Globalisation and regulation of citizenship—Filipino migrant workers in Japan

Political Geography 21 (2002) 1013–1034 www.politicalgeography.com

Globalisation and regulation of citizenship— Filipino migrant workers in Japan Rochelle Ball a,∗, Nicola Piper b a

School of Geography and Oceanography, University College, The University of New South Wales, Australian Defence Force Academy, Canberra, ACT 2600, Australia b Regulatory Institutions Network, Research School of Social Sciences, Garden Wing, University House, The Australian National University, Canberra, ACT 0200, Australia

Abstract This paper examines the state’s contradictory roles in globalising its workforce and transforming its regulatory capacities, and the implications these changes have for the human and citizenship rights of an increasing number of migrant workers. We investigate foreign workers’ protection and rights at both ends of the migration chain by using the specific examples of the Philippines and Japan. The discussion identifies areas for greater activism and mechanisms for the promotion of the rights of migrants from both ‘above’ and ‘below’. First, the highly aggressive role of the state in globalising labour markets is theoretically discussed. The paper then examines the role of the Philippine state in labour export and the implications of its embrace of neo-liberalism for its capacity to strongly pursue migrant worker welfare. The contradictory positions of the state in promoting globalisation, on the one hand, and discourses of human rights for migrant workers, on the other, are highlighted. In the Japanese case we examine the role of the state in both regulating and restructuring its labour market, and the structural dependence placed on the legal and illegal importation of migrant labour. Despite this dependence, we reveal the contradictory positions held within Japan’s state apparatus which result in a deliberate marginalisation of migrant workers. The important role of NGOs in disseminating information to migrant workers about their rights in Japan is highlighted. We explore the relationship between the individual and the state in the context of globalisation through the discussion of citizenship as a negotiated concept. We then examine the changing reality brought about by globalisation processes in terms of responsibility towards the protection of any worker (regardless of passport) but also with regard to activism on behalf of migrant labour. Finally, we emphasise the important future role to be played by NGOs in

∗

Corresponding author. Tel.: +61-2-6268-8597; fax: +61-2-6268-8313. E-mail addresses: [email protected] (R. Ball); [email protected] (N. Piper).

0962-6298/02/$ - see front matter  2002 Elsevier Science Ltd. All rights reserved. doi:10.1016/S0962-6298(02)00084-7

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making the needs and rights of globalised workers more broadly recognised and attended to at both local, national and transnational levels.  2002 Elsevier Science Ltd. All rights reserved.

Introduction There is consent among scholars that economic openness in the era of globalisation is not confined to flows of trade, investment and finance, but also to flows of services, technology, information and ideas. More recently, the role of international labour migration and the large-scale movement of workers from less-developed countries to rapidly expanding economies has been acknowledged as significant components of globalisation (see, for example, Castles, 2000; Ghosh, 2000; Stalker, 2000). In the East and South-East Asian region, cross-border labour movements have grown dramatically in the past decade, representing one of the most rapidly rising and diversifying forms of migration today. Current intra-Asian migration has overtaken the magnitude of migration from the Asian region to the oil-rich nations of the Middle East, which dominated during the 1970s and early 1980s (OECD, 1998). Apart from this regionalisation of migratory flows, this part of the world is also characterized by a feminisation of labour migration (Castles & Miller, 1998). Less attention has been given, however, to the role of the state in globalising its workforce, and the implications this has for the protection of foreign migrant workers in terms of their citizenship, labour and human rights. State policies on labour export and import largely constrain individual decision making (Weiner, 1995) and often contribute to the violation of migrant workers’ citizenship, human and labour rights in a direct or indirect manner. In view of the fact that much of today’s migration flows are short-term, in the form of contract work or ‘illegal’ (and hence often smuggled) labour, the issue of citizenship may appear as irrelevant. One of our aims in this article, however, is to show the contrary: in the context of changing patterns of contemporary labour migration flows, citizenship is an important contributing factor to the well-being of migrants. The issue of citizenship is important to both the countries that send migrants and to the countries that receive them, and merits substantial thought and discussion. In this paper, we investigate the issue of foreign workers’ protection and rights at both ends of the migration chain by using the specific examples of Japan and the Philippines. This choice derives not only from the relatively significant migration flows between those two countries, but also from the different position of the two countries in the regional political economy, as well as their different state structures—with the latter also having implications for state–civil society relations. A key component of globalisation for indebted states is the drive for export oriented hard currency earnings, and in the case of the Philippines, this is largely generated by labour export. Labour importing countries, such as Japan on the other hand, have had to open up their domestic labour markets to foreign workers due to labour shortages or other market driven needs for flexibility. The conditions regulating the export and import of foreign workers and human or labour rights issues have been the

