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WORLD: Legalizing Human Trafficking

Current WTO negotiations threaten to worsen the already precarious lot of migrant workers around the globe.

by Basav SenDollars & Sense
June 28th, 2006

In an affluent suburb of Washington, D.C., Diana,* an elementary school teacher from Ghana, was working 100-hour weeks as domestic help in the home of a World Bank official. She worked for months without a day off, earning less than $100 a month. She was not allowed to leave the house and was subjected to regular verbal abuse. But she was lucky compared to the many domestic workers from abroad who are beaten or raped by their employers.

Across the country, Suresh* arrived from India on an H-1B visa to work as a computer programmer in California. His employer provided authorization for a one-year visa, but forced him to sign a six-year contract at a set salary with no raises. Pretty soon he was working an average of 70 hours a week. And when the time came to renew his visa, suddenly his employer piled on a lot more work. The message was clear: if you have any hope of staying on in the United States, be prepared to work 100-hour weeks.

These stories typify the abuse faced by immigrant workers in the United States and worldwide. The migrants come from Haiti, Mexico, Senegal, Bangladesh, the Philippines, and many other poor countries. They live and work, often without legal documents, mainly in wealthy venues such as the United States, Canada, Europe, Japan, and the Persian Gulf, but in other less affluent countries as well. They usually work as laborers, maids, cooks, janitors, farmworkers, and in other low-wage occupations. Sometimes, however, they are employed in higher-wage occupations such as computer programming.

In the United States today, the most exploited immigrant workers are now organizing in record numbers against proposed legislation that would turn them into criminals merely for working and trying to feed their families. Over the past month, in a breathtaking display of newfound confidence and defiance, millions of people who have lived for years in the shadows, in constant fear of detection and deportation, have demonstrated in Los Angeles, Chicago, New York, Washington, D.C., and around the country. It's too early to tell what kind of immigration reform package Congress and the Bush administration will agree on, if any. But in the meantime, forces far removed from the millions in the streets, or from accountability to the public in any form, are busy devising a new legal mechanism to keep immigrant workers in bondage forever.

The General Agreement on Trade in Services (GATS), now being negotiated in the World Trade Organization (WTO), is likely to reduce migrant workers to the status of commodities. "Mode 4" of GATS deals with "movement of natural persons," i.e., the migration of people to foreign countries as workers. (Mode 4 of the GATS is one small part within the entire scope of the WTO; see "A Map of the WTO.") GATS Mode 4 does not deal with immigration, as in people from one country moving to, and settling down in, another. It deals only with temporary migrants, who go to a foreign country to work for a limited (often specified) time, for a particular job with a particular employer or to fulfill a specific contract. This category of workers is often called guestworkers.

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GATS Mode 4—and the system of short-term foreign guestworkers that it promotes—is a threat to both guestworkers themselves and to native-born workers in the countries they work in; it is a threat to longstanding human rights principles; and finally, it is a threat to the long-term development prospects of guestworkers' countries of origin.

Guestworkers: A Growing Global Presence

As of 2003, there were 175 million people worldwide (or about 3% of the world's population) living and working outside of their countries of origin, according to International Labor Organization (ILO) estimates. Of this number, 120 million were guestworkers and their families; the rest were permanent immigrants, refugees, or asylum seekers. The global guestworker population has doubled in less than 30 years and, according to the ILO, will likely double again over the next quarter century.

According to UNESCO data, North America, Europe, and Asia are the major destinations of guestworkers, with 23%, 32%, and 28% of the global guestworker population respectively. The United States, Russia, and Germany have the most guestworkers of any country. Some countries, notably in the Persian Gulf region, have a strikingly large population share of guestworkers. In two countries, United Arab Emirates and Kuwait, guestworkers form the majority of the population (74% and 58% respectively). Among countries of origin, Mexico and the Philippines send the most guestworkers abroad.

