DOMESTIC WORKERS IN SAUDI ARABIA AND THE EMIRATESTITLE PAPER

Antoinette Vlieger

Amsterdam Law School Legal Studies Research Paper No. 2011-32 General Subserie Research Paper No. 2011-05

Electronic copy available at: http://ssrn.com/abstract=1933749

DomesticWorkersinSaudiArabiaandtheEmirates: TraffickingVictims? ABSTRACT This article responds to Jureidinis article Trafficking and Contract Migrant Workers in the Middle East published in International Migration. Jureidini discusses the difficulty of establishing whether migrant domestic workers are victims of trafficking. He discusses the questions (i) if trafficking can be determined ex post or must it also be ex ante and (ii) if there must be a proven intent to trafficking. On the basis of data concerning domestic workers in Saudi Arabia and the Emirates, I argue that they often are victims of trafficking. In these two countries, forced confinement and exploitation do not concern individual cases butstandard labour conditions. Agents in the countries of origin regularly misinform or even deceive domestic workers, while agents in the countries of destination actively stimulate confinement and exploitation. The lack of prosecutionoftraffickersfurthermoreisnotcausedbylegalobscurities,butbysocietal issues.Thearticleconcludeswithsomepolicysuggestionstobetteraddresstheissueof trafficking. INTRODUCTION In this paper, the question is raised of whether domestic workers in the Gulf should be regarded as victims of trafficking. Jureidini writes in his article Trafficking and contract Migrant Workers in the Middle East published in International Migration (Jureidini, 2010), that while conditions of employment of domestic workers may be exploitative and while agentsmayhavedeceived,misledorfailedtowarnprospectiveworkersoftheseconditions, it is not a simple matter to prosecute them for trafficking. If the agents in the country of origin do not know whether the individual domestic worker will be exploited or not, can traffickingbeestablishedexpostfacto?Iftheagentisunawareofthefutureexploitationby the individual employer, then no intent to trafficking can be proven against the agent in the country of origin. In this article the proposition is defended that domestic workers at least in Saudi Arabia and the Emirates, and specifically those from Indonesia and the Philippines generally are victims of trafficking. Exploitation and forced labour are so widespread that they should be considered standard labour conditions, not exceptions. The agents in the countries of origin fail to properly inform prospect workers that such is the case and therefore regularly deceive workers. The agents of the employers in the countries of destination actively stimulate exploitation, confinement and neglect of agreed upon work conditions. This research was conducted using grounded theory methods. These methods consist of systematic yet flexible guidelines for collecting and analysing data to construct theories grounded in the data themselves (Charmaz, 2006, p. 23). The data upon which this article
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Electronic copy available at: http://ssrn.com/abstract=1933749

are based were collected in a larger study on the factors that influence the (emergence and character of) conflicts1 in the Kingdom of Saudi Arabia and the United Arab Emirates between domestic workers and their employers, the norms2 both parties (may) refer to and the related (im)balance of power.3 That study showed that the labour agents play an important role in the occurrence of conflicts. A combination of qualitative and quantitative methods was applied during extensive fieldwork throughout 2008 and 2009 in Saudi Arabia and the Emirates and also in two countries of origin for many domestic workers, the Philippines and Indonesia.4 The data were gathered from the following sources: (1) One hundredsixty5 questionnaires were completed by domestic workers in Manila and Jakarta who were about to leave for employment in Saudi Arabia or the Emirates and who were contacted at different predeparture orientation courses. As these courses are governmentally prescribed, the results of these questionnaires are fairly representative of Filipina and Indonesian domestic workers, although less representative of domestic workers ofothernationalities;(2)onehundred6questionnaireswerecompletedbydomesticworkers who had been employed in Saudi Arabia and the Emirates and who were contacted (i) at their Embassies in Saudi Arabia, (ii) at the airport upon their return to Manila and Jakarta, (iii)atgovernmentorNGOrunsafehousesinDubai,ManilaandJakarta,(iv)inofficeswhere domestic workers arrange for their paperwork upon contract renewal and (v) in the houses oftheiremployers.Thesequestionnairesarelessrepresentativeasthereisnoknowledgeof the number of Filipina and Indonesian domestic workers who finish or renew their contract versus the number of runaways. (3) semistructured interviews with 73 domestic workers, 33 employers (on the subject of domestic workers), 15 Saudi and Emirati women (on the legalsystem),32governmentofficials,9lawyers,6personsfrominternationalgovernmental organizations, 17 persons from nongovernmental organizations, 26 diplomats (at their Embassies), 11 lowerstrata male migrant workers, 7 agency owners, 2 Saudi experts on domestic violence, 4 nurses and 3 judges; (4) the study of individual and standard labour contracts;(5)attendanceatseveralpredepartureorientationcoursesinManilaandJakarta; (6) informants who were sent into fifteen agencies in Manila and Jakarta and phone calls to four more agencies that were made to gather information that is usually given to prospective domestic workers;7 (7) visits by the researcher to thirteen agencies in Saudi Arabia and the Emirates where she presented herself as one in search of a domestic worker soshecouldacquireinformationthatisusuallygiventoprospectiveemployers. Most people involved in this research were aware of the fact that they were being interviewed,exceptfortheagenciesthatwerevisitedandtheagentswhowereinterviewed in both the countries of origin and destination. The agents were never informed before or after being researched (except for one, see below). Although some would deem this unethical,thereisscientificvalueindoingwhatisnecessarytouncoverthetruth.Thesetwo values sometimes collide in the same way that legal principles do. In such instances, lines must be drawn and choices must be made as to which value receives preference in which case. In light of the different sources pointing to malevolent agents as an important factor
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Electronic copy available at: http://ssrn.com/abstract=1933749