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subject of considerable attention by state institutions at either end of the migration chain. An open debate of labour migration and migrant workers’ rights, however, has not occurred as such issues are politically highly sensitive. In particular, how, and to what extent, are the human rights and labour rights of non-nationals embraced by another state? To what extent is a labour exporting state able to be an advocate for, and safeguard, workers’ rights? Over the last thirty years these issues have become highly sensitive political and social concerns for major labour exporting governments such as the Philippines. In response to inadequate handling by state institutions, NGO activism on behalf of migrant labour in both countries, Japan and the Philippines, has been mushrooming. A central theoretical issue, therefore, developed for this paper concerns the state’s role in globalising its workforce and the implications this has for human and citizenship rights of a large and increasing number of migrant workers, with a view to identifying areas for greater activism and promotion of the rights of migrants who constitute a globally mobile labour force. In the case of the major labour exporter within the Asian region,1 the Philippines, we argue that the Philippine government has created a highly globalised labour-force via aggressive state action (in the promotion of the export of labour), thereby undermining the possibility of preserving the original regulatory and protective function of a state vis-a`-vis its own nationals (Ball, 1997). In the case of Japan—an important labour receiving country in the region—despite the fact that the majority of foreign migrant workers enter or work ‘illegally’, their presence is actively state-sanctioned, and indeed provides the government with considerable regulatory efficacy. By this we mean that both short term legal and illegal workers provide the government with considerable labour market flexibility through its ability to repatriate foreign workers with relative ease. However, concerns for the welfare of foreign workers have not been part of this regulatory process. The key issue, therefore, is to identify areas where sending and receiving states can be effective in safeguarding workers’ rights, and those areas requiring alternative mechanisms to promote a rights’ agenda for migrant labour which matches the phenomenon of state-regulated labour export and import. It is in this context that our conception of citizenship has taken shape. We argue that through activism on the part of NGOs, Japanese individuals are taking up an active role as citizens to advocate for the human and labour rights of foreign migrant workers, and thereby push for the recognition of the broader rights of a ‘globalised’ workforce. At the same time, Filipino citizens are campaigning on behalf of their own nationals in the Philippines and in Japan, thereby targeting the migrant sending as well as receiving governments to protect the rights of Filipino workers in a transnational setting, which involves a recognition of citizenship and human rights of migrant workers. This paper is structured in the following way. First, the role of the state in globalising labour markets is theoretically discussed. In the case of globalised labour

1

ico.

Numerically, the Philippines is the world’s second largest exporter of migrant labour, following Mex-

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export/import, we argue that the state is highly active and aggressive in globalising itself and its labour markets by either receiving foreign workers or sending them abroad, and in so doing is transforming itself and its regulatory capacities. The discussion then turns to a detailed analysis of the role of the Philippine state in labour export. We argue that the embrace of neo-liberalism by the Philippine state has actually undermined its capacity or indeed willingness to strongly pursue worker welfare through its efforts to deregulate the labour export industry. The contradictory positions of the state in promoting globalisation, on the one hand, and discourses of human rights for migrant workers, on the other, are highlighted through a discussion of the apparatuses of the state involved in labour export, and through a discussion of recent laws created in the Philippines that have been promoted as improved mechanisms to safeguard worker welfare. This theme of contradictions within the state apparatus is also exposed in the Japanese case. Our section concerning the role of the Japanese state in regulating labour import highlights the role of migrant labour in the restructuring of the Japanese labour market, indicating a structural dependence on the legal and illegal importance of foreign migrant workers. Despite this dependence, there exists an anti-immigration attitude which disallows the legal entry of unskilled labour, even though different positions are held within Japan’s state apparatus itself. Ultimately these contradictory positions result in a deliberate marginalisation of migrant workers in the Japanese labour market, and a deregulation of policy concerning migrant welfare from the national to local levels. The important role of NGOs in disseminating information to migrant workers about their rights in Japan is highlighted here. In the final section of our paper we explore the relationship between the individual and the state in the context of globalisation through the discussion of citizenship as a negotiated concept. Here we attempt to emphasize the changing reality brought about by globalisation processes in terms of responsibility towards the protection of any worker (regardless of passport) but also with regard to activism on behalf of migrant labour. Finally, we emphasise the important future role to be played by NGOs in making the needs and rights of globalised workers more broadly recognised and attended to at both local, national and transnational levels.

