Water is essential to life. Yet 1.6 billion people lack access to clean water. Every 15 seconds, a child dies from drinking unclean water. “Power, poverty and inequality” are root causes to lack of clean water. (UNDP’s Beyond Scarcity: Power, Poverty and the Global Water Crisis) Although 70% of the earth is made up of water, only 2.5% is fresh water. Less than 1% of the earth’s water is renewable and ready for human consumption. (Water Facts) The world’s clean water supply is also decreasing from pollution, overuse and industrialization.

The 5^th World Water Forum, named Bridging Divides for Water, kicks off on March 16^th and ends on March 22^nd, 2009 in Istanbul, Turkey. At first glance, the 5^th Forum is an international event for water experts, activists, government officials and water organizations to exchange ideas and develop policies on these and other water issues. Panelists and participants will discuss 100 topics under the Forum’s six themes including climate change, development, protecting water resources, governance, finance and education. Yet a closer look at the forum shows that it is driven by the business industry, particularly the world’s two largest water corporations, Suez and Veolia. Previous forums promoted policies that benefit the business industry while threatening people’s access to water.

How the Business Industry Dominates the World Water Council

World Water Forums have been held in Marrakech (1997), the Hague (2000), Mexico (2003) and Kyoto (2006). The forums are organized by the World Water Council, which was created in 1996 as a platform for governments, non-governmental organizations (NGOs), businesses and other organizations. Despite a move in 2003 to include a wider variety of organizations, the business industry still makes up 41% of the Council’s membership, a significant proportion compared to professional and academic institutions (27%), governments (17%), civil society (10%) and intergovernmental organizations (5%). (World Water Council Biennial Report)

Most importantly, the world’s two largest water corporations, Suez and Veolia, have powerful positions in the Council. Loïc Fauchon has been the president of the Council since 2005 and is on the International Steering Committee for the 5^th Forum. He is also the president of Groupe des Eaux de Marseille, a company owned equally between Veolia and a subsidiary of Suez. (Société des Eaux de Marseille) The alternate president is Charles-Louis de Maud’huy who has been working at Compagnie Générale des Eaux, a subsidiary of Veolia, since 1978. (Board of Governors) Suez and Veolia’s powerful positions are a clear example of how the business industry dominates the Council.

There is Significant and Legitimate Opposition to the Forum
The number of participants has increased since the 1^st Forum with 20, 000 participants expected at the 5^th Forum. Yet significant opposition to the World Water Forum has also grown. Water activists, NGOs and some governments oppose the Council and 5^th Forum because their policies promote the management and sale of water services by private companies. This resistance stems from the belief that water should not be commodified (sold for profit) and privatized (companies own, manage and provide water services for profit). As a resource that belongs to everyone, we need to protect water as a human right, part of the global commons and a public service. We should not have to pay into companies’ profit for something that is essential to life.

The 1^st and 2^nd Forum aggressively promoted water privatization. However, the Council has since stated that they do not support “real privatization” as an attempt to dodge the criticisms against them. (World Water Council’s Triennial Report) Instead, the Council began promoting Public-Private Partnerships (PPPs or P3s), agreements between private companies and local governments that divide responsibilities between them. However, private companies often manage the sale of water - the more lucrative segment - while governments are responsible for funding costly infrastructure. PPPs do not put water infrastructure into private hands, as full privatization does. Nevertheless, the sale of tap water by private companies has resulted in price increases, water cut-offs and water pollution preventing people from accessing clean water.

The World Water Forums Promote Policies That Have Harmful Impacts

Water systems have been privatized in varying degrees all over the world including in Canada, the US, Bolivia, South Africa, the UK and Australia. In the mid-1990s, a PPP in Hamilton, Canada resulted in 180 million litres of untreated human waste and chemicals spilling into Lake Ontario and backing up into people’s basements. (Hamilton’s Crown Jewel) In 2000, Suez’ subsidiary cut off South African residents’ water forcing people to drink from dirty lakes. This “lead to one of the worst cholera outbreaks in decades.” (Whose Hand on the Tap?) The harmful impacts of privatization are felt most by women, particularly in the global South, because they are often responsible for caring for the sick, gathering water and household duties that require water. (Diverting the Flow: A Resource Guide to Gender, Rights and Water Privatization)

Despite these harmful impacts on people and the environment, the World Water Council and their forums still encourage governments to transfer segments of the water sector to private companies. The Report of the World Panel on Financing Water Infrastructure: Financing Water for All, also known as the Camdessus Report, was presented at the 3^rd Forum in Kyoto in 2003. Some of its most controversial policies reduce risks for corporations using public funds and lock governments into contracts using agencies such as the World Bank’s Multilateral Investment Guarantee Agency (MIGA). MIGA offers coverage for breaches of contracts, political instability and violence. Their dispute resolution process allows investors to seek compensation if a government breaches its contract. This type of guarantee would penalize a government for canceling a contract, even if they had done so because citizens could not access clean water. If we believe that every human has the right to water, then a government should have the right to cancel a contract if it prevents people from accessing clean water.

The Camdessus Report’s policies coincided with Suez’ corporate strategies. At that time, Suez and Veolia were withdrawing from Latin America because of fierce protests against their management of water services. They were receiving negative publicity and their profit returns were low. Suez would only enter into contracts where risks were minimal and profits guaranteed. (Suez 2004 Annual Report; Suez 2003 Annual Report) Although making profits are important to businesses, profit should not trump people’s access to water. The report’s policies create conditions that ensure company profits without regard to people’s ability to access water.

The Camdessus Report has had real impacts on countries’ water polices. Prior to the report, only one water project in Ecuador was covered by MIGA. After the Camdessus Report, there were nine contracts covered by MIGA with two involving Suez and two involving Veolia. The latest is a request pending approval submitted by Suez with China. (MIGA’s Waste and Water Projects) The Camdessus Report is an example of how the World Water Forum promotes policies that benefit the business industry even at the expense of people’s health.

The 5th World Water Forum Does Not Really Reflect the Diverse Views on Water

The World Water Forums claim that the policy recommendations are the consensus of the international water community. On the surface, the 5^th Forum appears to be an inclusive and democratic event. The 5^th Forum will hold 100 sessions on a wide range of topics related to water. A number of regional, political and thematic processes were held over the last three years in order to include as many regions, levels of governments and sectors as possible.

However, although the sessions include important topics such as the right to water, climate change and preserving natural ecosystems, the forum still promotes private sector involvement as a solution to water problems. There are few sessions where the impacts of the commodification of water and PPPs can be evaluated. Few sessions examine Public-Public Partnerships which keep water in public hands. Although the Council supports the right to water, they believe that the private sector has a role in securing this right. Their definition differs drastically from NGOs, activists and governments who oppose selling water as a commodity because they believe that water belongs to everyone. Based on the session descriptions, the 5^th Forum will follow in the footsteps of past forums and promote private sector involvement with few sessions examining the harmful impacts. For these reasons, the World Water Council needs to be dismantled and the 5^th Forum should be the last.

We Must Keep Our Water Services Public

Governments everywhere face significant barriers to providing water including aging infrastructure and lack of financial resources. Corporations like Suez and Veolia use seemingly democratic international events such as the World Water Forum to persuade governments to transfer water services to them. Yet past cases have shown that privatization and Public-Private Partnerships are not the solution.

It is important that we are vocal about the harmful policies of the World Water Council and the 5^th World Water Forum. Emails, phone calls and petitions can have significant impacts. The 4^th Forum was originally going to be held in Montreal but protests against the proposal rerouted the forum to Mexico. Protests against PPPs and privatization in many cases have ensured that water remains in public hands. If enough people express opposition to the World Water Council and Forum, we can make sure that water is protected as a human right, part of the global commons and a public service. We need to call upon our governments, the UN and other participants of the forum to launch a truly open, transparent and legitimate Global Forum on Water. (An Open Call to the Global Water Justice Movement)

This paper is based on my M.A. thesis, Networks of Power: A Feminist Political Ecology Analysis of the World Water Council (2008). There are many other problematic issues about the World Water Council that are excluded here for the sake of brevity and simplicity. Thank you to Yumi Kotani, Ken Ogasawara and Matthew Lymburner for their comments on earlier drafts.

However, the article also states that Canada has been attempting to stop the distribution of this information, so we’ll see where things go from here. Yesterday, there was a clip on NBC about this issue:

It seems as though the lessons of history have not had any effect on this segment of the US judiciary. The abhorrent justifications for the enslavement of Africans during the periods of colonialism and the imprisonment and genocide of ethnic groups in WWII seem to have been forgotten. They too were judged as “less than human.”

However, there is no set definition of CSR to which all agents follow, and this has led to confusion regarding what, if anything should be expected of companies in the area of social responsibility. Whatever way it is defined, it assumes that a company is responsible for its wider impact on society, not merely the return to stockholders. The question of whether or not companies should do CSR is a normative statement. Its answer is highly dependent on the ideological viewpoint from which the respondent is replying from.

Most of the research and debate about CSR has been centered on the positive benefits to the community, of which there are many, and which also seems to find much agreement among academics and business executives. The new direction is relating CSR to profitability. Here the literature is more divergent. Therefore, in an effort to provide some practical examples and substance to the debate, this paper will focus on studying the dynamics of the relationship between CSR and profitability, by enabling a case study of three companies.

The direction of this paper will unravel some of the mystery about CSR, and then study its relationship to the financial performance of companies, show the debate between the positive and negative effects of doing or not doing CSR, illustrate some of the socially responsible accounting measures available, and provide a more effective way for companies to accrue the benefits of CSR. I will be utilizing a case study of three companies; two that do use variant forms of CSR, and another that does not. The companies chosen will be The Body Shop, Starbucks, and Sara-Lee respectively. The Body Shop and Starbucks have developed rather large positive brand images from their CSR campaigns. The purpose of the paper will be to see if each of these firms CSR policies (or lack thereof) influences their bottom line. These companies were selected because they illustrate a cross-representation of the types of firms that exist in the global economy, as it relates to CSR: on one side, firms that are immersed in the CSR dialogue and practices (in one form or another), and at the other end, firms which do not engage CSR at all, or very little. I believe it will be useful to categorize the three firms using Sethi’s ‘Level of Social Commitment’ table: ranked from lowest to highest, the categories are 1) Social Obligation (Sara-Lee), 2) Social Responsibility (Starbucks), and 3) Responsiveness (The Body Shop).

The categorization of these three companies as either supportive or non-supportive of CSR policies (or a mix of both) can be determined by several factors: the level of space provided to demonstrating the firms supportiveness of CSR, either on their website or annual reports, the type of rhetoric used to indicate their support of CSR, and financial commitments to CSR policies (although this should be qualified to recognize that small to medium firms should not be expected to contribute on the same level as large MNEs).

CSR does not just involve spending money to become socially responsible; it can also involve a change in accounting practices. Verification and reporting can also be important for obtaining and maintaining a firm’s license to operate, improving internal operations and building relationships. Communities, customers, investors, employees and their representatives, regulators and non-governmental organizations wishing to know about a firm and its activities are likely to consult the firm’s CSR verification reports. However, verification activities and reporting not done in a rigorous, professional manner, and not seen as credible, will undermine a firm’s credibility and reputation, thereby shutting doors to opportunities and diminishing profitability.

Opinion and research has been divided regarding the relationship between CSR and financial performance. On the one had, conventional wisdom would assume that CSR has been considered as a zero-sum tradeoff with profitability: more money spent on CSR means less spent on increasing market share, or re-investment. Conversely, academic thought has also suggested that those companies, who appear to be more responsible in the areas of environment and societal behavior, would more attractive for investors, and therefore perform better financially.

An increasing number of firms have responded to these concerns by devoting more resources to CSR. However, some companies’ managers have resisted, arguing that additional investment in CSR is inconsistent with their efforts to maximize profits. Investment in CSR promotes product differentiation at the product and firm levels. Some firms will produce goods or services with attributes or characteristics that signal to the consumer that the company is concerned about certain social issues. Also, many companies will try to establish a socially responsible corporate image. Both of these strategies will encourage consumers to believe that, by consuming the product, they are directly or indirectly supporting a cause.

The real question is not that all firms should do CSR in the same form, but rather that firms should tailor certain specificities of CSR to their business strategy, to become more competitive. Rather than trying to connect CSR to short-term profitability, a better estimate of the benefits of CSR need to be taken into a long-term account.

CSR is about looking at the relationship of a firm’s activities on society and the environment. It would not be out of line for a firm to introduce more environmentally friendly measures as their approach to CSR. “For example, several companies have reported enhanced productivity and reduced costs from introducing new technologies aimed at reducing pollution” (Herremans, 1993:601).

Although there has been much work in the field, the empirical data is scattered, and provides no definitive conclusions on the relationship between CSR and a firm’s performance, whether it is positive or negative. “Anecdotal evidence certainly suggests that investment in corporate ethics and social responsibility, as well as avoiding negative consequences, can often lead to positive payoffs” (Herremans, 1993:601). It is also important to acknowledge that while positive or neutral correlations between social and environmental responsibility and superior financial performance have generally been supported by the evidence, conclusive causal links have not. Many studies are being undertaken, with varying conclusions. Suffice it to say that research is continuing on this issue. While empirical research is ongoing, the correlation between CSR and profitability can be found to be the strongest in the long-term benefits of proactive CSR performance, with respect to brand name recognition and customer loyalty, rather than immediate returns to investors.

