Towards Transnational Labor Citizenship:
Restructuring Labor Migration
to Reinforce Workers’ Rights
A Preliminary Report on Emerging Experiments
Jennifer Gordon
Fordham Law School
January 2009
Electronic copy available at: http://ssrn.com/abstract=1348064
GORDON
RESTRUCTURING LABOR MIGRATION
Towards Transnational Labor Citizenship:
Restructuring Labor Migration
to Reinforce Workers’ Rights
A Preliminary Report on Emerging Experiments
Jennifer Gordon
Fordham Law School
January 2009
The author thanks the Ford Foundation for the primary funding for the research
and writing of this report, and also gratefully acknowledges the support of the Dean’s
Office at Fordham Law School and the Chief Justice Earl Warren Institute on Race,
Ethnicity, and Diversity at the University of California-Berkeley Law School.
Electronic copy available at: http://ssrn.com/abstract=1348064
GORDON
RESTRUCTURING LABOR MIGRATION
TOWARDS TRANSNATIONAL LABOR CITIZENSHIP:
RESTRUCTURING LABOR MIGRATION
TO REINFORCE WORKERS’ RIGHTS
A Preliminary Report on Emerging Experiments
Contents
PROLOGUE….…………………………………………………………………………………………………...…....................1
I.
INTRODUCING TRANSNATIONAL LABOR CITIZENSHIP…………….………………………3
A.
Low-Wage Labor Migration in the Context of the
United States……..………………………………………………………………………………………3
B.
A Response: Transnational Labor Citizenship……………….………………..5
C.
Central Principles of Transnational Labor Citizenship………………..7
D.
Emerging Experiments……………………………………………………………….……………9
II.
ORIGIN COUNTRY ENFORCEMENT OF MIGRANT RIGHTS………………….…………..9
A.
Bi-lateral Accords on Low-Wage Labor Migration………………………10
B.
Unilateral Efforts by Origin Countries to Protect
Migrant Rights…………………………………………………………………………………………15
C.
Contrasting Approaches: Mexico and the Philippines..………………18
D.
Challenges and Lessons Learned………………………………………………………..25
III.
EMERGING EXPERIMENTS WITH MOBILE LABOR CITIZENSHIP….……………..…27
A.
Understanding Mobile Labor Citizenship……………………………………..27
B.
The Experiments……………………………………………………………………………..………31
1.
Construction: Two Approaches…………………………………………….….31
a.
Union-to-Union Worker Referrals…………………………………..………33
b.
Partnerships between Origin and Destination
Country Unions……………………………………….…………………………………35
2.
Two Industries at the Bottom of the Wage Ladder………………39
a.
Agriculture: A Destination Country Union
Builds a Base in an Origin Country…………………………………………..39
b.
Domestic Work: An Origin Country Union
Builds a Base in a Destination Country …………………………...……..41
C.
Challenges and Lessons Learned….…………………………………………………...43
1.
Cross-Border Collaboration: Obstacles and Incentives ……..44
2.
Insights for Transnational Labor Citizenship……………………….49
CONCLUSION……………………………………………………………………………………………………………………….58
GORDON
RESTRUCTURING LABOR MIGRATION
TOWARDS TRANSNATIONAL LABOR CITIZENSHIP:
RESTRUCTURING LABOR MIGRATION
TO REINFORCE WORKERS’ RIGHTS
A Preliminary Report on Emerging Experiments
Prologue
Any effort to address the challenges of global labor migration demands
tremendous humility. Migration for work is a powerful and complex force,
propelled by staggering inequalities between countries. 1 An estimated 86 million
people today labor outside their nations of origin, 2 in search of opportunities to
achieve a better life for themselves and their families. The flow of migrants is
drawn by the hunger of employers in destination countries for a ready low-wage
workforce; facilitated by a teeming pool of legitimate and corrupt labor recruiters,
private immigration “experts,” and government officials; and channeled through
informal migrant networks linking countries and communities. This complexity
spells trouble for labor migration policies. The globe is littered with attempts to
1
The risk of discussing labor migration as if it is a distinct phenomenon, as I do here, is
that it implies far too neat a division between those who leave home in search of work and those
who migrate for other reasons, including to reunite with family members and to escape war,
persecution, or natural disaster. Migrants, like all human beings, have complex and changing
motivations, interests, and connections to other people, all of which (in combination with the
opportunities and legal regimes they encounter) influence their decisions about where to live and
work, and for how long to stay. At the same time, a significant number of migrants identify the
quest for better economic prospects as a primary motivation in their decision to leave their home
country. My exploration of labor migration in this report is intended to address the role work
plays in so many migrants’ lives, rather than to imply that “temporary labor migrants” are
intrinsically different than others who live and work outside their countries of origin.
2
INT’L LABOUR OFFICE, TOWARDS A FAIR DEAL FOR MIGRANT WORKERS IN THE GLOBAL
ECONOMY 7 (2004). A note on vocabulary. I use the term “origin country” to refer to a state
whose nationals leave in search of work abroad, and “destination country” to refer to a state that is
primarily a destination for such migrants. It should be noted that many countries both send and
receive migrants—for example, Mexico is an origin country with reference to the United States
but a destination country for many Central Americans.
I describe the migrants I am chiefly concerned with in this paper, and the work they do,
as “low-wage.” I use this label with trepidation. There is nothing inherently low-wage in either
the migrants or their labor. Despite my concerns, however, I prefer the term “low-wage” to the
pejorative “unskilled.” As Samuel Gompers pointed out many decades ago, “‘There is no such
thing as unskilled work per se . . . the distinction between wage-earners is one of degree only.’”
Dorothy Sue Cobble, Reviving the Federation's Historic Role in Organizing 23-24 (Inst. for the Study of
Labor Org.; Working Papers, 1996). See also ROGER WALDINGER & MICHAEL I. LICHTER, HOW THE
OTHER HALF WORKS: IMMIGRATION AND THE SOCIAL ORGANIZATION OF LABOR 10 (2003) (“While
there may well be some jobs for which the label of ‘unskilled’ means what it says, this number is
small.” (footnote omitted)).
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reshape migration patterns that not only failed to achieve their goals but created a
host of new problems along the way.
Humility, then, is required. But humility cannot become an excuse for walking
away from the obligation to consider alternatives. Our current patchwork of a
labor migration regime has significant benefits—for origin country governments,
which currently receive remittances on the scale of $300 billion per year; 3 for many
employers and consumers in destination countries, who benefit from the lower
prices generated by a wealth of cheap labor; for labor recruiters; and, in
complicated ways, for many migrants themselves. But its detriments are
enormous. Corruption is endemic. Illegal immigration is becoming the norm.
Migrants are abused on the job with sickening regularity. Native workers with
the lowest educational levels, those who can least afford it, appear to pay the
highest price for the influx of newcomers. 4
Can we do better? Labor migration is a massive force, but it is not (with few
exceptions) a force of nature. Laws and policies may not be driving the migration
train, but neither are they irrelevant to its direction. International and domestic
legal regimes either directly or obliquely help to shape the decisions that
employees, migrants, and others make. At the same time, to work, a new policy
must reflect the internal logic of labor migration, and must serve most
participants’ needs as well or better than the old policy.
This paper is part of an effort to imagine how we might reconfigure global labor
migration—with particular attention to the low-wage end of the migrant
continuum—so that it improves the lot of workers, both migrant and native born.
It is deeply sympathetic to efforts by the International Labor Organization (ILO),
non-governmental organizations, and unions to create a global rights-based
framework for labor migration, with particular emphasis on international
instruments to protect migrants as they move from state to state. Yet no major
destination country has ratified the United Nations Convention on the Protection
of the Rights of All Migrant Workers and Members of their Families in the 18
years since its adoption by the UN, 5 and although the ILO does essential work to
advance acceptance of labor standards around the world, it has no enforcement
capacity. In the absence of broadly accepted and enforceable international labor
3
Int’l Fund for Agric. Dev. (IFAD), Sending Money Home: Worldwide Remittance Flows
to Developing Countries, http://www.ifad.org/events/remittances/maps/.
4
Julie Murray, Jeanne Batalova, & Michael Fix, The Impact of Immigration on Native Workers: A
Fresh Look at the Evidence, MPI INSIGHT (Migration Pol’y Inst.), July 2006, at 5.
5
For a list of countries that have signed and/or ratified the Convention, see United Nations
Education, Science and Cultural Organization (UNESCO), Present State of Ratifications and
Signatures of the UN Migration Convention, http://portal.unesco.org/shs/en/ev.phpURL_ID=3693&URL_DO=DO_TOPIC&URL_SECTION=201.html
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standards, this paper examines what governments, civil society organizations, and
migrants themselves are doing, and what more they might do, to enhance worker
protections.
It begins with a proposal for a new regime, Transnational Labor Citizenship,
whose explicit goal is to redistribute some of the gains of labor migration away
from the recruiters and employers who currently enjoy them, toward the native
workers and migrants whose sacrifices and hard work make those gains possible.
Of fundamental importance, Transnational Labor Citizenship seeks to dismantle
the wall frequently built between two categories of newcomers: those who are
admitted to a country as temporary workers, who have historically been treated as
a solution for destination country short-term labor needs, without receiving any
rights to social benefits or political participation; and those admitted as
permanent immigrants, through programs that provide for family reunification,
social benefits, and a path to citizenship. Transnational Labor Citizenship insists
that all migrants are full human beings, and deserve to be treated as such. In this
sense, beyond being a proposal to improve working conditions for all low-wage
laborers, Transnational Labor Citizenship is an effort to demonstrate that it is
possible to respond to the reality of temporary labor migration while refusing to
treat temporary migrants as commodities to be traded on a global market.
In what follows, I set out the Transnational Labor Citizenship idea, which I
developed in the context of the United States. I then offer preliminary notes on
emerging experiments around the globe that echo two of Transnational Labor
Citizenship’s central elements: origin country efforts to enforce labor rights for
their migrants, and civil society and trade union initiatives to provide continuous
support to migrants by linking origin and destination country labor organizations.
I reflect on the early lessons these experiments offer with regard to some of the
challenges a Transnational Labor Citizenship regime will face, and suggest
questions for further study.
I INTRODUCING TRANSNATIONAL LABOR CITIZENSHIP
A.
6
LOW-WAGE LABOR MIGRATION IN THE CONTEXT OF THE UNITED STATES
Over a million new immigrants arrive in the United States each year. 7 Most come
to work. For those who see both the free movement of people and the
6
Parts A and B of this section are adapted in part from Jennifer Gordon, Transnational Labor
Citizenship, 80 S. CAL. L. REV. 503 (2007).
7
Jeffrey S. Passel & D’Vera Cohn, Trends in Unauthorized Immigration: Undocumented Inflow Now
Trails Legal Inflow (Pew Hispanic Ctr.), Oct. 2, 2008, at 2, available at
http://pewhispanic.org/files/reports/94.pdf.