influencing conflicts, and in light of the aim of the research and the plight of domestic workers, it was deemed unethical not to find out what sort of information agents actually give out to both employers and domestic workers. Because both parties, when interviewed, were not very clear on the information provided to them, the visits were considered to be a useful tool for gathering data. Only one agent had been informed that he had been researched. His response was a polite but clear death threat. After this, no other agent had beeninformed. Of course the scientific demands for this type of research require details on the interviewees, the days and locations of the interviews, or (at least) a numbering of interviewees to make crossreferencing possible and to provide a minimum level of verifiability. However, due to security issues, the threat of deportation or closure of shelters and the possibility of lesser sanctions such as physical abuse and financial sanctions, all interviewees were promised anonymity. Furthermore, there is good reason to believe that the Saudi and Emirati secret services monitored this research activity and may have even accessed relevant computer files. Therefore, as a precaution, all identifying information has beenentirelyremovedfromthisarticletoprotectthesafetyofallindividualsinvolved. Humantrafficking The phrase human trafficking makes most people think of women forced into prostitution. However, in the Palermo Protocol, the supplement to the UN convention against transnational organized crime, the definition is much broader. Trafficking in persons is describedasfollows: (a)The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexualexploitation, forced labouror services,slavery or practicessimilartoslavery,servitudeortheremovaloforgans.8 ItisimportanttonotethataccordingtothedefinitionofthePalermoProtocol,legalworkers as well as illegal workers can be victims of trafficking. Trafficking concerns acts for the purpose of exploitation. Section 2 therefore discusses the statement that exploitation is in SaudiArabiaandtheEmiratesthegeneralmarketconditioninthatforcedconfinementand excessive hours are not exceptions, but the rule. Trafficking concerns acts committed by means of fraud or deception. Section 3 therefore addresses the issue of lack of information and deceit by agents in the countries of origin. Section 4 discusses the stimulation of
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exploitation, confinement and neglect of agreed upon conditions by the agents in the countries of destination. Section 5 digs deeper into the questions raised by Jureidini regarding whether trafficking can be established only ex post and only upon proven intent. Section 6 discusses the nonlegal reasons why the Palermo Protocol is usually not implemented.Section7finallypresentsseveralpolicyrecommendations. EXPLOITATION ThePalermoProtocolstatesthatworkersarevictimsoftraffickingifrecruitedortransferred for the purpose of exploitation, which includes, among other things, forced labour and practices similar to slavery. Many domestic workers in both Saudi Arabia and the Emirates should be considered victims of trafficking because forced labour and practices similar to slaveryare,unfortunately,thegeneralmarketconditionsandnotmerelyexceptions. Forcedconfinement Mostdomesticworkersarenotallowedtoleavetheiremployershouseholdfortheduration of their two year contract either not on their own or not at all, even if they havea conflict with their employer. This changes their labour status to forced labour. Both Emirati and Saudiinterviewees(employersandgovernmentofficials)disagreewiththisview,statingthat it is customary that domestic workers are required to stay in the house. Furthermore, they say, domestic workers who agree to be employed in their countries are fully aware of this custom;therefore,itisnotforcedconfinementorforcedlabour.Theresultsofthis research indicatedifferently. [Table1here] [Table2here] Thesetablesshowthatwithinthesamplesofdomesticworkerspreparingtoleaveforeither Saudi Arabia or the Emirates, a substantial percentage of especially Filipina domestic workers,wasnotawareofthecustomprohibitingdomesticworkersfromleavingthehouse. Furthermore,itisnotsomethingallofthemeasilyaccept. Although most Indonesians are aware of this condition, the research into the agencies (next section) shows that in general it is not the agents who inform them about it. Interviews showed that this knowledge comes generally from friends and family members who had been employed in the Gulf before. Nevertheless, even if domestic workers are aware of the conditionthattheycannotleavethepremisesatall,itremainsproblematic.Theimportance of the right to leave the employers house becomes clear from interviews with domestic workers who ran away from their employers because of conflicts. As one explained, And then one time he raped me. Immediately after this, I ran off. I took a taxi to the embassy. I
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could not get out first. He kept me locked in the house. However, there was a hammer, so I smashed a window and I ran. Another interviewee said, The doors were locked all the time.Ihadtojumpoutthewindow,butitwasveryhigh.SoIyellatthismaninthestreet,so heputsomeoldtiresunderthewindowsoIwouldjumpandhecatchme. The situation of forced labour is reinforced by the fact that most employers confiscate the passport of the domestic worker. All employers who were interviewed kept the papers of their domestic workers. Only one of them kept them in a place where the domestic worker could also easily reach them. Most reasoned that it was safer this way, but one wonders for whom. No one ever mentioned passports being stolen or lost. Some of the interviewed domesticworkersdidnotmindtheiremployerskeepingtheiridentitypapers.Theygavethe same answer on the questionnaires as the employers: It is safe this way. However, a majority of the interviewed domestic workers reported being upset about it: They say they will not give me my Iqama9 if I do not give them my passport. However, it just feels so wrong. It feels like they take not only my papers, but also part of my identity and certainly my freedom! Likewise, a representative from an NGO stated at a conference in the Emirates: Passports and papers are basic rights, a basic dignity; we cannot take that away whenaworkercrossesaborder. However, this issue is not primarily a matter of emotions. In both the Emirates and in Saudi Arabia, anyone walking the streets without a passport or Iqama risks being stopped by the policetobedeported.AsanintervieweddomesticworkerintheEmiratesexplained:When we were in the Agency, they gave us a copy of the contract, but now the employers took it along with our passport. They do not even let us have the labour card! So when the police catchushere,ah!Especiallynow,theybecomereallystrict,youknow.Ifyoudonothavethe labour card, they will bring you to the police station. Therefore, without papers, domestic workerscannotleavethehouse. According to interviewed government officials, employers in both Saudi Arabia10 and the Emirates11 are currently not allowed to retain identity papers, although no law has been found that confirms this. Even if the rules forbidding confiscation of passports actually exist, they have no effect as very few employers or government officials know about them. Even members of the Commission for Human Rights in Riyadh did not know about this law, nor didanyintervieweddiplomat.Domesticworkersdonotknowaboutthelaweither. WhentheDeputyMinisterofLabourofSaudiArabiawasaskedwhyallemployersretainthe passports of their nonWestern employees, he answered that the problem is that the workers know nothing about their rights. He said it is the duty of the governments of the countriesoforigintoeducatethemupondeparturetotheMiddleEast.Whentoldthatnone oftheemployersinterviewedforthisresearchknewabouttheruleeither,heanswered:Its not our responsibility to make sure that they know. In the Emirates, this situation is only
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slightlybetter;thereissomegovernmentalcommunicationabouttheretentionofpassports, butitisratherlimited. A third issue which contributes to the position of forced confinement, is the kefala or the sponsorshipsystem;thevisaregulationsinbothcountries,whichtiethelegalpositionofthe domesticworkertoheremployer.Thesystemdoesnotallowforeignworkerstomovefrom one employer to another without the approval of the employer/sponsor. The main difficulty for the domestic worker is the rule that as soon as the labour contract is no longer in place (for whatever reason), the visa automatically becomes invalid and the worker has to leave the country instantly. If labour laws do not offer sufficient protection against arbitrary dismissal or if labour laws do not apply (as is the case with the domestic workers), these regulations give immense power to the employer, who can have his workers deported at will. 12 Moreover, the worker can only leave the country with the employers signature. The most peculiar aspect of the sponsorship system is the fact that in both countries, the employer/sponsor is responsible for the renewal of visas and work permits for his employees. If he fails to do so, this makes the worker illegal. In other words, the employer has full power over the matter of whether the status of his domestic workers residency in the host country is, and remains, legal. A domestic worker cannot renew her own papers, evenifshecouldaffordto(Anthias,2000). The combination of forced confinement (including locked doors), confiscation of passports and visa regulations that force the domestic worker to choose between continuation of her job or deportation, often results in a situation that should be labelled as forced labour. Forced labour constitutes exploitation. The second reason why many domestic workers should be considered victims of exploitation is the fact that most workers are on call 24 hours per day. Their work days average around 17 hours and they do not have days off for the duration of their two year contract. Furtheraspects of domestic workers situations that are usually considered to be exploitative are physical and psychological abuse. As Jureidini states, in Lebanon 52% of domestic workers reported being yelled at. No matter how horrible this is, the issue will not be addressed in this article because although this seems to be common practice in both Saudi Arabia and the Emirates, it is not a general market condition,whilethefactthatdomesticworkershavetobeoncall24/7is. Exploitationorculture? Confinement and excessive work hours are so widespread that exploitation should be regarded as the general market condition. Jureidini carefully poses the following question: Is the treatment of domestic workers by employers (that includes long exploitative hours, low pay, restrictions of freedom and abusive behaviour) so accepted in some countries that neither trafficking, nor criminal intent is present, but rather a cultural norm? (Jureidini, 2010, p. 157). He asks, in other words, whether domestic workers situation can be considered exploitation and therefore trafficking, if it is culture. For a long time,
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international law was also considered, in the West, to have a rightsoriented framework belonging to the public, and not the private sphere (Romany, 1993, p. 87). Only recently has domestic violence been reframed as a human rights issue, based on the fact that victims of domestic violence are primarily women and that therefore punishment only of violence committed in the public sphere would constitute discrimination. In other words, if men are primarily victims of violence in the public sphere and women are primarily victims of violence in the private sphere, then limiting protection of individuals to the public sphere constitutes discrimination. In that same line of reasoning, a lack of protection of workers in the private sphere mainly women constitutes discrimination by both the state and the internationalcommunity,andthereforequalifiesasahumanrightsbreach.Culturaldefence, inthesamewaythatitcannolongerbeusedagainstoppressionofwomen,cannotbeused anymoretodefendexploitationortraffickingofdomesticworkers. BYMEANSOFFRAUDORDECEPTION Domestic workers are victims of trafficking if they are recruited or transferred for exploitation (which is the general labour condition) by means of fraud or deception. The data of this research show that domestic workers are often misinformed or deceived about the most important work conditions. As described in the previous section, a large share of Filipina domestic workers in particular, are not aware of the fact that for two years, most domesticworkersarenotallowedtoleavethehouseoftheiremployer(notunaccompanied by the employer or not at all). Secondly, many domestic workers are deceived or misinformed about their salary. According to interviewed diplomats, most conflicts with domesticworkersconcernsalary.Manydomesticworkersdonotknowtheirexpectedsalary when theydecide to go to the Middle East. They haveeither been promised bigmoney or they have heard vague success stories. The usual rate in Saudi Arabia and the Emirates for both Filipina and Indonesian domestic workers is around US$200 per month (other nationalities usually earn less than this). The questionnaires from domestic workers departingfromManilaandJakartashowedthefollowingresults: [Table3here] About onefourth of the Filipina women and onefifth of the Indonesians did not know what their salary would be due to the absence of even an oral agreement on the subject. Even if an oral agreement did exist, many would not receive the agreedupon amount. Although some experienced Filipina workers returning to the same employer may earn more than US$210 per month, they are far fewer in number than the 36% that have been promised that much. This is a problematic situation for the employer as well: When I worked in Riyadh, I had a domestic worker who was very well educated. She had been told that she