Traditional methods of the studying the performance of firms, within accounting, have been measured in financial terms, looking at profit and loss accounts, the balance sheet and the cash flow statement. These tools are used to maximize shareholder wealth within the firm.

However, new streams of thought have emphasized the need for a more holistic approach to the study of firms, and their role in society. “Effectively the line of reasoning is that a better informed society will be empowered to ensure that the organizations operate to the benefit of that society. By ensuring that organizations are accountable to society for their actions so those actions can be changed to the benefit of that society” (Cooper, 4). This is the essence of the stakeholder approach. In his seminal text ‘Strategic Management: A Stakeholder Approach’, “Freeman defines stakeholders in numerous ways, but the most commonly quoted definition is: any group or individual who can affect or is affected by the achievement of the organizations objectives” (Cooper, 3).

While mostly coming out of the theoretical background of social contract theory, most often associated with Hobbes (1651) and Rousseau (1762), stakeholder theory, as a type of social accounting of corporations, has roots within the field of political economy as well:

Political economy is the study if the interplay of power, the goals of power wielders and the productive exchange system. As a framework, political economy does not concentrate exclusively on market exchanges. Rather it first of all analyses in whatever institutional framework they occur and, second, analyses the relationship between social institutions such as government, law and property rights, each fortified by power and the economy (Cooper, 31).

In this sense, political economy serves to create a space for discussion and dialogue on the potential benefits and consequences of CSR.

So where do these three firms fit? Sethi’s Three-Stage Schema will be useful to determine and evaluate the types and levels of social commitment, and therefore the classification of the selected firms into the appropriate categories:

These categories can be described as “adaptive, proactive, and interactive”, and apply to the companies Sara-Lee, Starbucks, and The Body Shop respectively.

Social Obligation is corporate behavior in response to market forces or legal constraints. These managers confine their responses to social issues to those mandated by prevailing laws and the operation of the economic system. Social Responsibility is when the organization’s approach to social responsibility acknowledges the importance of ethical and socially responsible behaviors. Frequently seen as good corporate citizens, socially responsible organizations are willing to assume a broader responsibility than that prescribed by law and economic requirements. Finally, Social Responsive firms say what is important is not how corporations should respond to social pressure but what should be their long-run role in a dynamic social system. Managers in socially responsive firms are proactive (leaders) in their dealing with social issues.

My reasoning for placing these firms within their specific category was to illustrate the wide array of responses to the CSR debate and social issues. There is also some overlap between the products created by these firms, for continuity. It made more sense to compare and contrast three somewhat similar firms, than three widely different ones.

The Sara Lee Corporation is a global consumer products company with food, beverage, and household and body care businesses. With powerful brands, such as Ambi Pur, Ball Park, Douwe Egberts, Hillshire Farm, Jimmy Dean, Kiwi, Sanex, Senseo and its namesake, Sara Lee, the company has leading positions in numerous categories in the more than 180 markets in which it competes. Due to the lack of CSR discourse and activities, they fit within Sethi’s 1st category: social obligation. The firm places the most emphasis first on working within, and obeying the limits of the law. Little more is said about going beyond and doing more than what the legal framework requires, for both the company and the individual. Their website only makes mention of two charities within the firm through which employees can donate their own personal funds.

The firm is distinct from the other two selected, in that its first objective, as made obvious to anyone that visits their website, is that their business is brands, and this objective is made explicit in their everyday practices. Looking through their Winning through Integrity: Global Business Standards document, Sara-Lee only spends 129 and 101 words talking about their commitment to the environment and communities respectively, in which it operates. The rest of the document is devoted to respecting individual workers rights, and installing a sense of integrity within the workers to do the “right thing” in every situation, for the benefit of the firm.

Starbucks was selected because of its specific brand appeal, and because of the large amount of information regarding its CSR programs. The company tries to portray itself, quite successfully, as a socially responsible citizen; a social environment for people to come together to exchange ideas and create networks, and on the side, enjoy a cup of coffee, to experience the full “flavor” of the Starbucks experience. “Starbucks’ efforts towards social responsibility are also carefully crafted to be in cohesion with the brand’s image. The company formed the Starbucks Foundation in 1997 with an initial $500,000 contribution from the company founder and CEO Howard Shultz, with literacy as its main focus” (Gobe, 71). This is why they are classified in Sethi’s second category, social responsibility. Starbucks sees that the traditional method of coffee production can be exploitative, and attempts to counteract this through its line of socially responsible coffee brands (Fair Trade, Organic, etc), but this has been caused by intense public scrutiny and interest.

Another reason for placing Starbucks in this category is found within the Starbucks’ internal handbook given to new employees, Starbucks Standards of Business Conduct:

Starbucks reputation for integrity flows from our steadfast commitment to our core values and guiding principles - values and principles which require compliance with the law and ethical conduct. Starbucks depends on its partners to follow the law and to make the right decisions. However, we recognize that Starbucks operates in a complex and dynamic world and that what’s “right” may not always be obvious. Starbucks Standards of Business Conduct (”Standards”) provide practical overviews of some of the legal and ethical standards that we all must follow on a day-to-day basis (Starbucks website, 2006).

Starbucks recognizes that they exist in, and are part of a dynamic and complex world, and as a result, the firm must follow legal and ethical standards on a day-to-day basis. This recognition is an important part of their social responsibility categorization.

Finally, the last firm chosen was The Body Shop. Their website maintains that “The only thing that will stay the same at The Body Shop is what we believe in - Profits With Principles. We strive to change everything else to maintain creative positive change. We at The Body Shop will continue to challenge ourselves, our industry, our staff and our customers”. The whole way they do business is dedicated to creating “profits with principles”. And this is why I fit them in Sethi’s 3rd category, “responsiveness”. On their website, it reads, “At The Body Shop, we believe business is about more than just the exchange of products and money. It’s about an exchange in experience, community action, and knowledge too. Because business is ultimately about human relationships.”

While there is obvious overlap in the goods produced by the firms, it is also recognized that there is overlap within Sethi’s Three-Stage Schema. For example, all three firms meet the characteristics of the first column, social obligation. However, Sara-Lee does not try to anticipate and prevent social problems, as characterized by The Body Shop, but the firm does avoid public stands on issues, and therefore could be seen to fit partially with the social responsibility category. It was necessary to place the firms within the prescribed categories, but overlap is present.

From a more objective viewpoint, there are several reasons why firms should practice CSR, many of which will be touched upon in this paper, such as: to balance corporate power with responsibility; discourage creation and imposition of government regulations; to help correct negative externalities, many of which are created by corporations; and a sense of moral obligation of firms to help society deal with its problems and to contribute to its welfare. In a world where 51 of the 100 largest economies in the world are corporations, it behooves these corporations to take on responsibilities that are similar to those of governments.

The business case for CSR is certainly difficult to present, but the debate and arguments are hard to ignore. Like-minded companies can form profitable long-term business relationships. Larger firms can stimulate smaller firms with whom they do business to implement a CSR approach. For example, some large automakers insist their suppliers be certified to environmental management systems standards. Other examples: Starbucks only purchases Fair Trade coffee from cooperatives that pass certification; The Body Shop does not test on animals, nor engages with suppliers that do animal testing, so to be a supplier of the Body Shop, requires a more socially responsible friendly approach.

Some firms have responded to these concerns by devoting more resources to CSR. Other companies’ managers have resisted, arguing that additional investment in CSR is inconsistent with their efforts to maximize profits. Investment in CSR promotes product differentiation at the product and firm levels. Some firms will produce goods or services with attributes or characteristics that signal to the consumer that the company is concerned about certain social issues. Also, many companies will try to establish a socially responsible corporate image. Both of these strategies will encourage consumers to believe that, by consuming the product, they are directly or indirectly supporting a cause.

Mainstream economists would support that market failure occurs due to an inefficient allocation of resources, or where public sector services would be more efficient. However, the term can also refer to instances where the market does not adequately reflect the desires of the general public. Remembering the example of the Exxon oil spill in Alaska, it is interesting to note that the GDP for the USA increased that same year. The oil that was spilled, required workers to clean up the Alaskan coast, contain the oil, among a myriad of other disaster cleanup duties. While this was good for GDP, the oil spill was still a massive environmental disaster, spilling somewhere between 10-30million gallons of oil into fragile ecosystems and environments. The US Environmental Protection Agency writes, “The spill posed threats to the delicate food chain that supports Prince William Sound’s commercial fishing industry. Also in danger were ten million migratory shore birds and waterfowl, hundreds of sea otters, dozens of other species, such as harbor porpoises and sea lions, and several varieties of whales.”

Critics of CSR can stem largely from the neoclassical side of economics. Many would argue that CSR is a zero-sum trade off with profit; that by spending money on CSR philanthropy and “goodwill”, the company will have less money to reinvest in the growth of their firm, will potentially lose market share.

It can be argued that firms are already benefiting society. Milton Freidman would say that the only responsibility of a corporation to society is to maximize its profits, and operate within the legal framework of that society. However, the new business climate does not allow firms to escape socially irresponsible behaviour. NGOs and social activist watchdogs are constantly vigilant of any irresponsible corporate behaviour, and it has become a standard business practice for many firms to engage in more socially responsible behaviour, beyond being merely law-abiding, such as CSR.

Freeman and Liedtka illustrate seven reasons why CSR is something that should not be followed:

1. The origins of the concept are suspect, as they derive primarily from the field of economics, and fail to include, among others, history, religion, and culture.
2. The different models of CSR all accept the terms of the debate as set forth by Milton Friedman’s argument that sees corporations only as profit maximizers.
3. Corporate social responsibility accepts the prevailing business rhetoric of “capitalism: love it or leave it.”
4. CSR is inherently conservative–it starts with the standard received wisdom and then attempts to “fix” its unintended consequences.
5. CSR promotes incompetence by leading managers to involve themselves in areas beyond their expertise-that is, repairing society’s ills.
6. CSR accepts a view of business and society as separable from each other, each with a distinct ethic, linked by a set of responsibilities.
7. The language of rights and responsibilities is, itself, both limiting and often irrelevant to the world of the practicing manager (Freeman and Liedtka, 93).

However valid these arguments may be, they have been silenced by the overwhelming majority of those in favor of CSR (NGOs, businessmen and academics), and the benefits it can provide to society.

Sometimes, organizations which advocated CSR or certain major events can push firms to implement CSR practices before they intended too. In April of 2000, a large non-profit organization dedicated to social justice and a major voice in anti-globalization movement called the Global Exchange, threatened to boycott many Starbucks stores and operations in Seattle and across the country. “Global Exchange is a membership-based international human rights organization dedicated to promoting social, economic and environmental justice around the world” (Global Exchange, 2006). The enormous media attention created by such an event forced Starbucks to concede some of the grass-roots organization’s demands, creating an alliance with TransFair USA, to begin selling Fair-Trade Certified coffee in their 2,300 stores nationwide. Now, Starbucks is proud of their relationship with TransFair USA, and is the largest seller of fair-trade certified coffee in the world.

This has had serious positive implications for the coffee growers in Latin America, from which Starbucks purchases its fair-trade certified coffee. Alternative, or fair, trade is a movement that is attempting to make the social and environmental conditions in which commodities are produced a very visible part of the product. The goal is to improve the livelihoods of low-income producers by increasing the income from their products and by improving other social conditions such as health and education. This is accomplished by attempting to distinguish alternative-trade products from other commodities at the retail level by explicitly advertising their conditions of production.

At the point of exchange between producers and importers, alternatives trade insists on a relationship based on more than the self-interest of both parties. Importer criteria for participation in a fair-trade labeling scheme are geared at promoting longer, closer relationships between buyers and sellers and making sure tat a greater proportion of the final price reaches the farmer. Importers must purchase coffee directly and exclusively from small producers’ organizations listed in the production registry. They must pay a minimum price to the grower, regardless of the current world market, creating a type of basic social security net.

Starbucks’ participation meant the largest increase to the success of the Fair Trade movement in recent history. The United States consumes one-fifth of the worlds coffee supply (Global Exchange, 2006), and Starbucks has obvious advantages to tap into the American coffee market. In fiscal 2005, Starbucks significantly increased its purchases of fair trade certified coffee. The Company purchased 11.5 million pounds of Fair Trade Certified coffee, exceeding its goal of 10 million pound, representing approximately 3.7% of Starbucks’ total coffee imports. This represents approximately 10 percent of global fair trade certified coffee imports. Twenty-one percent of the fairtrade certified coffee imported into the U.S. in fiscal 2005 was purchased by Starbucks, making it the largest purchaser of fair trade certified coffee in North America (Starbucks website, 2006).

Here are some of Starbucks’ financial highlights for the 2006 fiscal year: “Record worldwide store openings of 2,199; Consolidated net revenues of $7.8 billion for the full fiscal year, an increase of 22 percent; Net earnings of $564 million, compared to $494 million in fiscal year 2005″ (Starbucks.com, 2006).

