Domestic Service as a Form of Trafficking in Persons in the Middle East
The Protection Project
Dr. Mohamed Mattar and Joy L. Borkholder*
September 2002 When we attempt to define "trafficking in persons" as a concept, we always think first about migration of women for the purpose of prostitution. We would like to shift the focus from "sex trafficking" to "labor trafficking." We would also like to emphasize a particular form of labor trafficking - that is, trafficking of domestic servants.1 In order to do this, several questions come to mind. First: When does domestic service become a form of trafficking? Second: What are the contributing causes to the trafficking infrastructure in the context of domestic service? Third: What preventive measures could countries of origin, the labor-sending countries, and the destination countries, the labor-receiving countries, take to regulate employment of domestic workers abroad? Fourth: What protective measures could the destination countries take to protect domestic servants as victims of trafficking? These are four questions that we would like to address in the countries of the Middle East.
Domestic Service as a Form of Trafficking in Persons
As to the first question, when does domestic service become a form of trafficking in persons, the U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the U.N. Convention Against Transnational Organized Crime of 2000 (hereinafter, the U.N. Protocol), is the most recent international legal instrument which defines for us trafficking in persons
This is our Protocol that is relevant in addressing trafficking in persons. And trafficking in persons here is to be distinguished from alien smuggling. If you are interested in alien smuggling, your protocol is the U.N. Protocol Against the Smuggling of Migrants by Land, Sea and Air (2000) - it is the other Protocol that supplements the U.N. Convention Against Transnational Organized Crime. So what is the difference between trafficking in persons and alien smuggling?
Smuggling of aliens or "illegal migrant smuggling" is defined here as "the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of illegal entry of a person into a State Party of which the person is not a national or permanent resident."2
* Dr. Mohamed Y. Mattar, LLB, MCL, LLM, SJD, is co-director at The Protection Project, Johns Hopkins University - School of Advanced International Studies. Ms. Joy L. Borkholder, BA, MA (sociology), is a legal research associate at The Protection Project. This paper will be delivered on Thursday, September 12, 2002 by Joy L. Borkholder at the 1st World Congress for Middle Eastern Studies, Mainz, Germany.
1"Maid" and "nanny" are both too narrow terms, as these women often do a wide range of work, including cooking, childcare, housework and shopping. In this paper, we frequently use "domestic servant," in addition to "domestic worker," emphasizing the exploitation that many of these women experience, even if it is solely economic exploitation.
2Article 3(a).
First, unlike trafficking in persons, which may occur internationally as well as internally, alien smuggling is always of a transnational nature, since it requires crossing a national border, and as such it involves an "illegal entry" of a person into a country of which such a person does not have legal status. Illegal entry, in this context, means "crossing borders without complying with the necessary requirements for legal entry into the receiving state."3
For instance, in Bosnia, police arrested 37 criminals from Iran and Turkey who allegedly smuggled some 900 illegal immigrants into countries of the European Union. In the U.S., federal officials discovered in August 2002 a huge child-smuggling ring, smuggling hundreds of children from Guatemala, El Salvador and Honduras, through Mexico to Los Angeles.
The U.N. Protocol Against Migrant Smuggling recognizes as criminal offenses "when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit: (a) the smuggling of migrants; (b) When committed for the purpose of enabling the smuggling of migrants: (i) Producing a fraudulent travel or identity document; (ii) Procuring, providing or possessing such a document; (c) Enabling a person who is not a national or a permanent resident to remain in the State concerned without complying with the necessary requirements for legally remaining in the State by the means mentioned in subparagraph (b) of this paragraph or any other illegal means."4 These criminal offenses are considered crimes against the state, while trafficking in persons is a crime against the individual. Moreover, in cases of alien smuggling, the smuggled alien, consenting to be smuggled, is treated as a criminal, whereas a trafficked person is considered a victim of the crime of trafficking since the trafficked person is typically subject to the "threat or use of force or other forms of coercion, of abduction, or fraud and deception, of the abuse of power or of a position of vulnerability…",5 and as such, the person's consent is either lacking altogether or defective. In either case it becomes "irrelevant." Consequently, while governments should adopt protective measures to protect trafficked persons, including granting such persons a residency status, in cases of alien smuggling, the smuggled person becomes subject to deportation. Therefore, unlike the U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, which mandates that State Parties consider granting victims of trafficking temporary or permanent status, the U.N. Protocol Against Migrant Smuggling calls upon State Parties to "facilitate and accept, without undue or unreasonable delay, the return of a person who has been the object of conduct set forth in Article 6 of this Protocol and who is its national, or who has the right of permanent residence in its territory at the time of return."6 Nonetheless, the smuggled person is entitled to be treated with dignity until such person is deported. The U.N. Protocol Against Migrant Smuggling mandates that parties preserve and protect the rights of a smuggled alien, including "the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment."7 The smuggled aliens
Article 3(b).
Article 6.
U.N. Protocol, Article 3(a).
Article 18(1).
Article 16(1).
should also be afforded "appropriate protection against violence that may be inflicted upon them, whether by individuals or groups, by reason of being the object of conduct set forth in Article 6 of this Protocol,"8 in addition to the "appropriate assistance to migrants whose lives or safety are endangered" by such reason.9 In the case of their detention, the U.N. Protocol Against Migrant Smuggling mandates that each State Party must "comply with its obligations under the Vienna Convention on Consular Relations, where applicable, including that of informing the person concerned without delay about the provision concerning notification to and communication with consular officers."10
To return to the U.N. Protocol regarding trafficking in persons, we now must ask what are the forms of trafficking. The U.N. Protocol talks about "exploitation of the prostitution of others" as a form of trafficking. But it also defines trafficking in persons to include "forced labour or services, slavery or practices similar to slavery, [or] servitude."11 The United States Trafficking Victims Protection Act of 2000 (hereinafter, TVPA) defines labor trafficking similarly - as involuntary servitude, peonage, debt-bondage, or slavery.12 The question then becomes: what are the conditions, which when existing, transform domestic service from a "legitimate" form of labor to forced labor, forced services, slavery, practices similar to slavery, and servitude as forms of trafficking? In Lebanon, it was reported that Malagasy women were forced into prostitution and domestic labor, and then held incommunicado, deprived of food, and forced to work 16 hours per day.13 In Kuwait, many Filipina women working as domestic servants complain of physical and sexual abuse, and either run away from their employers or endure the abuse.14 In Saudi Arabia, it was documented that at least 23 women domestic servants returned to their homes in Indonesia after having been either raped and/or sexually harassed by their employers.15 In the United Arab Emirates, the location of the infamous Sarah Balabagan case, the U.S. State Department reports that "[a]buse of domestic servants, particularly women, by their employers is prevalent. Allegations include excessive work hours, nonpayment of wages, and verbal, physical, and sexual abuse."16 The question before us then, is when does domestic service become a form of trafficking according to International and U.S. law? The U.N. Protocol requires three things to happen in order to define an act of trafficking. 8Article 16(2).