The figure includes legal immigrants and
undocumented arrivals, but not legal temporary migrants.
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preservation of decent working conditions as essential to social and economic
justice, the ongoing flow of immigrant workers presents a seemingly unsolvable
dilemma. To prevent people from moving in search of work is to curtail their
chance to build a decent life for themselves and their families. But in the popular
view of native workers in the country that receives them, the more immigrants, the
more competition, the worse work becomes.
In response, many politicians in the United States have demanded a reduction in
immigration. Yet in the face of enormous inequality between countries and
globally integrated labor markets, it is deeply unrealistic to think that immigration
controls will stop people from moving South to North. The flow of migrants may
rise and fall, but one way or another, those who want to migrate will find a way, in
numbers generated not only by our formal policies but by decades upon decades of
economic and social pressures in both origin and destination countries. To
imagine that we can roll back the century or more of migration history between
the United States and Mexico (and other countries as well), eradicate the
entrenched migrant networks that bind the two countries to each other, and undo
the complex web of economic interdependence that characterizes our thoroughly
integrated labor markets, is pure fantasy.
In the long term, a genuine solution to the dilemmas of immigration must focus on
addressing the underlying factors that bring so many who strive to do better for
themselves and their families to leave. When there is sustainable development in
nations of origin, the decision not to migrate will become a more viable economic
option. Until then, the struggle to make “staying put” a choice that more want to
make, must go hand in hand with the struggle for migration on fair terms. But as
Alejandro Portes and Rubén Rumbaut remind us in their classic Immigrant America:
A Portrait, “Manual labor migration is . . . not a one-way flow away from poverty
and want, but rather a two-way process fueled by the changing needs and
interests of those who come and those who profit from their labor.” 8 No approach
will be effective unless it also addresses work and the conditions of labor in the
United States.
It is particularly disturbing, then, that the migration of workers to low-wage
industries in the United States today is structured in ways that actively
undermine minimum workplace standards. Undocumented immigrants account
for a large proportion of the immigrant manual laborers in this country. 9
8
ALEJANDRO PORTES AND RUBÉN G. RUMBAUT, IMMIGRANT AMERICA: A PORTRAIT 18 (2d
ed. 1996).
9
An estimated 27% of food processing workers and 29% of roofers and drywall installers
are undocumented. Jeffrey S. Passel, The Size and Characteristics of the Unauthorized Migrant Population in
the
U.S.
(Pew
Hispanic
Ctr.),
Mar.
7,
2006,
at
ii-iii,
available
at
http://pewhispanic.org/files/reports/61.pdf. Undocumented immigrants make up at least half of
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Immigrants without legal working papers are often loath to report employers who
pay wages below the legal minimum or create unsafe working conditions, for fear
that deportation will be the result. A number of other low-wage laborers are guest
workers, brought in on temporary visas for seasonal and agricultural jobs. 10 Guest
worker programs in the United States, as around the world, admit migrants to
carry out a particular job for a specific employer. A guest worker is a captive
employee who cannot leave a bad job for a better one, and who by complaining of
abusive treatment risks not only the termination of her visa but her inclusion on
an unofficial blacklist that would effectively bar her return. 11
The incentives our current labor migration program creates are exactly the
opposite of what they should be. Labor migration itself must be reconfigured so
that it reinforces, rather than undercutting, the possibility of decent treatment for
new migrants and for workers already in the United States.
B.
A RESPONSE: TRANSNATIONAL LABOR CITIZENSHIP
This project proposes a comprehensive reform of our labor migration system. In a
recent article, I suggest a “thought experiment” about a new immigration regime
that I call Transnational Labor Citizenship. 12
Transnational Labor Citizenship is based on the theory that the only way to create
a genuine floor on working conditions in a context of heavy immigration is to link
worker self-organization with the enforcement of basic workplace rights in a way
that crosses borders just as workers do. It draws on the insights of migration
scholars such as Douglas Massey and Jorge Durand, who have noted that
restrictive immigration policies and increased border control in the United States
since the 1980s have impeded what would otherwise be a much more fluid backand-forth movement of Latin American labor migrants. 13
The goal of
Transnational Labor Citizenship is to facilitate the ability of migrants to choose to
migrate on a temporary basis for as long as they want or need to, while including
them in efforts to establish baseline working conditions.
the agricultural workers in the United States. U.S. DEP’T OF LABOR, FINDINGS FROM THE NATIONAL
AGRICULTURAL WORKERS SURVEY 2001–2002: A DEMOGRAPHIC AND EMPLOYMENT PROFILE OF
UNITED
STATES
FARMWORKERS
6
(2005),
available
at
http://www.doleta.gov/agworker/report9/naws_rpt9.pdf.
10
The United States has two non-immigrant visa categories for low-wage workers: the H2A program for agricultural workers and the H-2B program for other seasonal workers. 8 U.S.C. §
1101(a)(15)(H) (2000).
11
For descriptions of the abuses endemic to the guest worker program, see SOUTHERN
POVERTY LAW CTR., CLOSE TO SLAVERY: GUESTWORKER PROGRAMS IN THE UNITED STATES (2007),
available at http://www.splcenter.org/pdf/static/SPLCguestworker.pdf.
12
Gordon, supra note 6.
13
DOUGLAS S. MASSEY, JORGE DURAND & NOLAN J. MALONE, BEYOND SMOKE AND MIRRORS:
MEXICAN IMMIGRATION IN AN ERA OF ECONOMIC INTEGRATION 128-33 (2002).
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In practical terms, under the Transnational Labor Citizenship regime, a migrant
would become eligible to work in the United States on a “TLC visa” after joining
an organization of transnational workers, rather than through a link to a
particular employer as temporary worker schemes currently require. TLC visa
holders would be able to work for any employer in the United States with full
labor rights and eventual conversion to permanent residence and citizenship if the
migrant so desired. The migrant, and his or her family, could come and go at will
between the U.S. and the country of origin, remaining here when jobs were
plentiful and returning home at slow times, for the harvest on their own farm, or
for holidays.
The benefits of the program from the migrant’s perspective need little elaboration.
But the obligations participants incur would be serious ones as well. In order to
be certified as eligible for a TLC visa by the origin country government, interested
migrants would have to join a transnational workers’ organization in or near their
home community. To remain in the United States more than a month beyond
entry, migrants would also have to join a transnational workers’ organization
active in the geographic area of the U.S. where they settled and the industry in
which they worked. Equally important, each migrant would be asked to take a
“solidarity oath” as a condition of membership. In exchange for employment
authorization, TLC visa holders would commit to report employers who violate
U.S. workplace laws or labor agreements. Failure to adhere to these requirements
would be grounds for removal from the membership in the transnational labor
organization and withdrawal of the visa.
To make the solidarity oath real, the U.S.- and origin-country-based transnational
labor organizations would work intensively with migrants on the ground,
collaborating across borders to defend the rights of their members through a
combination of government enforcement, lawsuits, and collective pressure. These
organizations would also offer migrants a variety of other services, from English
classes to facilitation of remittances to health care accessible in both countries.
The groups would be linked to create a network with a strong presence both in
origin and destination countries, with a mission of raising the floor on wages and
working conditions for all workers within the United States. The network would
be managed through a coordinating body, which I call the Transnational Worker
Justice Collaborative, that would oversee and accredit the member organizations,
support their work with each other, monitor the migration process, and generate
policy reform efforts. The Collaborative would be free-standing, not a
governmental agency or part of an already-existing labor union or worker center
either in the United States or in countries of origin. But it would have strong ties
to and support from such groups in both countries.
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Transnational Labor Citizenship would enhance the enforcement of baseline labor
rights and allow migrants to carry benefits and services with them as they moved.
Its goal, heretofore elusive, is to facilitate the free movement of people while
preventing the erosion of conditions of work in the country that receives them.
There is an ongoing debate among scholars of migration about whether today’s
immigrants are more “transnational” than those in the past, or indeed whether
they are transnational at all. 14 Without taking a position in that dispute, it seems
clear that U.S. immigration policy and border enforcement operate to make
migrants less transnational than they would be if they were permitted to respond
to changes in U.S. labor markets and to their own needs and opportunities in their
countries of origin. Transnational Labor Citizenship would restore this fluidity,
making a back-and-forth pattern of migration an option for as long as a migrant
wishes or needs to sustain it, while also addressing the implications of migration
for low-wage workers in the United States. 15
I offer Transnational Labor Citizenship as an intervention that readers may take
on a number of levels. At its most abstract, Transnational Labor Citizenship
stands for the idea that mechanisms to enhance workers rights cannot be seen as
an add-on to temporary labor migration schemes. Temporary labor migration
programs will continue to degrade workers rights unless they are explicitly and
fundamentally designed to reinforce them. In more explicit terms, the central
principles of Transnational Labor Citizenship, set out below, suggest routes to the
integration of workers rights and migration that can be implemented in a number
of ways. Finally, at the most concrete level, the outlines of the Transnational
Labor Citizenship proposal offer a specific approach to putting rights at the center
of labor migration.
C.
CENTRAL PRINCIPLES OF TRANSNATIONAL LABOR CITIZENSHIP
Comprehensive implementation of the Transnational Labor Citizenship proposal
in the United States would require a number of changes that are difficult to
14
For a collection of foundational works advancing the argument for a new
transnationalism, see TOWARDS A TRANSNATIONAL PERSPECTIVE ON MIGRATION: RACE, CLASS,
ETHNICITY, AND NATIONALISM RECONSIDERED (Nina Glick Schiller et al. eds., 1992). Roger
Waldinger, David Fitzgerald, Nancy Foner, and Jonathan Fox, among others, have offered
critiques of the argument that today’s immigrants are “transnational” in ways that significantly
distinguish them from past immigrant generations. See generally Nancy Foner, What's New About
Transnationalism? New York Immigrants Today and at the Turn of the Century, 6 DIASPORA 355 (1997);
Jonathan Fox, Unpacking “Transnational Citizenship,” 8 ANN. REV. POL. SCI. 171 (2005); Roger D.
Waldinger & David Fitzgerald, Transnationalism in Question, 109 AM. J. SOC. 1177 (2004).
15
Unlike guest worker programs that seek to enforce the transient nature of a migrant’s
stay, Transnational Labor Citizenship would facilitate temporary migration for as long as the
migrant wanted it, while offering an optional path to permanent residence and citizenship. The
TLC visa would also be extended to migrants’ spouses and children.
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imagine in the current climate. For one, the United States government would have
to be willing to enter into binding agreements about migration with its major
origin country partners, something it shows no inclination to consider. The
familiar structure of temporary labor migration, with visas tied to job offers from
an employer, would have to be scrapped in favor of an unfamiliar scheme of
worker solidarity. Scores of new workers organizations and a coordinating body
would need to be brought into being. Because of the gap between where we
currently stand in the United States and what Transnational Labor Citizenship
would require, the proposal can sound impossibly utopian. And yet, if we break
Transnational Labor Citizenship down into its key components, and look around
the world for examples of experiments that embody aspects of those components,
it becomes evident that in other migrant streams what I propose is much closer to
being realized or realizable.