The Body Shop is an example of a firm that is completely immersed in the socially responsible corporation style. The Body Shop is a firm that makes their business decisions predicated on their “Profits with Principles” mentality:

The way we trade creates profits with principles. We aim to achieve commercial success by meeting our customers’ needs through the provision of high-quality, good-value products with exceptional service and relevant information which enables customers to make informed and responsible choices. Our trading relationships of every kind - with customers, franchisees and suppliers - will be commercially viable, mutually beneficial and based on trust and respect (The Body Shop website, 2006).

The next table shows the financial performance of The Body Shop, according to their 2006 annual report:

* Figures are in British pounds (₤) unless otherwise stated
* The Body Shop Annual Report, 2006

Of significant importance is the recent takeover of the company by L’Oreal, the French cosmetics group, for the sum of ₤652 million. Many critics are concerned what this will mean for the high social responsiveness image of The Body Shop. Naturewatch is an organization committed to campaigning against animal cruelty, has been boycotting L’Oreal for some time, and now boycotts against The Body Shop as well, since the stores resources and profits are now at L’Oreal’s disposal. Other organizations however, such as PETA, continue to support The Body Shop, in the hopes that its positive CSR approach policies will spread throughout L’Oreal.

Sara-Lee is a company that has large market-share, but has been experiencing a slump from July 2005, to July 2006. During that time, net sales dropped from $16, 029M, to $15,944M. Also during this time, Sara-Lee has seen drops financially across the board, in other areas such as Net Income (from $719M to $555M). Looking at the Market Value per Share at Year-end, for 2005 and 2006, the value has dropped from just under $20, to just barely above $16.

It is recognized that without holding constant for other factors, it is difficult to tell how much this drop in sales may be attributable to their ineffectual CSR policies. However, it would be premature to not assume that a more proactive CSR policy, could have done much to improve brand image and retain customer loyalty, thus increasing net sales for those years. Still, Sara-Lee is a very competitive firm, so how can firms remain competitive given their lack of CSR policies?

That being said, the profitability of a firm nowadays is strongly related to the success of its brand. The power of the brand has the ability to make or break firms in the global economy, and has become so important, that many firms are being judged, traded and criticized, based largely on their brands reputation. The success and appeal of the firms brand goes far in explaining, and influencing the success of the firm’s reputation, and therefore, the firm’s profitability. “This has lead to a rise in cause related marketing (CRM), also known as societal marketing-a strategic positioning and marketing tool that links a company or brand to a relevant social cause or issue, for mutual benefit. Consumers are known to be anthropomorphic about brands, attaching emotional and practical aspects to them” (Linton et al., 233).

For example, although they have made some attempt to clean up their supply chain recently, it is nothing new or shocking to state that Nike produces much of its product in “sweatshop” conditions overseas. However, the success of Nikes brand, the way the firm positions and presents themselves to consumers in the global market, mitigates what would initially seem to be a devastating situation. Since Nike is still one of the most successful firms, due in no small part to the firms branding success, it would stand to reason that a positive firm brand is essential to the success of the firm. CSR has come about as a new way for companies to protect, and enhance their firm’s brand, and reputation, through many types of policies and practices. Consequently “many products have labels that indicate the use of certain ingredients and production methods that promote CSR…Labels that refer to CSR attributes also create new (socially responsible) product categories in the perception of the consumers” (McWilliams and Siegel, 605). This next section will look at the particular aspects of each companies brand used in this case study, to see how the success of each firms individual brand influenced their firms reputation.

Starbucks was selected in part because of its specific brand appeal. “Starbucks efforts towards social responsibility are also carefully crafted to be in cohesion with the brand’s image. The company formed the Starbucks Foundation in 1997 with an initial $500,000 contribution from the company founder and CEO Howard Shultz, with literacy as its main focus” (Gobe, 71). The company tries to portray itself, quite successfully, as a socially responsible citizen; a social environment for people to come together to exchange ideas and create networks, and on the side, enjoy a cup of coffee, to experience the full “flavor” of the Starbucks experience. As their website states, “The Company’s objective is to establish Starbucks as the most recognized and respected brand in the world. To achieve this goal, the company plans to continue to rapidly expand its retail operations…and selectively pursue opportunities to leverage the Starbucks brand…” (Starbucks website, 2006). This will be accomplished by new product innovation, but also through brand name differentiation to remain competitive.

Starbucks has been attacked by anti-globalization activists (literally and academically) for exploiting Third-world coffee farmers, although indirectly, through its supply chain. Starbucks has responded by revamping part of its supply-chain process by rewarding producers who demonstrate environmental and social responsibility. “In so doing, it has strengthened its values integrity - an important concept for Passionbrands” (Edwards and Day, 119). Whatever the case is for Starbucks having promoted CSR activities, it has seem to have had a positive effect on the firms image, and financial performance. Consumers would be most dismayed if Starbucks began treating its workers less favorably than it already does, or took less public stands on important issues, such as selling fair-trade coffee.

The Body Shop also has a large, easily recognizable brand image, and is continually innovating and improving upon this image. As stated in their most recent annual report, “In order to deliver this ‘masstige’ experience for our customers, we have continued to focus on product innovation, the roll out of our new store design and the development of improved customer service programs for our sales associates and The Body Shop At Home^TM consultant” (The Body Shop Annual Report, 2006). Brand image and placement is important to all companies in order to be successful, and “masstige” (a blend between ‘mass’ and ‘prestige’) is an attempt by The Body Shop to market its product as a high quality purchase, available to people of all classes. It would appear this new brand image has served The Body Shop well financially, but how can these improvements also be measured?

This leads us to new, positive methods by which to calculate the benefits of CSR. A unique method of measuring the social responsibility empirically has been created by the FTSE4Good Index. FTSE, an independent company that provides independent market information says, “Our sole business is the creation and management of indices and associated data services, on an international scale” (FTSE website, 2006). Unfortunately, the results of those findings are no longer made publicly available. In 1995, the company created FTSE4Good, as a means to of indicating to the public that that the firm carried out its business practices in a socially responsible manner; but:

The launch of the FTSE4Good series was also in response to growing investor demand for Socially Responsible Investment (SRI) indices and products. This growth is fuelled by investors seeking to capitalize on the long-term benefits of good corporate social responsibility (CSR) and sustainability performance, recognizing that good CSR practice mitigates risk and goes hand in hand with good company management (FTSE website, 2006).

The selection of which companies make the FTSE4Good Index is based upon three classifications: Environmental sustainability, human rights, and stakeholder relations. This serves to create a global standard for which firms can be judged on their commitment to social responsibility. Firms that are not found on the index are deemed to be socially irresponsible. Each year, the FTSE increases the selectivity of their criteria, as an attempt to be a catalyst for the continual promotion and enhancement of CSR policies and activities.

As stated earlier, previous studies have attempted, and failed to find a positive relationship between social responsibility and financial performance. This was mostly due to a failure within the methodology of the studies itself. The nature of the relationship between CSR and financial performance is more complex than simply stating ‘A affects B’. This has led to more studies being done to look at the more complex relationship between the two.

A more recent methodology, outlined by Lee Burke and Jeanne M. Logsdon, emphasizes the use of the concept of strategic CSR, which is useful because it provides an opportunity to measure the benefits of CSR in a broader context than simple correlations between philanthropic contributions and profits. “Corporate social responsibility (policy, program or process) is strategic when it yields substantial business-related benefits to the firm, in particular by supporting core business activities and thus contributing to the firm’s effectiveness in accomplishing its mission” (Burke and Logsdon, 496).

It does so by emphasizing the new idea that the purpose of CSR within firms is for value creation. “The question that is addressed here is: under what conditions does a firm jointly serve its own strategic business interests and the societal interests of its stakeholders” (Burke and Logsdon, 495). In their study, value creation is most prevalent when the following categories are taken into consideration, when contemplating which CSR policy to move forward on:

• Centrality - closeness of fit to the firm’s mission and objectives
• Specificity - ability to capture private benefits by firm
• Pro-activity - degree to which the program is planned in anticipation of emerging social trends and in the absence of crises
• Voluntarism - the scope for discretionary decision-making and the lack of externally imposed compliance requirements
• Visibility - observable, recognizable credit by internal and/or external stakeholders for the firm
• Value creation - identifiable, measurable economic benefits that the firm expects to receive
• In the end, according to Burke and Logsdon, when value creation occurs, it is most like to take the following forms:

This is important for firms to recognize, if they wish to garner the most positive benefits to be gained from CSR. This could go a long way in helping a firm such as Sara-Lee improve its socially responsible image, and could serve to improve upon Starbucks’ and The Body Shops CSR strategy.

In the end, from the study done of the three firms selected, all of which are still very profitable and competitive in their industries, the initial conclusion is that the positive relationship between CSR and profitability is more anecdotal than it is empirical. A firm that doesn’t have CSR policies, can balance that out, and still remain competitive, by having an aggressive brand marketing strategy, such as Sara-Lee.

However, CSR may affect a firm’s performance in more than one way. A more effective way for firms to approach CSR is through analyzing what gains can be made by strategically emphasizing a firms comparative advantages in some sectors over others.

Other studies have attempted to empirically measure certain specific aspects of CSR and other facets of corporate and consumer behaviour. In a study done by Brown and Dacin, “…our results also suggest that CSR associations have a significant influence on consumer responses to new products. The results of all three studies demonstrate that negative CSR associations ultimately can have a detrimental effect on overall product evaluations, whereas positive CSR associations can enhance the product evaluations” (Brown and Dacin, 80).

It is a tricky position for CEOs of companies to decide whether or not they should do CSR, and it is a difficult business decision to anticipate a consumer’s reaction to such practices. More and more, companies have to deal with the prevalence of CSR advocates, and to take their responsibility and role in society seriously. Perhaps this is the most conclusive argument that can be made in favor of CSR at this time. Ergo, firms that avoid this new business reality, do so at their own peril.

Bibliography

Brown, Tom J., Peter A. Dacin. “The Company and the Product: Corporate Associations And Consumer Product Responses.” Journal of Marketing, Vol. 61, No. 1, (Jan., 1997), pp. 68-84.

Burke, Lee, Jeanne M. Logsdon, “How Corporate Social Responsibility Pays Off.” Great Britain: Pergamon. Long Range Planning, Vol. 29, No. 4, pp. 495 to 502, 1996.

Cochran, Philip L., Robert A. Wood. “Corporate Social Responsibility and Financial Performance.” The Academy of Management Journal, Vol. 27, No. 1, (Mar., 1984), pp. 42-56.

Cooper, Stuart. Corporate Social Performance: A Stakeholder Approach. Ashgate: Burlington, 2004

Freeman, R. Edward, Jeanne Liedtka. “Corporate Social Repsonsiblity: A Critical Approach.” Business Horizons/July-August 1991. pp. 92-98.

Gobe, Marc. Citizen Brands. Allworth Press: New York, 2002.

Herremans, Irene M., Parporn Akathaporn and Morris McInnes. “An Investigation of Corporate Social Responsibility Reputation and Economic Performance.” Accounting Organizations and Society, Vol. 18, No. 7/8, 1993, pp. 687-605.

Linton, April, Cindy Chiayuan Liou and Kelly Ann Shaw. “A Taste of Trade Justice: Marketing Global Social Responsibility via Fair Trade Coffee.” Globalizations, Vol. 1, No. 2, (Dec. 2004), pp. 223-246.

McWilliams, Abagail, Donald Siegel. “Corporate Social Responsibility and Financial Performance: Correlation or Misspecification?” Strategic Management Journal, Vol. 21, No. 5, (May, 2000), pp. 603-609.

Sara-Lee’s website. www.sara-lee.com. 2006. 2006 Summary Annual Report.

Starbucks’ website. www.starbucks.com. 2006. Corporate Social Responsibility Report 2006. www.starbucks.com/ab…

The Body Shop International website. www.thebodyshopinter…. 2006.

Elsewhere, a recent speech from Pope Benedict states: “It is no accident that [atheism] has led to the greatest forms of cruelty and violations of justice.” And here I was thinking that it was the opposite.

I argue that while the Migrant Workers Convention represents a substantial international achievement in the acknowledgement of migrants’ human rights, its potential to protect in practice the rights of migrant sex workers in a citizenship gap in Canada is seriously undermined by Canada’s non-ratification of the treaty founded on various security considerations, and with ratification would be further undermined by the particular vulnerabilities of migrant sex workers and complications in accessing and exercising their rights.

This paper begins by laying some groundwork for the discussion. The scope and make-up of women’s migration and participation in the global and Canadian sex industries are outlined. Next, the citizenship gap is explained, and the rise of international human rights law and the Migrant Convention is elucidated. The investigation then turns to the first of two substantive topics addressed by the paper. Reasons for non-ratification are analyzed, including concerns about national, economic, social, and governmental security. Canada’s position on its non-ratification is explained, with reference to both politically-motivated and practical concerns. Considering Canada’s image-based interest in signing the Convention, and mention of the Convention in case law, the following second substantive section presents an analysis of the hypothetical protection of migrant sex workers if Canada were to sign and ratify the document. Here the potential efficacy of the Convention is questioned because of its failure to address the particular vulnerabilities of MSWs as racialized women and their ability to exercise rights owing to their often-times undocumented status and the quasi-regulated nature of the Canadian sex industry. The paper concludes by acknowledging the doubt as to the potential of the ICRMW to translate into meaningful protection of migrant sex workers’ rights and considers other present and potential initiatives at regional and local levels, highlighting those led by non-state actors.