9Article 16(3).
10Article 16(5).
11Article 3(a). Furthermore, Article 3(b) states that the "consent" of a victim to their own exploitation is irrelevant if any of the means set forth in Article 3(a) have been used.
12Section 103(8). The definition of labor trafficking in the TVPA is broad, with the recognition that limiting "involuntary servitude" to situations where the use or threatened use of physical or legal coercion is required, "exclude[s] other conduct that can have the same purpose and effect" Section 102(13).
13James Ramarosaona, "Madagascan Migrants Often Abused in Lebanon and France," Inter Press Service, 27 January 2000.
14The Protection Project Human Rights Report on Trafficking in Persons, Especially Women and Children 2002: 298.
15Marianne Kearney, "Indonesian Maids Flee Sexual Abuse," Strait Times, 21 February 2001.
16U.S. State Department Country Reports on Human Rights 2001 (hereinafter, U.S. State Department Country Reports). First, the actions of the trafficker to "procure" the person:
· Recruitment
· Transportation
· Transfer
· Harboring or
· Receipt of persons17
When these acts happen inside a country itself, from one area to another, we have internal trafficking.
But if these acts occur across borders from one country to another, let's say from Madagascar to Lebanon, or from the Philippines to Kuwait, or from Indonesia to Saudi Arabia, or from Sri Lanka to the United Arab Emirates. That is when we have international trafficking.
And that act can involve a woman such as in the case of Lebanon, where women were forced into domestic servitude and treated as slaves. Or in Kuwait, where predominantly Asian women working as domestics are likewise treated as slaves and physically and/or sexually abused. Or in Saudi Arabia, where domestic servants complained of rape and sexual abuse. Or in the United Arab Emirates, where Asian women, and men, complain of nonpayment of wages and excessive work hours. Or a child, as in the case of camel jockeys in the U.A.E., recruited from Pakistan and other countries. That is trafficking in persons: trafficking in women, trafficking in children, or trafficking in men.
So, countries of the Middle East are countries of destination for trafficking in domestic servants. And the list of major destination countries in the Middle East is too long. Bahrain is on the list. Kuwait is on the list. Lebanon is on the list. Saudi Arabia is on the List. And the U.A.E. is on the list.
Who sends domestic servants to these countries? Well, the list of countries of origin is also long. It includes primarily the countries of Bangladesh, Ethiopia, Indonesia, the Philippines and Sri Lanka. Domestic servants also come from Eritrea, India, Kenya, Madagascar, Pakistan, the Sudan, Somalia, and other countries.18 And the numbers of migrant domestic servants are large. Take only Sri Lanka, for example. In 2001 alone, the Sri Lanka Bureau of Foreign Employment documented departing domestic workers and their countries of employment: 2,051 to Bahrain, 2,316 to Cyprus, 5,720 to Jordan, 26,321 to Kuwait, 12,070 to Lebanon, 1,806 to Oman, 2,199 to Qatar, 37,461 to Saudi Arabia, and 11,206 to the U.A.E.19 And these are only documented Sri Lankan domestic servants.
17Article 3(a). See Section 103(8) of the TVPA for similar provisions.
18See the U.S. State Department Country Reports 2001, the U.S. State Department Trafficking in Persons Report 2002, and The Protection Project Human Rights Report on Trafficking in Persons 2002, for examples of trafficking cases, and trafficking routes. For general data on the numbers and working conditions of migrant domestic servants in the Middle East, see Abella 1995, Eelens 1995, Eelens and Speckman 1990, Gamburd 2000, Gatmaytan 1997, Heyzer 1994, Heyzer and Wee 1994, Ismail 1999, Momsen 1991, Al-Najjar 1992, Shah and Menon 1997, and the Sri Lanka Bureau of Foreign Employment - www.slbfe.lk.
19Smaller numbers of women have gone to other Middle Eastern and Asian countries. I noted here only Middle Eastern or North African countries who received more than 1,000 migrant domestic servants. According to the 1999 "Survey on Overseas Filipinos," there were 73,000 women working in Saudi Arabia. And, out of a total of 497,000 women overseas workers, 349,000 were "service workers," Philippines Bureau of Labor and Employment Statistics. The 2002 Human Rights Watch Global Report cites 370,000 Indonesians in Saudi Arabia, most of them in domestic service.
But the action of moving a person is not enough. The U.N. Protocol requires two more "bad" things to happen. One is the "use of illegal means." And here the U.N. Protocol refers t
· Threat
· Use of force
· Other forms of coercion
· Abduction
· Fraud
· Deception
· Abuse of power
· Abuse of a position of vulnerability20, or
· Receiving of payments or benefits to achieve the consent of a person having control over another person21
These are the means that must be employed in order to transform that legitimate form of labor into trafficking in persons.22
Finally, in addition, the trafficker, the person who is exercising these illegal means, must do so for the purpose of exploitation.
So, you need exploitation to have trafficking. And exploitation here may involve:
· Prostitution
· Other forms of sexual exploitation23
· Forced labor
· Slavery
· Practices similar to slavery,24 or
· Servitude
Do the cases that I mentioned involve illegal means and exploitation? Every time they do, we have trafficking. But if they don't, I believe we may have exploitative labor, but not necessarily trafficking in persons.25 But we still have domestic servants' right to education being denied 20Vulnerability here can include economic vulnerability.