Guestworkers labor in a wide range of occupations, from highly skilled work (such as doctors and computer engineers) to the so-called 3D jobs (dirty, demeaning, and dangerous) in construction and domestic work. It is hard to construct a global picture of their occupational distribution. Some major recipient countries, such as Germany and Saudi Arabia, provide no data, while others like France provide only incomplete data. For some countries, however, complete data are available. In the United States, 4.8 million migrant workers in 1999 (the latest year for which numbers are available) worked as "production workers, transport, equipment operators and labourers" (for example, construction workers), 3 million as service workers (janitors, nannies, security guards), and 2.6 million as professional and technical workers. These figures make clear the wide range of guestworker occupations. (For a more detailed portrait of the occupational distribution of all immigrant workers in the United States, see "Immigrants in the Labor Market.")

India, Mexico, and the Philippines are the top three recipient countries for remittances, or money that guestworkers send to family members in their home countries—$10 billion, $9.9 billion, and $6.4 billion respectively, according to a 2003 World Bank report. Some countries have a very large share of their Gross Domestic Product (GDP) attributable to remittances—23% for Jordan, 14% for Lebanon and El Salvador.

At least 15% of the global migrant workforce is undocumented. Undocumented workers are an invisible population, existing outside of host countries' legal framework and therefore highly vulnerable to exploitation by predatory employers. But holding travel documents is no guarantee of legal rights. Often, even documented guestworkers are not entitled to the same legal protections as citizens. In the United States, for example, legal changes enacted in 1996 have removed basic due process protections for both migrant workers and permanent residents. Even when they enjoy the same rights on paper as the citizens of the host country, they may face extra-legal discrimination based on race and national origin.

Across the globe, guestworkers face abuses including not being allowed to join a union or organize for their rights; not getting paid on time, and sometimes not getting paid at all, for work they have performed; unsafe and unhealthy working conditions; wages that are far below the average paid to native-born workers for equivalent work; long hours; and even some recorded cases of confinement and forced labor. The Coalition of Immokalee Workers, an immigrant farm workers' organization based in Florida, has documented several instances of migrant farmworkers being kept under armed watch by their employers, and threatened with death if they tried to leave. Francisco's story is unfortunately very common.

Trading in People

Since guestworkers already face such abusive conditions, it is fair to ask how GATS could possibly make it worse for them. GATS is unlikely to change the circumstances of individual guestworkers. However, it worsens the exploitation of guestworkers as a whole in two fundamental ways. First, the draft GATS agreement erodes even the limited legal protections that are available to guestworkers (whether documented or undocumented) today and blocks the evolution of progressive national and international legal instruments to protect migrant workers' rights. Second, by making it easier for employers to hire guestworkers, GATS could greatly increase the number of exploited migrant workers worldwide.

Guestworkers generally enjoy neither the customary legal rights they are entitled to in their home countries nor those that native-born workers in the host country have. In theory, migrants are covered by legal protections for workers in the countries where they hold citizenship. In practice, that's meaningless: abroad, they lack physical access to the labor unions, legal service and human rights organizations, and courts in their home countries. Even in the extremely unlikely event that a migrant worker succeeds in filing legal proceedings in his or her home country's courts against an employer, those courts would most likely lack jurisdiction because the abuse will have occurred abroad.

It's also quite likely that the employer will be based in a third country, distinct from both the worker's home country and the host country, making the reach of the home-country legal system even more tenuous. For example, an Australian contractor could win a contract in Germany, recruit workers in the Philippines, bring them into Germany under GATS Mode 4, and abuse them with no accountability under Philippines law.

Unfortunately, guestworkers are not likely to be protected by the laws of the host country either. Under the draft GATS Mode 4 agreement, guestworkers will be contractually bound to an employer; they are unlikely to have the right to join a union; and they may even be required by contract to pay their employer for their passage to the host country. Such an exploitative scenario is possible because guestworkers will be classified as "service providers" rather than as workers, and their movement across borders will be regarded as "trade" rather than migration according to draft GATS Mode 4 language, thus excluding them from even the limited protections they may enjoy as migrant workers under ILO provisions or under domestic law in the host country.

