Guilt concerns all in Zhanozen tragedy: the bad, the worse and the ugliest

Which party should be blamed in cases of lethal clashes occurring wherever in the world in whatever context on whatever scale? If it is up to the Human Rights Watch, all of them – meaning that all sides involved share responsibility before the law and the public where it comes to efforts to create a situation in which they are as unlikely as possible to occur again. In a recent report, the Nobel Prize winning organization has piled up the sequence of events in the Mangistau labour conflict and its violent episodes, and looked into the question how things got out of hand. Solutions proposed in the report call on all parties to engage in improvement of relations, thereby adopting the principle of “constructive criticism” adopted first by Nikita Khrushchev and later under Leonid Brezhnev in a reaction to Stalin’s sweet old habit of targeting scapegoats in response to disputes over power and how to wield it.

BY CHARLES VAN DER LEEUW, KZW SENIOR CONTRIBUTOR

Guilt concerns all in Zhanozen tragedy: the bad, the worse and the ugliestShould police cracking down killing dozens on Kazakhstan’s Black Friday in the middle of December last year be considered “inadequate response to hooliganism”? And if so, should the would-be hooligans be identified with a strike movement in the oil industry which developed through most of the year? And if not, should those who are accused of having “incited social unrest” be sought in radical political circles or even worse company? While looking for answers while trying not to point fingers at either groups or individuals dragged into the sequence of abuses and clashes, the prestigious Human Rights Watch took the story under the eyeglass and in a recent exhaustive report came to the conclusion that shortcomings that led to the initial stalemate and subsequent confrontation can be prevented in the future. Legislation should be improved to avoid frictions on judicial levels, while both employers and employees should stick to better elaborated principles and tactics and upgrade their levels of organisation and loyalty.

The movement’s history looks venerable enough. “Human Rights Watch began in 1978 with the creation of Helsinki Watch, designed to support the citizens groups formed throughout the Soviet bloc to monitor government compliance with the 1975 Helsinki Accords,” the organisation portrays itself.  “Helsinki Watch adopted a methodology of publicly “naming and shaming” abusive governments through media coverage and through direct exchanges with policymakers. By shining the international spotlight on human rights violations in the Soviet Union and Eastern Europe, Helsinki Watch contributed to the dramatic democratic transformations of the late 1980s. Americas Watch was founded in 1981 while bloody civil wars engulfed Central America. Relying on extensive on-the-ground fact-finding, Americas Watch not only addressed abuses by government forces, but applied international humanitarian law to investigate and expose war crimes by rebel groups. In addition to raising its concerns in the affected countries, Americas Watch also critically examined the role played by foreign governments, particularly the United States, in providing military and political support to abusive regimes. In rapid succession in the 1980s, Asia Watch (1985), Africa Watch (1988), and Middle East Watch (1989) were added to what was then known as the Watch Committees. In 1988, the organization formally adopted the all-inclusive name Human Rights Watch. […] Human Rights Watch in 1997 shared in the Nobel Peace Prize as a founding member of the International Campaign to Ban Landmines, and it played a leading role in the 2008 treaty banning cluster munitions. “

In its review of the sequence of events, the report spares no party involved. It particularly notes that the strike has been ill-handed from the very beginning. “Thousands of workers employed in Kazakhstan’s oil and gas sector downed their tools in May 2011 in three separate labor strikes at companies operating in the petroleum sector in western Kazakhstan,” the report’s introduction resumes. “While the labour disputes preceding the strikes developed independently of one another, workers and labor unions representing them considered the strikes at all three companies last-ditch efforts to resolve long-standing workers’ grievances over issues such as low pay and interference by company management in trade union activity. In response to the strikes and in the course of workers’ efforts to resolve labor disputes by other means prior to striking, Kazakh authorities and the three companies variously violated workers’ fundamental rights, including freedom of association, collective bargaining and expression, and the right to strike. This report, based on interviews with oil workers in Kazakhstan’s petroleum sector who participated in strikes in western Kazakhstan in 2011, documents human rights violations by companies and Kazakh authorities in the months preceding and during the strikes at the oil service contractor Ersai Caspian Contractor LLC and at the oil exploration and production companies KarazhanbasMunai JSC and OzenMunaiGas. The three strikes lasted from one and a half to seven months starting in May 2011.”

The employing parties involved include KarazhanbasMunai (KBM), “an oil production company that employs approximately 4,000 workers to explore and develop the Karazhanbas oil field, located approximately 200 kilometers from Aktau, the capital city in the Mangystau region” in the report’s words, along with affiliated companies TulparMunaiService (TMS) and ArgymakTransService (ATS) which “provide maintenance, transportation, and drilling services to KBM”. The three companies’employees are united n a trade union known as the the Karazhanbas Union. “Beginning on May 8, 2011 hundreds of Karazhanbas union members at KBM, TMS, and ATS began a partial hunger strike after a long-standing dispute with company management regarding higher wages failed to be resolved through mediation, and after management refused to acknowledge new Karazhanbas union leadership,” the HRW report relates. “On May 17, workers went on strike on grounds that they were no longer fit to work and over their unresolved labor dispute. Hundreds of workers remained on strike throughout the summer and fall during which time KMB management fired approximately 1,000 workers for participating in the illegal strike. Between November 2010 and January 2011, Karazhanbas union and KarazhanbasMunai, TulparMunaiService and ArgymakTransService management participated in a mediation commission to review workers’ demands for higher pay.”