At its core, Transnational Labor Citizenship seeks to build incentives and
mechanisms for the enforcement of labor standards into labor migration itself,
particularly for the low-wage workers who make up the bulk of all migrants. To
realize a full version of Transnational Labor Citizenship would require, among
other features:
• Multilateral management of labor migration with rights as a central
principle: The negotiation of multilateral or regional accords between
origin and destination governments that put migrant protections at the
center of labor migration programs, and a commitment to cooperation
by origin and destination governments to enforce those and other
workplace rights.
• “Mobile labor citizenship”: The organization of migrants at both ends
of the migrant stream by trade unions and civil society organizations, so
that they travel as labor citizens between origin and destination
countries, with the ability to assert the rights granted to them. These
organizations would be linked to each other through a cross-border
advocacy network.
• Collaboration between governments and civil society organizations to
enforce workplace standards: 16
The creation of collaborative
mechanisms through which, for example, state and federal Departments
of Labor could enhance their ability to detect wage violations by
learning from workers organizations’ on-the-ground knowledge, and
workers organizations in turn could rely on the government to target
16
A forthcoming paper I am co-authoring with Janice Fine elaborates on this idea.
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its resources for workplace rights enforcement in ways that were both
effective and sensitive to migrant workers’ concerns.
• Mobile benefits: The establishment of schemes for health care and
social security, among other benefits, that are affordable for migrants
and fully portable across borders.
D.
EMERGING EXPERIMENTS
As I note above, several of the elements of Transnational Labor Citizenship that
seem most improbable from a U.S. perspective are already beginning to emerge in
other parts of the world. This paper examines this phenomenon in two of the core
areas highlighted above: efforts by origin countries to link temporary labor
migration with specific labor rights and enforcement mechanisms, both
unilaterally and through bilateral accords; and initiatives by unions and other civil
society groups to build organizing efforts with one foot in migrants’ home
countries and one at their destinations, so that migrants have access to continuous
support for the defense of their rights.
After setting out a range of experiments in both of these areas, I draw preliminary
lessons from them to inform future work. I ask what we can learn from the
endeavors currently underway about how best to realize the core goals of
Transnational Labor Citizenship: creating enforcement practices and institutions
that respond to the reality of a transnationally mobile labor force, increasing
migrants’ ability to remedy the abuses that they face at work, and addressing the
needs of both native-born and migrant workers to establish and enforce decent
working standards.
II
ORIGIN COUNTRY ENFORCEMENT OF
MIGRANT RIGHTS
It is not a simple matter for an origin country to take a stand in favor of its
migrants’ labor rights. Migrant remittances provide infusions of billions of dollars
a year to economies suffering from inadequate job opportunities, weak financial
and insurance systems, and limited development prospects. The need for this
income gives governments a strong incentive to promote migration and to
downplay the costs involved in hiring their nationals, a goal not necessarily
furthered by a forceful stand on minimum wages and workplace protections. At
the same time, however, few origin country governments are naïve about
migration’s down sides, and many resist being cast in the role of labor broker,
indifferent to how their citizens are treated so long as they keep sending money
home. Public outcry over the abuse of migrants abroad, as well as demands for
greater protection from the diaspora population itself, have lead a number of origin
countries to take measures to intervene in migrants’ working conditions.
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What follows are examples of ways that countries of origin are seeking to play an
active role in the protection of their migrants in workplaces abroad, both in
coordination with destination countries and through unilateral initiatives.
A.
BILATERAL ACCORDS ON LOW-WAGE LABOR MIGRATION
In order to make workplace protection a centerpiece of labor migration, full
Transnational Labor Citizenship would require multilateral partnerships between
origin and destination country governments. All parties would participate in the
negotiation of the terms of labor migration and in the enforcement of the rights of
labor migrants.
Regional agreements about trade are increasingly common. But very few existing
trade accords address the movement of people as well as goods across national
borders. The European Union is the obvious exception. 17 Where other trade
agreements address labor migration at all, they almost exclusively permit the
movement of professionals rather than low-wage migrants. 18 Because wealthy
governments in high-migration regions such as Asia and North America have been
particularly resistant to negotiating regional labor mobility for low-wage workers,
I do not focus on regional agreements here. Instead, I explore the more limited—
but also simpler and more readily achievable—tool of bi- or multi-lateral
temporary labor migration agreements.
17
The European Union’s experience with low-wage labor mobility merits a fuller
exploration than I can give it in this report. I will address that subject, and the insights it offers to
my Transnational Labor Citizenship proposal, in a separate article.
18
Other regional arrangements that would permit movement of low-wage as well as
professional workers are under consideration. In 2007, the Association of Southeast Asian
Nations (ASEAN) issued a Declaration on the Protection and Promotion of the Rights of Migrant
Workers, and has recently begun to consider arrangements for greater labor mobility between
member
nations.
ASEAN,
ASEAN
Cooperation
on
Labour:
An Overview, http://www.aseansec.org/21009.htm. The Andean Community in Latin America,
including Peru, Ecuador, Colombia, Bolivia, and Venezuela, is moving toward regional labor
mobility for a defined set of people, including temporary agricultural workers. Andean Labor
Migration
Instrument,
Decision
545
(2003),
available
at
http://www.comunidadandina.org/ingles/normativa/D545e.htm;
Kevin
O’Neil,
Kimberly
Hamilton & Demetrios Papademetriou, Migration Policy Inst., Migration in the Americas 32 (Global
Commission on Int’l Migration, Paper, 2005). In Africa, the Economic Community of West
African States (ECOWAS) promises a reciprocal right of “establishment” (i.e., the right to carry
out economic activities, including work) to citizens of its fifteen signatory nations, although that
promise has not been fully realized. The Common Market for Eastern and Southern Africa
(COMESA)’s Protocol on the Free Movement of Persons is still aspirational, but if implemented, it
will progressively remove all obstacles to private sector labor mobility among COMESA’s 19
member countries. Int’l Org. on Migration, Int’l Dialogue on Migration, Intersessional Workshop
on Free Movement of Persons in Reg’l Integration Processes, Supp. Materials 6 (2007), available at
http://www.iom.int/jahia/webdav/site/myjahiasite/shared/shared/mainsite/microsites/IDM/works
hops/free_movement_of_persons_18190607/idm2007_handouts.doc.
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In the United States, the suggestion that immigration policy could or should be
created through dialogue with origin countries is often met with puzzlement, if
not outright disdain. The last time this country approached low-wage labor
migration as a matter to be negotiated with a migrant-origin country was in the
early years of the bracero program, with the signing of an accord with Mexico that
brought over four million Mexican guest workers into U.S. fields between 1942
and 1964. 19 Since then, with rare and minor exceptions, the U.S. government has
set its immigration policy unilaterally. 20 While the U.S. regularly negotiates
bilateral and regional treaties with regard to trade, low-wage labor migration has
been conspicuously absent from these agreements. 21 Not so in the rest of the
world, which has increasingly turned to bilateral accords between nations as
mechanisms to govern the flow of temporary labor migrants.
Bilateral agreements typically facilitate a one-way flow of migrants, committing a
particular destination country to set aside a certain number of temporary work
visas for citizens of a particular origin country. They often address labor needs
within a defined sector, such as construction or agricultural or domestic work.
Such agreements are on the rise around the world. 22 In 2004, a survey of the 30
countries that make up the Organization for Economic Co-operation and
Development (OECD) found 176 bilateral accords about temporary labor
recruitment. 23 Latin American countries have signed more than 140 such
agreements. 24 More recently, Asian-Pacific and Middle Eastern countries have
also begun to negotiate bilateral agreements or Memoranda of Understanding
19
For overviews of the bracero program, see generally KITTY CALAVITA, INSIDE THE STATE:
THE BRACERO PROGRAM, IMMIGRATION, AND THE I.N.S. (1992); ERNESTO GALARZA, MERCHANTS
OF LABOR: THE MEXICAN BRACERO STORY (1964).
20
Days before 9/11, President Bush met with then-Mexican president Vicente Fox to discuss
a framework for Mexican-US migration. The events of 9/11 derailed that conversation, which has
not resumed in the ensuing years. Muzaffar Chishti, Guest Workers in the House of Labor, 13 NEW LAB.
F. 67, 70-71 (2004).
21
In rare instances, the United States has included provisions for temporary professional
migrants in treaties that are primarily about trade. Examples include the TN visa for certain
Canadian and Mexican professionals created by NAFTA, and the set-aside of 1400 temporary visas
for Chilean professional workers with employment offers under the Free Trade Agreement
negotiated in 2003. O’Neil, Hamilton & Papademetriou, supra note 18, at 31. The United States has
no bilateral agreements related to low-wage workers.
22
Despite their growing numbers, the existing agreements still regulate a fairly small
percentage of total labor migration between countries around the world. Daniela Bobeva & JeanPierre Garson, Overview of Bilateral Agreements and Other Forms of Labour Recruitment, in MIGRATION FOR
EMPLOYMENT: BILATERAL AGREEMENTS AT A CROSSROADS 11, 12, 22 (2004).
23
Id. at 12. For a list of OECD countries, see Ratification of the Convention on the OECD,
http://www.oecd.org/document/1/0,3343,en_2649_201185_1889402_1_1_1_1,00.html.
24
O’Neil, Hamilton & Papademetriou, supra note 18, at 32-33.
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(MOU) about temporary labor migration. 25 Major origin and destination
countries often have multiple agreements. The Philippines has bilateral labor
migration agreements or MOU with at least 14 of the nations to which it sends its
migrants. 26 Spain has temporary labor migration agreements with eight of the
countries that make up its immigrant population. 27
In theory, a bilateral approach to managing labor migration offers the opportunity
for origin and destination countries to escape from the trap of unilateral
immigration schemes set by the destination country, schemes that often pair
public declarations of opposition to illegal migration with tacit acceptance of large
flows of undocumented labor (regulated through crackdowns in times of
economic downturn), and negotiate an alternative that benefits both parties alike.
Agreements allow destination countries to address cyclical labor needs, and offer
origin countries and their citizens access to higher-paying work than is available
at home, with the concomitant promise of increased remittances. Importantly for
the Transnational Labor Citizenship proposal, such agreements would also seem
to provide a forum for origin and destination countries to collaborate on
approaches to linking migration and worker protection.
