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I NEED THE FOLLOWING QUESTIONS ANSWERED BASED ON THE FOLLOWING READING  1) discuss what Gordon means by transnational labor citizenship, and 2) discuss how the various experiments in creating a system of "mobile labor citizenship" her article documents provide examples of how to both recognize the contributions migrant workers make to national economies and safeguard their rights. 


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GordonTwo Experiments in Transnation Labor.pdf


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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)). -1- GORDON RESTRUCTURING LABOR MIGRATION 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 -2- GORDON RESTRUCTURING LABOR MIGRATION 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. -3- GORDON RESTRUCTURING LABOR MIGRATION 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 -4- GORDON RESTRUCTURING LABOR MIGRATION 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). -5- GORDON RESTRUCTURING LABOR MIGRATION 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. -6- GORDON RESTRUCTURING LABOR MIGRATION 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. -7- GORDON RESTRUCTURING LABOR MIGRATION 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. -8- GORDON RESTRUCTURING LABOR MIGRATION 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. -9- GORDON RESTRUCTURING LABOR MIGRATION 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. -10- GORDON RESTRUCTURING LABOR MIGRATION 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. -11- GORDON RESTRUCTURING LABOR MIGRATION (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. -12- GORDON RESTRUCTURING LABOR MIGRATION 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). -13- GORDON RESTRUCTURING LABOR MIGRATION • 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 -14- GORDON RESTRUCTURING LABOR MIGRATION • 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. -15- GORDON RESTRUCTURING LABOR MIGRATION 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. -16- GORDON RESTRUCTURING LABOR MIGRATION • 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. -17- GORDON RESTRUCTURING LABOR MIGRATION 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). -18- GORDON RESTRUCTURING LABOR MIGRATION 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 -19- GORDON RESTRUCTURING LABOR MIGRATION 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. -20- GORDON 2. RESTRUCTURING LABOR MIGRATION 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. -21- GORDON RESTRUCTURING LABOR MIGRATION 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. -22- GORDON RESTRUCTURING LABOR MIGRATION 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. -23- GORDON RESTRUCTURING LABOR MIGRATION 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 -24- GORDON RESTRUCTURING LABOR MIGRATION 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. -25- GORDON RESTRUCTURING LABOR MIGRATION 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. -26- GORDON RESTRUCTURING LABOR MIGRATION 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 -27- GORDON RESTRUCTURING LABOR MIGRATION 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. -28- GORDON RESTRUCTURING LABOR MIGRATION 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- -29- GORDON 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). -30- 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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