noting that it is difficult to determine which entity should be held accountable for violations committed as the result of a bilateral partnership between Frontex and/or one or more member states with a third country such as Libya.#  Member states point to Frontex as the accountable entity, while Frontex points to the member states as the responsible entities.

The Application of Dublin II and Refoulement Within the EU:  Belgium and Greece v. M.S.S (2011)

    In 2008, M.S.S., an Afghan national who had served as an interpreter for foreign military forces, fleed his country and traveled to Belgium to seek asylum.  On his way to Belgium, M.S.S. entered the EU in Greece, where he was finger-printed, detained and released.  In early 2009, M.S.S. applied for asylum in Belgium.  Upon discovery that M.S.S. had entered Greece and been finger-printed there, Belgian authorities deported M.S.S. to Greece despite receiving no initial response from the Greek government to a request to take responsibility for M.S.S.’ asylum application. The Belgian action was taken pursuant to Article 10 § 1 of the Dublin Regulation, which allocates responsibility for administering the asylum application to the first country entered in the EU.  For geographic reasons, immigrants to Europe tend to arrive in the southernmost - and poorest - member states.  The ECtHR took note of a UNHCR report that 88% of the foreign nationals who enter the EU do so through Greece.#  In 2008, Greece granted 11 people refugee status and 18 people subsidiary protection out of over 12,000 asylum applications.#  Despite the high number of migrants who enter Greece and seek asylum, Greece has only 935 beds to house asylees.
 
    Upon arrival to Greece, M.S.S. was detained for several days, then released and told to show up for an appointment and apply for asylum in one day’s time.  M.S.S. was homeless and lived in a park with several other Afghans trying to apply for asylum in Greece.  M.S.S. missed his appointment so his application was denied.  For several months, M.S.S. was homeless with no food or money and no ability to earn a living.  He was detained by Greek authorities once again when he tried to leave the country.  The ECtHR took judicial note of reports made by UNHCR and reputable non-governmental organizations like Amnesty International and Human Rights Watch about the horrible conditions in Greek immigrant detention camps.  These conditions included housing men, women and children in the same over-crowded rooms indiscriminately, disgusting bathrooms, racial taunts, occasional beatings and no opportunity to go outside.

    The main issues before the ECtHR were whether deportation to Greece constituted refoulement in violation of the ECHR and international instruments and whether the conditions in Greek detention facilities constituted a violation of the ECHR prohibition against inhuman or degrading treatment or punishment.  The ECtHR concluded that the Government of Belgium was aware of the terrible conditions in Greek detention centers and the inadequate administration of asylum applications by Greek authorities, as well as the danger that M.S.S. might be deported from Greece to a third country like Turkey where it was highly likely that he would be in danger of violations to his  human rights and dignity.  In fact, in April 2009 UNHCR sent a letter pleading the Belgian government to stop transferring migrants to Greece.#  The Dublin Regulation contains a provision allowing member states to administer asylum applications without returning applicants to the state where they first entered the EU.  The ECtHR ruled unequivocally that when member states apply the Dublin Regulation, they, “must make sure that the intermediary country's asylum procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.”

Liability on the High Seas for Refoulement to a non-EU country:  Hirsi v. Italy (2012)

    The Hirsi v. Italy case arose as the result of an interdiction of Somalian refugees on boats in the Mediterranean Sea by the Italian Coast Guard and Tax Authorities.  In December 2007, Italy entered into bilateral agreements with Libya to coordinate immigration enforcement actions in the Mediterranean Sea.  Libya is not a signatory to the Geneva Convention relating to the Status of Refugees and has no administrative mechanism for addressing asylum applications.  Between 2007 and 2009, 9 joint immigration operations were undertaken on the high seas pursuant to the bilateral agreements.  On May 9, 2009, 35 potential asylees from Somalia were intercepted on the high seas, then transferred to ships owned by the Government of Italy but seconded to the Government of Libya.  Upon arrival in Libya after a 10-hour voyage, the Somalians were placed in Libyan detention centers.  Their personal documents were taken from them by Italian authorities and they were unable to apply for asylum in the EU.

    The main questions before the ECtHR were whether the Government of Italy’s action of interdicting and excluding the Somalians constituted a violation of Article 19 of the Charter of Fundamental Rights of the European Union to not engage in collective expulsions, and whether deporting the Somalians to Libya constituted refoulement and whether Italian authorities knew the Somalians would be subject to inhuman and degrading in Libya under Article 3 of the ECHR.  In its analysis of the application of ECHR Article 3 to the case, the ECtHR took judicial note of a number of reports about treatment of migrants within and outside of detention centers in Libya and the danger of deportation of refugees to Somalia and other unsafe countries.  The ECtHR also quoted with approval Resolution 1821 of the Parliamentary Assembly of the Council of Europe, which called on EU nations to to suspend entering into bilateral arrangements with nations in which rights are not adequately guaranteed.#  In addressing the issue of extraterritorial application of the ECHR and allotting accountability to Italy for inhumane and degrading treatment by Libyan authorities, the ECtHR noted that the Somalians were under the control of Italian authorities throughout the entire interdiction operation.  The ECtHR also found that Italian authorities must have been aware of conditions in Libya and Somalia when they deported the Somalian migrants to Libya, so must be held responsible for violating their rights under Article 3 of the ECHR, and that transfer of the migrants to Libya put them in foreseeable danger of being repatriated to the country they were fleeing.  Moreover, the ECtHR held that Italy cannot evade its responsibility by entering into a bilateral agreement with Libya.#  The ECtHR found, “in the present case substantial grounds have been shown for believing that there was a real risk that the applicants would be subjected to treatment in Libya contrary to Article 3. The fact that a large number of irregular immigrants in Libya found themselves in the same situation as the applicants does not make the risk concerned any less individual where it is sufficiently real and probable.”#  The ECtHR also found that by exercising extraterritorial jurisdiction, the Government of Italy effected a collective dismissal of the Somalians without affording them a real opportunity to apply for asylum. 