21Article 3(a). Articles 3(c)(d) note that even in the absence of force, fraud or coercion, if the person is under eighteen years of age they are considered to be a victim of trafficking. Any case of guardianship, custodianship, employer-employee relationship, husband-wife relationship, etc. would fall under this provision. And here would be where the travel agent or the employment agency may be proven to have liability in a trafficking case.
22It must be noted that the definitions of deception, fraud, abuse of power, and abuse of a position of vulnerability can be broadly defined in the U.N. Protocol. And thus, the exact level of abuse of a position of vulnerability that is necessary in order for a case to become trafficking is still imprecise.
23Other forms include sexual slavery and pornography.
24"Practices similar to slavery" would include such practices as debt bondage and illicit adoption. This category is used sometimes as a category for exploitative practices that do not fit the legal definition of the other listed forms of exploitation.
25For cases interpreting labor trafficking under the involuntary servitude statutes, see United States v. Alzanki, 54 F.3d 1994 (1st Cir. 1995), cert. denied, 516 U.S. 1111 (1996), which found that servitude exists when a person, through actual or threatened use of physical or legal coercion, such as threats of deportation or loss of visa status, intentionally causes the oppressed reasonably to believe, given her vulnerabilities, that she has no alternative but to remain in involuntary service for a period of time; and United States v. Mussry, 726 F.2d 1448 (9th Cir. 1984), where the defendant enticed poor, non-English-speaking, Indonesian servants to travel to the United States, paid them little money for their services, withheld their passports and return airline tickets, and required them to work off their debt. In that case, the defendant's actions violated the statutory prohibition against forced labor.
(especially in the case of "child maids"), their right to stable, economic self-sufficiency being denied, and even their right to either have a family or be with their family being denied.
The idea is this: Should we distinguish between forced labor and voluntary labor? Should we consider domestic service as a form of trafficking, even in the absence of any force? What should you say about that woman who is coming from Madagascar to Lebanon, from the Philippines to Kuwait, from Indonesia to Saudi Arabia or from Sri Lanka to the U.A.E. to work voluntarily in these countries?
The U.S. State Department sees all of these above-mentioned cases as cases of trafficking. If you take a look at the 2002 Trafficking in Persons Annual Report (hereinafter TIP Report), which the State Department issued in accordance with the TVPA, you will find that the State Department considers many cases of domestic service in the Arab world as cases of trafficking in persons. The TIP Report did not like Bahrain, or Iran, or Lebanon, or Qatar, or Saudi Arabia, or Sudan, or Turkey, or the United Arab Emirates, placing them all on Tier 3. What does Tier 3 mean? It means "bad countries." It means offender countries. It means countries that will be subject to economic sanctions, to be imposed by the United States starting in 2003.26 Here are two excerpts of the TIP Report for your review:
Saudi Arabia: "Trafficking victims who come to Saudi Arabia in search of work are put into situations of coerced labor. Victims come primarily from Sudan, Somalia, Kenya, Eritrea, Ethiopia, Bangladesh, Sri Lanka, India, Indonesia, and the Philippines to work as domestic servants and menial laborers. Many low-skilled foreign workers have their contracts altered and are subjected to extreme working conditions and physical abuse… However, some workers are exempt from labor law, including … domestic servants…The Ministry of Labor runs a reception center for domestic servants. In cases where the Ministry of Labor is unable to resolve disputes with the employer, the domestic is deported. Domestic servants who are victims of trafficking may seek assistance from their embassies, several of which provide shelter and refuge where maids may stay while awaiting resolution of their cases or until they are deported."27 United Arab Emirates: "…some who come to the United Arab Emirates for unskilled or semi-skilled employment become the victims of trafficking, since they are subject to coerced labor, slave-like conditions, or sexual exploitation. Those low-skilled foreign workers forced into
26The economic sanctions entail the removal of non-humanitarian economic aid. In the 2002 TIP Report, only 89 countries are listed - this is because the first criteria for being included is that a country has at least 100 confirmed cases of trafficking in persons. Unfortunately, because trafficking itself is a clandestine activity, and because victims are often reluctant or unable to come forward, these 100 confirmed cases can be difficult to discover and document.
27The Human Rights Watch Global Report 2002 cites that around 19,000 women domestic servants fled their employers' homes in 2000 due to abuse and exploitation. It also notes that there has been a problem of Saudi employers selling the women to other employers, in violation of Saudi law.
domestic servitude primarily come from South and Southeast Asian countries... There are reports that some trafficking victims' employment contracts were altered or switched upon their arrival to the United Arab Emirates without their consent, actions against which such victims have little effective recourse…The labor laws in the United Arab Emirates do not cover domestic servants…."
How would a country avoid these economic sanctions imposed by the United States? Well, it is not easy. You have to move from Tier 3 to at least Tier 2 by demonstrating significant efforts to combat trafficking. And only Israel and Morocco have that privilege, at least for now.
Do not ask the U.S. State Department about the status of trafficking in Algeria, or Egypt, or Iraq, or Jordan, or Kuwait, or Libya, or Oman, or Syria, or Tunisia, or Yemen. The TIP Report fails to address the problem in these countries. There is not enough information.28 So, for those of you who are doing work in these countries regarding migration and trafficking, labor or sex trafficking, please contact the U.S. State Department. Or, to make it easier for you, please contact me. I am putting together a report on the issue of trafficking in the countries of Middle East and North Africa. I am also organizing a conference on trafficking in persons in the Middle East to be held sometime next year. And on behalf of The Protection Project, I would appreciate any input.
The Trafficking Infrastructure - Domestic Service
That brings me to the second question: what are the contributing causes to the trafficking infrastructure in the context of domestic service? Well, the reasons are fairly obvious. As the trafficking structure of domestic service is directly related to existing patterns of labor migration and its causes, we suggest that the two primary factors for the supply of domestic workers are poverty and gender inequality.
