Sudan’s application to the ICJ was the latest in a string of cases brought to the Court on the basis of the Genocide Convention (most notably, South Africa v. Israel, Ukraine v. Russia, The Gambia v. Myanmar). However, Sudan faced one major obstacle to obtaining justice from the Court: the UAE has a reservation to Article IX Genocide Convention, which contains the compromissory clause (the jurisdictional clause) which Sudan was seeking to base the Court’s jurisdiction upon. Only 16 States in total have made reservations to this Article to exclude the Court’s jurisdiction from cases concerning the application, interpretation, or fulfilment of the Genocide Convention. Nevertheless, at the provisional measures stage, the Court need only be satisfied that it has prima facie jurisdiction and does not need to ‘satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case’.

During the oral proceedings, Sudan argued that the UAE’s reservation to Article IX Genocide Convention was vague and non-specific, and that at least at the prima facie stage the Court should not interpret the reservation so as to definitively exclude its jurisdiction. The UAE argued, on the other hand, that the reservation was clearly drafted to show that it does not consent to the Court’s jurisdiction. Ultimately, the Court decided that it did not have prima facie jurisdiction over the dispute to indicate provisional measures (by a majority of 14-2). However, alongside this, by a majority decision of 9-7, the Court also removed the case from its docket due to a ‘manifest lack of jurisdiction’ [para. 36]. This has only ever occurred twice (see here and here) in the 80 years history of the Court at the provisional measures stage.

The dissenting and partly dissenting opinions to the Order speak volumes here. In the joint part dissent of six judges, they argue that the rushed judgment on jurisdiction ‘effectively punishes Sudan for seeking the indication of provisional measures’ [para. 1]. Indeed, if Sudan had not requested provisional measures, the case would have likely proceeded to the preliminary objections phase (presuming that the UAE contested the Court’s jurisdiction). At this stage, the Court would have been able to more thoughtfully engage with the question raised by Sudan’s application and request: namely, is it still compatible with the Genocide Convention’s object and purpose for a State to make a reservation to Article IX – the one provision in the Convention which allows for a State to be held responsible for violations of the Convention at the ICJ?

The Court considered this question in its 1951 Advisory Opinion on Reservations to the Genocide Convention, concluding that reservations to Article IX were permissible, and has affirmed this reasoning since. But the growing importance of the Court in settling disputes and finding State responsibility under the Genocide Convention, as well as the nature of the obligations contained in the Convention as erga omnes partes (obligations owed to all other States parties), could have led the Court to a different conclusion.

Perhaps this issue of compatibility was answered by the majority of the judges in removing the case from the Court’s docket. Nevertheless, even then the Court’s reasoning is unclear, dedicating just one short paragraph in its Order on its finding of a manifest lack of jurisdiction. It seems that the hoped-for effect of this finding is one of deterrence and the prioritisation of ‘judicial economy’. It is, however, hard to reconcile the resulting manifest lack of justice with the primary role of the Court in the peaceful settlement of international disputes, and its role in the protection of human rights.

India tops the world in the number of migrants sent abroad, with over 17 million living in the Gulf. Unregistered agents are successful in luring uneducated women into migrating to Gulf States such as Saudi Arabia, UAE and Qatar. Systemic loopholes and diplomatic fault-lines enable the exploitation of these women to prevail through malpractices and corruption. For instance, on reaching the Gulf countries, travel documents are immediately seized by agents, denying workers the agency to inspect the credibility of the promised work and thereby leaving them at the mercy of those agencies.

Women are often pushed into unsafe employment or abject poverty in the absence of any employment at all, resulting in their further disempowerment. Ironically, women often choose domestic work abroad in order to escape the abuse they face from their husbands at home. Migration can be a way to improve their social status through their acknowledgement as the breadwinners of their families.

The Indian legal framework concerning migration is set out in the Emigration Act 1983. The Indian Government bans women below the age of 30 holding ‘ECR’ passports from travelling any Emigration Check Required (ECR) country. ‘ECR’ countries are those which the Government lists as ‘unsafe’ destinations to travel for work. This includes 17 countries, mostly in the Gulf region. ‘ECR’ passports are mostly given to persons not having completed their matriculation, low-skilled workers, and the like. ‘ECNR’ passports are given to thirteen categories of persons (income taxpayers, professional degree-holders, etc.). Persons holding ‘ECR’ passports travelling to ‘ECR’ countries require prior approval to travel. However, if a person holds an ECNR passport, this rule is not applicable to them. ECR passport-holders typically include low-skilled working women, usually victims of intersectional oppression who were denied the most basic opportunities of livelihood.