Frontex Liability for Human Rights Violations?  Potential Applicability of Recent Case Law to Frontex Involvement in the Ill-Treatment of Migrant Detainees in Greece

    Keller et al. have noted that Frontex has become a key player in the deployment of European asylum and immigration policy in the EU.#  In 2010, Frontex had a budget of €88 million, an 10-fold increase since 2004.#  Yet the European Parliament has found that despite Frontex pride over reducing the number of irregular migrants through maritime operations such as the one in Hirsi v. Italy, the agency does not offer sufficient respect for or guarantees of human rights.#  In its 2011 report The EU’s Dirty Hands Frontex Involvement in Ill-Treatment of Migrant Detainees in Greece, Human Rights Watch casts light on the role of Frontex and several EU member states in the detention of irregular migrants at the Turkish-Greek border in 2009 and 2010.  Due to the danger of sea crossings, more migrants have started making the border crossing by land.  In 2010, Frontex deployed 175 border guards contributed by Norway and various EU member states to Greece to assist in a "Rapid Border Intervention Team" (RABIT) migrant interception operation.#  The border patrol agents wore their respective national uniforms, an important fact to determining accountability for human rights violations.  Once they rounded up the migrants, the border patrol agents from various EU member states and Norway remanded them to Greek migrant detention facilities.  In these over-crowded facilities, men, women and children were housed indiscriminately together.  The bathrooms were so dysfunctional that sewage ran through the floors and Greek guards wore surgical masks when they entered in one facility in Fylakio.#  Asylum applications were to be administered by local Greek police officials operating small stations and migrant detention centers.

    The thrust of the 2011 Human Rights Watch report is that Frontex should be held accountable for placing the migrants in conditions that are inhumane and degrading in contradiction to obligations under the EU Charter, which since 2009 is applicable to EU institutions and agencies.  Alternatively, the report alleges facts that would make it possible for each of the EU member states and Norway which seconded border patrol authorities to the RABIT operation to be held accountable under Article 3 of the ECHR.  It is likely that such an argument would be accepted by the ECtHR under Belgium and Greece v. M.S.S.  While the ECHR is not yet applicable to Frontex, the CJEU would take ECtHR jurisprudence into account.  Moreover, in 2011 the CJEU ruled similarly regarding the human rights implications of exposing potential refugees and asylees to a serious risk of violation of fundamental rights, obliging member states to take this risk into account when applying the Dublin II regulation.#  The Human Rights Watch report recounts numerous instances showing that border patrol agents were aware of the abysmal conditions in Greek detention centers, as well as numerous public reports available to EU member state governments.  In light of the ruling that both Belgium and Greece were liable for human rights violations against M.S.S., it would not be much of a stretch to allocate responsibility to a number of EU member states in lieu of or in addition to allocating liability to Frontex itself.

    Yet not all irregular migrants to the EU are refugees or asylees.  Not addressed in the Hirsi and M.S.S. cases are the human rights abuses against irregular immigrants in the deportation actions coordinated by Frontex and organized by EU member states, or the numerous lacunae in human rights afforded to irregular migrants within the EU.  One of many examples raised by Keller et al. is the deportation of a man named Ricky from the Netherlands to Nigeria in March 2010.#  For the crime of entering and staying in the EU without a proper visa, Ricky was handcuffed and restrained by a BodyCuff while being transferred to his flight at Schiphol Airport, then unceremoniously dumped in the cargo area of the Lagos Airport after a 20 hour flight.#  The main targets of Frontex joint return operations are from Nigeria, Colombia and Ecuador - countries where there appears not to be a presumption of an asylee or refugee status.#  This leaves open the question of whether the principle of non-refoulement can apply to non-refugees and non-asylees in their deportation and indicates that the human rights of migrants in Europe will be a complex and active area in years to come.

References


United Nations High Commissioner on Refugees, Convention and Protocol relating to the Status of Refugees, Introductory Note, UNHCR, Geneva, Switzerland, 2011, available at http://www.unhcr.org/3b66c2aa10.html. 

Human Rights Watch, The EU’s Dirty Hands Frontex Involvement in Ill-Treatment of Migrant Detainees in Greece, Human Rights Watch, New York, New York, 2011, available at http://www.hrw.org/sites/default/files/reports/greece0911webwcover_0.pdf. 

Council of Europe, EU accession to the European Convention on Human Rights, Council of Europe, Strasbourg, Germany, available http://www.coe.int/what-we-do/human-rights/eu-accession-to-the-convention.

Keller, Ska, Ulrike Lunacek, Barbara Lochbihler and Hélène Flautre, Frontex Agency: Which Guarantees for Human Rights?, A study conducted by Migreurop (www.migreurop.org) on the European External Borders Agency in view of the revision of its mandate, European Free Alliance, Brussels, Belgium, March 2011, available at http://barbara-lochbihler.de/cms/upload/PDF_2011/GL_Frontex_E_1.pdf. 

European Migration Network, Court of Justice of the European Union ruling on the transfer of asylum seekers under the EU Dublin Regulation, http://www.emn.ie/index.jsp?p=100&n=105&a=205.

First NAFTA labor petition filed with US DOL in 5 years

My piece on the recent NAFTA labor petition, published in the in the March 2012 edition of the International Employment Lawyer:  US Department of Labor Accepts Petition Under NAFTA