The treatment of guestworkers will probably vary by host country and by circumstance, with some host countries providing marginally more protection. However, in the absence of binding legal commitments to provide protections to guestworkers, host countries are under no obligation to do so and often won't, whether to appease xenophobia at home or out of deference to foreign investors. Even those host countries that wish to protect the rights of guestworkers may not be allowed to do so under GATS. For example, Bjorn Jensen of the American Friends Service Committee observes that requiring wage parity between domestic workers and guestworkers may be seen as protectionist—a violation of WTO rules.

Migrants' rights advocates worldwide believe GATS Mode 4 amounts to the creation of a 21st-century system of indentured servitude. "Rather than reduce migrants to a factor of production, or a commodity to be exported and imported, migration policy must ac-knowledge migrants as human beings and address their dignity and human rights," according to a joint statement issued by numerous U.S. human rights and immigrant organizations.

Sadly, GATS Mode 4 represents a step backward for migrants' rights. Over the last several decades, the definition and coverage of human rights have expanded significantly, at least on paper, with successive United Nations conferences and conventions on the rights of women, indigenous peoples, and other marginalized populations. For migrant workers, the relevant international instrument is the Convention on Migrant Workers (UNCMW), which has unfortunately been ratified by only 34 countries to date. While this convention does not create any new rights, it explicitly requires governments to apply existing human rights standards, such as those found in the Universal Declaration of Human Rights, to foreign-born migrant workers, whether temporary or permanent and without regard to whether or not they have valid travel documents.

Major host countries such as the United States, Germany, Canada, Saudi Arabia, and Kuwait have not signed the convention, so for now the treaty is largely symbolic. But GATS will render it obsolete before it can be ratified by more countries, preventing it from ever evolving into an effective international legal instrument and undermining decades of work by human rights activists, organized labor, and others to remake global immigration policies in a more humane manner. (According to the 1969 Vienna Convention on the Law of Treaties, a newer treaty or agreement always supersedes an older agreement when the two are in conflict. Therefore, GATS will supersede the UNCMW.) Effectively, GATS is "setting up a separate sphere of migration not based on rights, which works to legitimize the idea that migrant workers don't deserve rights," says Jensen.

Speculation has been rife about what categories of workers GATS Mode 4 will ultimately cover. At present, it appears to be more geared towards the movement of highly skilled workers such as doctors and computer programmers. While the potential for exploitation of these workers is probably less than for unskilled workers, it nevertheless is a concern. The experience of foreign high-tech workers in the United States under the H-1B visa program shows how even skilled workers face lack of job portability (i.e. being contractually tied to one employer) and are vulnerable to layoffs. During the dot-com bust, when firms in the computer industry laid off large numbers of employees, the first to lose their jobs were the foreign workers with H-1B visas.

There is every chance, however, that Mode 4 will be expanded to cover low-skill workers as well. For one thing, governments from countries that rely on guestworkers for most low-skill jobs (such as United Arab Emirates, Kuwait, and Saudi Arabia) as well as from countries that rely heavily on remittances from low-skill emigrants (such as Mexico, El Salvador, and the Philippines) are likely to push hard for expanding Mode 4 to cover a wider range of occupations down the skill ladder.

The Gender Factor

Present-day trends suggest that women will fare even worse than guestworkers in general. According to the United Nations Development Fund for Women (UNIFEM), women constitute 50% or more of migrant workers in Asia and Latin America, and they significantly outnumber men from countries such as Indonesia, the Philippines, and Sri Lanka. Colin Rajah of the Oakland, Calif.-based National Network for Immigrant and Refugee Rights (NNIRR) points out that women migrant workers disproportionately hold the most precarious jobs, often at the mercy of their employers and recruiting agencies. "The increasing feminization of migration has happened predominantly in labor sectors with the least protections, lowest wages, and most demeaning conditions," he says.