The underdeveloped economies and concomitant lack of employment in the labor-exporting countries must be considered to be major issues.29 For example, even in the Philippines where universal education has been emphasized, women who graduate from secondary school and even the university, go abroad as domestic servants because it offers the best wages. And in one study of Bahrain, most of the female domestic workers had husbands who were unemployed, under-employed or earning low, subsistence-level wages. These women carry the heavy burden of
28The U.S. State Department did not include Kuwait. In following with the definition of labor trafficking as used in this paper and by the State Department, it seems improbable that Kuwait should not be on the list. The Sri Lankan Bureau of Foreign Employment alone lists that in each year, 2000 and 2001, roughly 26,000 "housemaids" went to Kuwait. And this number can be assumed to be low, as it is only documented workers (see the Sri Lanka BFE website: www.slbfe.lk/stat_repo.html). Thus, even if we estimate that only .5% of legal workers are exploited or abused, that number equals 2,600. Furthermore, while the TIP Report does not include Jordan, the U.S. State Department Country Reports listed Jordan as having a problem with abuse of foreign domestic servants.
29This is often called the "push-pull" argument, popularized by Everett Lee, "A Theory of Migration," Demography 3 (1966). This argument seems to make an assumption of "rational choices," reducing these "rational" choices to economic considerations, ignoring the contextuality of rationality.
supporting their families back home. The wage gap between sending and receiving countries will most certainly remain an important factor stimulating migration.
And that is why the U.N. Protocol mandates that State parties must take the appropriate preventive measures "to alleviate the factors that make persons, especially women and children, vulnerable to trafficking," such as, and I am still quoting, "poverty, underdevelopment and lack of equal opportunity."
However, we must be careful not to reduce the contributing causes of migration and trafficking of women domestic servants to poverty and overpopulation, and neglect institutional and political patterns.
Some of these macro-structural conditions include labor recruitment, labor and migration policies and capital investment. And these are factors that can be addressed by the law, that is, by law that is sensitive to the gender dynamics of labor and migration.
For it must be noted that not only are economic structures important, but gender is also key. As one Egyptian woman activist noted:
"When a family is living in dire need, and the opportunity for improvement arises through a [marriage] proposal from a wealthy older man, a young girl is the first to be sacrificed - and not just in Egypt."
We could extend this example from child brides to any "sale" of women or girls, for any purposes. Filipina domestic workers are unable to find work in the industrial and agricultural sectors because of the gender segregation of the labor force. They have limited opportunities for earning money, and are often relegated to sex work, domestic work, and other activities in the informal economic sector. Moreover, they are "marketed" by racist and sexist stereotypes - that they are cheap, submissive, and "good" at the details of housework and factory work. "They are commodified to fit pre-existing images of what female migrants should be and what tasks they should perform." These images often fit many cultures' idea of what wives/mothers should be, namely self-sacrificing.38
30Al-Najjar 1992: 21.
31Shah 1995.
32Article 9.
33See for example, Tyner 1994 and Chin 1998.
34Tyner 1994, Shah and Arnold 1986, Abella 1992, 1993.
35Mariz Tadros, "A Marriage of Convenience," Al-Ahram Weekly (online edition), 27 May - 2 June 1999, Issue No. 431.
36One author calls it the "devaluation of female labor in the Third World" (Gatmaytan 1997). See also Tyner 1994.
37Gatmaytan 1997: 247. Tyner "contend[s] that the reduction of choices to either service sector jobs or entertainment related occupations represents an absence of choices: the lack of opportunities in the Philippines, coupled with limited opportunities based on subservience and sexuality, reflects an institutionalized system of oppression. This oppression is often exemplified by a private sector that claims they are providing a valuable service. According to members of the private sector, women 'choose' to engage in occupations that native workers shun (e.g. those jobs which are dirty, dangerous, and demeaning) because no other job is available in the Philipines. But choice in this context is illusory. The acceptance of lower-wages, the tolerance of contract violations, the threat of physical and sexual abuse - these are not conditions which migrants willingly accept. Rather, oppression within the Philippines, combined with global demands for housemaids and dancers, is why women are 'willing' to leave their families while caring for other people's families in foreign countries. In short, when migration becomes the only option, it is no longer a choice. Orozco (1985) refers to these women as economic refugees" (Tyner 1994: 607).
38Fitpatrick and Kelly 1998: 68.
One final factor, this one at the micro structural rather than macro level, is the established networks of migration. These formal and informal networks become self-perpetuating. And thus, labor migration can even become detached from objective market conditions.39 Thus, as happened in Kuwait around 1993-94 when the labor market reached saturation, visa traders were selling visas for jobs that did not exist - thus, migrants would spend their life savings for a visa, and end up in the host country unemployed for several months at least. Workers in this case are especially vulnerable to further exploitation, and for women, that can mean prostitution.
But why do they go especially to the Middle East? It is the demand. Shah cites a scholarly "consensus" that labor migration from South Asia is demand driven. And the demand reflects both the oil-rich economies and the traditional culture. We are all familiar with the prevalence of servants in certain countries of the Middle East. In fact, recent trends in Kuwait are striking, as even families who can barely afford it are hiring domestic servants if only for the social prestige, regardless of their ability to afford a servant, and regardless of the wife's work status.40 Meaning, that while 62% of Kuwaiti households had a maid in 1986/87, only 36% of the maids were employed in a household where there was a working female.41 In Jordan also, domestic servants have symbolic value, as an item of conspicuous consumption.42 And, as noted above, existing stereotypes of Asian women add to their attractiveness as employees.43
And that is why, to combat trafficking in persons, the U.N. Protocol mandates that State parties take preventive measures "to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking."44
Similar cultures and religions is not relevant in explaining the demand from these particular countries, except in the cases of Sri Lanka and Indonesia: Muslim Sri Lankan and Indonesian domestic workers are in high demand in places like Saudi Arabia.45 In Bahrain, Muslim maids earn more than non-Muslim maids.46 Furthermore, the demand for Muslim domestic workers has led some women to falsely claim to be Muslim (especially in Bahrain and Saudi Arabia) - when their employer discovers this deception, it likely leads to more tension and a higher incidence of mistreatment.47 39Shah 1995: 595.