For a while, it looked as though things would work out around the negotiating table – until it appeared that the union leaders role had got ambiguous at best. “In January, the commission agreed that unresolved questions over wage payment coefficients would be moved to arbitration in accordance with Kazakhstan’s labor code,” the report continues. “On January 13, 2011, Karazhanbas union held a general meeting where members agreed upon three experts, including union lawyer Natalia Sokolova, to participate in the arbitration council. However, the following day, union chairman Erbosyn Kosarkhanov unilaterally signed an agreement with company management excluding Sokolova from the arbitration commission’s composition  When union members learned that Sokolova had not been included in the composition of the arbitration commission, they began to doubt Kosarkhanov’s commitment to represent the union’s interests and pressed him to amend the agreement so that Sokolova could be included. The day before arbitration was scheduled to take place, Kosarkhanov sent a letter to company managers that confirmed the union’s decision to include Sokolova in the composition of the arbitration commission and further requested that Mukhtar Umbetov, a long-term Aktau-based labor activist, also be included in order to match the total number of experts put forward by company management.”

“The labour code specifies that the composition and number of members of the arbitration council is determined by ‘mutual agreement,’ but it does not outline how to resolve instances where there is a deadlock,” the report notes, and explains further how what looked like a technical problem was to become a matter of principle. “On January 21, Sokolova and Umbetov went to KBM headquarters in Aktau where arbitration was scheduled to take place,” the text relates further. “However, citing the agreement management had already signed with Kosarkhanov on January 14 and that a total of five arbitration council members were already present, the company representatives refused to allow either Sokolova or Umbetov to participate.” Where personal feuds mixing with social conflict handling?

Subsequently, the report’s authors elaborate on Kazakhstan’s labour movement’s history. The country’s trade unions only date from Soviet times, as pre-Soviet labour movements were by and large centred on the western side of the Ural mountains – particularly in the oil area around Baku, the port of Astrakhan and the industrial centres to its west and north. “In the early 1990s, following the collapse of the Soviet Union, an independent workers’ movement emerged in Kazakhstan. Following a series of strikes in the mining sector in the late 1980s, workers across Kazakhstan began to form independent trade unions,” the report relates. “Around the same time, workers in small private businesses and cooperatives in Almaty and the Almaty regionfoundedBirlesu (Unity), an independent trade union.[33] By 1991, Birlesu and other independent trade unions in Kazakhstan founded the Independent Trade Union Center of Kazakhstan (ITUCK), which later evolved into the Confederation of Free Trade Unions of Kazakhstan (KSPK), which continues to operate in Kazakhstan today.[34] A second country-wide union, the Federation of Trade Unions of the Republic of Kazakhstan (FPRK) that grew out of its Soviet predecessor, the Soviet All-Union Central Council of Trade Unions in Kazakhstan, was established in 1990 and remains to date the largest trade union federation in Kazakhstan.[35] In 2004, a third country-wide trade union, the Confederation of Labor, broke from the KSPK and registered as a separate trade union.”

Today, employees from vritually all sectors are (voluntarily) united in the Atameken Union. But on the employees’ side, there is no common platform which could serve as a national dialogue partner in cases of labour conflicts. “Kazakhstan’s labor movement remains weak, and the legacy of state-controlled trade unions during the Soviet period has meant that many established unions do not effectively represent workers’ interests vis-?-vis their employers. In addition, restrictive and vaguely defined legislation restricts workers’ abilities to collectively bargain and exercise their right to strike, thereby undermining workers’ efforts to defend their interests in independent trade unions,” the report’s authors observe. “FPRK maintains close ties to the government, and the FPRK president, Siyazbek Mukashev, has occupied his position since 1992. Overall union membership has deteriorated significantly since independence, from over seven million in 1990, to approximately two million in 2005. As of 2011, FPRK has stated that its membership base is around two million. According to the union’s website, the FPRK encompasses 14 regional unions and 26 industrial unions, which represent various industries, including the construction, telecommunications, and railway industries, and the oil and gas sector. Both the FPRK and the KSPK have sought to play a bigger role in the international trade union movement and in 2009 applied for membership with the International Trade Union Confederation (ITUC). Neither has been approved for full membership, although the FPRK has been granted associated status. In March 2012, the president of the Labor Confederation of Russia, Boris Kravchenko, spoke out against the FPRK’s application bid at the Sixth Pan-European Regional Council Executive meeting in Brussels, in particular for leaving striking oil workers in western Kazakhstan “without any support by the Republic of Kazakhstan’s largest trade union.”

