Legalized Human Trafficking

Unfortunately for the guestworkers, they are not going to be protected by the laws of the host country either. Under Mode 4, 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 out of their 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 Mode 4 language, thus excluding them by definition from even the limited protections they may enjoy as migrant workers under International Labor Organization (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 hosts providing marginally more protection. 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 when a host country tries to protect the rights of guestworkers, they may not be allowed to do so under GATS. 

Migrants’ rights advocates worldwide have described this as the creation of a 21st century system of indentured servitude and argue that “migration policy must acknowledge migrants as human beings and address their dignity and human rights” (as proclaimed in a joint statement from numerous U.S. human rights and immigrant organizations). 

GATS Mode 4 thus represents a retrograde step for migrants’ rights. Over the last several decades, the definition and coverage of human rights has 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, which has unfortunately only been ratified by 27 countries to date. GATS will render this convention obsolete before it can be further ratified, thus undermining decades of work by human rights activists, organized labor, and others to remake global immigration policies in a more humane manner. 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 Bjorn Jensen of the American Friends Service Committee (AFSC). 

Speculation has been rife about what categories of workers Mode 4 will 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 U.S. under the H1B 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” in the U.S, when firms in the computer industry laid off large numbers of employees, the first to lose their jobs were the foreign workers with H1B visas. 

Gender Inequality 

A s with any exploitative labor market, particularly vulnerable sectors of workers—mainly women —will fare even worse, as shown by present-day trends. According to the United Nations Development Fund for Women (UNIFEM), women constitute 50 percent or more of migrant workers in Asia and Latin America and they significantly outnumber men in countries such as Indonesia, the Philippines, and Sri Lanka. Colin Rajah of the Oakland, California-based National Network for Immigrant and Refugee Rights (NNIRR) points out that most women migrant workers are in precarious jobs, often at the mercy of their employers and recruiting agencies. 

A Wider Race to the Bottom 

M igrant workers are not the only workers threatened by GATS Mode 4. It gives employers the flexibility to cut labor costs by firing their own workers and contracting with a labor supplier who can bring in foreign workers at lower pay (with very few legal rights). The incentive to save on labor costs and ensure a docile, easily exploitable workforce is strong and joblessness is likely to increase in the host country as a consequence. Even the threat of bringing in foreign guestworkers can be used by employers to force unions to accept undesirable provisions in contracts or to force employees to give up unionization drives. Thus far, manufacturing workers in wealthy countries like the U.S. have seen their jobs migrate to foreign sweatshops, but service workers have been relatively immune from this threat, since geographical presence is a prerequisite for many types of services. Under GATS, however, employers can legally bring the sweatshop home to the U.S., threatening service sector workers here with the same trend of mass layoffs that manufacturing workers have had to deal with. 

The migration of skilled workers poses its own problems for the countries of origin. It is expected that the movement of workers under Mode 4 will typically be from poorer countries to wealthier countries. GATS thus sets up a “brain drain” scenario in which poor countries with a small number of educated professionals will lose many of them to emigration. 

For example, for a country with a shortage of doctors, of medical colleges to train doctors, and of people with the educational background to be admitted to medical college, the loss of doctors is disastrous. Similarly, the loss of engineers, computer programmers, architects, accountants, and so on will devastate poor countries. 

Some Global South countries, particularly India, have pushed for the expansion of Mode 4 for high-skilled workers, such as computer programmers, in the hope that they will benefit by exporting one of the few “commodities” in which they have a competitive advantage, namely cheap, highly skilled labor. Besides being an unconscionable commodification of their own citizens on the part of these governments, it is also shortsighted economic policy of 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 multitude of reasons. The most serious risk is that changing political realities in the host countries—such as a marked shift towards xenophobia— can stop the flow of migrants into labor-importing countries or, even worse, reverse the flow of migrants by sending people back and thereby stop the flow of remittances back to the migrants’ home countries. Rising xenophobia in host countries can also manifest itself in taxes, penalties, and other financial roadblocks to remittances. 

Building a Movement 

I n the U.S. and other Northern countries, the opposition to Mode 4 provisions comes from opposite ends of the political spectrum. Expectedly, immigrants’ rights and workers’ rights organizations are mobilizing against threats to immigrants’ labor rights, and more fundamentally their very humanity, embodied in GATS. Right-wing, anti-immigrant organizations for their part have their own criticisms of Mode 4 because they oppose any program that brings large numbers of foreigners into their country, even though they often couch their opposition in different 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. 

Even though motivations are different, immigrants’ rights groups thus find themselves advocating for similar outcomes as the very same right-wing groups whose agenda they are normally battling in the public policy arena.  

Most immigrants’ rights organizations (certainly, all the groups the author is aware of) know better than to attempt to form an alliance of convenience with the right wing. Progressives’ responsibility is to articulate a position that is clearly 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 our opposition to Mode 4 to even unintentionally strengthen the right wing. 

Related to this question is how progressives can win labor support on these issues without pandering to xenophobic positions. The labor movement in the U.S. (and other wealthy countries) is legitimately concerned about loss of job security and erosion of working conditions for its membership under 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, instead of pitting one group of workers against another. 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.