40Eelens and Speckmann 1990. It follows logically that women employed as domestic workers in lower-income homes are more likely to be subject to nonpayment of wages and poorer living and working conditions.
41Shah et al, 1991: 472.
42Humphrey 1991: 56.
43See Heyzer and Wee 1994.
44Article 9(5).
45Eelens and Speckmann 1990.
46Al-Najjar 1992: 23-24.
47Women who are Buddhist or Hindu also may claim to be Catholic in order to avoid worse hostility, Eelens 1995: 271. We must ask why is it that migrant domestic servants in the Middle East seem to encounter more abusive and exploitative situations, more so than perhaps in Singapore or Hong Kong? There are, of course, numerous cultural-historical factors that could be addressed, but not in such a brief presentation. These include a history of slavery or bonded labor, rigid class/caste systems, tolerance of domestic violence, and the treatment of women as property.48
Instances of sexual abuse and assault have grabbed the attention of the international press, and simultaneously embarrassed sending countries. In fact, it has apparently embarrassed sending countries, as they are seen as unable to protect their workers, rather than shaming destination countries who seem to allow impunity to employers.49 This must be linked to the broader issue of domestic violence in the labor-receiving countries - both the prevalence and under-prosecution of domestic violence. These are entrenched social attitudes, reflected in legislation: in Saudi Arabia a domestic servant must have three witnesses to her alleged abuse by the employer.50 Considering that only family members of the employer would have witnessed abuse due to the extreme isolation of the women, this would make conviction virtually impossible. These, and certainly more, are the contributing factors to the trafficking infrastructure.
Preventive Measures
The third question is - what can we do about it? What preventive measures could countries take to regulate employment of domestic workers abroad? Well, you have to address the problem in the countries of destination. And, you have to address the problem in countries of origin. As previously mentioned, factors contributing to trafficking in domestic servants are broad and slow to be changed, namely, gender inequality and underdevelopment. For the purposes of this discussion, we focus on legal measures that could be taken in order to effect more immediate prevention. And we must keep in mind the importance of balancing both the safety of female migrants with their freedom to migrate and enter the labor market.51
In sending countries, such as the Philippines, the 1995 Migrant Workers and Overseas Philippino [sic] Act provides for travel advisory and information dissemination.52 That is what we need: regulations restricting the activities of an employment agency that sends workers overseas. Likewise, Article 34 of the Labor Code of the Philippines prohibits any person from engaging in the recruitment or placement of workers in jobs harmful to the public health or morality or the dignity of the Republic of the Philippines. The precise meaning of "morality and dignity" is, unfortunately, ambiguous.
48Heyzer and Wee 1994: 71. For a basic context of women as property, as related to trafficking, see Rubin 1975. Certainly not all of these factors are unique to the Middle East, although the strength of some of them may be unique.
49In fact when Bangladesh imposed a ban on solo female migration, it was due to concern over the "low moral standards" of the women, rather than their exploitation (Fitzpatrick and Kelly 1998: fn 131). Similarly, Sri Lankan women who migrate must be very careful in how they navigate social life upon their return to Sri Lanka lest they be suspected of sexual promiscuity or prostitution (Gamburd 2000).
50Hugo 1992: 183.
51See especially Fitzpatrick and Kelly 1998. See also Charlesworth et al, 1995, for a feminist critique of international law.
52Section 14. It is relatively common knowledge that assorted sending countries have put various bans on women migrating for labor, in order to avoid the abusive, and sometimes embarrassing circumstances in the first place.53 However, given the demand for domestic workers, and the women's and families' need for money, this policy of banning certain women, if not all women, serves to promote illegal migration, and a further increase in the illegal workers' likelihood of being exploited.54 A ready supply of workers and cultural norms that support female migration lead to regulations and restriction that are "more symbolic than real."55
Despite the fact that some labor-sending countries try to minimize situations of abuse and conflict in order to keep up cordial relations and emigration possibilities, some critics point out that the labor-sending countries' goal of promoting emigration can easily conflict with the need to protect workers. And too often, the promotion of emigration takes priority, as these countries stand to gain enormously from remittances of their circular migrant laborers.56 While pre-departure orientation sessions or pamphlets are certainly beneficial for the migrants' understanding of cultural and familial patterns in their country of employment, this type of "prevention" in fact is doubtful as to whether it prevents situations of abuse and exploitation.57
Preventive measures must be emphasized and implemented in these countries of origin. Preventive measures can also be taken in countries of destination. One such measure is stronger enforcement of labor contracts in their own countries. Numerous reports have documented that (1) the labor contracts that some migrant workers sign in their country of origin are basically useless, and that (2) employers of domestic servants unilaterally change the terms of the contract or consistently violate the terms.58 These women who become victims feel, justifiably, powerless to complain and receive fair treatment.
However, perhaps the most important measure, due to its overarching nature, is that domestic workers must be covered by the labor laws in the countries of destination. This means that domestic work as paid employment in the "informal sector" must be taken out of its currently private, individual realm and regulated publicly. Currently, domestic workers are not covered under the labor laws in many countries of the Middle East, even when they are legal and registered, including these major labor-importing countries: Bahrain, Jordan, Kuwait,59 Lebanon, Morocco,60 Oman, Qatar, Saudi Arabia and the U.A.E.61
53Indonesia has, for example, banned women under age 30 from migrating to the Middle East, with the hope of reducing incidents of sexual abuse. The Philippines' minimum age of migration for female domestic workers is 25 in general, but age 30 for those going to Saudi Arabia and Bahrain. Pakistan has prohibited the migration of unskilled women when alone. Bangladesh banned women from migrating alone (i.e., without a husband) as domestic workers in 1982, but eventually lifted its ban due to pressure from Kuwait. When the ban was implemented, "entrepreneurial" brokers very quickly took advantage of the opportunity to traffic women via false marriages. See Goonesekere 1994.
54Fitzpatrick and Kelly 1998: 72.
55Shah and Menon 1997: 20.