Internal conflicts within the divided and incomplete labour movement in Kazakhstan are further aggravated by incomplete legislation – thereby placing the employees’ position on the losing side to begin with. Legislators could solve this by proper regulation, thereby enabling employees to form a common front in a position to speak up for the bulk of workers at the negotiating table with employers, the report suggests. “The legal framework in Kazakhstan does not yet regulate employer-employee relations or labor rights in a manner that ensures full compliance with international norms, despite Kazakhstan’s economic development over the last 20 years, nor does Kazakhstan’s judiciary provide effective, independent review of violations of labor rights, given its lack of independence from Kazakhstan’s executive,” the report notes. “Some of the shortcomings in Kazakhstan’s laws and practices concerning labor dispute resolution have been acknowledged by Kazakh officials. For example, Umirzak Shukeyev, the recently appointed head of Samruk-Kazyna, Kazakhstan’s sovereign wealth fund, stated, ‘There is first and foremost a lack of adequate mechanisms and procedures for solving labor disputes and poorly developed institutional arrangements … and trade unions that do not have a strong enough position.’ Hundreds of thousands of workers are employed across Kazakhstan’s oil and gas sector, yet national legislation allows Kazakh authorities and companies operating in Kazakhstan broad leeway to impinge upon workers’ rights that are protected under international treaties, many of which Kazakhstan has ratified.”

There are legal tools, though, which trade unions could use to their advantage in case of need. “According to the law on professional unions, trade unions ‘have the right to represent and defend the rights and interests of their members, … to conduct individual labor disputes and engage in collective labor disputes in accordance with the law, [to] conclude …collective agreements,’ and ‘[to] organize or lead in accordance with the law, gatherings, meetings, street marches, demonstrations and strikes.’ In addition, article 18 of the law on professional unions states,” the report reminds quoting law texts. “Any action, aimed at undermining—directly or indirectly—trade unions … or restricting their rights or interfering in their activities under the law or [in violation of] their charter (or other founding documents) is prohibited.’ Under Kazakh law workers can call a strike “if mediation procedures have failed to resolve the collective labor dispute, or in cases when the employer declines to participate in the mediation procedures or does not fulfill the agreement achieved in the course of resolution of the collective labor dispute. In order to hold a legal strike, workers must hold a general meeting with at least half the company’s total work force and the decision to strike must be supported by majority vote.”

Recent attempts by Parliament to make legislation providing negotiation tools and partners’ legal positions affirmed in case of labour conflicts may be well-meant, but remain half-hearted, according to the Human Rights Watch. “Before the February 2012 amendments to the labor code, workers were required to inform their employers in writing at least 15 days in advance of the start date of the strike, and provide information about the time, date and place of the strike, the duration and the number of participants,” the report explains. “The February 2012 amendments reduced the requirement of providing advance notice from 15 days to five working days, and workers are no longer required to indicate the duration of the strike in advance.”

Recommendations to the Government of Kazakhstan by the authors include “respect the rights of individuals to associate, organise, form unions, and peacefully assemble with others regardless of whether they express views that run counter to the political views of the government of Kazakhstan”, “respect and promote freedom of association and the rights of workers to form independent labor unions, conduct strikes, and collectively bargain with employers, in accordance with Kazakhstan’s obligations under the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and as a member of the International Labour Organisation (ILO)”,

and “conduct a thorough and impartial investigation into the actions of Ersai Caspian Contractor LLC, KarazhanbasMunai JSC, and OzenMunaiGas that violated workers’ rights, including the specific instances of interference with legitimate union activities, threats and harassment against workers, and mass firings of workers.” “These investigations should consider all relevant national and international legal standards and be capable of identifying those officials who approved and carried out policies or activities that violated workers’ rights,” the report adds. “Those found responsible should be prosecuted to the fullest extent of the law.”

Further recommendations to the government of Kazakhstan include the advice to “conduct a thorough and impartial investigation into allegations of use of force by police in the course of dispersing peaceful protests by striking oil workers and others” and to “conduct thorough and impartial investigations into the allegations of ill-treatment and torture by defendants in the trial of 37 oil workers and others, and hold the perpetrators to account.” The government, though, is not the only party in the affair that should take action. To “Kazakhstan’s International Partners, Including European Union Member States and the United States Government” it is urged to “consistently raise concerns about violations of labor rights in Kazakhstan at the highest levels”, to “call on the government of Kazakhstan to fully protect in law and in practice internationally recognized workers’ rights, including the right to freedom of association and the right to organize and bargain collectively, and to “insist that the Kazakh government immediately cease the detention, harassment, or arrest of labor activists and others who disseminate information about labor rights, including those who have been arrested on criminal charges of “inciting social discord.”

Most of all, as it can be read from the Human Rights Watch’s conclusions, national consensus should be aimed for in the form of raising better awareness of the need to get proper labour organisations in place. Trade Unions all over Europe are no remedy against labour conflicts but they do prevent situations from getting out of hand in cases of disputes. So-called wild strikes are rare in Europe, and even where they occur organised parties on both sides of the fence tend to jump in and help to find a solution. Government interference in such situations is extremely rare and in an overwhelming majority of cases parties are able to settle disputes on their own. By offering practical solutions, the Human Rights Watch can be seen as having contributed to a much-needed package of provisions that could be implemented in Kazakhstan to the benefit of all involved and leaving no one in the cold.

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