was going to earn $750 per month. Of course, I didnt have that kind of money. I paid her a lotless;IpaidherwhatIhadagreedto,buttheresultwasaveryunsatisfiedworker. Related to the issue of salary, is the question of who pays the transaction costs. Most middlemen and some agents ask for a placement fee, usually to be paid in cash. Sometimes asalarydeductionisagreeduponinsteadofaplacementfee.Veryoften,however,thereare furtherdeductionstowhichthedomesticworkerdidnotagree.Thisusuallyamountstotwo or three months worth of salary. The employer is told by the agency that he does not have to pay any salary for the first months. If he pays her at the end of the third or fourth month what he thinks is due, this regularly leads to conflicts (as in the earlier example). After three months though, the probationary period has expired and the employer cannot return the domestic workers to the agency anymore to get a worker who has not been lied to. Neither canheget(partof)hisfeesback.Therefore,bytellingtheemployerthatthefirstmonthsdo not have to be paid, the agencies in the countries of destination prevent their own involvementinsalaryconflictsthattheythemselveshavecaused. Daysandhours Two other issues leading to frequent conflicts are weekly days off and the number of working hours per day.Contracts regularly state that therewill be weekly days off,although hardlyanydomesticworkersactuallyreceivethese.Mostcontractsdonotstatethenumber of hours to be worked per day, but some contracts state a maximum of eight to twelve hours. The average number of working hours stated by the interviewed domestic workers wasseventeenhoursperday,anumberinagreementwithresearchresultsfromtheILOand HRW. Several domestic workers who had run away stated that they had decided to do so simplybecausetheywereexhausted.Accordingtodiplomats,thisisalsowhythenumberof runaways in their shelters doubles during Ramadan; many domestic workers are not given timeforsufficientsleepduringthismonth. Most domestic workers in the Middle East work seven days per week, despite the following agreements: [Table4here] The above data stem from questionnaires. Because it was unclear to what extent agents would have provided proper information if the right questions had been posed, several agencies were researched. In Manila, the ten researched agencies were partly Filipino and partly Arabic. The answers given were very inconsistent (in contrast to the answers given in Jakarta). Three agencies said that they no longer sent women to the Middle East because of the danger of imprisonment or because of the many salary conflicts. From the remaining seven agencies, five did not allow the informant to see the contract. One agency provided
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two different contracts and required both to be signed. These contracts stated different salaries,whileonegavefreedaysandtheotherdidnot.Twoagenciesstatedthatsalaryand days off depended on the employer. The domestic worker was required to sign a contract first, after which she would be informed of the conditions. Six agencies said nothing about workers not being allowed to leave the house or not having any days off. The salary offered was generally around $200, but one agency offered $400. Six agencies refused to answer certainquestionsposedbytheinformant. In Jakarta, the responses from the eight researched agencies were consistent, and all of the agents were Indonesian. None of the agencies allowed the informant to read the contract before deciding whether she wanted to sign. No information was volunteered about days off, but in response to questions on this subject, half of the recruiters replied that there would be no days off and half replied that it depended on the individual employer. The information that most domestic workers are not allowed to leave the house was not voluntarily provided. In response to this question, agents replied that it depended on the employer or that there would be nowhere to visit anyway. All of the agencies in Jakarta offeredasalaryofaround$200.Mostagenciessaidtheywoulddecidetowhichcountrythe domesticworkerwouldbesent. To summarize, neither the agents in Manila nor the agents in Jakarta were very generous in providing information during the recruitment process. Some of the information they had givenwasincorrect,suchasthesalaryof$400 permonth.Otherimportantinformationwas simply not provided, such as what the work exactly entails, how many days or hours per weekthedomesticworkerisexpectedtowork,andthefactthatmostdomesticworkersare not allowed to leave the house. Many agencies do not allow domestic workers to read the contract or do not provide a contract. The recruiters are therefore not properly informing domesticworkersaboutthelabourconditionsintheMiddleEast. Contractssignedbydomesticworkers To address this lack of information, both the Philippine and Indonesian governments prescribe that domestic workers must have a contract which clearly states their rights and duties.Thequestionnaireshereonshowedthefollowing: [Table5here] Having a contract, however, is not the same as having signed a contract, or having read and understoodacontract.Severaldomesticworkerswhowereinterviewedupontheirreturnto Asia made statements such as, There was a contract, but the signature wasnt mine. One domestic worker explained that her agent had signed both her false passport and her contract. Furthermore, many of the interviewed domestic workers made statements like, Theymademesignallthesepapers,Idontknowwhat.
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Another problem is that many agencies in the countries of destination switch the contracts upontheworkersarrivalintheMiddleEast,aprocedurethatiscalledcontractsubstitution. The new contracts contain clauses stating: Agreed and signed by both parties without interference or pressure from any party. Interviewees from the embassies in both Saudi ArabiaandtheEmiratesstatedthatcontractsubstitutiontakesplaceonalargescale:When
theyarrivehere,theyarepressuredtosignanothercontractandthenthatistheonethatcounts,so ourcontractsareneverapplied.Itishardforthemtosaynoandalsomanyofthemaretootrusting; theythinktheagentsknowwhattheyaredoingortheyjustdontwanttogoback,becausetheywill bediscredited.