WOMEN AS INTERNATIONAL MIGRANTS AND SEX WORKERS

The number of women in international migration streams is steadily growing, and today women account for just short of half of the international migrant stock. In 2000, women accounted for 49 percent of 174.9 million international migrants (Piper 2005: 3). While many women continue to migrate alongside male partners or participate in transborder family reunification schemes, the world is witnessing the entry of women into migration streams that used to be dominated by men, namely those of independent economic migrants and main income earners of the family. In short, more and more women are migrating in search of work and migration has come to be deemed “feminized”, aligned to a parallel trend in poverty (ibid.). Reasons for women’s independent migration are diverse, and include economic, political, and socio-cultural rationales. Women’s negotiation of a combination of push factors in countries of origin and pull factors in potential countries of destination compel them to migrate (Hill Maher 2004).

While comprising nearly half the official migrant stock is significant, the reality is that women migrants could well outnumber men. Women’s numbers in economic migration streams may be underestimated because they tend to suffer more than men from invisibility in terms of their migration status and the nature of their work. They are more likely to be, or become, undocumented at destination. They also tend to be concentrated in sectors that are “private”, informal, and/or involve some degree of illegality, mainly domestic work and “entertainment” or sex work. Principle causes of women’s concentration in these sectors include the undervaluing of women’s labour, their tendency to be “unskilled”, restrictions on their right to work, and labour market discrimination (Piper 2005; Hill Maher 2004). These circumstances relegate them to work in the undervalued sectors at the so-called bottoms rungs of occupational stratification.

Global and Canadian Sex Industry

Paola Monzini (2005) and Victor Malarek (2003) provide useful insight into the growth of the global sex industry. Both authors show how supply and demand figure as interdependent variables in the growth of sex work as well as its increasing transnational character. Gender-related factors have fuelled both supply and demand, such as the liberalization of sexual mores, changes to gender relations that have left men feeling the need to reaffirm, however temporarily, their control over women, and the feminization of poverty. Alongside these trends is the growth of the global market economy, which can commodify just about anything. As such, the transnational sex market has ascended with the rise of economic globalization. And in so far as it involves illicit activities, the global sex industry is an aspect of “criminal globalization”, the emergence of global networks of sex trades, drug trafficking, and terrorism (LCC, 2006).

The sex industry in Canada consists of a variety of activities, from dancing, stripping and massaging in formal establishments to selling sex in informal settings, better known as prostitution. The industry is a thriving one, supported in large part by demand for and supply of exoticized migrant women. Relatively few studies have been done on migrant women’s engagement in the sex industry in Canada (McDonald et al. 2000; CIC 2000; LACEV 2002), but the information that is available suggests that the number of migrant women involved is in the tens of thousands. They come primarily from Southeast Asia, Central and Eastern Europe, and Latin America and tend to concentrate in major cities such as Vancouver and Toronto. The population of migrants in Canada’s sex industry was bolstered by a government program in operation from 1998 to 2005 that allowed entry to women from less-developed countries to work as exotic dancers because of a purported shortage of such entertainers in Canada; in short, Canada actively recruited foreign women to work in its sex industry.

There is no one profile of a migrant sex worker in Canada. These women arrive, enter, work and live under varying conditions, involving greater or lesser degrees of choice, freedom, and prosperity. They may arrive independently or accompanied, and enter legally or not. Those who enter legally tend to do so with a visitor or temporary work visa, which they often over-stay (McDonald et al. 2000). Some may have been trafficked or smuggled to Canada, some having an idea of the work they would do upon arrival and others no. Macklin (1999) argues that a loophole in the exotic dancer program stipulations spawned a racket in the importing of foreign women, resulting in abuse, extortion, and forced prostitution. And with the cessation of this program in 2005, would-be female migrants to Canada have been diverted to illegal entry, making them extra vulnerable to abuse and exploitation. Some women come to Canada planning to engage in other work, in either unskilled or skilled sectors, but finding employment difficult to secure, they enter sex work out of necessity.

In terms of locations, conditions, and terms of work, research suggests that these vary, too. Women may work in more or less formal establishments, such as strip clubs or massage parlours, or may work the streets, often with pimps. Some work and live relatively independent of control or coercion whereas others may find themselves in situations of indentured labour, with a sizeable debt to repay to those who facilitated their migration (McDonald et al. 2000).

It should be noted that not all migrant sex workers are victims of deception, exploitation and abuse. While McDonald et al. (ibid.) estimated that about half of the migrant sex workers they interviewed for their study were trafficked by definition, it is all but impossible to say with any accuracy how many migrant sex workers come to Canada and work in this profession by choice. A reality for many of them, however, is a “citizenship gap”.

THE CITIZENSHIP GAP

“The opportunities available through migration are counterbalanced by losses in rights and citizenship” (Hill Maher 2004: 131).

Brysk and Shafir assert that globalization has created a “citizenship gap”, which has put non-citizens and “second-class” citizens at risk (2004). This gap is explained by the state-based citizenship system in which individuals are granted rights by virtue of their membership - not only presence in - nation-states. Hypothetically, migrants have three bases for rights claims: countries of origin, countries of destination, and international human rights instruments. Migrants often encounter some degree of limitations with all three of these (Hill Maher 2004).

While countries with a strong presence in the world, such as the United States, are able to offer substantial protection to their nationals abroad, many more countries, especially less developed ones, are not empowered (and often not motivated) to do so (ibid.). And a growing number of migrants worldwide live and work in nation-states as non-citizens, making them ineligible for citizenship rights provided by countries of destination. A different group of migrants are better described as second-class citizens, those who enjoy fewer membership rights, either by entitlement or access, than full citizens (ibid.). Which situation migrants find themselves in depends primarily on their terms of entry - whether they are permanent residents, have temporary permits, or are undocumented. These three categories are accompanied by diminishing formal rights (Hill Maher 2004).

A lack of protection from states of origin and lack of eligibility for rights protection in countries of destination together constitute the citizenship gap. In short, the citizenship gap signals that citizenship rights are complicated by migration (ibid.) and many migrants fall between the cracks of the rights protection system (Brysk & Shafir 2004). Whether human rights instruments can protect migrant workers in these situations is a question that this paper addresses.

Migrant sex workers in Canada may well find themselves in the citizenship gap. The by and large less-developed countries they come from are generally not able and/or willing to protect the rights of their nationals living abroad. With respect to their status and entitlement to rights in Canada, some may be here legally, perhaps under a temporary work permit. For many more, however, citizenship rights are often limited or non-existent, perhaps due to having been trafficked or smuggled into the country, and therefore being either undocumented or falsely documented. Others come in under visitor’s visas while others overstay their work permits (McDonald et al. 2000). Migrant sex workers enter and work under a variety of conditions, but suffice to say at this point that the citizenship gap is a lived reality for thousands of migrant sex workers in Canada.

INTERNATIONAL HUMAN RIGHTS DISCOURSE AND THE MIGRANT WORKERS CONVENTION

Potential solutions to “rightslessness” in the citizenship gap may lie in the universalization of human rights, that is “the endowment of individuals with rights by virtue of their common humanity” apart from their bonds to a state (Brysk & Shafir 2004: 4). Traditionally, it has been citizenship - generally described as formal membership in a bounded political community (Shafir 2004) - that has entitled individuals to rights. Citizenship-based rights regimes, however, have created inequalities in protection both within and between nation-states. The universalization of human rights aims to make rights access more equal (ibid.).

Although the idea of universal human rights is based in natural law, the historical trajectory of these developments is relatively recent. Before the Second World War, the protection of rights remained largely within the domain of domestic jurisdiction and national law. In the post-War period, international human rights law proliferated, with the rise of international law more generally in recognition of the fact that certain issues increasingly could not be dealt with by single states (LCC 2006). Since the “globalization decade” of the 1990s, in particular, universalized human rights doctrines have been gaining on citizenship as the main purveyors of rights (Shafir 2004). This fits with a general trend of “legal globalization”, which includes the harmonization of national laws and the proliferation of international law (LCC 2006).

Ironically then, the same globalizing forces that have been driving the citizenship gap also constitute the impetus behind a system of rights protection that may help to close that gap: “globalization also creates new opportunities and multiple venues in which to claim rights in other states and global institutions” (Brysk & Shafir 2004: 7). In this realm of universality, rights are proposed without the membership or responsibility provided by citizenship; they are based in an idea of justice (LCC 2006).

The tangible results of this shift in thinking about rights entitlement and protection are dozens of international human rights customary laws and treaties (ibid.) introduced and adopted by the United Nations (UN), the International Labour Organization (ILO), and other international and regional bodies such as the European Union (EU). The most well-known human rights customary law is the UN Declaration of Human Rights, adopted in 1948 (ibid.). Treaties developed since then have narrowed the focus to particular types of people, categories of rights, and situations of rights violations. Examples of each type of focus include the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979), International Covenant on Economic, Social and Cultural Rights (1966), and the Convention on the Rights of All Migrant Workers and Members of their Families (1990), the topic of the present discussion.

A transition in thought about where rights derive from is occurring, albeit in a contested and partial manner. The institutional framework for universal rights is emerging at the global level in the form of signed documents, and international law is assuming a greater role in determining state behaviour as individual rights are gaining currency vis à vis international order as the ruling principle of the international system (Spiro 2004). However, the sovereign nation-state remains the primary institution that administers and enforces rights, including those deemed to be universally held. The international and regional organizations adopting the rights instruments have no independent rights enforcement mechanisms and so are restricted to monitoring roles. If states formally accept international human rights laws, they must incorporate these into domestic law, and because of the primacy of national interests in policy-making, the enforcement of universal human rights has been partial at best (Shafir 2004). Herein lies the fundamental paradox of modern citizenship: since states continue to be the enforcer of human rights, and entitlement to rights protection within a nation-state is based on membership therein, individuals generally do not in fact enjoy rights by virtue of their humanity but by virtue of their membership in a territorially based nation-state (ibid.). Some international human rights documents such as the Migrant Workers Convention have sought to address this paradox by explicitly demanding rights protection for non-citizens.

While international human rights discourse may be proliferating, migrants’ rights have tended to remain on the margins of the international human rights agenda. It has been increasingly acknowledged, however, that migrants are particularly vulnerable to rights abuses and have not historically received adequate protection (Pecoud & de Guchteneire 2004). Their vulnerability stems from their unfamiliarity with legal systems and administrations, lack of awareness of their rights, racism, xenophobia, discrimination, and participation in less favourable types of income-earning activities. And being in the citizenship gap, their access to rights protection is problematic. It is because of these vulnerabilities that a movement to identify and codify the unique positioning of the rights of migrant workers was launched.

The Convention

“[The Convention] represents the most direct attempt to elevate the plight of migrant workers from a matter of foreign relations between individual states to the domain of the international community” (Macklin 1999: 4)

The Migrant Workers Convention has been heralded as a great international achievement in its recognition of the universal human rights and particular vulnerabilities of migrant workers. In targeting this population, this Convention provides protection to one of the most vulnerable groups of people, complementing Conventions on children, women, and victims of torture or discrimination (Pecoud & de Guchteneire 2004).

The origins of the Convention lie in the work of the ILO, which has historically been the organization in charge of the protection of migrants since its creation in 1919 (ibid.). Two ILO conventions related to migrant workers - numbers 97 and 143 - were adopted in 1949 and 1975 respectively, but government distrust developed thereafter with respect to the ILO’s partiality toward unions, so the Migrant Worker Convention was put in the hands of United Nations to develop and adopt. A working group was established in 1979, and on December 18, 1990, after 10 years of consensus-based development, the Convention was adopted by the UN General Assembly (ibid; Hune 1991).

The ICRMW is an example of “soft” international law in that it is not legally binding (LCC 2006) but it carries significant substantive and moral weight. The Convention is an attempt to ensure that migrants have their fundamental human rights protected, and makes the applicability to non-nationals explicit, in contrast to other conventions. It makes reference to the particular vulnerability of undocumented or otherwise irregular labour migrants, the first time this has been done in international law (Bosniak, 1991). It provides the first international definition of “migrant worker”: a person who is to be engaged, is engaged or has engaged in a remunerated activity in a State of which he or she is not a national (UN, 1990). The Convention is composed of nine parts. Most importantly, Part III lists the rights that all migrants should enjoy, and Parts VI and VIII detail the obligations and responsibilities of states toward migrant workers.

Things to which all migrant workers have a right, as detailed in Part III, include: life, security of the person and property (including immigration-related papers), freedom from slavery and cruel treatment, fairness in arrest, detention, and punishment and expulsion from the country, equality before the law, same treatment under labour law as nationals, health care, consular or diplomatic help, and information on their rights. As outlined in Part VI, states have the obligation to: provide information and services to migrant workers, cooperate with other states in returning migrants to their home countries as required, and to combat irregular and clandestine migration. Part VIII adds that states must ensure the provision of the rights outlined and that violations are remedied appropriately, and create or change domestic law as necessary to adhere to the requirements of the Convention (ibid.).