Several bilateral agreements do address the issue of migrant worker rights, and I
will turn to them shortly. But first, a dose of realism is in order. Bilateral
agreements are commonly far more desired by labor-origin countries than by
destination countries, and negotiations take place under the shadow of the power
imbalance between the two. Origin countries are often hesitant to demand
protections that would make their nationals more costly than migrants from
competing states. Not surprisingly, then, most agreements are silent about
workplace standards, and all maintain the classic link between a visa and a
contract with a particular employer, a requirement that impedes rights
enforcement because migrants fear that if they speak up, they will lose their job
and thus their visa. Furthermore, a number contain provisions that explicitly
curtail migrants’ rights. For example, the agreement between Indonesia and
Malaysia regarding domestic workers allows an employer to retain the workers’
25
Bobeva & Garson, supra note 22, at 11-12. Bilateral agreements tend to be more detailed,
more binding, and more action-oriented than MOUs.
26
Dovelyn Rannveig Agunias, Managing Temporary Migration: Lessons from the Philippine Model,
MPI INSIGHT (Migration Policy Inst.), Oct. 2008, at 33.
27
EDUARDO GERONIMI, LORENZO CACHÓN & EZEQUIEL TEXIDÓ, OFICINA INTERNACIONAL
DEL TRABAJO, ACUERDOS BILATERALES DE MIGRACIÓN DE MANO DE OBRA: ESTUDIO DE CASOS 16
(2004),
available
at
http://www.ilo.org/public/english/protection/migrant/download/imp/imp66s.pdf.
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passport in order to guarantee her return, and bars workers from joining unions. 28
Thailand’s agreements permit employers to withhold 15 percent of a migrant’s
wages for the same purpose. 29
Nonetheless, a few bilateral agreements have begun to explicitly incorporate
efforts to enhance migrant labor rights. Most of these contain a pro forma
statement that migrants should be granted the same rights as native workers, but
do not create the monitoring and enforcement mechanisms necessary to move the
expression into the realm of reality. 30 Some, however, go further (at least on
paper). The following list highlights some migrant-protective features in recent
bilateral agreements, with a few notes on obstacles to their implementation.
Migrant-Protective Features of Bilateral Agreements
• Agreements Drafted or Carried Out with Collaboration from
Unions and NGOs. In the UK, Italy, and the Slovak Republic, the
government has considered the recommendations of civil society actors
such as migrant organizations and trade unions in negotiating and
drafting bilateral agreements. 31 In Korea, Nepal, and the Philippines,
among other places, trade unions are in the process of negotiating with
government officials for an official role in pre-departure and post-arrival
rights trainings provided to migrants under the terms of bilateral
agreements. 32
28
HUMAN RIGHTS WATCH, HELP WANTED: ABUSES AGAINST FEMALE MIGRANT DOMESTIC
WORKERS
IN
INDONESIA
AND
MALAYSIA
81
(2004),
available
at
http://www.hrw.org/reports/2004/indonesia0704/indonesia0704full.pdf.
29
Piyasiri Wickramasekara, Int’l Labour Office, Labour Migration in Asia: Role of Bilateral
Agreements and MOUs 12 (Feb. 17, 2006) (presentation at the Workshop on International
Migration
and
Labour
Markets
in
Asia,
Tokyo,
Japan),
available
at
http://www.jil.go.jp/foreign/event_r/event/documents/2006sopemi/keynotereport1.pdf. On the
other hand, Thailand’s government has been praised for its willingness to make its MOUs public,
a “best practice” in the field. Id. at 12, 19.
30
Stella P. Go, Asian Labor Migration: The Role of Bilateral Labor and Similar Agreements
9 (Sept. 2007) (unpublished paper presented at the Reg’l Informal Workshop on Labor Migration
in
Southeast
Asia,
Manila,
Phil.),
available
at
http://www.fes.org.ph/2007%20conferences/reading%20and%20presentations/Stella%20Go's%2
0Paper.pdf.; RENE E. OFRENEO & ISABELO A. SAMONTE, INT’L LABOUR OFFICE, EMPOWERING
FILIPINO MIGRANT WORKERS: POLICY ISSUES AND CHALLENGES 14, 61 (2005), available at
http://www.oit.org/public/english/protection/migrant/download/imp/imp64.pdf;
Wickramasekara, supra note 29, at 16.
31
Bobeva & Garson, supra note 22, at 19, 28.
32
Interview with Umesh Upadhyaya, Deputy Sec’y Gen., Gen. Fed’n of Nepalese Trade
Unions (GEFONT), in Manila, Phil. (Oct. 25, 2008); Interview with Chang-geun Lee,
International Director, Korean Confederation of Trade Unions (KCTU), in Manila, Phil. (Oct. 26,
2008); Interview with Josua Mata, Sec’y Gen., Alliance of Progressive Labor (APL), in Manila, Phil.
(Oct. 26, 2008).
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• Incorporation of Model Employment Contracts Mandating
Minimum Wages and Working Conditions.
Sri Lanka, the
Philippines, and Indonesia, among other origin countries, have
negotiated bilateral agreements that include model employment
contracts. 33 Where no formal bilateral agreement has been adopted,
model contracts may still be agreed to by both countries. For example,
the Philippine government has negotiated a standard domestic worker
contract with Malaysia that guarantees Filipina domestic workers one
day a week off and sets a fixed minimum monthly wage. 34 In Hong
Kong, the Philippines has adopted as a minimum standard the Hong
Kong government’s model contract for “domestic helpers.” 35 As I
elaborate below, however, migrants often face challenges in enforcing
contract provisions once in the destination country.
• Deputizing of Consular Officers as Rights Monitors. The MexicoCanada Seasonal Agricultural Workers Program requires Mexico to
assign a consular official as a “liaison officer” to accompany the migrants
and monitor and address labor violations. A similar requirement was
negotiated as part of the bracero program. However, like consular
protection programs initiated independent of a bilateral agreement
(discussed below), these efforts have been criticized as ineffective. 36
33
For an overview of Philippines contracts as well as copies of several of the Philippine
model contracts, see INTERNATIONAL ORGANIZATION FOR MIGRATION (IOM), LABOUR MIGRATION
IN ASIA: PROTECTION OF MIGRANT WORKERS, SUPPORT SERVICES AND ENHANCING DEVELOPMENT
BENEFITS 34-36, 75-79 (2005). On Sri Lanka, see id. at 59.
34
HUMAN RIGHTS WATCH, supra note 28, at app. D.
35
The contract requires the employer to pay for room, board, and medical care and to
provide a weekly day of rest and up to two weeks’ paid vacation annually. H.K. Labour Dep’t,
Practical Guide For Employment of Foreign Domestic Helpers—What Foreign Domestic Helpers and Their
Employers
Should
Know,
11,
13,
app.
I,
available
at
http://www.labour.gov.hk/eng/public/wcp/FDHguide.pdf.
Hong Kong has assigned
responsibility for the enforcement of contract provisions to its Labour Department. NILIM
BARUAH & RYSZARD CHOLEWINSKI, HANDBOOK ON ESTABLISHING EFFECTIVE LABOUR MIGRATION
POLICIES IN COUNTRIES OF ORIGIN AND DESTINATION 52 (2006), available at
http://www.osce.org/publications/eea/2006/05/19187_620_en.pdf.
Jordan has also created a model contract for foreign domestic workers. The contract was
developed by the government in collaboration with civil society organizations and the UN affiliate
UNIFEM, and its use is mandatory for the issuance of an entry visa. BARUAH & CHOLEWINSKI,
supra, at 35. Despite the contract, which went into effect in 2003, the treatment of migrants overall
in Jordan deteriorated to the point where the Philippines stopped new migration in 2008. See
discussion infra Section II.C.2.
36
With regard to the failings of consular protection during the bracero program, see
GALARZA, supra note 19, at 146, 183–98; David Fitzgerald, State and Emigration: A Century of Emigration
Policy in Mexico 11-12 (Ctr. for Comparative Immigration Studies, Univ. of Cal., San Diego, Working
Paper No. 123, 2005), available at http://www.ccis-ucsd.org/PUBLICATIONS/wrkg123.pdf. In the
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• Creation of Alternatives to Private Labor Recruitment. Under the
above-referenced Mexico-Canada bilateral agreement, the Mexican
government directly recruits almost 14,000 Mexicans annually for the
Canadian guest work program. 37 The MOU between the Philippines
and Taiwan established the “Special Hiring Program in Taiwan,” a
facility run by the Philippine government’s Manila Economic and
Cultural Office, through which Taiwanese employers can hire Filipino
migrants directly, without the intervention of private recruiters. 38 Fees
migrants pay through this program are much lower than those charged
by for-profit agencies. 39
B.
UNILATERAL EFFORTS BY ORIGIN COUNTRIES TO PROTECT MIGRANT
RIGHTS
Some of the largest destination countries have been unwilling to enter into
bilateral labor migration agreements. The United States is only one example.
Although the Philippine government has concluded 12 bilateral labor accords,
several of its major destination countries—including Japan, Singapore, and Saudi
Arabia—have been unwilling to negotiate over labor migration policies. 40
However, with regard to protecting migrant rights, origin countries are not
limited to cooperative arrangements. Either where destination countries are
unwilling partners, or as a supplement to bilateral arrangements, origin country
governments have experimented with various forms of unilateral action.
Unilateral Efforts by Origin Countries to Protect Migrants
• Regulation of Recruitment. An important potential point of
intervention for origin countries is the recruitment process, which is
notoriously corrupt and exploitative. Because recruitment ordinarily
takes place in the country of origin, origin country governments are able
to regulate it directly (by contrast with labor abuses that take place on
context of the modern Mexico-Canada program, the inadequacy of Mexican consular protection
for workers is frequently noted. TANYA BASOK, TORTILLAS AND TOMATOES: TRANSMIGRANT
MEXICAN HARVESTERS IN CANADA 111–14 (2002); Kerry Preibisch, Globalizing Work, Globalizing
Citizenship: Community-Migrant Worker Alliances in Southwestern Ontario, in ORGANIZING THE
TRANSNATIONAL: LABOUR, POLITICS, AND SOCIAL CHANGE 97, 102 (Luin Goldring & Sailaja
Krishnamurti eds., 2007).
37
See Citizenship and Immigration Canada, Facts and Figures 2006, Annual Flow of Foreign
Workers
by
Top
Source
Countries
1997-2006,
http://www.cic.gc.ca/english/resources/statistics/facts2006/temporary/03.asp.
38
Go, supra note 30, at 4.
39
Manila Warns of Non-existent Jobs in Taiwan, MANILA STANDARD TODAY, Apr. 17, 2008, available
at http://www.manilastandardtoday.com/?page=politics4_april17_2008.
40
Go, supra note 30, at 3; Wickramasekara, supra note 29, at 15.
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the job site abroad, where origin governments have no jurisdiction).
One alternative, pursued by Pakistan, the Philippines, Sri Lanka, and
Romania, among many others, is for the government to create regimes
of licenses, fees, and reporting requirements for the recruitment
industry. 41 Here again, however, consistent enforcement has proven to
be a challenge. 42
An often complementary approach is for the government to itself
operate as a recruiter, either exclusively or as a public alternative to the
private agencies. For example, the Romanian government established
its Office for Labour Migration in 2001. 43 Among other responsibilities,
it recruits workers for jobs in countries where Romania has no bilateral
agreement. In this sense, it competes directly with private recruiters.