56See Shah 1995: 584. See also Guest 1999.
57The Philippines has a pre-departure orientation for domestic workers.
58For example, see Gatmaytan 1997. One example of this is the new "model contract of employment" that Sri Lankan migrants have to sign, sponsored by the Bureau of Foreign Employment. However, this is of little use once they leave Sri Lanka - no cases have been recorded for breach of contract. See Ismail 1999.
59In 1965 in Kuwait, the Aliens Residence Law was amended, and control over migration was changed from the Ministry of Social Affairs and Labor to the Ministry of the Interior (with the primary concern being national security). This law was also amended in 1982 to specifically address domestic workers. See Russell 1995 for details of the evolution of the Aliens Residence Law with respect to domestic workers. In short, it evolved from liberal, allowing for mobility, to very strict, with increasing employers' control over the domestic workers. In 1984, these restrictions were liberalized again, perhaps due to an economic downturn, but it is unclear.
60Even though forced and bonded labor of children is prohibited by royal decree, the Government has, in the past, ignored the problem of child maids due to the strong social and cultural acceptance of child maids (U.S. State Department Country Reports).
61It must be noted here that the U.S. does not provide a good example in this regard, as noted in a recent report: "In the United States, live-in domestic workers remained explicitly excluded from protection under the National Labor Relations Act, the Occupational Safety and Health Act, and the overtime provisions of the Fair Labor Standards Act. The exclusion of domestic workers from basic U.S. labor rights and protections was based on gender stereotypes and perceptions about the role of domestic workers in the family, and had a disproportionate impact on women, thus constituting disparate impact sex discrimination" (Human Rights Watch, Report on Women's Human Rights, 2002). However, the laws of many of these countries would, if enforced and applicable, prohibit the treatment of some of these domestic servants as "slaves." Indeed, "forced" or "compulsory" labor is prohibited in: Algeria, Bahrain, Egypt, Iran, Iraq, Israel, Jordan, Kuwait, Morocco, Oman, Qatar, Saudi Arabia, the Sudan, Tunisia, Turkey, the U.A.E. and Yemen.
There is some hope in a few countries. In Bahrain, domestic servants can seek legal redress for forced labor (under the Penal Code), but the process is reported to be long.62 And in Qatar, the Ministry of Labor is supposed to handle cases where foreign workers complain of nonpayment of wages. And finally, in the Sudan, legal foreign workers have the same labor rights as citizen/resident workers.63
But the "problem" of lack of legal regulation of domestic work is still great. Understanding the roots of this is essential to understanding how to change it. Lack of legal regulation can be attributed to (1) a neglect of the informal economic sector generally, (2) the view of the home and the labor of social reproduction as "private," even when paid, and (3) the lower status of non-citizens and women. The legal measures that do cover migrant domestic servants tend to further enslave them, rather than liberate and protect them. For example, maids are reluctant to leave their jobs, in spite of abuse due to (1) the illegality of finding a job in another private home, and (2) breaking their contract would mean that they have to pay for their return flight.
Furthermore, social factors, on the part of labor-receiving and labor-sending countries, contribute to the relative silence of the women. Both the physical isolation in their homes of employment, meaning, the inability to mingle and discuss with fellow domestic servants, and the view of their work as private and subordinate, lead them to view the "issues of power, hierarchy, and workers' rights" in their places of employments as "individual, interpersonal matters instead of topics for class solidarity and class action."64
622002 TIP Report.
63At the time of Russell's 1995 article, only in the countries of Iraq, Jordan and Libya were alien workers insured on the same basis as nationals.
64Gamburd 2000: 228. In fact, Enloe documents that in places where migrant domestic workers have "organized" themselves, they have had a difficult time getting local trade unions to take them seriously: "Many trade-union men didn't see domestic workers as genuine workers. Their work looked too much like what their own wives did every day without pay" (Enloe 2000: 193). A final, and very important, step is streamlining the process of both obtaining a job, and importantly, financing a visa from a legitimate source in the destination country. This process needs to be regulated jointly by countries of origin and destination.65
One author summarizes the complexity of regulation of domestic service quite well: "The buying and selling of domestic labor is not simply an economic transaction governed by the market but a sociocultural relation between individuals, negotiated at may levels, including the everyday world of the household. However, while the costs and benefits for both employer and maid very much depend on the way individuals play out human relationships, this does not absolve the government authorities from providing a broader framework which will minimize the negative impacts of transnational labor migration for all concerned."66
A unique aspect of the migration from Asia to the Middle East is the "commercialization" of the process. Intermediate agents on both sides of the process participate in this trade in human labor as if it were a "consumer good." Some commentators attribute this primarily to the large profit that can be made by the sale of visas. This applies especially to the sponsor in the labor-receiving country.67
For example, in Kuwait, the migrant worker wishing to go there has a high cost, due to the complex network of profitable relationships that involves intermediate agents in both labor-sending countries, and in Kuwait, the labor-receiving country. Not only does this network of sponsors, recruiting agents and visa-procurers inflate the costs of migration, but it also perpetuates the supply of migrant workers.68
It is important to streamline this process in order to reduce the cost incurred by the migrant worker, as the extreme cost is more likely to lead to debt-bondage once the worker is in the employer's house. Debt bondage is then conducive to the worker being stuck in an exploitative and/or abusive situation. Moreover, perhaps the sponsorship rule should be reconsidered. The rule provides that a person who would like to be employed, for example in Saudi Arabia, must have a "protector," or "guarantor," or "kafeel" - a sponsor. That is her employer. The employer must be a Saudi national or a Saudi company. The question becomes, can an employee of the sponsor leave the country of Saudi Arabia whenever she chooses to? Should the sponsor hold the travel 65 Enloe (2000) provides a description of the response to the Philippines' ban on migrant domestic workers. Migrant organizations protested and urged the Philippines to enter into bi-lateral agreements with labor-importing countries and also guarantee on-site education and welfare services for Filipinas. They seem to have succeeded - by 1992, the Philippines had granted exemptions to 22 countries. While the strength of some of these agreements has been questioned, they still provide norms, requirements and adjudication mechanisms (Fitzpatrick and Kelly 1998: 73).