The ICRMW seems to reflect an acknowledged and growing concern for individual human rights, and those of migrants more specifically. It remains to be seen, however, whether this international achievement is more a matter of paying mere lip service to the protection of migrant rights than it is of actual concern and intent to protect. It took 13 years for the Convention to garner the 25 ratifications necessary to put the document into effect in 2003 (Pecoud & de Guchteneire 2004), and to date only 34 countries have ratified it (OHCHR 2006), most of which are migrant-sending countries. No major migrant-receiving state has ratified the Convention, including Canada. There are some positive signs with both the European Parliament and the Organization of American States recently supporting ratification, but whether member countries will comply remains to be seen (Pecoud & de Guchteneire 2004).

While the Convention “has the very merit of existing” (ibid: 22), this low level of ratification seriously calls into question the extent to which this document can protect the rights of migrant workers, and provokes the question, why have not more countries signed on?

ANALYSIS OF LOW RATIFICATION OF THE CONVENTION

Piper points out that conventions specific to migrant workers (ILO Conventions numbers 97 and 143, and the ICRMW) have extremely low ratification rates when compared to other women-specific and migration-related treaties, such as CEDAW and those concerning refugees, trafficking, and smuggling (Piper 2005). Considerable evidence suggests that reasons behind this boil down to lack of political will, caused by a number of factors, not the least of which is concern with national security and state sovereignty.

Antoine Pecoud and Paul de Guchteneire provide insight into the low ratification rates of the ICRMW by examining the results of UNESCO’s research on the issue. The research shows that lack of interest can be attributed to the Convention being a relatively marginal one as far as international issues are concerned, and to being too detailed and ambitious for states to accept. What makes the Convention too ambitious for dominant countries of immigration like Canada? The answer seems to lie in its perceived threat to security (national, economic, social, and governmental), and administrative efficacy.

First, in the post 9/11 era in particular, national security is perhaps the foremost concern of states, and anything that would impede the state’s ability to control its borders it generally seen as a threat. The UNESCO research suggests that there is belief among states that the Convention encourages undocumented migration, and restricts state freedom to make migration policies as they see fit. The latter is a key element of state sovereignty, a state’s “competence to prescribe and apply law to persons, things, and events within its territorial domain to the exclusion of other states” (Bosniak 1991: 743). This includes the legitimate right to determine entrance into a territory and membership of a political community (Pecoud & de Guchteneire 2004; Bosniak 1991). Hune (1991) alleges that a tension between providing individual human rights to migrant workers and preserving state sovereignty pervaded the Convention’s drafting process, consistent with the tendency of international agreements to be seen as constraining a state’s freedom to choose a given policy path (LCC 2006), and therefore of state sovereignty considerations to shape international action. While we see the idea of individual rights gaining currency as a principle governing the international system, there remains widespread adherence to principle of state sovereignty (Spiro 2004).

Both of these fears - over undocumented migration and state sovereignty - are unfounded and based on an incorrect reading of the document (Pecoud & de Guchteneire 2004). International migration law more or less uncritically accepts the state’s right to restrict entry of non-citizens (Macklin 1999), and the ICRMW is no exception. Article 68 encourages states to combat irregular migration and illegal or clandestine employment, and Article 79 states that “Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families” (UN, 1990). The prerogative remains with states to set immigration rules. As such, while the Convention is a “ringing declaration of individual rights”, it is also a “staunch manifesto in support of state territorial sovereignty” (Bosniak 1991: 742).

With respect to economic security, an argument has been made that the measures required by the Convention would be too costly. Governments say they are already spending sizeable sums on combating irregular immigration and ensuring protections for legal migrants. Additional costs would be associated with the need to establish additional services for migrant workers, and to equip the government administration with the necessary tools and knowledge to put the Convention into effect, both in law and practice. With the ethos of the administrative efficiency and cost-cutting that permeates many Western states today, the Convention simply appears to be too costly to address the administrative barriers and provide services to migrant workers (Pecoud & de Guchteneire 2004).

In addition, undocumented migrants in particular play a particularly important economic role as they provide cheap flexible labour (ibid; Hune 1991). Audrey Macklin argues that the Canadian economy needs migrants to do “3D” work - dirty, dangerous, and degrading - that Canadians would rather not do, and employers can pay them less than they would Canadians (Macklin 1999). In short, countries harness the cheap labour of migrants as it serves domestic interests. Women migrants, in their roles as sex workers, domestic workers and mail-order brides are a bargain for Canadian johns, parents, and single men, Macklin says. From this perspective, granting rights to migrants is understood as economically counter-productive (Pecoud & de Guchteneire 2004). Macklin asserts that the real reason behind Canada’s lack of interest in the ICRMW is that “its fundamental premises - that migrant workers should not be exploited, and that exploitation can be prevented by entitling migrant workers to the same legal protection as nationals - misses the whole point of migrant labour” (1999:1) and that “any instrument which fails to grasp this essential nature of migrant labour arrangements is doomed to irrelevance” (4).

While it is important that the state be able on a practical level to implement the Convention, Pecoud and de Guchteneire argue that financial infeasibility is not an acceptable excuse for non-ratification, given that other potentially costly UN conventions have been widely ratified, even in the absence of adequate financial resources for their implementation immediately at hand. If there exists a political will to ratify the Convention, they argue, financial obstacles can be surmounted.

Related to the issue of economic cost in the neo-liberal era is the extent of the state’s willingness to provide social security. The point here is that the state is only willing to provide so much in the way of social security provisions, and favour will be given to citizens. Hill Maher argues that “neoliberal and ‘trickle down’ reforms in Western democracies have eroded state responsibility for providing social rights in places with a strong tradition of social services, such as Canada” (2004: 144). Nicola Piper adds to this line of argument: “The disengagement of many governments from the provision of social benefits has been accompanied to some extent by diminished entitlements available to all residents” (Piper 2005: 2). In short, citizens are getting less in terms of social security provision from the state, so non-citizens should expect even less.

Fourthly, related to national, economic, and social security is the security of the government of the day. In short, if the citizenry deems the state’s management of public affairs as negligent, it has the means, by way of the ballot, to oust that government in favour of another willing to act in the perceived public interest. Hill Maher and Pecoud & de Guchteneire argue that many Western democracies have experienced a resurgence of nationalist sentiment and mobilization, much of it targeting migrants; public opinion on migration is increasingly negative. This is in part due to public concerns about national, economic, and social security. For example, there is a belief among Western populations that the provision of social services to non-citizens puts too much of a strain on the public purse, that granting additional rights in this regard is too generous. Partially as a result of public sentiment and pressure, right-wing parties with anti-immigration platforms have gained strength in many Western democracies, including the United States, and arguably to a lesser extent, Canada. In short, “these kinds of political and cultural trends toward reinforcing rights based on nation-state identity or membership make rights claims based on universal personhood seem less feasible” (Hill Maher 2004: 138).

Finally, some countries have said that they simply do not have the administrative capacity to implement the Convention, and furthermore are confused as to how to integrate the ICRMW with other international documents they have committed themselves to. Difficulties may arise in coordinating efforts within the state to adapt the standards of the Convention to different sectors and existing laws, and bureaucrats do not have sufficient time to figure out how to do this. Furthermore, many states have signed on to other bilateral, regional and international agreements, and how the requirements of these relate to those of the ICRMW is not always clear. With the proliferation of treaties, states have no single text to follow on migration or human rights issues and therefore do not feel inclined to adopt any others that might only add to the confusion (Pecoud & de Guchteneire 2004).

Canada’s Position

What has Canada said with respect to its reasons for not ratifying the Convention? While Canada was not included in UNESCO’s research, the Government of Canada has responded to questions about its non-ratification. Its response, as posted on its website, is as follows [italics added]:

“Canada does not have a class of Migrant Workers per se. Any non-Canadian who is authorized to work in Canada is protected by the same employment standards legislation as Canadian workers, and has the same access to government programs and services for workers. As such, we have no immigration policies in this regard that are inconsistent with international human rights instruments and have no discriminatory policies and practices against migrants in our laws for us to remove.” (Canadian Heritage 2003)

Note that the situation of undocumented migrants is not acknowledged. It will perhaps come as little surprise that Canada was one of the countries that fervently argued for the inclusion of Article 79, which reinforces states’ right to control admission to their territories (Bosniak 1991). Furthermore, immigration policies that offer protections and services to documented migrants are indeed inconsistent with international human rights instruments, namely the ICRMW itself that requires that undocumented migrants be protected!

In a letter in 2001 to the Migrant Workers Committee, the organization charged with overseeing the implementation of the Convention, the government elaborated on its position (OHCHR 2006). As regards temporary workers without permanent residency status, the governments finds it inappropriate under existing Canadian laws to “provide these people with rights such as the right to educational, housing and unemployment benefits.” Furthermore, the government finds serious flaws in the Convention’s drafting, namely extra-territorial obligations that states cannot validly fulfill existing international law, but is not specific as to what these are.

In short, the individuals to whom the Canadian government wishes to grant rights are already protected by existing legislation and commitment to other international treaties, and reservations about certain parts of the Convention have further swayed the government against ratifying it. The former reasoning fits with the arguably unjust but commonly-held idea that those who are not party to the social contract that binds the national community are owed nothing more than minimal human rights protection (Bosniak 1991). The latter reasoning is problematic. While Article 88 prohibits states from excluding any Part of the Convention in its application, Article 90 allows states to request revisions to the document and Article 91 contains provisions for the registering of reservations about the Convention (UN, 1990). In short, if Canada does not like certain parts of the Convention, it can raise issue and seek revisions. Dissatisfaction with parts of the agreement does not justify Canada’s dismissal of it in its entirety.

Overall, one gets the general impression that Canada’s reasons behind not signing or ratifying the Convention lie in the consideration of national interests, lack of political will to cooperate internationally, and discrimination against undocumented migrants. Piper argues that we could benefit from much more thorough analysis of political will, including investigation into the processes through which international norms are made part of domestic legal and political systems to see why so much resistance plagues documents such as the ICRMW (Piper 2005). The Law Commission of Canada (LCC), in its recent report entitled Crossing Borders: Law in a Globalized World provides some insight here. The report examines globalization as it affects the effectiveness and legitimacy of the Canadian legal system. It presents some reasons why, strictly considering the challenges inherent in the relationship between domestic and international law, Canada may be reluctant to sign the treaty.

A “democratic deficit” is a salient feature of the negotiation of international treaties and subsequent changes to domestic law. The LCC describes this as a “sidelining of the Parliament fuelled by the expansion of executive government [the cabinet]” (2006: 7). Negotiations of agreements such as the ICRMW are typically held behind closed doors, without any real public process, and the executive, rather than democratically elected legislative branches, bind countries to the agreements. Key actors in Canada’s negotiating team are officials from federal departments, not ministers, with Foreign Affairs Canada acting in a coordinating capacity.

If Canada signs and ratifies the Convention, it would have to ensure that domestic policies are in adherence with the Convention’s articles, and the courts would then have to apply the new laws. Canada is a “dualist” jurisdiction, meaning that an international treaty has no direct effect on domestic law until domestic legislation is passed to “transform” it into Canadian law (ibid: 26). This is a response to the “democratic deficit” argument in that it puts the legislative body of government back into the law-making process. However, the policy changes that international treaties compel Canadian law-makers to make generally cannot be carefully scrutinized by Parliaments and citizens. And this lack of citizen participation is potentially multi-leveled; laws in line with the agreement must be passed at the federal, provincial, and even municipal levels, depending on which has jurisdiction over the legal matters in question. So the “democratic deficit” applies to both the negotiation of the treaty and its application in domestic law. And this deficit, combined with citizens’ other concerns with national and social security, combined with an anti-migration sentiment, could spell political suicide for the Canadian government that signs and ratifies the Convention.

On a more practical level, complicating this process is the lack of clear rules on how to “transform” or “implement” a treaty into Canadian law, nor benchmarks to indicate when this has been successfully done. The LCC points out that the process of international law-making and globalization is imperfect, resulting in a “confusing patchwork of both transnationalized and domestic law and justice, a legal system that is quasi-globalized” (ibid:11). This can make matters confusing for the courts, but also gives the judiciary some leeway to pick and choose among available laws.

This relationship between international and domestic law is clearly no easy matter. However, the fact that Canada has signed, ratified and implemented several other international treaties weakens lines of argumentation related to the (im)practicalities of signing the ICRMW. Canada has, several times before, more or less successfully negotiated this processes of implementing international law. It would see that Canada reluctance has much more to do with politically-driven considerations than practical ones.

While the executive and legislative branches may be obstinate toward the Convention, hope for the document in Canada may lie with the judiciary. Canadian courts are increasingly prepared to view international human rights instruments, even unimplemented ones, as inspiration and aids in deciding cases (ibid..). To date, the ICRMW has been mentioned once in Canadian case law, in Fraser v. Canada (Attorney General) (2005). A case was made by the director of the United Food and Commercial Workers Union against the requirement that migrant workers participating in the Seasonal Agricultural Workers Program (SAWP) pay employment insurance premiums without possibility of receiving regular benefits, alleging that this amounted to discrimination under s. 15 of the Canadian Charter of Rights and Freedoms.