The Philippine and Mexican governments also do direct recruitment for
certain temporary programs, as described above. (Recruitment is not
the exclusive province of national governments. For example,
individual Mexican states have also experimented with direct
recruitment for U.S. guest work programs, through their state-run
Migration Institutes.) 44
Finally, the Philippines has passed a law that makes recruiters jointly
liable for the workplace violations committed by foreign employers,
described in greater detail below.
41
IOM, supra note 24, at 23–27; Dana Diminescu, Assessment and Evaluation of Bilateral Labour
Agreements Signed by Romania, in MIGRATION FOR EMPLOYMENT: BILATERAL AGREEMENTS AT A
CROSSROADS 65, 68-69.
42
Philip Martin, Merchants of Labor: Agents of the Evolving Migration Infrastructure 3-6 (Int’l Inst.
for
Labour
Studies,
Discussion
Paper
No.
158,
2005),
available
at
http://www.ilo.org/public/english/bureau/inst/download/dp15805.pdf.
43
Diminescu, supra note 41, at 65, 68-69. The Romanian government’s recruitment function
has generated some resentment among private recruiters, and has also created tension with the
government’s role as an enforcer of migrant rights. Id. at 69.
44
For example, in Zacatecas, the state Migration Institute has developed a program where it
directly screens and selects workers for placement in participating companies, eliminating the role
of the labor recruiter. Miguel Moctezuma Longoria, Trabajadores Temporales Contratados por
EE.UU.: Informe Sobre el Programa Piloto del Gobierno de Zacatecas [Temporary Workers
Contracted by the U.S.: Report on the Pilot Program of the Government of Zacatecas]
(unpublished report, on file with author). The states of Michoacán and Guanajuato have created
similar experiments. Interview with Rachel Micah-Jones, Founder and Executive Director, Centro
de los Derechos del Migrante, Inc., in Zacatecas, Mex. (May 24, 2006). So has the state of Jalisco.
Fitzgerald, supra note 36, at 17. In an unusual arrangement, in 2008 the U.S.-based United Farm
Workers signed an agreement with the government of the Mexican state of Michoacan to recruit
farm workers for unionized jobs under the H-2A temporary agricultural worker program. Susan
Ferriss, UFW Signs Pact with Mexican State for Guest Workers on U.S. Farms, SACRAMENTO BEE, Apr. 18,
2008, at A4.
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• Regulation of Departure. Countries that regulate out-migration can
require that a departing migrant show a temporary labor contract that
meets certain minimum standards in order to receive a departure
permit. The Philippines has taken this approach. The complication
here is that it is not uncommon for recruiters and employers to require
that migrants sign a second, less protective contract on arrival, insisting
that its provisions obviate the protections of first contract. 45 For
example, when Filipinos arrive in Saudi Arabia, they are routinely
required to sign a second contract waiving their rights under Philippine
law. 46
• Diplomatic Intervention. A number of origin countries have placed
Labor Attachés or their equivalent in consular offices abroad to
conciliate labor disputes when they arise, and/or provide some form of
legal representation for migrants on workplace issues. Pakistan, the
Philippines, and Sri Lanka, among other countries, have used consular
officials to monitor and address guest work conditions abroad. 47 These
efforts have often foundered in the face of inadequate funding and
training, the difficulties of intervention in the legal system of another
nation, and the contradictory pressures consular officers face as they
attempt to maintain good relations with the host country while charged
with addressing violations of migrant rights. 48 In high-profile cases,
consulates may file amicus briefs or use the tools of diplomacy to address
flagrant exploitation. Such interventions are rarely pressed to the point
where they might strain relations with the host country.
• Migrant Rights Education. A number of origin country governments
have begun to collaborate actively with civil society organizations in
efforts to give migrants information about their rights before they leave
the country. For example, in Sri Lanka, the Philippines, Romania, and
Poland, among other countries, the government works with migrant
organizations and trade unions to integrate training about rights and
remedies into official pre-departure orientations. 49 Unions and NGOs
45
See, e.g., ROBYN RODRIGUEZ, BROKERING BODIES: THE PHILIPPINE STATE AND THE
GLOBALIZATION OF MIGRANT WORKERS (forthcoming 2009) (manuscript at ch. 6, on file with
author) (discussing Filipino workers in Brunei).
46
Mary Lou L. Alcid, Overseas Filipino Workers: Sacrificial Lambs at the Altar of Deregulation, in
INTERNATIONAL MIGRATION AND SENDING COUNTRIES:
PERCEPTIONS, POLICIES AND
TRANSNATIONAL RELATIONS (Eva Østergaard-Nielson ed., 2003) 99, 115-116.
47
IOM, supra note 33, at 17-18, 21, 23.
48
Critiquing the level of protection provided by Philippine consular officers, see
RODRIGUEZ, supra note 45 (manuscript at ch. 6); OFRENEO & SAMONTE, supra note 30, passim.
49
IOM, supra note 33, at 118-20; Bobeva & Garson, supra note 22, at 18-19.
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in many other countries are pressing for a formal role in these
orientations, which in their view currently tend to emphasize
compliance with employer demands over rights defense. 50
• International Instruments. Origin countries have also sought to
advance migrant rights in the arena of international human rights,
working through the ILO and the United Nations to pursue the
ratification of international instruments such as the Convention on the
Protection of the Rights of All Migrant Workers and Members of Their
Families. To date, however, no major destination country has signed
the Convention. 51
C.
CONTRASTING APPROACHES: MEXICO AND THE PHILIPPINES
While this summary has so far emphasized commonalities between countries of
origin, there are striking differences between origin nations in the way they choose
to structure out-migration (or not) and in the way they address violations of the
rights of their migrants abroad (or not). To give a sense of the range of
approaches, I turn now to an examination of the policies of Mexico and the
Philippines, two major origin countries that have approached the management of
labor migration and migrant worker protection very differently.
1.
Mexico
Nearly twelve million Mexican-born citizens currently live abroad. Ninety-eight
percent of them are in the United States, the workplace of fourteen percent of the
Mexican labor force. 52 In 2007 these migrants sent home an estimated twentyfour billion dollars in remittances, two to three percent of the country’s GDP. 53
Despite the central role of emigration for work in Mexico today and historically,
for at least half a century the government has been vehement in its denial that it
promotes out-migration as a solution to the country’s economic woes. 54 The
50
Interview with Josua Mata, supra note 32; Interview with Umesh Upadhyaya, supra note
32; Interview with Chang-geun Lee, supra note 32.
51
See supra note 5 and accompanying text.
52
11.8 Million, CHICAGO TRIB., Aug. 21, 2008, at C19; Mexican-Born Persons in the US Civilian Labor
Force, IMMIGRATION FACTS (Migration Policy Inst.), Nov. 2006, at 1, available at
http://www.migrationpolicy.org/pubs/FS14_MexicanWorkers2006.pdf.
53
James Painter, U.S. Woes Slow Migrant Remittances, BBC NEWS, Mar. 12, 2008, available at
http://news.bbc.co.uk/1/hi/world/americas/7292216.stm.
54
For useful historical overviews of Mexico’s emigration policy, see Jorge Durand, From
Traitors to Heroes: 100 Years of Mexican Migration Policies, MPI MIGRATION INFO. SOURCE, Mar. 2004,
available at http://www.migrationinformation.org/Feature/display.cfm?ID=203; Fitzgerald, supra
note 36; Marc R. Rosenblum, Moving Beyond the Policy of No Policy: Emigration from Mexico and Central
America, 46 LATIN AM. POL. & SOC’Y 91 (2004).
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Mexican government today characterizes out-migration as the product of global
forces rather than state policy. In the words of the current director of the Mexican
Ministry of Foreign Relations’ Bureau of Consular Protection, the government is
“not in the business of promoting labor migration, facilitating it, or recruiting
workers for other countries.” 55 Nor does it seek to regulate the out-flow of
migrants, in part a recognition of the impossibility of effectively managing
movement across its nearly 2000-mile border with the United States. 56
Despite the disavowal, the Mexican government’s approach to migration is not
entirely hands-off. It has negotiated a bilateral agreement with Canada governing
temporary migration of agricultural workers, and since the late 1990s has sought
to treat migration to the United States as a bilateral matter as well, albeit with less
success. 57 In the past decade Mexico has also created a large-scale program to
build ties with its citizens abroad and to encourage their continued remittances
and investment. 58
One area where the Mexican government has not pursued a cohesive policy,
however, is with regard to the labor rights of its migrants. Unlike many other
major migrant-origin countries, Mexico’s consulates in the United States have no
organized program to assist migrants with workplace problems, although
individual consuls may take an interest in labor matters. A few consulates have
agreements with the U.S. Department of Labor (DOL), under which the DOL
agrees to provide training on workers rights to consul staff and at consulate
events. 59 Other consulates have occasionally filed amicus briefs or hired counsel
to intervene in court cases where Mexican workers’ interests were at stake. 60 At
55
Interview with Daniel Hernandez Joseph, Dir. Gen. for Prot. & Consular Affairs, Bureau
of Consular Prot., Ministry of Foreign Relations of Mex. (SRE), in Mexico City, Mex. (Mar. 5,
2008).
56
Although there is a legal requirement that labor migrants demonstrate a work contract
and compliance with destination entry requirements before departing, the government does not
enforce it. Fitzgerald, supra note 36, at 15-16.
57
Rosenblum, supra note 54, at 108-13.
58
Fitzgerald, supra note 36, at 14; Rosenblum, supra note 54, at 111-12. Policies have included
the creation of an Institute of Mexicans Abroad, through which migrants advise the Mexican
government on its policies; provision by the consulates of the “matricula consular,” a form of
official i.d.; dual nationality; the granting of the vote in Mexican elections to Mexican citizens
abroad; and the creation of the “three for one” program, which matches migrant remittance
contributions to development projects through official channels at a rate of three to one. Gustavo
Cano & Alexandra Delano, The Mexican Government and Organised Mexican Immigrants in the United
States: A Historical Analysis of Political Transnationalism (1848-2005), 33 J. ETHNIC & MIGRATION STUD.
695 (2005).
59
For an example of such an agreement involving the Mexican Consulate in Houston, see
U.S. Dep’t of Labor, Occupational Safety & Health Admin., Alliance Agreement (Mar. 24 2006),
available at http://www.osha.gov/dcsp/alliances/regional/reg6/mex_con_houston_final.html.