66Yeoh et al, 1999: 134.
67Shah 1995: 580.
68See Shah and Menon 1997. The government of Kuwait appointed a committee to investigate this issue as early as 1996. documents of the employee as long as that employee resides in Saudi Arabia? Should the travel documents be withheld and replaced by an identity card as the case of Saudi Arabia? And then how can the employee leave if she does not have her passport and cannot use the identity card as a travel document? Should she always be required to get an exit visa to leave the country? The sponsorship rule has been abolished in Saudi Arabia in accordance with the new foreign investment act, but that applies only to employees who work for a foreign investor doing business in Saudi Arabia. The sponsorship rule is still alive and well under the Saudi legal system.
That sponsorship rule, or system of control, is considered an instance of "enslavement" under the International Criminal Court Statute, which defines enslavement to include "the exercise of any or all of the powers attaching to the right of ownership over a person, and includes the exercise of such power in the course of trafficking in persons, in particular women and children."69 So the sponsorship rule entails elements of servitude, slavery, and practices similar to slavery, as defined by the U.N. Protocol. And that rule should be changed.
Protective Measures
When it comes to countries of destination, we need not only preventive measures, but more importantly, protective measures. And that brings me to my fourth question: What protective measures could the destination countries take to protect domestic servants who are victims of trafficking?
The U.N. Protocol recommends that protection include housing, counseling, medical, psychological and material assistance, and employment, education and training opportunities for victims of trafficking.70
The Protection Project has formulated a "Bill of Rights" for victims of trafficking, which would apply in the case of victims of domestic service as a form of trafficking. They should be entitled to the following rights: · Safety
· Privacy
· Information
· Legal representation
· Court testimony
· Compensation for damages
· Medical assistance
· Social assistance
· Some form of residency,71 and
69Article 7. For the application of the International Criminal Court to trafficking, see Mattar, "The International Criminal Court becomes a Reality," www.protectionproject.org.
70Article 6(3)(a-d).
71 The U.N. Protocol prescribes that a government "shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases," taking into account "humanitarian and compassionate factors" Article 7(1-2).
· The right to return to their own country72
If there is a case of abuse, the victim should have the ability to complain and report their case without fear for their own safety. The U.N. Protocol provides for the protection of the privacy and identity of victims, and the confidentiality of legal proceedings.73 The Philippines has taken a lead in this area, operating "Filipino Workers Resource Centers" (of the Office of Workers' Welfare and Administration), at 21 consulates.74 These centers provide legal assistance, counseling, translation services, mediation, and physical shelter.75
Finally, if a victim would like to return immediately to their native countries, they should not be detained. They should especially not be detained with criminals.76 And if they are repatriated, they should be repatriated with respect. Conclusion
In conclusion, I'd like to share at least one partial "success-story" - that is, a country that has moved up to Tier 2 on the TIP Report.
Morocco, with a problem trafficking of child maids, provides a good model of multi-faceted programs of prevention and protection for internal trafficking. The government has cooperated with international organizations in order to run programs that (1) try to keep children in school, (2) improve educational opportunities for girls in rural areas, (3) expand economic opportunities in areas where girls are at a high risk of being recruited as maids, (4) prosecute abusive employers of child maids, and (5) provide shelters for girls, who were and are still maids, where they can take classes and enjoy recreation.77
However, as is clear from migration patterns, much of what we have in the Middle East is international trafficking in domestic servants. And this requires, at a minimum, bilateral cooperation between sending and receiving countries. Few countries have, as of yet, enacted legislation that is either (1) effective, or (2) enforceable. This is due, we hope, primarily to the lack of serious attention to domestic service, and also a lack of research and lack of understanding of trafficking, its causes, and its remedies. We hope that more empirical and descriptive research will continue to be conducted on domestic service, not only in the Middle East, but globally.
72See Mohamed Y. Mattar, "Establishing a Bill of Rights for Victims of Trafficking in Persons: How It Can Become a Possibility," on The Protection Project website: www.protectionproject.org.
73Article 6(1).
74This number is from 1998.
75However, in Malaysia, women complain that the embassy is unhelpful (Fitzpatrick and Kelly 1998).
76While some women do seek shelter at their embassies, there are reports of some run-away domestic servants being detained with criminals (Heyzer 1994) or even being abused by their own country's embassy staff.
772002 TIP Report, and the website of the National Observatory of Children's Rights in Morocco http://www.onde.org.ma/.
Appendix 1: International Conventions 
References
Abella, Manolo I. 1995. "Sex Selectivity of Migration: Regulations Governing International Migration in Southern and South-Eastern Asia," in International Migration Policies and the Status of Female Migrants. Proceedings of the Expert Group Meeting on International Migration Policies and the Status of Female Migrants, San Miniato, Italy, 27-30 March 1991.
Abella, Manolo I. 1992. "The Troublesome Gulf: Research on Migration to the Middle East." Asian and Pacific Migration Journal 1: 145-167.
Adams, Kathleen M. and Sara Dickey, eds. 2000. Home and Hegemony: Domestic Service and Identity Politics in South and Southeast Asia. Ann Arbor: University of Michigan Press.
Andall, Jacqueline. 2000. Gender, Migration and Domestic Service: The Politics of Black Women in Italy. Aldershot, Great Britain: Ashgate.
Banks, Taunya Lovell. 1999. "Toward a Global Critical Feminist Vision: Domestic Work and the Nanny Tax Debate." Journal of Gender, Race and Justice 3: 1
Charlesworth, Hilary, Christine Chinkin and Shelley Wright. 1995. "Feminist Approaches to International Law." American Journal of International Law 85: 613.
Chin, Christine B.N. 1998. In Service and Servitude: Foreign Female Domestic Workers and the Malaysian Modernity Project. New York: Columbia University Press.
Cook, John M. 1984. "Involuntary Servitude, Modern Conditions Addressed in United States v. Mussry." Catholic University Law Review 34: 153.