In trying to determine whether the status of migrant agricultural worker should be considered a ground of discrimination, Justice J. Ducharme said that the status as migrant worker more generally had gained prominence with the entry into force of the ICRMW. He drew lines of similarity between Charter and the Convention with respect to principles of equality and non-discrimination. And although the Convention has no direct application in Canadian law, he said it can serve as a valuable aid in interpreting the Charter. He noted the decision of Justice L’Heureux-Dubé from a previous case not involving the ICRMW in particular. She said that the values and principles enshrined in international law constitute a part of the legal context in which legislation is read, and that international human rights law is “a critical influence on the interpretation of the scope of the rights included in the Charter.” Justice Ducharme continues: The ICRMW “can be said to be evidence of an emerging global consensus. The inclusion of the foreign migrant worker as a subject of international human rights law could be said to support its inclusion as an analogous ground of discrimination.” While the case was dismissed, the dismissal had to do with the particularities of the Employment Insurance Act and the SAWP, not ostensibly with any inappropriateness of applying the ICRMW to this case of discrimination. So it would seem that case law has established a precedent of sorts with respect to the application of the Convention to domestic law.

Will Canada Sign?

Despite the mounting reasons for not signing the ICRMW, Canada may one day sign and ratify the Convention. Even though the principles of “soft” international law like the ICRMW are not legally binding, they can have “enormous moral force” (LCC 2006: 24). States looking to avoid embarrassment and retain credibility have good reason to sign. Macklin (1999) argues that Canada has an interest in signing, in so far as the Convention is meant to embody minimum standards of decent and fair treatment for migrant workers. This type of compulsion for Canada may well be dependent on other major migrant-receiving nations signing first, however. There is regional pressure, though; as mentioned above, the Organization of American States (OAS) has urged its member states to sign. And perhaps most importantly, a precedent has been established in Canadian case law. If the Convention gains more prominence in court decisions, especially those decided in favour of migrant worker appellants, perhaps the legislature will have to sign, ratify, and implement the Convention, as legislative action often follows case law.

Thinking optimistically about the odds of Canada’s ratification, it would be a useful exercise to consider whether migrant workers in Canada would be protected by the Convention and its implementation in domestic law. As arguably the most exploited group of migrant workers - sex workers - theoretically would have much to gain from the Convention. In the following section the Convention’s potential efficacy in protecting migrant sex workers will be analyzed.

WOULD THE CONVENTION PROTECT SEX WORKERS?

Convention’s Potential Application to Sex Workers

Part III of the ICRMW which outlines the rights to which all migrant workers are entitled, has the potential - on paper at least - to improve the status and situation of migrant sex workers. As mentioned above, these women enter by a variety of means and work under varying conditions and circumstances. At least some Articles of the Convention can be brought to bear on migrant sex workers, many more if we consider those women who are coerced, exploited or abused.

Most basically, all but the most exploited migrant sex workers seem to fit into the Convention’s definition of “migrant worker”: a person who engaged in a remunerated activity in a State of which he or she is not a national (UN 1990). Admittedly, there is a small minority of women who are not paid for their work at all; their “earnings” are confiscated by their pimps and traffickers. While the extent to which this happens is unknown, even a few such cases are certainly troubling and cannot be addressed in the scope of this paper. The majority of women, however, earn at least some money for their services. Furthermore, a fairly extensive set of rights applies to both documented and undocumented migrants (Article 5).

Some specific potential protections for migrant sex workers are as follows.

• Article 10 protects against torture and cruel and inhumane treatment while Article 11 prohibits slavery, servitude, or forced labour. Some extremely exploited and isolated women may experience such conditions.
• Under Article 15, it would not be permissible to deprive a sex worker of her property, and she would have to be fairly compensated if assets are illegitimately appropriated.
• Article 16 grants migrant workers the right to liberty and security of the person, and the right to be protected by the State in fulfillment of this right. This would apply to sex workers whose freedom of movement is restricted and who experience abuse.
• Should a migrant worker be arrested - which migrant sex workers do experience, for violation of either prostitution- or immigration-related offenses - she is also entitled under Article 16 to due process and information in a familiar language.
• Articles 17 and 18 would protect sex workers against discriminatory treatment in criminal proceedings; migrant workers are to be treated equally to nationals, including being presumed innocent until proven guilty and to have legal assistance provided.
• Articles 20 and 21 state that migrant workers cannot have their work- or immigration-related papers taken from them, which “trafficked” women may experience.
• If they are found to be in Canada illegally, migrant sex workers are usually deported. Article 22 provides stipulations for just treatment in this process, including informing the migrant of their rights in a familiar language.
• With respect to labour conditions specifically, Article 25 states the migrant workers “shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and…other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, [and] termination of the employment relationship”. Although not all women work in such regulated environments, many do work in establishments alongside Canadian sex workers and therefore should be treated equally in these stipulated regards.
• Article 28 provides the right to medical care, albeit that urgently required for the preservation of their life or avoidance of irreparable harm to their health. But this may, too, apply to migrant sex workers, who may experience physical or sexual violence, and are often at risk of contracting sexually transmitted diseases such as HIV/AIDS (Piper 2005).

So on the surface, many sex workers would be protected by several of the Articles of the ICRMW. However, what exists on paper often does not necessarily exist in reality. If Canada did ratify the ICRMW and translate its standards into domestic labour law, the efficacy of these laws in adequately protecting migrant sex workers must be questioned. For rights to protect migrant workers, they must recognize particular vulnerabilities and be accessible and exercisable. The potential for the Convention’s failure to adequately protect its target population lies in four distinctions among migrant workers that the Convention fails to adequately consider: gender, race/ethnicity, migration status, and occupational sector. Being a woman and of a distinguishable race or ethnicity makes a migrant sex worker more vulnerable, while being undocumented and working in a quasi-regulated sector hinders access to rights. Migrant sex workers are quadruply disadvantaged, and as such are both specifically vulnerable and less able to claim migrant rights as outlined in the Convention.

More Vulnerable: Gender, Race and Ethnicity Considerations

Migration is a gendered phenomenon, meaning that reasons for, experiences in, and outcomes of migration differ between women and men, based on their relative positions and roles. Little systemic and critical analysis has been done on the emerging international human rights laws, including the ICRMW, with respect to their impact on advancing human rights with special attention to gender differences in the experience of migration (Piper 2005). In short, a thorough gender analysis of the ICRMW is lacking.

If one were to attempt such a task, the first step might be to recognize that while the ICRMW includes women in its language, it lacks specific gender clauses and does not address gender-specific needs in any way (Macklin 1999; Hill Maher 2004). For example, the Convention contains no references to female migrants being prone to sexual exploitation. The document does use gender-specific language, such as male and female forms of personal and possessive pronouns (e.g. he/she). Furthermore, Article 1 states that the Convention applies to all migrant workers without distinction of any kind, including sex, and Article 2 is explicit in the equal treatment of males and females in the definition of migrant workers. However, including women in the language does not equate with addressing gender-specific concerns. Shirley Hune (1991), in her analysis of how the Convention relates to female migrants, points out that the failure of international migration law to address women’s concerns is a historical trend. While Piper (2005), Macklin (1999), and Hune (1991) point out that the Convention’s gender shortcomings do not limit the its applicability to women as the provisions can be interpreted in a gender-sensitive manner, there is reason to remain skeptical, in the least because the invisibility of gender-specific human rights violations may be reinforced (Piper 2005).

There would be no reason to worry if there were no gender-specific concerns about migration, but this is not the case. Migrant women are often positioned in strongly gendered ways in receiving countries, which can both make them more vulnerable to rights violations (Hill Maher 2004). Piper (2005) outlines seven forms of discrimination and abuse that migrants may experience differently according to their gender, and specifically that women may experience more often than men. These include: exploitative terms of work; restrictions on freedom of movement; labour market discrimination; dangerous and degrading work conditions; gender-based violence at work; gendered forms of racism and xenophobia; and restrictions on the ability to organize for rights protection (ibid; Hune 1991).

In short, while the Convention has the potential to improve how women migrant workers are treated, a narrow, gender-blind interpretation of the Convention’s protections may leave many migrant sex workers - the vast majority of whom are women - unprotected (Hune 1991).

In addition to its scant attention to gender-specific concerns, the ICRMW does not address the ways in which sex workers are potentially doubly disadvantaged or discriminated against. In addition to being women, they are often members of a racial or ethnic minority. The race, ethnicity, and culture of migrant sex workers are sexualized to construct a “super-feminine” version of women (Macklin 1999). It is often because of this multi-layered disadvantaged status - coupled with their low skill levels - that women are more likely than men to be over-represented in marginal, unregulated, and poorly paid jobs. Similar to its short-comings with respect to gender-specific concerns, the Convention does mention specific vulnerabilities owing to migrants’ race and ethnicity.

By focusing on a single aspect of experience - being a migrant worker - the ICRMW fails to adequately address women’s multi-layered disadvantaged status and intersecting vulnerabilities to rights abuses; in short, it does not acknowledge that racialized women perhaps need special protections. It has been suggested that a methodology of intersectionality be applied to human rights law in order to create a better set of standards for women migrant workers (Piper 2005).

(Un)Access To Rights: Migration Status and Sector Of Work

Many migrant sex workers arrive as, or become, irregular migrants. “Irregularity” of status means having arrived in a state without authorization, been employed there without permission, or having entered with permission and remaining after the expiration of a visa; in short, irregular migrants represent either a breach or failure of state borders, based in the idea of territorial sovereignty (Bosniak 1991: 742). Many human rights advocates, and some states that were party to the drafting of the Convention, contend that the legal and social status of irregular migrant workers in the countries in which they work makes the extension of substantial human rights protections to them especially urgent (ibid.).

While the Convention literally documents such contentions, there are two aspects of the document that immediately cast doubt on international commitment to seeing undocumented migrant workers as worthy of rights and protection. First, it contains an additional section (Part IV) that outlines additional rights that migrants in a “regular situation” enjoy. Second, as mentioned above, it contains an article requiring that states continue to combat irregular and clandestine migration.

Beyond this though, actually being undocumented, as many sex workers are, puts them in positions of heightened powerlessness with respect to claiming their rights. In short, being undocumented means that they are less able to access the rights that the Convention grants them. This owes to two factors: lack of knowledge and risk of deportation.

Being un- or falsely documented, and therefore not being a subject of accurate knowledge or protection by the state, many women migrants are unaware of the rights they do have. They are strangers to the destination society, and often unfamiliar with national language, laws, and practice, and so less able than others to know, and therefore, assert their rights (Piper 2005).

Increased awareness on the part of sex workers of their rights under the Convention would not necessarily mean they could claim them, however. Being undocumented means to constantly live with the risk of deportation if this migration status is discovered (Simic 2004). This is where the principle of state territorial sovereignty, reinforced by the Convention, comes back to haunt undocumented migrants. The state sees them as both “a violation of [its] sovereign exclusionary powers and as a rupture of the social contract which binds the nation” (Bosniak 1991: 755). Because states have the right to determine who can access their territory and is allowed membership, they have the right to expel those that are in the country illegally according to the laws they have created. They retain the ability to punish with expulsion those who broke the rules and escaped state control in the manner that they entered. It is thus in the situation of undocumented status that the debate between individual rights and state sovereignty undisputedly tips in favour of the latter.

This ever-present danger deters undocumented women from seeking assistance from state authorities (Macklin 1999). Picking up this line of argument, Bosniak argues that the real problem with the Convention “and one which seriously limits its efficacy as a human rights instrument” is that “its provisions protecting states’ sovereign prerogatives to control immigration will often effectively undermine or defeat the rights it provides to those migrants” because “efforts to exercise those rights…may well expose the migrants to expulsion and punishment for immigration-related violations” (1991: 759). She goes on to point out that there is nothing in the Convention to prevent such a result: “there is no provision that provides that undocumented migrants may not be prosecuted for immigration violations” notwithstanding any human rights not related to immigration that the Convention provides (760).

The same considerations apply to work-related human rights violations as well. If a sex worker goes to her employer to complain about her treatment, the employer can report her to state authorities for immigration-related violations. Although the employer has allegedly violated labour rights, the prioritization of state interests means that the state will be far more likely to pursue the enactment of immigration law than labour law; in short, the undocumented sex worker is more likely to be the object of state prosecution than her employer (ibid.).

Undocumented migrants’ ability to avail themselves of their rights is thus severely constrained. Because of the fear of exercising rights, they are not effectively available: the ICRMW “effectively threatens to take away with one hand what it has offered by the other” (ibid: 762).

In addition to being undocumented, many migrant sex workers work in a sector whose particularities complicate access to rights. There is a need to consider labour market sectors that are not only prone to exploitative practices but where labour standards do not exist or lack enforcement and monitoring (Piper 2005). Macklin points out the problem with the right to equality with nationals in rights entitlements when it comes to certain sectors: it is an empty promise when the occupation in question is excluded from employment and labour protection (1999). This is often the case for female migrants as they are more likely than men to work “off the books” in “private” settings (Hune 1991).

In writing on the applicability of labour rights to domestic workers, Nicola Piper points out that there are differences across countries with respect to whether domestic work is considered an area of legitimate employment. Hill Maher (2004) adds that domestic work occurs in private settings from which rights claims are difficult to carry out. Both of theses considerations apply in part to sex work as well. The sex industry is legal and regulated in some countries but not in others, and many activities in the industry occur in “private” or otherwise invisible and unregulated settings.