60
In 1998, for example, the Mexican government joined a lawsuit against DeCoster Egg
Farm, claiming violations of wage standards and other labor laws. This was Mexico’s first lawsuit
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times, a consular officer may form a relationship with a local union or workers’
rights organization. 61 But Daniel Hernandez Joseph, director of the Mexican
government’s Bureau of Consular Protection, describes the defense of workers
rights as one of the lowest priorities of an overburdened consular staff. 62 Mexico
sets no minimum requirements for the employment of its nationals in the United
States, provides no model contracts or agreements, has no limits on out-migration,
does no pre-departure rights education, and makes minimal efforts to regulate
recruitment on Mexican soil.
Should it wish to use them, the Mexican government has tools at its disposal to
control exploitative labor recruitment. For example, Article 28 of Mexico’s
Federal Labor Law mandates that labor contractors recruiting in Mexico register
with the government, pay the workers’ travel costs and visa fees in advance, file a
copy of the labor contract, and post a bond in case workers’ rights are violated.
Yet there are no documented cases in which the Mexican government has enforced
this law against a labor recruiter. 63
In a recent interview, Mr. Hernandez explained Mexico’s lack of investment in
worker protection in the United States as the product of the indifference of the
Mexican public to violations of the rights of Mexican migrant workers. He
contrasts this with Mexicans’ insistence on a consular response to border deaths,
repatriation of bodies, and the death penalty, which has resulted in the channeling
of millions of dollars into diplomatic initiatives in those areas. 64 Other factors are
likely at work as well. Unlike repatriation, for example, rights defense puts the
Mexican consulate in direct conflict with the employers they otherwise see as
desirable allies.
against a U.S. employer. Northeast: Poultry, Eggs, 4 RURAL MIGRATION NEWS (Jul. 1998), available at
http://migration.ucdavis.edu/rmn/more.php?id=283_0_2_0.
61
This happened in the mid-2000s in the metro-New York region, when then-Consul (now
Ambassador) Arturo Sarukhan made an effort to build relationships with worker centers in the
context of conflicts over Mexican day laborers in New York and New Jersey. Personal
Communication with Arturo Sarukhan, Mexican Consul, in N.Y., N.Y. (Oct. 28, 2005). For a note
on an informal collaboration between the Mexican consulate in Chicago and a union seeking to
organize Mexican immigrants, see Leon Fink, Labor Joins La Marcha: How New Immigrant
Activists Restored the Meaning of May Day (2008) (unpublished manuscript, on file with author).
62
Daniel Hernandez Joseph, Dir. Gen. for Prot. & Consular Affairs, Bureau of Consular
Prot., Ministry of Foreign Relations of Mex. (SRE), Remarks at the Binational Labor Justice
Convening (Oct. 6, 2007); Interview with Daniel Hernandez Joseph, supra note 55.
63
Jorge Fernandez Souza, Magistrate Judge, Professor of Law and former Dean, Universidad
Autónoma Metropolitana, México, Remarks at the Binational Labor Justice Convening (Oct. 6,
2007). For an argument for the application of Article 28 by U.S. courts, see Kati L. Griffith,
Globalizing U.S. Employment Statutes Through Foreign Law Influence: Mexico’s Foreign Employer Provision and
Recruited Mexican Workers, 29 COMP. LAB. L. & POL’Y J. 383 (2008).
64
Interview with Daniel Hernandez Joseph, supra note 55.
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The Philippines
Today, more than 8.2 million Filipinos live in over 190 countries, representing a
quarter of the Philippine labor force. 65 In 2007, remittances sent home by Filipino
Overseas Foreign Workers totaled over fourteen billion dollars, approximately ten
percent of the country’s GDP. 66 As these numbers indicate, even more than
Mexico, the Philippines is one of the world’s most active exporters of labor. It is
also among its most organized, with a broad range of laws and institutions
designed to channel migration and to regulate recruiters, employers, and migrants
themselves. By contrast with Mexico, it offers an example of an origin country
that takes a more proactive—although still conflict-ridden—approach both to the
management (and encouragement) of labor migration and to enforcing migrant
labor rights.
The Philippines already had a long history of emigration for work by 1974, when
then-President Ferdinand Marcos announced a new policy affirmatively
promoting temporary legal migration as a source of jobs for Filipinos and income
for Philippine development. 67 Subsequently, the government’s involvement in the
migration process increased significantly, and emigration rates soared. In the
ensuing decades, the Philippine state built a range of institutions to encourage and
regulate migration based on labor contracts abroad.
The Philippines Overseas Employment Agency (POEA) is the government body
charged with managing out-migration. All recruitment agencies must be licensed
by the POEA, and only licensed agencies or the POEA’s own direct recruitment
programs are permitted to place workers in overseas jobs. The POEA is charged
with monitoring private recruitment agencies, although its capacity to do this is
limited. 68 Whether migrants find work through the government or via an agency
it regulates, the contracts they sign are enforceable under Philippine law. 69 If the
65
Dovelyn Rannveig Agunias & Neil G. Ruiz, Protecting Overseas Workers: Lessons and Cautions
from the Philippines, INSIGHT (Migration Policy Inst.), Sept. 2007, at 2, available at
http://www.migrationpolicy.org/pubs/MigDevInsight_091807.pdf.
66
AFX News Limited, Philippines 2007 Overseas Workers' Remittances at Record 14.4 Billion Dollars,
Feb. 15, 2007, available at http://www.forbes.com/markets/feeds/afx/2008/02/15/afx4659876.html.
For comparison purposes, in 2007, Mexico received about $24 billion in remittances, for a total of
2-3% of its GDP. Painter, supra note 53.
67
Agunias & Ruiz, supra note 65, at 2, 6; JOAQUIN L. GONZALEZ III, PHILIPPINE LABOUR
MIGRATION: CRITICAL DIMENSIONS OF PUBLIC POLICY 33-36 (1998); Kevin O’Neil, Labor Export as
Government Policy: The Case of the Philippines, MPI MIGRATION INFO. SOURCE, Jan. 2004,
http://www.migrationinformation.org/USFocus/display.cfm?ID=191.
While this effort has
increased the percentage of Filipinos who migrate legally, there is still a significant amount of
illegal migration. Id.
68
Agunias, supra note 26, at 16-17.
69
O’Neil, supra note 67.
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foreign employer does not respect the terms of the contract, the Philippine
employment agency is held jointly liable for the violations. 70 This measure was
intended to give Filipino migrant workers a way to seek redress for labor abuses
once they return to their home country, in recognition of the often insurmountable
difficulties of pursuing a case directly against the employer while working abroad
on a contract. 71 The POEA also sets minimum standards for employment in
specific industries, 72 processes employment contracts, and certifies workers as
qualified to depart for overseas employment. Finally, the POEA seeks to develop
new overseas work opportunities for Filipinos and itself recruits workers for some
overseas jobs. 73
The Overseas Workers Welfare Administration (OWWA) is the principle agency
through which the Philippines government offers services to migrants. OWWA
manages a $246 million welfare fund that is financed through the mandatory
contributions of migrants (and, nominally, their employers, although the employer
portion of the fee is frequently passed on to the worker as well). 74 It provides
contributing migrants with life and disability insurance, loans, education
subsidies and training, repatriation assistance, legal representation, and worker
protection. 75
The OWWA also collaborates with migrants rights groups,
recruiters, and civil society organizations to conduct pre-departure orientations
that are tailored to particular industries and cover skills, rights, and the culture
and customs of the host country. 76 It has a staff of 580, including 180 in countries
with the largest numbers of Overseas Foreign Workers. 77
In 1995, the Philippine government officially shifted from an affirmative promigration stance to a more protective attitude, in response to the wave of mass
demonstrations that followed the killing of Flor Contemplacion, a Filipina
Overseas Foreign Worker put to death in Singapore on a murder charge. 78 The
1995 Migrant Workers and Overseas Filipinos Act declares that “the State does
not promote overseas employment as a means to sustain economic growth and
achieve national development,” and mandates that the “State shall deploy overseas
70
Philippine Migrant Workers and Overseas Filipinos Act of 1995, Rep. Act No. 8042 § 10
(1995).
71
See Narcan Inc. Shipping and Placement Agency v. Nat’l Labor Relations Comm’n, C.A.
G.R. No. 66264 at 7 (2006), available at http://ca.supremecourt.gov.ph/cardis/SP66264.pdf.
72
IOM, supra note 33, at 34-36, app. F, G at 75-79.
73
Alcid, supra note 46, at 106-07.
74
Agunias & Ruiz, supra note 65, at 10, 12; Posting of Aubrey Makilan to Migrants News
Monitor,
http://migrantsnews.blogspot.com/2008/01/congress-oversight-of-owwa-fundssought.html (Jan. 13, 2008, 4:07 p.m.).
75
Agunias & Ruiz, supra note 65, at 14-19.
76
IOM, supra note 33, at 118-19, 202.
77
Agunias & Ruiz, supra note 65, at 9-10.
78
Id. at 7.
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Filipino workers only in countries where the rights of Filipino migrant workers
are protected.” 79 Among other new worker protections, the Act created the
position of Overseas Welfare Officer, officials placed in 28 embassies and
consulates in countries with high levels of Filipino immigration, and charged with
responding to complaints of worker abuse. Overseas Welfare Officers investigate
reports of abuse, attempt to resolve disputes between migrants and employers
through negotiation, and, if necessary, hire lawyers to represent migrants with
labor claims in courts abroad. 80
As noted above, the Philippines has also begun to incorporate country-specific
model labor contracts in the bilateral agreements it negotiates. In addition, the
government has at times cut off the supply of new Filipino labor migrants from
countries where violations are particularly severe. The Philippines has imposed
this sanction against five destination nations so far, including briefly in 2008
against Jordan, a country with which it had negotiated a migration agreement,
because of reports of the abuse of domestic workers by employers there. 81 Finally,
the Philippines has been active in ratifying international migrant protective
agreements, and in pushing for migrant protections in a range of international
fora. 82
The Philippines has paid a price for its reputation as a nation that demands
respect for its migrants’ rights. For example, Filipina migrants are being
supplanted in the Hong Kong market for domestic workers by those from other,
less rights-protective countries such as Indonesia. 83 Observers suggest that the
shift is the result of the higher wage requirements and greater rights awareness of
Filipinas relative to their Indonesian competitors. 84 The Philippines has sought to
79
Philippine Migrant Workers and Overseas Filipinos Act of 1995, Rep. Act No. 8042, §§
(2)(c), 4 (1995).
80
BARUAH & CHOLEWINSKI, supra note 35, at 57; Agunias & Ruiz, supra note 65, at 19.
81
The ban was initiated in January 2008. Philippines: No More Workers to Jordan, ASSOCIATED
PRESS, Jan. 23, 2008, available at http://www.usatoday.com/news/world/2008-01-23903913811_x.htm. It was lifted in August 2008. Philippines Allows Workers to Jordan, ASSOCIATED
PRESS, Aug. 1, 2008, available at http://www.iht.com/articles/ap/2008/08/01/asia/AS-PhilippinesJordan.php. The Philippines has terminated formal labor migration to Nigeria, Afghanistan,
Lebanon, and Iraq on similar grounds. Id. The Philippines had imposed a similar ban on official
migration to Jordan in 1990, but lifted it in 2005 after new protective provisions were approved by
the Jordanian government. Philippines Dep’t of Labor & Employment, Deployment Ban of DH to
Jordan Lifted, Mar. 3, 2005, http://www.dole.gov.ph/news/details.asp?id=N000000452.