Eelens, Frank. 1995. "Migration of Sri Lankan Women to Western Asia," in International Migration Policies and the Status of Female Migrants. Proceedings of the Expert Group Meeting on International Migration Policies and the Status of Female Migrants, San Miniato, Italy, 27-30 March 1991.
Eelens, Frank and J.D. Speckmann. 1990. "Recruitment of Labor Migrants for the Middle East: The Sri Lankan Case." International Migration Review 24: 297-322.
Enloe, Cynthia. 2000 (2nd edition). Bananas, Beaches and Bases: Making Feminist Sense of International Politics. Berkeley: University of California Press.
Fitzpatrick, Joan and Kelly, Katrina R. 1998. "Gendered Aspects of Migration Law and Female Migrants." Hastings International and Comparative Law Review 22: 47.
Gamburd, Michele Ruth. 2000. The Kitchen Spoon's Handle: Transnationalism and Sri Lanka's Migrant Housemaids. Ithaca: Cornell University Press.
Gatmaytan, Dan. 1997. "Death and the Maid: Work, Violence, and the Filipina in the International Labor Market." Harvard Women's Law Journal 20: 229-262.
Goonesekere, Savitri. 1994. "Worker Protection and Labour Legislation with Special Reference to Foreign Domestic Workers," Noeleen Heyzer, Geertje Lycklama à Nijeholt and Nedra Weerakoon, eds., The Trade in Domestic Workers: Causes, Mechanisms and Consequences of International Migration. Kuala Lampur: Asian and Pacific Development Centre.
Guest, Philip. 1999. "Mobility Transitions within a Global System: Migration in the ESCAP Region. Asia-Pacific Population Journal 14: 57-72.
Heyzer, Noeleen. 1994 "Introduction," in Noeleen Heyzer, Geertje Lycklama à Nijeholt and Nedra Weerakoon, eds., The Trade in Domestic Workers: Causes, Mechanisms and Consequences of International Migration. Kuala Lampur: Asian and Pacific Development Centre.
Heyzer, Noeleen. and Vivienne Wee. 1994. "Domestic Workers in Transient Overseas Employment: Who Benefits, Who Profits?" in Noeleen Heyzer, Geertje Lycklama à Nijeholt and Nedra Weerakoon, eds., The Trade in Domestic Workers: Causes, Mechanisms and Consequences of International Migration. Kuala Lampur: Asian and Pacific Development Centre.
Hondagneu-Sotelo, Pierrette. 1997. "Affluent Players in the Informal Economy: Employers of Paid Domestic Workers." International Journal of Sociology and Social Policy 17: 130-157.
Hugo, Graeme. 1992. "Women on the Move: Changing Patterns of Population Movement of Women in Indonesia," in Sylvia Chant, ed., Gender and Migration in Developing Countries. London and New York: Belhaven.
Human Rights Watch Report. August 1992. "Punishing the Victim: Rape and Mistreatment of Asian Maids in Kuwait."
Human Rights Watch Global Report, 2002.
Humphrey, Michael. 1991. "Asian Women Workers in the Middle East: Domestic Servants in Jordan." Asian Migrant 4: 53-60.
International Organization for Migration. 1999. International Migration Policies and Programmes. Geneva: United Nations.
Ismail, Munira. 1999. "Maids in Space: Gendered Domestic Labour from Sri Lanka to the Middle East," in Momsen, Janet Henshall, ed. Gender, Migration and Domestic Service. London and New York: Routledge.
Momsen, Janet Henshall, ed. 1999. Gender, Migration and Domestic Service. London and New York: Routledge.
Al-Najjar, Sabika. 1992. "Foreign Women Domestic Helpers in Bahrain," Country Study for the APDC Research Project on The Trade in Domestic Workers: Causes, Mechanism and Consequences of International Migration. Kuala Lampur: Asian and Pacific Development Centre.
Philippines Bureau of Labor and Employment Statistics. 2002. "Men and Women in Local and Overseas Employment." LABSTAT Updates Vol. 6 No. 10.
Philippine Overseas Employment Administration: www.poea.gov.ph
Rubin, Gayle. 1975. "The Traffic in Women: Notes on the 'Political Economy' of Sex," in Rayna Reiter, ed., Toward an Anthropology of Women. New York: Monthly Review Press.
Russell, Sharon Stanton. 1995. "Policy Dimensions of Female Migration to the Arab Countries of Western Asia," in International Migration Policies and the Status of Female Migrants. Proceedings of the Expert Group Meeting on International Migration Policies and the Status of Female Migrants, San Miniato, Italy, 27-30 March 1991.
Shah, Nasra M. 1995. "Emigration Dynamics from and within South Asia." International Migration Review 32: 559-619.
Shah, Nasra M. and Indu Menon, 1997. "Violence Against Women Migrant Workers: Issues, Data and Partial Solutions." Asian and Pacific Migration Journal 6: 5-29.
Shah, Nasra M., Sulayman S. Al-Qudsi and Makhdoom A. Shah. 1991. "Asian Women Workers in Kuwait." International Migration Review 25: 464-486.
Sri Lanka Bureau of Foreign Employment: www.slbfe.lk
Tyner, James A. 1994. "The Social Construction of Gendered Migration from the Philippines." Asian and Pacific Migration Journal 3: 589-617.
United Nations Secretariat. 1995. "The International Migration of Women: An Overview" and "Report of the Meeting," in International Migration Policies and the Status of Female Migrants. Proceedings of the Expert Group Meeting on International Migration Policies and the Status of Female Migrants, San Miniato, Italy, 27-30 March 1991.
United States Department of Labor, Report on the Worst Forms of Child Labor. 2001.
United States Department of State, Country by Country Human Rights Reports. 2001.
United States Department of State, Trafficking in Persons Report. 2002.
Williams, Rhonda. 1999. "International Slave Traffic in Women and Children: A Comparison of the Institutional Response versus the Feminist Response." re/productions #2.
Yeoh, Brenda S.A., Shirlena Huan, and Joaquin Gonzalez III. 1999. "Migrant Female Domestic Workers: Debating the Economic, Social and Political Impacts." International Migration Review 33: 114-136. |
