WORLD: Legalizing Human Trafficking

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.

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.