In the United States, there are numerous documented examples of women domestic workers being held in near-slavery conditions. The parallel between the legal situation of domestic workers in the United States and that of "service providers" under GATS Mode 4 is disturbing indeed. Domestic workers are often brought into this country legally by employees of embassies, the United Nations, the World Bank, the International Monetary Fund, and other international institutions, under special visa categories (A-3 and G-5) with few attendant rights, much as would happen under GATS. These domestic workers face abuses including confiscation of their passports, near imprisonment in their employers' homes, lack of proper food, verbal and physical abuse, and sexual assault, as the Break the Chain Campaign of the Institute for Policy Studies and other domestic-worker advocacy organizations have documented.

A Wider Race to the Bottom

Migrant workers are not the only workers threatened by GATS Mode 4. It would give employers the flexibility to cut labor costs by firing their own workers and contracting with a labor supplier who will bring in foreign workers under GATS at lower pay and with very few legal rights. The incentive to save on labor costs and to ensure a docile, easily exploitable workforce is strong, and joblessness is likely to increase in host countries as a consequence. Even the threat of bringing in foreign guestworkers can be used by employers to force unions to accept undesirable contract terms or to compel employees to abandon their efforts to unionize. Manufacturing workers in wealthy countries have been watching their jobs migrate to foreign sweatshops for years, but service workers have been relatively immune from the threat of outsourcing since geographical presence is a prerequisite for many types of services. Under GATS, however, employers will be able to bring the sweatshop home legally, threatening service-sector workers with the same mass layoffs that manufacturing workers have had to deal with.

Accelerated Brain Drain

The migration of highly skilled workers poses its own problems for their countries of origin. Analysts expect that the movement of workers under GATS Mode 4 will typically be from poorer countries to wealthier countries. Workers themselves are more likely to join employers who will relocate them to a wealthier country, in the hope of earning more money to send home. The employing firms stand to make greater profits in wealthier countries as well.

GATS thus sets up a "brain drain" scenario, in which poor countries that already lack educated professionals will lose an inordinate number of them to emigration. For a country with a shortage of doctors, of medical colleges to train doctors, and even of people with the educational background to be admitted to medical college, the loss of doctors is disastrous. This in turn has a serious adverse impact on the ability of a poor country to develop its health care infrastructure and provide medical care to its own population. Similarly, the loss of engineers, computer programmers, architects, accountants, and so on will devastate poor countries.

It's not as if such a brain drain is not already occurring. If GATS Mode 4 goes into effect, however, recruiting foreign professionals as guestworkers at lower wages than native workers is likely to become far more commonplace than it already is. It is reasonable to speculate that recruiting guestworkers abroad may become a major new global industry, with an entire infrastructure of recruitment agencies and related enterprises. Consequently, the numbers of highly skilled workers leaving poor countries in search of higher pay (whether real or imagined) is likely to grow exponentially.

A Risky Development Route

Some global South countries, particularly India, have pushed for the expansion of Mode 4 for skilled workers such as computer programmers, hoping to benefit from exporting one of the few "commodities" in which they have a competitive advantage, namely, cheap but highly skilled labor. Besides being an unconscionable commodification of their own citizens on the part of these governments, this is also shortsighted economic policy, the kind that noted Indian economist Jayati Ghosh terms the "political economy of self-delusion." It is risky for an economy to be too dependent on remittances from emigrants, for a number of reasons.

The most serious risk is that changing political realities in the host countries—such as a wave of xenophobia—can stop the flow of migrants, or even worse, reverse the flow by sending people back, thereby halting the flow of remittances. Rising xenophobia in host countries can also manifest itself in taxes, penalties, and other financial roadblocks to remittances.

Even if migrants are not barred from host countries or prevented from remitting their savings back home, profiteering on the part of financial institutions providing money transfer services can take a substantial, possibly growing, bite out of remittances. Profiteering by money transfer services such as Western Union is already a problem. In 2005, wire transfer companies pocketed $25 to $30 billion of the $170 billion that migrants in the United States remitted to the global South, hurting the workers and their families and cutting into the foreign exchange earnings that remittances provide to the workers' home countries.

