Public Contract Law Journal

The World Trade Organization's Missed Opportunity: How the Agreement on Government Procurement Can Be Transformed from a Vehicle of Trade to One of Human Rights

by Nicole Giles

Nicole Giles (ngiles@law.gwu.edu) is a J.D. Candidate at The George Washington University Law School and serves as the Editor-in-Chief of The Public Contract Law Journal. She would like to thank Roya Motazedi, Soohyun Choi, and Kevin Park for their guidance and feedback. She also would like to thank her mom, dad, and siblings for their unwavering support and encouragement.


I. Introduction

Refugees flee their homelands each day to escape the fear and violence of war, persecution, and even natural disasters.1 By seeking asylum in a foreign land, refugees leave behind many, if not all, belongings in hopes of rebuilding their lives and protecting their families.2 However, not all countries willingly open their borders to those fleeing, and not all corporations working within those countries actively seek to uphold refugees’ basic human rights.3 In Australia, refugees arriving by boat automatically become a part of an “offshore processing” regime as the Australian government forcibly sends asylum seekers to a “Refugee Processing Centre” on Manus Island in Papua New Guinea or the Pacific Island of Nauru.4 In these remote locations, refugees and asylum seekers who sought the safety of Australian shores are instead subjected to cruel and inhumane conditions.5

The Australian government outsourced the work through government contracts.6 Amnesty International recently revealed that Broadspectrum, a subsidiary of the Spanish multinational company Ferrovial, not only ran the processing center on Nauru but also made billions of dollars from government contracts while violating the refugees’ human rights.7 Amnesty International found these private corporations — in addition to the Australian government — responsible for various human rights violations.8

While international forums exist to bring claims against the Australian government, the private corporations will likely face little, if any, backlash for their offenses beyond media criticism.9 Even if one country chose to exclude Ferrovial from its state’s procurement system because of the company’s involvement with human rights violations, this decision does not exclude other countries from awarding Ferrovial public contracts worth billions of dollars — despite its abuses.10 Ferrovial would likely face little economic backlash unless other countries collectively decide to make the corporation ineligible to compete for their government contracts. With only states legally bound to human rights treaties, the international community cannot hold Ferrovial directly liable in front of an international court for its violations.11 This creates a gap between a non-state actor (NSA) committing human rights violations and a vehicle in which the international community can hold the actor accountable.

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