The Emirati government has written a standard contract that is enforced through the Naturalization and Residency Department. Here, papers are only processed if the Emirati standard contract has been signed by the employer. Neither the Saudi government nor the Emirati government recognizes the conditions offered to workers predeparture. In the Emirates, therefore, it is actually the government that practices contract substitution. Becausesomecountriesoforiginalsohavestandardcontracts,somedomesticworkershave threeorfourdifferentcontracts. To summarize, domestic workers in Manila and Jakarta do not receive information on many aspectsoftheirfuturejobofwhichtheyshouldbeaware.Theyareregularlydeceivedabout important work conditions such as their salary and their work schedule, and written contractsdonotresolvetheissue. DECEPTION&STIMULATIONOFEXPLOITATION In both Saudi Arabia and theEmirates, severalagencies have beenresearched to learn what theagentstellprospectemployersaboutworkingconditions. In the Emirati agencies, the salary that employers were requested to pay for Indonesian or Filipina domestic workers was approximately $200 each month, never the $400 that the Filipino government demands in its standard contract. None of the six agencies reported to theemployerthatmanydomesticworkerssignacontractbeforedeparture;instead,theyall stated that the workers sign a contract upon arrival in the Middle East. None of the agents allowedpotentialemployerstoreadthatcontractbeforeclosingadeal.Theysaiditwasnot important and that all an employer needed to know was that the domestic worker would stay for two years, the amount of the salary and the fact that there were no days off or maximumworkinghours. At all of the agencies, persistence was needed to receive information on further costs. Sometimesmedicalexamsandvisaswereincludedinthefeeandsometimestheywerenot. The fee always included a oneway ticket for the domestic worker, and the employer was
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requiredtopaythereturnticket,butnoagencyvoluntarilyofferedthatinformation.Thefee tobepaidtotheagencyturnedouttobenonrefundable,butifanemployerwasunsatisfied with the worker, he could exchange her for another within the first three months. Other remarks the agents made included, Dont allow her to go outside on her own. Dont allow hertohaveamobilephone.Anditisnotallowedforhertotalktotheneighbourhousewife ortheneighbourmaid.Thatisthelawhere. In Saudi Arabia, eight agencies were researched in the capital city of Riyadh. Information other than the monthly salary was, as in the Emirates, not volunteered. The financial arrangementswereverymuchthesameasintheEmirates:ahighnonreturnablefeetothe agency and the employers responsibility for the return ticket and (officially) for medical expenses. Several agents stated that salary would not have to be paid for the first two months, either because the domestic worker had already received this money or because this was her contribution to the ticket. Some offered a card on which the domestic worker was supposed to put her fingerprint every month as evidence she had received her salary. Others suggested not paying her at all until the day she was to return home. One agent advised not taking a Filipina because they all want to know exactly what hours they have to work:YoubettertakeanIndonesian. Half of the Saudi agencies said that domestic workers did not sign a contract before leaving their home countries. The other half said that workers did sign contracts, but that this contract was disregarded in Saudi Arabia. One agent stated: She works all the time, every day. You pick her up from the airport and then you put her in the house and lock the door, and after two years you open the door again. Another said: That is there and this is Saudi Arabia and here we have our own rules, and the rules are that she has no rights. I am sorry tosayit,butwhenshecomestoyourhouse,sheisyourslave.Thereisnoneedforcontracts because they mean nothing. Although domestic workers are not covered by the Saudi labour law,13 one agent stated: Well, there is the labour law, but we dont use that in practice.Idontknowwhatitsays,butitisnotimportantreally.Nobodylooksatthelabour law. Insummary,theagenciesinthecountriesofdestinationprovideincorrectinformationtothe employers. Most worrisome is the denial that the domestic worker has signed a pre departure contract. Often, employers are not even allowed to read the substitute contract. Moreover, agencies actively encourage employers to restrict domestic workers rights and freedoms and as such actively stimulate exploitation and forced labour. Even worse, according to Human Rights Watch (HRW) and other sources, an alarmingly high number of domestic workers claim to have been victimized or threatened with violence by agents (Human Rights Watch 2007). We must conclude, therefore, that the acts of the agencies, in particular, contain all of the different elements of the legal definition of human trafficking.