A final caveat against dependence on remittances is that dependence on any single source of foreign exchange income is never healthy for an economy, whether it is remittances or tourism or a particular export crop. This dependence is especially risky when a country lacks the policy space to control or regulate that income source. In the age of neoliberal globalization, with lenders and trade agreements imposing strict conditions on them, poor countries already lack the autonomy to control their own development. Becoming over-reliant on remittances from emigrants to keep a nation's economy afloat erodes its autonomy even further, handing over control of its economic future to an international trade agreement and to the domestic laws of foreign countries.

The recent experience of El Salvador is a case in point. In the 2004 presidential elections, Schafik Handal from the left-wing Farabundo Marti National Liberation Front (known by its Spanish acronym, FMLN) was the front-runner until right before the elections. The eventual winner, Antonio Saca of the right-wing ARENA party, received last minute help from an unexpected quarter. U.S. Rep. Tommy Tancredo (R-Colo.) announced that if the FMLN won, he would push legislation to scrap the Temporary Protected Status (TPS) of Salvadorans in the United States, threatening mass deportations and the loss of $2 billion in remittances, El Salvador's major source of foreign exchange. This is an example of the kind of political and economic blackmail that countries may find themselves subjected to if they become too dependent on remittances.

Building a Movement: Do's and Don'ts

In the United States and other wealthy countries, opposition to the draft GATS Mode 4 agreement comes from opposite ends of the political spectrum. Not surprisingly, immigrants' rights and workers' rights organizations are mobilizing against the threats to immigrants' labor rights—and, more fundamentally, their very humanity—embodied in the agreement. But right-wing anti-immigrant organizations have their own criticisms of GATS Mode 4; they oppose any program likely to bring large numbers of foreigners into their country, although they often couch their opposition in other terms. For example, the Center for Immigration Studies, a U.S.-based anti-immigration think tank, takes the position that negotiating guestworker programs in the WTO places the entire framework of U.S. immigration law at risk of being challenged as a "trade barrier" and overturned in the WTO dispute resolution process.

So immigrants' rights groups thus find themselves advocating for a similar outcome as the very same right-wing groups whose broader agenda they are normally battling in the public policy arena. This is an unexpected turn of affairs, one that carries certain risks and responsibilities.

Most immigrants' rights organizations (certainly, all the groups I'm aware of) know better than to attempt to form an alliance of convenience with the right. Beyond merely maintaining their independence from anti-immigrant groups, though, progressive organizations need to articulate a position that is plainly different from the anti-immigrant agenda, and to emphasize this difference at every opportunity. As NNIRR's Rajah puts it, the first and foremost reason that immigrants' rights groups oppose GATS Mode 4 is "because it jeopardizes the well-being and human rights" of immigrants; this needs to be articulated again and again so as not to allow progressive opposition to Mode 4 to even unintentionally strengthen the anti-immigrant agenda.

How can progressives win labor support on these issues without pandering to xenophobia? The labor movement in the United States (and other wealthy countries) is legitimately concerned about loss of job security and erosion of working conditions for its membership under the GATS guestworker provisions. The challenge is how to channel these concerns into a progressive movement for the rights of all workers, whether native born or immigrant. According to Rajah, the struggle is not against foreign workers who will swarm our shores and take away our jobs, but rather, against "policies that unjustly drive down worker protections here and abroad, and the incessant demand by corporations for cheap, disposable labor." Jensen echoes this analysis by stressing that all workers need to "question a system that pits workers against each other to work for less and less under worse and worse conditions while allowing top management to earn salaries hundreds of times the average workers' pay." These ideas form the nucleus of a progressive agenda linking immigration and economic justice—an agenda in which the fight against GATS 4 is a small but important part.

Basav Sen is a freelance writer and activist in Washington, D.C., who works on
global economic justice, immigrants' rights, and housing justice issues.


*Not their real names. "Francisco" and "Diana" are names used by the Coalition of Immokalee Workers and the Break the Chain Campaign of the Institute for Policy Studies, respectively, for individual workers whose cases they helped with. "Suresh" is a composite from several anonymous posts on Internet message boards by H-1B workers.

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