In Canada, some areas of the sex industry are legal and regulated with others are not, and certain activities are in fact illegal. In short, labour laws, that would ostensibly incorporate the Convention’s principles, do not apply to all manner of work in the sex industry. Massage parlours and strip clubs, for example, fall under provincial labour law and municipal bi-laws. Meanwhile, independent sex work, as performed by “street-walkers” for instance, is not regulated, and is in fact criminalized. While selling sex for money is not illegal per se, certain activities often involved therein are criminal offences, including running a bawdy house, procuring and living off the avails of prostitution, and communicating for the purposes of prostitution, as outlined in Sections 210 & 211, 212, and 213 respectively of the Criminal Code of Canada (Federal/Provincial/Territorial Working Group on Prostitution 1998).

The quasi-regulated nature of the Canadian sex industry owes to a few factors. First, while the government seeks to maintain public peace and safety, it sees a limited role in regulating what happens between two supposedly consenting adults in private settings. In short, sexual activity that is not bothering anyone else should not be regulated; the government does not belong in the bedrooms of the nation, as Pierre Trudeau famously said.

Second, considerable debate persists, especially in the feminist community, as to whether sex work is a legitimate type of work. Some make sex workers out to be victims while others see them as economic agents. On the opposing side are those who refer to the women as prostitutes or “prostituted women” and see women’s selling of sex as an exploitative interaction that reinforces women’s role as sex objects and men’s role as consumers of such. They point to lack of real “choice” among women to participate (and therefore the act is akin to sexual assault), the potential for physical and sexual violence, and damage to women’s integrity and self-esteem. This focus on women as victims can be particularly acute when some Western feminists’ aligned to this view concern themselves with the “Third World prostitute” in an effort to justify their interventions (Doezema 2001). At the other end of the spectrum are those who use the language of “sex work” and see the selling of sex as a legitimate economic activity that women generally voluntarily participate in to earn their livelihoods and one that they may well prefer to do over other ways of earning money (Lacsamana 2004). It would seem that the Canadian government, by regulating only some activities of the sex industry, falls somewhere in the middle, not willing to judge whether selling sex is morally acceptable or not, and remains focused on its role as public, not private, arbiter.

So while migrant sex workers would by definition be migrant workers according to the Convention, this definition does not fit with how sex work is regulated in Canada. In order to access their Convention rights, sex workers would have to fall under the domestic laws that would put the Convention into effect in Canada. This is not the case for all migrant sex workers, and probably less likely for them than for Canadian sex workers because if migrants are undocumented, they often work in “underground” areas of the industry that largely escape the reach of the law.

To sum up, owing to being women of racial or ethnic minorities, and often being undocumented and working in unregulated sectors, migrant sex workers are both more vulnerable to rights violations and less able to access their rights to which the ICRMW entitles them. It does not seem that the Convention would adequately protect most MSWs. As a way forward, Piper (2005) suggests that comprehensive studies on the employment of male and female migrants are needed to determine whether problems in protecting women’s human rights as migrant workers lie in their migration status, gender, or occupational sector. Regulation of labour migration should be compared with regulation of sector of employment to see which type of regulation is more effective. In this way, it could be determined whether the government is unwilling or more unable to regulate. I would argue that in the case of migrant sex workers, all three factors, with the addition of race/ethnicity, affect their human rights situation, and that regulation that focuses alone on one of women, race/ethnicity, undocumented status, or occupational sector will not adequately address their needs.

PRESENT AND FUTURE RIGHTS PROTECTION STRATEGIES FOR MSWs

Suggestions for ways forward focus on further ratification of the Convention, regional cooperation, other international instruments, and/or local-level initiatives.

Despite the problems with the Migrant Worker Convention, Pecoud and de Guchteneire argue that it “remains one of the most crucial tools in improving migrants’ rights throughout the world” (2004: 22). In this vein, and in hopes of it realizing its potential, they make recommendations for fostering further ratifications of the ICRMW (ibid.). Many of these, however, will likely continue to be plagued by allegiance to political self-interest.

For states such as Canada concerned with sovereignty, regional agreements on migration may seem less threatening. While there are migration considerations in NAFTA, perhaps the most progressive example of regional cooperation on migrant rights is the Inter-American Human Rights System, which has created its own Rapporteurship on migrant workers (Piper 2005). A recent ruling by the Inter-American Court of Human Rights clarifies that all migrants - documented and undocumented - are covered by the principles of non-discrimination, equality and equal protection in countries of destination, and must not be excluded from the protection of labour laws on the basis of their migration status (ibid.).

However, while the Convention may better protect other migrant workers, it is not clear, based on the preceding analysis, that a Canadian ratification of the Convention would adequately protect migrant sex workers. Such concern could be extended to regional agreements that do not adequately consider the particular vulnerabilities of MSWs. More research is needed into regional initiatives to examine their efficacy in protecting migrant workers and addressing gender concerns specifically (ibid.).

What else is being done? What more can be done? Research suggests a focus on other international instruments targeting women in particular, and local-level rights protection and advocacy, led by NGOs and labour unions in particular.

In order to address women’s vulnerabilities that the Convention’s does not adequately address, women-specific instruments could be applied, such as CEDAW (the Convention to Eliminate All Forms of Discrimination Against Women), as a recent position paper by Margaret Satterthwaite (2004) has suggested. In fact, Satterthwaite argues that the dominant focus on the ICRMW as the way forward for migrant rights protection may be detrimental for women because this potentially allows ratifying states to marginalize their obligations to women migrants under existing human rights treaties. Rights of women migrants are already included in a number of standards in such documents, so Satterthwaite argues that it would make more sense to focus attention and resources on the enforcement of these rather than the ICRMW.

With respect to local-level initiatives by non-state actors, the shift in recent years to treat migrant workers first and foremost as workers, regardless of their legal status, has been driven mainly by trade unions and NGOs (Piper 2005). Many authors suggest that NGOs have an important political advocacy role to play in protecting sex workers’ rights. Some NGOs are in place, especially in major cities, to provide services to sex workers - migrants included - and advocate for their rights based in labour law. Progress in this area has been hindered by the ongoing debate between feminists on the nature of sex work and human rights violations and entitlements therein, as outlined above. Piper asserts that human rights protection in the sex industry could be approached from the viewpoint of a short- or medium-term versus long-term solution in which minimum work standards could be advocated for to provide some level of immediate protection. This would also constitute a measure of regulation necessary for sex workers and NGO advocates to focus their efforts on (ibid.).

Trade unions, for their part, have been largely unwilling to engage with the protection of migrant workers’ rights. In addition to their national orientation, they tend to regard migrant workers as better off relative to nationals and therefore in no need of political attention, and they think it difficult or impossible to organize workers that labour in informal, irregular, or illegal sectors (ibid.). While the United Food and Commercial Workers Union has advocated on behalf of seasonal farm workers in Canada (UFCW 2005), migrant domestic workers and sex workers lack such a labour organization voice. Migrant sex workers may benefit from labour union involvement in the sex industry in terms of advocating for sex work to fall under labour law.

CONCLUSION

While the ICRMW “makes tremendous headway in advancing new normative standards of entitlement and protection for undocumented migrant workers” (Bosniak 1991: 765), this paper has demonstrated that its efficacy in providing rights protection to migrant sex workers in Canada is questionable. First, Canada has not signed or ratified the document, which offers little assurance that the Convention protects migrant workers of any type in Canada, let alone migrant sex workers in particular. As we have seen, reasons for non-ratification relate primarily to lack of political will, based on considerations of sovereignty and security. However, as signing the document would reflect favourably on Canada’s image and because the Convention has been mentioned in case law, I have asserted that Canada may eventually take interest in the document. Therefore, an investigation into how well it would work in the interests of the group of migrant workers arguably most vulnerable to exploitation and abuse - migrant sex workers - is warranted. This paper has attempted such a project. On paper, the Convention has the potential to prevent and/or address many kinds of rights violations that MSWs may experience. However, it fails to adequately consider the particular vulnerabilities of MSWs, owing to being primarily racialized women, and their potentially limited access to rights, given that they are often undocumented and work in a quasi-regulated sector.

It is difficult to make generalizations from the preceding analysis. This paper has focused on a particular set of migrant workers and among them, a sub-set that are most vulnerable (undocumented and unregulated). Those that need rights protection most, however, constitute an important benchmark against which to measure the potential effectiveness of international treaties. The Convention may fail against this benchmark. This is not to say that Canada should not sign, nor that the value of international human rights law in general should be doubted. Given the rights that the ICRMW lays out indiscriminately, it could serve many migrant workers in Canada who are here legally and working in regulated sectors. And international human rights law recognizes and upholds important principles that we should not back away from. While state sovereignty continues to be a salient, and perhaps the dominant, feature of the world system, nation-states, setting aside their political self-interest, have increasingly worked together to acknowledge and enshrine these universal principles. What this paper does suggest is that more work and de-politicized commitment will be needed for the most vulnerable groups of migrant workers to find adequate rights protection in the citizenship gap. This should be a focus of further research and advocacy.

REFERENCES

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Across the globe, the growing dominance of trade has enveloped countries, both developed and developing, into asserting whatever advantages they might boast so as to remain globally competitive. This phenomenon is best described by the term ‘globalization’. While the uses of the term reach into matters of economic (de)regulation, the overlap of business and political legislation as well as international treatises, the objective of this paper relates to globalization specifically in terms of multinational enterprises (MNE) and their growing propensity to employ sweatshop workers in developing nations. In these developing nations, the cost of living is a fraction of what is required relative to developed nations. As a result, market forces, which are best described as the “interaction of supply and demand that shape a market economy”, require that employers pay wages that are only a fraction of what would be paid in more developed economies. From the perspective of an economist, this proves favourable for both participating parties; the MNEs come in search of cost-saving measures on labour and as part of the exchange bring investment and the prospect of ameliorating a country’s overall standard of living.

It is important to note that market forces do not at all times require that a living wage - that is, a wage sufficient to fulfill one’s basic nutritional requirements and to live with dignity - be paid to workers. The reasoning behind paying insufficient wages is arguably defensible if a numbers-based macroeconomic stance is taken, but is next to impossible when basic human rights are brought into the equation. There are numerous charges raised by ‘critics’ of MNEs that involve, to name a few, the exploitation of workers, collaboration with repressive regimes and the immizeration of the economies in which they operate. In response, defenders of MNEs, whom I shall call ‘producers’, argue that arbitrary deviations from the demands of market forces, even with the right intentions, would worsen the living standards of the countries in question.

II. The Debate

Taking the side of the critics are Dennis Arnold and Norman Bowie. The overall themes of their two papers argue that sweatshop workers are not given the respect due to them as humans. The keystone argument in making in this purports that MNEs have a duty to assure their employees have the wages and conditions necessary to function as humans. To do any less would be to treat these workers, in the Kantian language, as means towards an end. Writing on behalf of the producers is Ian Maitland, who believes that MNEs have three options for how to pay their employees and that they should choose the “classical liberal standard” over the “home country” and “living wage” standards. Keeping with the stance taken by economists, Maitland contends that MNEs who cave to public pressure from critics and the like risk harming the economies in which they operate in terms of unemployment, foreign investment and the rich-poor gap.

One of the main issues taken against the defenders of sweatshops is not just the use of textbook economic theory; it’s the structure of the argument, being one that that is purely economics-based. The critics, however, are equally guilty. Neither side of the argument makes a compelling case in terms of the other’s lens. Arnold’s and Bowie’s arguments hinge on an appeal to human rights that ought to be upheld, while giving only minor attention to the macroeconomic issues. Conversely, Maitland admits that “not a single company [facing pressure from the critics] has tried to mount a serious defence of its contracting policies.” My essay will attempt to show how critics of MNEs need not address the debate so heavily in terms of human rights by neglecting the economic issues. I will make frequent appeals to the textbook economics approach that Maitland is so fond of and how its very foundation, or at the very least, its presentation, contains two substantial flaws. In the search for cheap, unskilled labour, MNEs cannot excuse themselves, whether directly or by immediate proxy, of their duties to uphold human rights. Where the conduct of MNEs in international sweatshops becomes subject to criticism, those defending it 1) fail to address the issue in terms of universal human rights and 2) employ a rudimentary economical argument that is selective in what measurements it does or does not take into consideration.

III. Human Rights

The critics hold many reasons for opposing certain forms of conduct engaged in by MNEs, one of the more popular forms being the call for human dignity and rights. These appeals, insofar as those from Arnold and Bowie, are done through application of the ethical theories of, in particular, Alan Gerwith and Immanuel Kant. Arnold outlines the requisites for human rights by retelling the writings of Gerwith, among others. He starts by noting that

“A person [is] capable of reflecting on one’s desires at a second-order level and [] must be capable of acting in a manner consistent with one’s considered preferences … it is our capacity to reflect … that distinguishes persons from mere animals.”

Thus far, it can be asserted that all persons must be unrestricted in their capacity to contemplate; to do otherwise is to treat them as something less.