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Contrary to statements from interviewees in the Emirati and the Saudi governments, this concernsagenciesinboththecountriesoforiginandthedestinationcountries. EXPOST,INTENTANDTHEDELPHIINDICATORS Jureidiniposesthequestionofwhethertraffickingcanonlybedeterminedexpostoralsoex ante. This question becomes obsolete when one switches the focus from individual cases toward the fact that exploitation of domestic workers in Saudi Arabia and the Emirates are therule,nottheexception.Forcedconfinement(resultingfromcloseddoors,confiscationof passports and the visa regulations), excessive long hours and the lack of resting time are general labour conditions. Although proper treatment does occasionally occur, that is, unfortunately, the exception. The agents in the countries of origin do not know the individualemployersanditisfarmorelikelythatthedomesticworkerwillbeexploitedthan the chance that she will not be. Therefore, domestic workers should be properly informed, butthisiscurrentlynothappening.Tothecontrary,theyareoftendeceived. The second question Jureidini poses is the question of whether intent towards exploitation must be proven. Because the poor work conditions in both Saudi Arabia and the Emirates are general knowledge, the question of intent on behalf of the agents in laboursending countries is answered as soon as they do not properly inform domestic workers. Furthermore, because the data of the research show that many of the agencies actively deceive domestic workers either by withholding requested information or by actively providingfalseinformation,thereisintent.Thisalsoappliestotheagentsinthecountriesof destination, who actively stimulate forced confinement, exploitative labour conditions and neglect of the contractual stipulations. But the question remains to what extent proven intent towards exploitation is actually necessary; the Palermo Protocol Definition does not demand such and it is therefore more likely that intent towards the acts of recruitment, transportation,harbouringorreceiptofpersonsissufficient. A new tool to help determine whether individuals are victims of trafficking and which supports the statement that they often are is called the Delphi Indicators.14 As the ILO states, without clear operational indicators there is a risk that researchers and practitioners might not recognize trafficking when they see it or might see trafficking where it does not exist.15 Due to uncertainty about the meaning of terms such as coercion, deception, fraud, abuse of power or of a position of vulnerability, control over another person and exploitation, there was a risk that without further clarification, interpretations of these terms could diverge widely between and within countries and researchers. The ILO states that somebody is a victim of trafficking if two strong indicators apply: one strong and one medium indicator, or three medium indicators (weak indicators are disregarded for this

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article).DelphiindicatorssupportthestatementstatmanydomesticworkersinSaudiArabia andtheEmiratesarevictimsoftrafficking,basedonthefollowingindicators: Strongindicators: Deceptionaboutthenatureofthejob,locationoremployer Excessiveworkingdaysorhours Confiscationofdocuments Isolation,confinement,orsurveillance Violenceagainstvictims