82
Go, supra note 30, at 11-12.
83
NICOLE CONSTABLE, MAID TO ORDER IN HONG KONG: STORIES OF MIGRANT WORKERS vii
(2d ed., 2007); Hsiao-Chuan Hsia, Transnationalism from Below: The Case Study of Asian
Migrants Coordinating Body 4-5 (Jul. 2007) (unpublished paper presented at the 15th Int’l
Symposium
of
the
Int’l
Consortium
for
Soc.
Dev.,
H.K.),
available at
http://www.apmigrants.org/papers/Transnationalism_fr_below.pdf.
84
CONSTABLE, supra note 83, at 86-88; Hsia, supra note 83, at 8-9.
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address the issue of competition head-on by negotiating a Memorandum of
Understanding with Indonesia, the first to be concluded between two origin
countries. The 2003 accord establishes a joint commitment to train and certify
migrants, promote the rights of migrant workers abroad, and provide legal
assistance in defense of migrant labor rights. 85
For all the breadth of Philippine protections for migrants, however,
implementation has often fallen short of the laws on paper. In part, the problem
reflects weaknesses in the particular institutions charged with enforcement. 86
Philippine migrant-protective agencies are chronically understaffed. 87 Critics
have charged that the labor attachés assigned to address employment violations at
consulates are often political appointees without specialized experience in the
field. 88 There is a general lack of transparency and public accountability in
Philippine migrant service programs, and accusations of corruption and waste at
the Overseas Workers Welfare Administration are not infrequent. 89 Even where
the Philippine government has been most innovative—for example, with the
legislation that imposes joint liability on recruiters for foreign employers’
violations—it is hampered by its own overburdened legal institutions, which
make timely and effective prosecution difficult. 90
In addition, and more broadly, the limitations in the Philippine government’s
approach to enforcing migrants’ labor rights reflect the tension between its desire
to maintain good relations with destination states and its position as defender of
its migrants’ rights. Despite its official proclamations, the Philippine government
continues to rely heavy on out-migration. As sociologist Robyn Rodriguez notes
in her study of the Philippine government’s role in a conflict between Philippine
migrants and the factory where they worked in Brunei, the government’s
reluctance to jeopardize its diplomatic relationships with key destination
countries may lead it to pressure migrants to settle or drop claims rather than
acting as their advocate. 91 Furthermore, as noted above, many of the mechanisms
that the Philippine government has established to protect migrant rights—the
model contracts and minimum wages, the requirement that migrants show a valid
contract to receive an exit permit, the liability of recruiters for employer
85
Go, supra note 30, at 4–5.
RODRIGUEZ, supra note 45 (manuscript at ch. 6); Agunias, supra note 26 at 16-24; Agunias
& Ruiz, supra note 65; Xinying Chi, Note, Challenging Managed Temporary Labor Migration as a Model for
Rights and Development for Labor-Sending Countries, 40 N.Y.U. J. INT’L L. & POL. 497, 514-16 (2008);
OFRENEO & SAMONTE, supra note 30.
87
Agunias, supra note 26, at 16.
88
Chi, supra note 86, at 515; OFRENEO & SAMONTE, supra note 30, at 62.
89
Agunias & Ruiz, supra note 65, passim.
90
Chi, supra note 86, at 514-16.
91
RODRIGUEZ, supra note 45 (manuscript at ch. 6).
86
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violations—can be, and often are, short-circuited by the common requirement that
migrants sign a second, less protective contract on arrival in the destination
country. 92 For all of these reasons, migrants seeking the Philippine government’s
assistance with workplace problems have often found that the government does
not deliver on its promises of protection.
D.
CHALLENGES AND LESSONS LEARNED
This overview leaves no doubt that there is an alternative to labor migration policy
set unilaterally by destination countries. In many places around the world, the
management of labor migration is happening bi-laterally. And although countries
of origin face considerable incentives to downplay the issue of migrant rights,
domestic politics around emigration are complex, and there are also reasons for an
origin nation to take pro-active steps to defend the rights of its migrants. As the
comparison between Mexico and the Philippines illustrates, the degree of
domestic political pressure around the issue may be an important factor in
whether a country moves rights into the foreground of its emigration policy. So
too is geography, as the Philippines with its island configuration has greater
control over out-migration and a broader range of potential destination partners
than Mexico, which is locked in a relationship with a single major destination
country with which it shares an extensive border.
How effective an origin country can be once it has decided to take on labor rights
as an issue is another matter. Neither the independent efforts of origin states to
protect migrant rights nor the protective mechanisms of bilateral agreements have
been systematically evaluated. What is clear from a review of anecdotal critiques
and of the literature assessing other aspects of origin-state migration policy is that
the protections established on paper are rarely fully implemented, when they are
implemented at all. Origin states have a weak hand in negotiations over labor
migration, and what protections they do establish are often compromised both by
practical limits on an origin country’s capacity to enforce workplace laws outside
its territory (especially given weak domestic legal institutions), 93 and by tensions
over whether enforcement makes sense given the country’s goal of sustaining a
high level of labor emigration.
In the global marketplace for jobs, there is significant pressure on origin countries
to soft-peddle issues of migrant rights in order to make their nationals more
92
For a critique of the functioning of the model contract in the context of Hong Kong, see
CONSTABLE, supra note 83, at ch. 6. Government-mandated contracts are worth little unless the
destination country puts its weight behind enforcement. Gwenann S. Manseau, Contractual
Solutions for Migrant Labourers: The Case of Domestic Workers in the Middle East, 2 HUM. RTS. L.
COMMENT. 25, 30 (2006).
93
Chi, supra note 86, at 511-16; OFRENEO & SAMONTE, supra note 30, at 14.
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desirable as temporary workers. As these cases make evident, the negotiation of
bilateral (as opposed to multi-lateral or regional) labor migration agreements
intensifies this concern, as origin countries fear that if they try to make migrant
rights a priority they may be passed over as potential “partners” by destination
countries, in favor of nations that demand less. To avoid this outcome, some
countries that once set minimum wages for their migrants, such as Pakistan, have
abandoned that effort and now limit their approach to regulating recruitment
agencies and addressing gross violations of human rights abroad. 94 Multilateral or
regional agreements, by contrast, have the capacity to take labor rights out of
competition, setting the same rights baseline for all origin and destination nations.
For this reason, they are far preferable to a bilateral approach from a migrants’
rights perspective.
Finally, the cases reinforce the impression that no matter how creative or active an
origin country is in the protection of migrant workers rights, there are limits to
what it can achieve without the active cooperation of the destination country.
Not only do destination countries hold most of the bargaining power, but it is on
destination country territory that labor violations occur and it is destination
country laws and legal institutions that are largely used to remedy them. Halfway
measures that rely exclusively on an origin country’s efforts are thus unlikely to
meet with significant success. If migrant protections are to be made real,
destination countries must take the lead by making rights central to the design of
their labor migration programs and by creating and adequately funding concrete
mechanisms to enforce workplace protections for migrants.
If destination countries do call for a Transnational Labor Citizenship-like
program, there are reasons to believe that it might hold appeal for origin countries
as well. Transnational Labor Citizenship would create more slots for labor
migrants, raise migrant wages, and remove impediments to return migration, all
developments that are in origin countries’ interest. Were destination countries to
make this a priority, it would also open the door for negotiation of such
agreements on a regional basis rather than the less effective country-by-country
approach. Finally, since Transnational Labor Citizenship would create a network
of interlinked worker-protective organizations in the origin and destination
countries and facilitate direct collaboration between origin countries, workers’
organizations, and destination country governments on efforts to enforce
workplace standards, it would address origin country concerns about the
inadequacy of their current tools for migrant worker defense.
94
IOM, supra note 33, at 33.
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III EMERGING EXAMPLES OF MOBILE LABOR
CITIZENSHIP
A.
UNDERSTANDING MOBILE LABOR CITIZENSHIP
At the heart of the Transnational Labor Citizenship proposal is the idea that both
migrants and workers in the destination country will be best protected if migrants
travel across borders as “labor citizens.” To achieve this, migrants would have ties
to workers’ organizations in their home countries before departure, as well as in
the destination communities where they labor for all or part of the year. I refer to
this as mobile labor citizenship. In the fullest form of the proposal, it is that
membership and the fulfillment of its obligations, rather than a link to an
employer, that would entitle migrants to a work visa in the destination country.
Collaborations between origin and destination country workers’ organizations to
ensure migrants’ rights are part of a broader spectrum of global labor solidarity. In
North America and the EU in particular, global solidarity is most often enacted
through campaigns in which unions (and sometimes advocacy organizations) in
different countries join forces to pressure a transnational corporation to improve
its treatment of workers. The objective of such campaigns is usually to win a
specific victory relating to a particular job site or sites in a single country. As
capital moves ever more freely across borders, such campaigns are becoming more
common, and more necessary. 95 Cross-border solidarity is an essential component
of any strategy to raise wages and working conditions in the global economy. But
its focus is on holding mobile capital accountable on a case-by-case basis. 96 In this it is
distinct from Transnational Labor Citizenship, which seeks to strengthen the
hand of migrants themselves as they cross borders, with the goal of building mobile
labor’s capacity to defend its rights on a continuous basis across a wide swath of
employers. 97 Mobile labor citizenship, a core component of Transnational Labor
95
For a historical overview of labor’s cross-border efforts, see Beverly J. Silver, FORCES OF
LABOR: WORKERS’ MOVEMENTS AND GLOBALIZATION SINCE 1870 (2003). Examples of recent
campaigns are set out in GLOBAL UNIONS: CHALLENGING TRANSNATIONAL CAPITAL THROUGH
CROSS-BORDER CAMPAIGNS (Kate Bronfenbrenner ed., 2007) [hereinafter GLOBAL UNIONS], and
GLOBAL UNIONS? THEORY AND STRATEGIES OF ORGANIZED LABOUR IN THE GLOBAL POLITICAL
ECONOMY (Jeffrey Harrod & Robert O’Brien eds., 2002). For a critical perspective, see Alan
Howard, The Future of Global Unions: Is Solidarity Still Forever?, DISSENT MAG., Fall 2007, at 62.
96
Global Union Federations have also begun to negotiate international framework
agreements with transnational firms as a way to commit them to a uniform set of labor practices
around the globe. See generally Dimitris Stevis & Terry Boswell, International Framework Agreements:
Opportunities and Challenges for Global Unionism, in GLOBAL UNIONS, supra note 95, at 174.