The justification for human rights continues: the ability to act upon one’s desires is not possible without two requisites: freedom and well-being. Calling this a matter of rational consistency, Gerwith states that “a person must acknowledge that she is a purposive being … to deny [others their rights] … is a purposive act, [which] contradicts the proposition being asserted.” It is also contended that even if persons are prevented from exercising their rights, it does not follow that their rights bear any less weight. While the contributions of Gerwith give the critics ample grounds upon which to target MNEs for their misconduct, Arnold and Bowie also apply the works of Immanuel Kant. Even though both authors’ works could be used to defend the worker or give obligation to the manager, it is Kant’s second formulation of the categorical imperative, which states that “man cannot be used merely as a means by any man … but must always be used at the same time as an end” that places greater emphasis upon the duties of management.

The Sweatshop

The definition given to Gerwith’s precursor of freedom intentionally has a minimalist nature to it. All that is required to acknowledge one’s humanity is non-interference necessary for the capacity to reflect. It is important to parse between what actions constitute fundamental violations and what causes mere discomfort. Some of the more vocal critics contend that the producers are violating their workers’ rights, citing such points as the lengthy work hours involved. This can be refuted quite easily by claiming the workers are doing so voluntarily.

Following by implication from Kant’s second formulation, Arnold and Bowie are contending that certain sweatshop supervisors lack respect for their workers by treating them as means. In many instances, the claims are justified,while in others they are exaggerated for the purpose of shock value. As a general rule, the producers are obligated to respect their workers as moral creatures. Many times this respect falls short, thus Arnold and Bowie explore at length the violations committed by sweatshops. Their charges are categorized into violations of law, coercion, poor working conditions and unconscionable wages. As was mentioned earlier in this essay, the greater number of these charges go unanswered by the producers (or Maitland, in this case), while those that are answered employ a type of public-relations approach that resolve apples with oranges, if you will. In response to charges of workers being exposed to dangerously high levels of hazardous materials, the producer counters by noting how an increase in working standards would cost money and thus render one’s plant less competitive. In response to Kernaghan’s appeals for MNEs to respect human rights, Maitland invokes the name of Marx, which if anything was little more than sensationalist detraction. And of course, in response to charges of MNEs paying less than living wages, the producer counters by referring to wages demanded by market forces. I turn now to the economics of sweatshops and how the critics can indeed step onto the territory of the producers.

IV. Economics

Throughout this section, I will refer specifically to the type of economist that is libertarian in her philosophy. It would be highly unjust and inaccurate to refer to all economists as prioritizing the supremacy of an unregulated market over that of basic human needs. The type of economist I specifically refer to is, to paraphrase Jagdish Bhagwati, “viewing the field of study as an arid mathematical toy, rather than as a serious social science.” The reasoning this economist uses for defending the current conduct of sweatshops is oversimplified and at times frustrating for those debating against it. In arguing for the producers, Maitland takes the arid approach, as I shall illustrate.

One-Step, Two-Step

Maitland argues on behalf of the producers by use of economic theory as it relates to wages and employment. His methodology involves the use of the simple one-step and two-step macroeconomic models, which entails noting how an output will change due to the shift of movement of an input. A basic example of a one-step model would go as follows: the higher demand for firewood during the winter months enables those selling wood to temporarily increase their prices. Maitland employs both models by arguing that an increase in wages would result in higher unemployment and lower profits, which as a consequence would discourage foreign investment. The argument, by itself, will bear no criticism from me. What I do take issue with is the lack of any follow-up. In a simplified experiment using the one or two-step model, the change of an input or condition will result in at most two changes to any other variable relevant to the model. Maitland’s narrative might by implication leave some readers believing that his description of adjustments to the wage level will result in what he has outlined and nothing more. If a simplified model is used, it can follow that Maitland’s assertions are true. However, we are dealing with complex economic matters that are difficult to even model on the usual supply vs. demand graph. I will outline the details of this claim in the following section.

Ceteris Paribus

This Latin term, popular with respect to predictive sciences, means “with other things [being] the same” or “holding all else constant”. Its use is prominent in the conduct of experiments, such as using regression analysis to calculate the effect of rainfall and fertilizer on a crop of corn. Using ceteris paribus enables the experimenter to determine how much growth can be attributed to rainfall and fertilizer by themselves, as well as the overall effect. In studying economic models, one must consider multiple inputs, conditions and outputs. They are, to name a few, labour supply, wages, demand for goods, time value of money, consumption, inflation, unemployment, and so on … The use of ceteris paribus enables a professor of economics to explain, for example, how a change to the real interest rate will affect spending behaviour with much greater simplicity than if she had to consider other factors, such as changes in income or the age demographic.

It is not the concept with which I take issue, but the lethargic application of both it in conjunction with the one-step model and a related concept that I might call ceteris excludis, for lack of a better term. The producer’s defence revolves around hammering home the negative effects of wage increases via ceteris paribus, all the while (intentionally?) excluding what effects the improved incomes might have outside of what is not a sterilized laboratory, but a real-life scenario. Maitland is very much guilty of this. In denouncing the idea that MNEs ought to pay above-market wages to their employees, Maitland argued that jobs would be lost and foreign investment would be discouraged. Employment and foreign investment are macro-variables; that is, they are measured in terms of what an entire region or country has in their possession. Private consumption and savings are also macro-variables and would increase with wages, which would further stimulate the local economy, but Maitland makes no mention of either.

Further, the wage-to-unemployment theory holds true only under two rather interesting precursors, which Maitland hints at in his outline of the classical liberal approach. First, for unemployment to rise in any measurable form, wages must increase across the board. (Even in his conclusion, Maitland hints at this) Having wages increase in select factories will not necessarily affect a country’s entire economy. Similarly, the dismantling of a paper mill in rural Québec will bear no measurable effect on Montréal’s job market. Second, setting a floor on wages that might result in deadweight losses must be legislated and enforced by the public sphere. The producer that raises this argument will see it at best diminished and at worst quashed; the critics are appealing to the MNE’s, not the local governments, to raise wages. Finally, if it wasn’t bad enough for the producer-advocate, the very theory might not necessarily be true. Referred to in the Arnold-Bowie article is the Card-Krueger study, which proved, at least in the US, the “estimated effect of the minimum wage [on employment] was either zero or positive.”

The Utilitarian

Briefly, I will argue for a utilitarian argument that favours increased wages for workers in the formal sector. The term economists use to refer to a person’s well-being is utility. While there is no set method for measuring utility, a property of utility relevant to this discussion is the property of diminishing marginal returns. For each additional unit of income a person earns via ceteris paribus, the rate at which their utility increases is diminished. That is to say, a person earning efficiency wages will be more grateful for an additional ten dollars a week than would a manager already earning a premium. Add to that the sheer number of workers relative to management and the net utility gain to be had from an increase in wages is considerable.

V. Conclusion

I have stated my belief that critics of MNEs have more tools than what is normally assumed. I also believe it necessary that the critics make use of a more economics-based discussion when challenging the producers, as the justifications for their actions are oversimplified and tend to omit information relevant to worker well-being. The argument for the supremacy of human rights goes unchallenged by those who in part are violating said rights, which gives further credence to the critics. However, changes appear to be slower than what the critics are hoping for, which can be attributed to a host of factors, ranging from resource scarcity to poor law enforcement. Much like the property of human rights stating that its violation in no way invalidates its authority, the lack of care for sweatshop workers by the producers in no way diminishes the basic obligations that are due.

Aihwa Ong’s latest book, Neo-liberalism as exception, is a multifaceted exercise in expanding upon our understanding of neo-liberalism in relation to citizenship and sovereign power. As a collection of essays mostly published over the past decade, the work draws heavily on the governmentality school of socio-political thought. The book’s central thesis is one that runs counter to the dominant perspective of neo-liberalism as an economic doctrine. Instead, Ong argues that neo-liberalism can be understood as a malleable technology of governing, designed and employed to include particular types of individuals and populations while excluding others. Equally important, the empirical work included in this volume fills a void in current discussions of neo-liberalism, which often focus predominantly on the North American experience. In offering an alternative and revealing analysis, Ong covers a wide spectrum of issues from the East Asian and South-East Asian regions. Of particular interest to the author are the ways in which different regimes employ technologies of neo-liberalism, be they authoritarian, democratic or communist.

Ong’s anthropological and ethnographic approach to neo-liberalism and citizenship is presented in part as a critique of authors such as Michael Hardt and Antonio Negri, who contend, inter alia, that a uniform global labour regime is emerging. Rather, Ong argues in favour of more localized and situated analyses of labour regimes, focusing on the various manifestations of ‘translocal publics’, for example, where specific interests intersect and are given particular formulations (p. 62). As an alternative to examining ‘identities’, which are often simplified interpretations of national groups or ethnic communities possessing considerable diversity, the book emphasizes that the concept of translocal publics describes ‘the new kinds of borderless ethnic identifications enabled by technologies and forums of opinion making’ (p. 63). Ong’s work examines a wide range of regional events and assemblages, from the Chinese diaspora after the 1997 Asian financial crisis (chapter 2), to foreign domestic workers in Singapore, Malaysia and Hong Kong (chapter 9).

Neo-liberalism as exception is also a critique of juridical-legal interpretations of the connections between citizenship and government. Ong argues that this method is evident in Giorgio Agamben’s focus on the bifurcation of the population into two halves: zones of citizenship, consisting of political beings, and zones of bare life, consisting of those without citizenship protections (p. 22). Instead, Ong contends that a ‘temporal conceptualization of the politics of exception’ is a more appropriate means for recognizing the validity of other ethical regimes - such as the various world religions - that also ‘operate along the continuum of inclusion and exclusion, though without mapping onto the same division between citizens and bare life’ (p. 197). In contrast to Agamben, Ong argues that new modes of analysis are necessary for examining the ways in which those without territorialized citizenship might make claims, whether through local communities, NGOs or corporations (p. 24). While most of the book’s content consists of essays already published elsewhere, Ong also presents new contributions, and has reworked and reorganized the existing material to provide an ethnographic perspective critical to an understanding of the global economy and socio-political systems. By placing each article in a particular context that reveals new insights into neo-liberal transformations of citizenship and sovereignty, Ong brings theoretical potency and empirical energy to a growing field of scholarship.

Originally published in: International Affairs 83(4), 2007.

The book is presented in the form of a medical analysis, beginning with the ‘Diagnosis’ in which terrorism is examined through the lenses of war, crime and emergency. Ackerman argues that terrorism is distinct from war, in that acts of terror do not directly threaten the political survival and constitutional system of the state. Additionally, he points out that terrorism is not a crime, since criminal organizations, such as the mafia, do not seek to openly confront the legitimacy of government and political order-what Ackerman calls ‘effective sovereignty’ (p. 41). As such, criminal law is not only inadequate, but also incapable of addressing terrorism, given that ‘the normal operation of the criminal law presupposes the effective sovereignty of the state, but a major terrorist attack challenges it’ (p. 43). In dismantling the war-crime dichotomy, Ackerman argues that the period immediately after a terrorist attack is a state of emergency, and it calls for special measures ‘to reassure the public by moving aggressively against a second strike without allowing the president to damage civil and political liberties on a permanent basis’ (p. 67). There is, of course, the danger of normalizing the rhetoric of emergency, as expressed in the United States shortly after September 11 by Dick Cheney as the ‘new normalcy’. This is exactly what Ackerman opposes in advocating terrorism as emergency, and not as war or crime. The most effective method of preventing a perpetual state of emergency, the author argues, is through a unique constitution.

The second part of the book, under the title of ‘Prescription’, offers detailed guidelines for establishing an emergency constitution. Placing primacy on the US tradition of political checks and balances, Ackerman presents three core components of his proposal. First, the political element of the emergency constitution is the ’supermajoritarian escalator’, in which the continuation of a state of emergency would require ‘an escalating cascade of supermajorities’ in Congress to protect against normalization (p. 80). Second, the legal component is embodied by time limits on the detention of terror suspects, and a ‘rigorous respect for decency [by the courts] as long as the traditional protections of the criminal law have been suspended’ (p. 119). Third, the economic factor entails financial compensation for detainees found innocent of any wrongdoing. The book argues that a special constitution consisting of these three components would present the state of emergency as a limited regime, tolerated only as a regrettable necessity and always on the path towards termination. For Ackerman, restoring ‘equilibrium’ between the Executive, Congress and the judiciary is the only way to prevent abuses of emergency power (p. 139). This new configuration is especially relevant to the current political environment, most notably in the United States, where the Military Commissions Act and the National Defence Authorization Act were passed in late 2006, with ominous consequences for the writ of habeas corpus and posse comitatus. These recent events, occurring after the book’s publication, indicate a political and legal movement away from Ackerman’s project of protecting civil liberties, and it is unfortunate that the author was unable to address this dilemma.

Apart from questions on the possibilities for the actual implementation of Ackerman’s emergency constitution, there is also the problem of preventing a ‘first strike’. It is common to hear the argument that constant vigilance and a perpetual state of emergency are now necessary mechanisms for preventing a terrorist attack. This counter-argument is no doubt flawed, but it reflects the dominant perspective on modern counter-terrorism, and could have been addressed more closely in the text. If a ‘cure’ for terrorism is indeed possible, prevailing heads of state and policy-makers working to protect civil liberties in liberal democratic regimes will find value in taking a dose of Ackerman’s juridical prescription for political change. However, it is worth noting that a preventive approach to addressing terrorism and its causes remains in need of research, for it is less effective to treat the symptoms than it is to prevent the disease.

Originally published in: International Affairs 83(3), 2007.