Image from Middle East Report, No. 211 "Keeping Migrant Workers in Check: The Kafala System in the Gulf"
According to Gulf Cooperation Council (GCC) data, at the end of 2003:
Workers need labor law protection:
The Kafala sponsorship system in Bahrain means that migrant workers can only enter, work, and leave certain countries with the assistance or explicit permission of their sponsor or employer, who is a local in the country. Domestic workers are legally required to live with their sponsor (employer). Their legal status in Bahrain depends on continued visa sponsorship, thus creating a situation where many domestic workers who suffer abuse do not make complaints out of fear of losing their jobs an their visa status. Because of the domain in which they work - households – domestic workers also do not fall under national labor laws. Their work is not legally recognized and they are not legally classified as workers. Because of this status, they are unable to exercise the rights and freedoms afforded to workers and it is difficult to scrutinize and regulate their working and living conditions.
HOWEVER - there may be some good news:
A comprehensive labor agreement that aims to protect the welfare of Indian workers and housemaids will be signed between Bahrain and India in December 2008. Overseas Indian Affairs Minister Vayalar Ravi will authorize the deal with Labor Minister Dr Majeed Al Alawi during a visit to Bahrain on December 4, 2008. They signed an initial Memorandum of Understanding (MoU) in Kumarakom, Kerala in April, 2008.
"It will have special clauses to protect housemaids who are not covered by labour laws in the Gulf, including Bahrain." Mr Ravi told at a Press conference at the Sheraton Hotel.
Key Question: Does Bahrain agree that by signing this MoU, they are creating a legally biding agreement? Memorandums of Understanding enumerate the commitments to which the parties have consented. Arguably, they create rights and obligations in international law for the parties.
Does Bahrain consider that by signing this MoU they are committing Bahrain to a legally binding agreement to give labor law protection to migrant domestic workers?
Or is this a mere political agreement between two states with little practical effect for workers?
To help me find an answer, I read the about a dispute over the legal effect of an 'agreement' signed between Bahrain and Qatar that went before the International Court of Justice for judgment. In testimony in 1992 before the International Court of Justice, the Foreign Minister of Bahrain said "at no time did I consider that in signing the Minutes I was committing Bahrain to a legally binding agreement".
He went on to say that, according to the Constitution of Bahrain, "treaties 'concerning the territory of the State' can come into effect only after their positive enactment as a law". He was prepared to subscribe to a statement recording a political understanding, but not to sign a legally binding agreement.
So - how should advocates, workers and international organizations look at this MoU between Bahrain and India? Is this MoU and other MoUs between states mere political statements? Are workers empowered with legal and labor rights, or is this merely a public relations agreement that creates no rights, obligations, or remedies for workers who are unpaid, abused, dismissed, or otherwise exploited in Bahrain?