Mediumindicators: Deceptionaboutworkingconditions Deceptionaboutwages/earnings Poorlivingconditions Norespectforlabourlawsorcontractssigned Nosocialprotection(contract,socialinsurance,etc.) Withholdingofwages Dependenceonexploiters Difficultylivinginanunfamiliararea Relationshipwithauthorities/legalstatus

It is noteworthy that the Delphi Indicators do not specifically demand for intentional exploitation; simply the intentional recruitment, transportation, transfer or harbouring seems to be enough. The indicators do not request for a conspiracy towards exploitation either, nor do they make an exception for exploitation that could be considered a cultural phenomenon. The indicators do acknowledge several factors in the Emirates and Saudi Arabia that add to the status of trafficking victims. The indicators state that the confiscation of documents is problematic, while most employers confiscate the passports of their domestic workers (in cooperation with the authorities). Also, the relationship with the authorities and legal status are deemed an indicator, while both in Saudi Arabia and the Emirates,basedonthevisaregulations,thedomesticworkerisdeemedtobeacriminaland subjecttodeportationthemomentsheabsconds,regardlessofwhysheleft. SOCIETALOBSTRUCTIONSTOIMPLEMENTATIONOFTHEPALERMOPROTOCOL Jureidinistatesthatbecausetraffickingisdifficulttoassess,theuseofcivilandcriminallaws to address exploitation and abuses may be more appropriate legal means for prosecution and redress than trafficking regulations (Jureidini, 2010, p. 147). The lack of prosecution, however, is not caused by a lack of clarity of legal concepts, but by certain societal issues: there are currently several obstructions to the implementation of the UNs Palermo Protocol. Foremost among these is the fact that the human trafficking business is estimated
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to be about as large as both the illegal arms trade and the drug trade combined16 (Heyzer, 1994, p. 56). This kind of money can buy a lot. In all four countries visited for this study (Saudi Arabia, the Emirates, the Philippines, and Indonesia), interviewees stated that a legal case or action against a rich and powerful man cannot be won. Although some government action, such as the Philippines Act on joint liability of agents and middlemen, has made attempts, interviewees claim that this Act has not led to significant results. Sometimes an agencys license will be temporarily suspended, after which the suspension is either cancelled or the agent concerned simply starts a new agency under a different name. Governmentofficialsaresaidtobebribedregularlyorareconnectedtotheagentsbyfamily ties.Possiblepenaltiescanbechangedintofineslowenoughnottodeteranyone. Another obstacle to prosecution of traffickers, is the fact that governments of labour sending countries are more concerned with employment and with remittances, which constitute a very large portion of their GNP.17 The IMF and the World Bank apparently use remittanceflowsintheircalculationsofsustainableloans,andcreditratingagenciessuchas Moodys, Standard and Poors, and Fitch do the same for their decisions on certain bond ratings.18 The governments of laboursending countries do not want these remittances to diminishandthereforedonotmakeastrongstandfortheiroverseasworkers. Muslim countries like Indonesia struggle with an additional problem: if they complain excessively about the treatment of their workers, they might not continue to be provided with visas for visiting Mecca.19 This is a very effective threat to the government of the country with the largest Muslim population in the world. Furthermore, the Indonesian militarydictatorshiponlylostpowerin1998.AspokespersonforanNGOexplained:Thebig agencies, these owners are high in the army; they run the department at the airport where they process the migrant workers. The army and the agencies, they are one. They are also the ones in the government. It is all interconnected. That is why nobody ever goes to jail. AnIndonesiandiplomatcalledtheagentsfromhiscountrymafia,stating:Really,theyare toopowerfulforustodosomethingaboutthem. In the Middle East, many agents have another job within the government that allows them to get papers processed smoothly and to prevent action against their agency. When an EmiratigovernmentofficialwasaskedifitwaspossiblethattheMinistryofLabourwouldset upanInternetsitewiththenamesofgoodandbadagents,helaughedandsaidtheMinistry of Labour and the bad agents are one and the same. In Saudi Arabia, an important leader of theunionofagentsisoneofthetopofficialsoftheMinistryofLabour.Therearealsoagency owners who have a second job in the embassy of their country of origin to process all the paperworkthere.ThisexplainshowwomencanbeluredtoRiyadhassalespeopleonlytobe forced into domestic work upon arrival. The government officers involved are undoubtedly awarethatwomeninSaudiArabiaarenotallowedtoworkinsales.

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Another problem is that domestic workers are a small part of the legitimacy of both governments. Oil revenues are either redistributed among loyal citizens or used to provide luxuriestoappeasethepopulation.Domesticworkersarepartoftheseluxuries.Keepingthe employment of domestic workers unregulated helps to palliate employers and keep both governments popular (enough). The government, thus, pretends that the domestic industry is a private one with which it will not interfere, even while dealing with countries such as Nepal for cheaper workers when the prices of Filipinas rise to the point that the lower class Saudis and Emiratis can no longer afford them. Furthermore, because the state has an independent source of income, the government cannot be forced to properly organize anything, including the legal system. This state model, referred to in political science as the rentier state theory, works mostly to the disadvantage of the lower strata of society, includingdomesticworkers.20 An interesting aspect of trafficking is that the U.S. Department of State, according to its trafficking reports, thinks that the Emirates are doing better in their fight against trafficking than Saudi Arabia, giving them second and third tier rankings, respectively.21 Unfortunately, this research has not provided any evidence that supports that view. Although in December 2006 the Emirates government passed a comprehensive antitrafficking law prohibiting all forms of trafficking (with prescribed penalties ranging from one year to life imprisonment), thegovernmentdidnotprosecuteanycases.AlthoughtheMinistryofLabourimposedsome fines on labour recruiters for fraudulent practices,22 the Ministry of Justice did not pursue criminal prosecutions of those facilitating trafficking. The government also did not produce evidencethatitprosecutedemployersforusingintimidationtoforceemployeestowork. Furthermore,theEmiratesdonotconsiderlabourersforcedintoinvoluntaryservitudetobe trafficking victims if they are over the age of 18 and entered the country voluntarily. Many cases of forced labour are therefore not investigated. There are no formal mechanisms to identify women who are trafficked into domestic servitude, and the Emirates do not offer victimsasylum,residenceorlegalalternativestoimmediatedeportationtosourcecountries. Therefore, the difference between Saudi Arabia and the Emirates with respect to trafficking seemstobebasedsolelyonEmiratimarketingtalent. CONCLUSIONANDRECOMMENDATIONS Under the Palermo Protocol, many domestic workers in Saudi Arabia and the Emirates should be considered victims of trafficking. Neither the countries of origin nor the countries of destination, however, do much to improve their position. At international conferences, the countries of destination state that the agencies in the countries of origin are the problem, whereas the countries of origin state that the agencies and employers in the countries of destination are the problem. As a result, trafficking agencies in all countries
15