While the existing framework unfairly discriminates against “low-skilled” migrants, the age restriction applies only to low-skilled women. This disproportionately impacts them, denying them an opportunity for empowerment. These women, often widowed, abandoned or in abusive marriages, seek refuge in emigration which allows them to pay for their children’s education, health expenses, and so on and so forth. Women emigrants often spend years abroad, rebuilding their lives, creating new relationships in destination countries and challenging sexual norms.

A protectionist approach towards curbing the exploitation of low-skilled female workers undermines their mobility, further entrenching gender norms as an expression of power relations through control over women’s sexuality and autonomy. This fails to solve the real problem: a dearth of institutional effort towards empowering women.

Intervention by the Indian Government should instead be dedicated towards empowering these women through actively developing their skills in order to enable them to be eligible for safer, higher-skilled categories of work. This has proven extremely successful in reducing instances of exploitation of migrant workers from the Philippines.

In June 2017, the UAE revised the standard domestic workers contract, and introduced measures that mandate employers to allow workers to have one day off per week and eight hours of rest in any 24-hour period. However, Human Rights Watch pointed out that the contract failed to impose any limit on the total number of working hours per day, which should be set at a maximum of eight hours. Diplomatic efforts, if strategically implemented, could ensure that Gulf Countries adjust their labour codes to improve working conditions, successfully integrating migrant workers.

The Indian Government could also help workers understand the migration process better by facilitating awareness about their rights through guiding principles, such as easily accessible model employment contracts. These steps would mitigate the existing information asymmetry and facilitate fair bargaining between the foreign employer and the female worker.

A long term solution could include adopting the process of direct recruitment by foreign employers, accompanied by reducing the information asymmetry in the employer-employee relationship. While direct recruitment may have few risks associated with it, if executed well, it could remove the dependence of workers on intermediaries, reduce transaction costs, promise transparency in emigration, and protect them from being ‘pushed’ into unsafe employment. These changes would enormously benefit low-skilled women, who are most susceptible to these vulnerabilities, ensuring that their right to travel abroad is not compromised in the name of procuring their safety.

On Wednesday 27 February the Women’s Rights Research Seminar (WRRS) at Oxford held its last seminar of the term.  The seminar took a new form and was entitled: “Women’s Rights in the GCC: A Dialogue”. The conversation was carried out between Nazila Ghanea, University Lecturer in International Human Rights Law at the University of Oxford, and Sultana Afdhal, an Oxford student from Qatar and published author.  

The seminar shared first-hand observations about women’s rights in the member states of the Gulf Co-operation Council. Issues around the scope, pace, focus and direction of women’s rights in the countries of the GCC – Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates – were discussed in an engaging way, with participants joining in with their knowledge of the region and by drawing parallels with other domestic contexts.

What stood out in the observations, which were focused on Qatar, were those outlining the pace and trajectory of change over recent decades, consideration of how the domestic context shapes the uptake of rights, the gap between legislation and implementation, the issues faced by citizens versus expatriate communities, the specific reality of female domestic workers, and the particular issues related to family law matters.The Women’s Rights Research Seminar (WRRS) at Oxford was founded in 2009 with the initial aim of directing interdisciplinary scholarly attention to the legal status of women in Iran. Since then, the research group has broadened its purview to the rights of women in the Middle East, covering topics such as the politics of fertility, women in ethnic minorities, and the treatment of women in states governed and influenced by Islamic law and jurisprudence. It is run by Binesh Hass, Soraya Tremayne, Mastan Ebtehaj and Nazila Ghanea. The group receives a grant from the Middle East Centre at St Antony’s to cover the travel costs of speakers at its twice-termly seminars.

Nazila Ghanea is University Lecturer in International Human Rights Law at the University of Oxford and she teaches on the Masters in International Human Rights Law.  She is currently part of a 2 year research project considering the domestic impact of UN human rights treaty ratification on the member states of the Gulf-Cooperation Council.