97
A common critique of some efforts to hold global capital accountable—in particular,
private monitoring agreements negotiated between transnational brands and non-governmental
organizations—is that the process disempowers workers who labor for the brands’
subcontractors, who often have no say in the terms or implementation of those agreements, and
whose employers may use the agreements to avoid unionization. For one such critique, see JILL
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Citizenship, requires the creation of organizing structures and relationships that
correspond to the realities of migration. Compared with other forms of global
labor solidarity, mobile labor citizenship is in its infancy. Yet unions and NGOs
around the world are beginning to recognize the need for it and to explore its
potential.
Mobile labor citizenship is one aspect of efforts by trade unions around the world
to develop a positive response to the latest wave of global immigration. Unions in
EU and North American destination countries have experimented for several
decades now with models for welcoming new immigrants (including the
undocumented) into their ranks and for defending the rights of migrants as
workers. In the United States, unions have made great strides in organizing
immigrants. 98 In doing so, however, they have largely worked alone. With
exceptions that are so few as to prove the rule, 99 they have not collaborated with
origin country unions to organize migrants from those countries, nor—other than
the Farm Labor Organizing Committee, whose approach I discuss below—do they
maintain a presence accessible to their members in their countries of origin. Much
the same could be said of most unions in Canada. 100 While there has been a little
more experimentation in the EU, particularly with collaboration between unions
ESBENSHADE, MONITORING SWEATSHOPS: WORKERS, CONSUMERS, AND THE GLOBAL APPAREL
INDUSTRY 198-201 (2004). Transnational Labor Citizenship can be understood as a response to
that unfinished agenda, in that it addresses global working conditions from the workers’
perspective and with their active involvement. Mark Barenberg offers an alternative monitoring
model in Toward a Democratic Model of Transnational Labour Monitoring?, in REGULATING LABOUR IN
THE WAKE OF GLOBALISATION: NEW CHALLENGES, NEW INSTITUTIONS 37 (Brian Bercusson &
Cynthia Estlund eds., 2008).
98
For a sampling of writing on organized labor’s new attention to immigrant workers, see
RUTH MILKMAN, L.A. STORY: IMMIGRANT WORKERS AND THE FUTURE OF THE U.S. LABOR
MOVEMENT (2006); IMMANUEL NESS, IMMIGRANTS, UNIONS, AND THE NEW U.S. LABOR
MARKET (2005); ORGANIZING IMMIGRANTS: THE CHALLENGE FOR UNIONS IN CONTEMPORARY
CALIFORNIA (Ruth Milkman ed., 2000).
99
The only example of which I am aware where an origin country union was directly
involved in an organizing campaign involving immigrants within the U.S. was the collaboration
between the independent Mexican union FAT (the Frente Autónoma de Trabajadores) and the
independent U.S. union UE (the United Electrical workers union). Among other collaborative
efforts, a FAT organizer came to Milwaukee for several weeks in 1994 to help the UE organize
Mexican immigrant workers at the AceCo foundry there. Terry Davis, Cross-border Organizing Comes
Home: UE & FAT in Mexico & Milwaukee, 23 LAB. RES. REV. 23 (1995).
100
For example, in its efforts to improve working conditions for migrant agricultural
workers, the United Food and Commercial Workers Canada launched a network of five regional
Migrant Worker Support Centers. United Food and Commercial Workers Canada, UFCW
Canada National Report on the Status of Migrant Farm Workers in Canada 3 (2004) available at
http://www.ufcw.ca/Theme/UFCW/files/AgWorkersReport2004ENG.pdf.
It
also
won
representation elections at four farms. Jennifer Hill, Binational Guestworker Unions: Moving
Guestworkers into the House of Labor, 35 FORDHAM URB. L.J. 307, 320 (2008). But these endeavors have
no link to origin country institutions.
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in Western and Eastern European countries, the vast majority of those efforts
remain unilateral as well. 101
The efforts of destination country unions and NGOs are essential to ensure that
migrants’ rights are respected. But particularly in situations where migrants travel
back and forth between their home and destination countries, there are limits to
what a one-sided approach can achieve. Transnational Labor Citizenship calls for
an acknowledgment that where migrants continue to move transnationally, a high
level of coordination between origin and destination country workers’
organizations is important to ensure that migrants are able to defend their rights.
A coordinated mobile labor citizenship approach would complement the many
other efforts that destination and origin country workers’ organizations currently
have underway to respond to the needs of migrants.
Mobile labor citizenship is taking different forms around the world. In its most
literal incarnation, a number of Global Union Federations or GUFs (international
industry-based confederations of national unions, formerly called International
Trade Secretariats) are experimenting with “union passports,” documents that
permit individuals who belong to one of their affiliated unions in an origin country
to claim certain benefits from sister unions in a destination country. This
represents a significant shift for the Global Union Federations, which had
previously focused more on bringing their member unions together to pressure
transnational capital than on enhancing unions’ capacity to organize mobile
workers. The Global Union Federation for professional and commercial service
workers, Union-Network International (UNI) has launched the “UNI
Passport.” 102 The International Union of Food, Agricultural, and Allied Workers
101
A number of EU unions have initiated programs to reach and incorporate immigrant
members (including the undocumented), but most of these programs have been implemented
unilaterally rather than in collaboration with their origin-country counterparts. See descriptions
of contemporary union approaches to immigrants in Spain, Italy, and France in JULIE R. WATTS,
IMMIGRATION POLICY AND THE CHALLENGE OF GLOBALIZATION: UNIONS AND EMPLOYERS IN
UNLIKELY ALLIANCE (2002).
One interesting exception is a decade-long collaboration between the Building Trades
Council in Rome, Italy, and its counterpart in Romania, through which the Romanian unions send
four staff to the Rome council to help organize Romanian migrant workers there. Telephone
Interviews with James O’Leary, Executive Dir., Int’l Labor Mgmt. Alliance (Oct. 8, 2008, Oct. 10,
2008). Another is the European Migrant Workers Union, launched in 2004 by IG BAU, the
German construction workers’ union, with intermittent collaboration with its Polish counterpart.
Marcus Kahmann, The Posting of Workers in the German Construction Industry: Responses and Problems of
Trade Union Action, 12 TRANSFER 183, 190-94 (2006); Nathan Lillie & Ian Greer, Industrial Relations,
Migration, and Neoliberal Politics: The Case of the European Construction Sector, 35 POL. & SOC’Y 551, 56468 (2007).
102
UNI
Global
Union,
The
UNI
Passport,
http://www.unionnetwork.org/Unisite/Groups/PMS/issues_passport.htm;
UNI
Passport
Application
&
Information, http://www.union-network.org/Unisite/Groups/PMS/Passport/LeafletEng.pdf.; UNI
Passport
Scheme,
http://www.union-
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RESTRUCTURING LABOR MIGRATION
(IUF) has an “International Union Card.” 103 Most recently, in late 2008 the
Building and Woodworkers International (BWI) initiated its “Migrant Workers
Rights Passport,” which includes information about the bearer’s union history,
work experience, and training; summarizes relevant laws in major destination
countries; and entitles the bearer to the support of participating BWI unions. 104
To date, the GUF passport approach appears to represent more of a symbolic
statement than a source of tangible improvements in the working conditions of
most migrants. One problem is that neither the mechanisms for incorporating
migrants who appear at a destination country union’s door nor the funding to
support the provision of benefits to newcomers have yet been fully worked out. A
more fundamental challenge arises from the fact that migrants who are unionized
at home may work in a different industry and/or in a non-union sector at their
destination—and vice versa. This undermines the assumption on which GUFsponsored union passport efforts are built: that migrants who are affiliated with a
union in one country will consistently remain within the same industry (and
within a unionized sector of the industry) after they cross borders, so that they
can carry their union membership with them to a union in the other country that
belongs to the same GUF.
More concrete benefits are emerging from partnerships between individual origin
and destination country unions around the world. Some of these only involve brief
consultation or support, but others are evolving into sustained collaborations. In
what follows, I offer a series of preliminary summaries of new initiatives that take
different approaches to ensuring that migrants are organized as labor citizens
wherever they are in the migrant stream. Two of the efforts I profile are in the
global construction industry: a new protocol for hiring unionized construction
workers from origin countries when there is a labor shortage among unionized
construction workers in a destination country; and a range of origin/destination
union collaborations to organize migrant construction workers in Asia. The other
two efforts are located in the core low-wage migrant industries of agriculture and
domestic work. One is a destination country farm workers’ union that has opened
an office in the country of origin of the majority of its members; and the other is an
network.org/unipm.nsf/9548462b9349db27c125681100260673/4fad77f585b1bd09c1256c44003e1f6
b/$FILE/DanD.'s%20passport%20scheme-e.doc.
103
The Federation’s full name is the International Union of Food, Agricultural, Hotel,
Restaurant, Catering, Tobacco and Allied Workers’ Associations. On the IUF’s International
Union Card, see the organization’s publication, IUF, WORKERS AND UNIONS ON THE MOVE:
ORGANISING AND DEFENDING MIGRANT WORKERS IN AGRICULTURE AND ALLIED SECTORS 28 (May
2008), available at http://www.iufdocuments.org/www/documents/IUFmigrantworkersmanuale.pdf.
104
BWI Migrant Workers Rights Passport (on file with author); The BWI Migrant Workers
Rights Campaign 17-18 (2008) [hereinafter BWI Pamphlet] (on file with author); Interview with
Jin Sook Lee, Reg’l Project Coordinator, BWI, Asia-Pacific Region, in Manila, Phil. (Oct. 29, 2008).
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GORDON
RESTRUCTURING LABOR MIGRATION
origin country labor federation that has sent an organizer to a destination country
to organize domestic workers there. 105
Although I highlight Global Union passports and destination/origin country
partnerships here because of my interest in mobile labor citizenship, it is
important to make clear that they do not stand alone. Passports and partnerships
are only one component of broader migrants rights campaigns, which may include
efforts to provide accurate information to migrants before departure and after
arrival, ensure that migrants’ existing rights are respected, bolster domestic and
international laws, and fight exploitative recruitment practices. Numerous Global
Union Federations, national labor federations, unions, and NGOs have undertaken
such campaigns in recent years, both independent of each other and through
networks that bring them together.
Most of the cross-border collaborations I describe in the following sections are
very new. Some are only in the planning stages and others have just begun to be
implemented, which limits the conclusions I can draw about the impact of their
approaches. Keeping in mind that most of these experiments are in their infancy, I
focus on analyzing their models rather than on their outcomes. While all of these
efforts have in common a commitment to union membership that is portable
across borders, they differ in important ways. One addresses workers who are
recognized as highly skilled, while others focus on workers at the lower end of the
wage/skill ladder. Some are linked to existing guest worker programs and thus
work only with legal migrants. Others are more inclusive, taking the existing
labor market demographics and migration pattern as a given, and seeking to bring
into their ambit as many migrants working in the industry as possible. At the
conclusion of this section, I contrast the effo...
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