continuetheirbusinessalmostuntouched.Withtheamountofmoneyandpoliticalinterests involved, this cannot be expected to change unless measures are taken to make action possibleagainsttheseagenciesbytheinternationalcommunityinneutralcountries. The ILO currently advises countries to set up a national licensing system (Kuptsch, 2006, p. 1). It might be more effective to write an international treaty stating that anyone bringing a worker across borders needs to be internationally licensed by the ILO. This organization could randomly check whether workers receive the conditions promised to them before departure.Ifthisisnotthecase,theagencycouldreceiveawarninganditsactionsmightbe scrutinized more carefully. After two warnings and a misstep, the agency would lose its registration and the owners would be banned from applying for new registration. Anyone bringingaworkeracrossaborderwithoutregistrationshouldbeliableforpunishmentinany country that has ratified the relevant treaty. This way, wellmeaning higher officials can (by ratifyingsuchatreaty)bypasscorruptiblelowerofficialsintheircountry. This strategy makes sense in light of the fact that other international problems, such as international commodity and capital flows, have been solved by empowering international organizations. However, although world migration pressures have increased, the progress towards a multilateral approach in the area of migration management is far slower than in the management of trade and capital (Kuptsch, 2006, p. 44). Of course, setting up such an international licensing system would not be easy. A number of countries would need to ratifythetreatybeforeitcouldhavepropereffect.Inthemeantime,theILOcoulddevelopa hallmark, an international mark of ethical quality, given only to those agencies that do not violatetheILOsbasictreaties.Throughmediacampaigns,employerscouldbestimulatedto do business only with such hallmarked agencies, not only for ethical reasons but also to reducetheriskofhiringunsatisfiedworkers. Another strategy that might work would be to empower those below government level: the individual employer and employee. The employers of domestic workers are also the consumers of agencies. Therefore, an international consumer organization could be established to unite the employers forces against the agencies. This consumer organization could demand agreements between employers and agencies on the condition of the restitutionoffeesiftheworkershavebeentoldlies. Thedomesticworkerscouldbeunitedinaninternationalorganizationaswell.Thishasbeen suggested before, but it is now becoming viable as increasing numbers of domestic workers havemobilephones.Theunioncouldbebasedontelephonetrees,withsmallcontingentsof domesticworkerskeepinganeye(orear)oneachotherandinformingoneanotherofrights and duties. The forthcoming ILO convention or recommendation on the rights of domestic workers23 should include a stipulation that domestic workers worldwide have the right to theuseofamobilephone.
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Because the Internet has no borders, organizations such as the ILO can set up a system in which both employers and employees can rate the agencies with which they have done business. They could provide information about the connections between the agencies in the countries of origin and destination. Joint liability for human trafficking, in the end, is pointless unless information exists on business partners. Of course, because of agencies largefinancialinterestsinprotectingtheirreputations,seriousintellectualinvestmentsmust ensurethatthiswebsitecannotbehacked. Furthermore, the future convention or recommendation on domestic workers should contain rules obligating agents to properly explain work conditions. The convention should request that states parties include in their legal systems the rule that if a worker has been lied to, the judge should apply the contract signed in the country of origin. The employer must be forced to pay the higher salary, after which the employer can collect the same amountfromtheagencywithwhichhehasdonebusiness.Subsequently,theagenciesinthe countriesofdestinationwouldstopdoingbusinesswiththoseagenciesthatlietoworkersin thecountriesoforigin. Media campaigns and websites could make the Saudi and Emirati public familiar with the salaries prescribed by the different countries of origin.24 The ILO could undertake this, althoughtheSaudiandEmiratigovernmentsarepossiblyobligatedtodosobasedonarticle 9 sub 5 of the Palermo Protocol, which states that both governments must take educational measures to discourage trafficking. As alternative to the publication of the salaries prescribedinthecountriesoforigin,theGulfcountriescouldwriteonestandardcontractfor domestic workers for their whole region. This standard contract, containing a minimum wage,shouldthenbewidelypublishedinthecountriesoforigin. Nongovernmental organizations have played an important and recognized role in assisting victims of trafficking and in exposing fraud, graft, and corruption in the responsible administrativebodies.However,becauseSaudiArabiadoesnotallowNGOstobesetupand theEmiratesdosoonlytoaverylimitedextent,thisisnotthecaseinthesetwocountriesof destination. Therefore, the international treaty on the rights of domestic workers should provideforastipulationallowingindividualstosetuptheseNGOsintheinterestofdomestic workers. The UN could play a role in uniting NGOs in a transnational advocacy network. These networks, however, should not organize the international licensing of agencies or the ethicalhallmark,becauseNGOsinpoorercountriesarealsonotfreeofcorruption. Insummary,becausegovernmentscannotbeexpectedtoproactivelyfighthumantrafficking due to the number of lower government officials who are bribed with the profits made in trafficking, other solutions must be found, either below or above government level. I welcomealltocontributetothisdiscussion.

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Notes
Conflicts,forthepurposeofthisresearch,aredefinedasasituationinwhichonepartyobjectstothe behaviorofatleastoneother,inexplicitorimplicitreferencetocertainnormsthat(accordingtothefirst party)arebeingviolated. Norms,forthepurposeofthisresearch,aredefinedaspositive,societyorganizingrules(organizingthe productionanddistributionofgoods,decisionmakingandlegitimization),ornegativerulesforthedisposition andconductofallresponsiblebeings(whichsanctiontrespassing).
3 2 1

Publicationoftheauthor(expected2011).

AlmostfourmonthsintheEmirates,threemonthsinSaudiArabia,fourweeksinManila,andthreeweeksin Jakartain2008and2009. Asnotallrespondentsfilledinallthequestions,inthetables,nislowerthan160andvariesperquestion. AbouthalftherespondentscamefromthePhilippines,theotherhalffromIndonesia.

6 5

Again,asnotallrespondentsfilledinallthequestions,nmaybelowerthan100inthetables.

InManilaaFilipinomale,whopretendedtogatherinformationforhisniece,inJakartaanIndonesianfemale, whopretendedtogatherinformationforherselfandherniece.
8

ProtocolsupplementingtheUnitedNationsConventionagainstTransnationalOrganizedCrime,article3. Residencypermit.

CouncilofMinistersDecisionno166dated12/7/1421H(2000),whichIhavenotbeenabletofindanywhere, althoughIhavesearchedandaskedextensively;itmaybenonexistent.
11

10

ItseemstobewrittensolelyintheLaborLaw,whichdoesnotapplytodomesticworkers. AlKitbiatAbuDhabiDialogue,Jan.2008. Theyareexplicitlyexcludedastheyarenotconsideredtobeworkers,becausetheyworkinthehousehold.

12

13

14

http://www.ilo.org/global/Themes/Forced_Labour/langen/docNameWCMS_105884/index.htm November2010. http://www.childtrafficking.com/Docs/ilo_09_operational_beings_1009.pdfOctober2010. Mr.RichardEvansattheInternationalConferenceonGender,MigrationandDevelopment,September2008.

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16

Seeforinstancehttp://blogs.worldbank.org/eastasiapacific/remittancesandthephilippineseconomythe elephantintheroom,foraWorldBankestimateof10%ofGNPforthePhilippines,November2010.
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17

Are workers remittances relevant for credit rating agencies? Avendao, Gaillard & Nieto Parra At www.oecd.org/dataoecd/13/14/42728791.docNovember2010.

Confirmedbyseveralinterviewees,includinganintervieweeatanofficialhumanrightsorganizationinSaudi Arabia.
20

19

Publicationoftheauthor,chapter9,(expected2011).

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21

http://www.state.gov/g/tip/rls/tiprpt/. Usuallypracticesinbreachofthesponsorshipregulations.

22

Moreinformationontheplanshereon:http://www.ilo.org/actrav/areas/lang en/WCMS_DOC_ATR_ARE_DOM_EN/index.htm. WhileinSaudiArabia,Itriedinvaintogetthisinthenewspaper.Afewmonthslater,Arabnewswrote (25/07/2009)thatsuchprescribedsalariesexistbutdidnotspecifyamounts.

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23

19

References Anthias,F.2000Metaphorsofhome;genderingnewmigrationstoSouthernEuropeIn: F.AnthiasandG.Lazaradis(eds.)GenderandMigrationinSouthernEurope.Womenon theMove(pp.1547).Berg,Oxford. Charmaz,K.2006ConstructingGroundedTheory;APracticalGuidethroughQualitative Analysis.Sage,LosAngeles. HeyzerN.,G.LycklamaNijeholt,andN.Weerakon1994TheTradeinDomestic Workers:Causes,MechanismsandConsequencesofInternationalMigration.ZedBooks Ltd.,London. Hochschild,A.R.2000Theglobalnannychain,TheAmericanProspect,11(4):3236. HumanRightsWatch,2007,Exportedandexposed:abusesagainstSriLankandomestic workersinSaudiArabia,Kuwait,LebanonandtheUnitedArabEmirates,19(16c),USA, NY. Jureidini,R.2010TraffickingandcontractmigrantworkersintheMiddleEast, InternationalMigration.48(4):142163. Kuptsch,C.(Ed.)2006MerchantsofLabor.ILO.,Geneva. Romany, C. 1993 Women as aliens: a feminist critique of the public/private distinction ininternationalhumanrightslaw,HarvardHumanRightsJournalnr6:87125.

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Tables Table1.Knowledgeaboutconfinement (n=145) TheytoldmeIwillnotbeallowedtoleave TheytoldmeIwillprobablynotbeallowedtoleave Theysaidnothingaboutthat TheytoldmeIwillbeallowedtoleave Jakarta 80% 13% 5% 1% Manila 39% 12% 25% 24%

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Table2.Viewonconfinement (n=150) No,itwouldnotupsetme Idonotknow Yes,itwouldupsetme

Jakarta 71% 14% 15%

Manila 38% 24% 38%

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Table3.Verballypromisedsalary (n=156) Dontknow Upto$210 Morethan$210

Jakarta 19% 80% 1%

Manila 28% 36% 36%

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Table4.Verballyagreeduponworkdaysperweek (n=154) Dontknow/noanswer 5or6daysperweek 7daysperweek

Jakarta 33% 24% 43% Manila 50% 27% 23%

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Table5.Contracts

(n=155) Jakarta 91% 89% 73% Manila 77% 70% 58%

Yes,Isignedacontract Yes,IsignedacontractIcouldread Yes,Ireceivedacopyofthecontract

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