The role of the state in globalising labour markets Many analyses of contemporary political economy in geography, sociology and related disciplines have as their sub-text the all-pervasive forces of globalisation, claiming that there has been an erosion and growing irrelevance of the nation state (Mittleman, 1996). This view of globalisation is based on a victim discourse derived from the view that “the market and capital alone determine the restructuring of economic, political and cultural life, making all other alternative values or institutions increasingly redundant” (Wills, 1999: 444). As observed by Evans, the role of the contemporary state has typically been referred to as ‘diminished’, ‘defective’ or ‘hollow’—a feature originally attributed to Anglo-American political culture, but now seen as having gone global (1997). At the same time, other scholars have balanced this picture by emphasising the changing role of the state, which is not equivalent

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with its vanishing. Petras (1999), for instance, shows with regard to the state’s role in supporting the globalisation of TNCs, that the state is extremely active in promoting globalisation as part of a broader neo-liberal agenda. He argues that the nationstate is a central and decisive agent in vigorously shaping economic exchanges and investment at the local, national and international level. Indeed he maintains that the role of the state is so significant that is impossible to conceive of the expansion and deepening involvement of multi-national banks and corporations without prior political, military and economic intervention of the nation-state. Much of the above mentioned literature derives from the context of highly developed countries. The role of the state in developing countries has also received substantial attention, often pointing to its defectiveness (Leander, 2001). According to Strange (1996), however, the state in developing countries remains poorly understood. Here, the state’s role is seen in connection with socio–economic development, whereby the macro-level developmental path is typically determined at the international level. Strange has described these shifts in a three-fold manner: 1, power has shifted upwards (from weak states to stronger ones); 2, it has shifted sideways (from state to market); and 3, it has evaporated in the sense that no-one is exercising it, leaving a hole of non-authority (1996: 189; see also Leander, 2001: 124). In the context of international labour migration, the interesting issue is that migrants are usually trapped between less developed and more highly developed countries with different state structures and power relations. As far as labour markets and the deployment of labour is concerned, this paper argues that the state is highly active and aggressive in globalising itself and its labour markets by either receiving foreign workers or sending them abroad, but in so doing is transforming itself and its regulatory cogency. As we are mainly concerned with protection and fair treatment of migrant workers, we focus on the lack of jurisdiction of the labour exporting state once its nationals move across the borders of their home country. This is one of the root causes of the vulnerability of migrants.2 This does not purely derive from the wrong doings of many agents involved in the process, including recruiters, transport operators, government officials and employers, at both ends of the migration chain. Rather this vulnerability is largely structurally derived (Ball, 1997). This fundamental limitation of the protective capacity of the labour exporting state remains despite extra-territorial protection through intensive consular activities. In the Philippine case, there are daily instances where consular activities have been unable to reconcile worker abuse, due to the marginal legal position that migrants occupy with respect to the rule of law in labour importing nations. At the same time, bureaucrats or state officials have also been unwilling to deal with lower class migrant labour, as illustrated by Chin’s metaphor of ‘silent walls’ built by government officials and recruitment agents (1997). In addition, migrant worker vulnerability is aggravated by their lack of membership in the ‘citizenship club’ of the state in which they are ‘legally’ 2 Another cause of migrant vulnerability is the lack of employment opportunities in the Philippines that approximate the rate of pay in labour importing nations. The generation of greater employment opportunities in the Philippines would create lesser incentives for emigration. A full discussion of such issues, however, is beyond the scope of our paper.

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but on short-term contracts, or ‘illegally’ employed (Battistella, 1998). In other words, migrant worker marginalisation is derived from the act of crossing state borders and employment in another country as a non-national, the conditions of which are often beyond the control of the labour-exporting countries (Ball, 1997)—or perceived and depicted as such (Tyner, 2000). In addition, migrants have been sometimes used as pawns in diplomatic inter-state games, or sending states have conveniently used the rule of ‘non-intervention’ in another country’s domestic affairs as an expedient excuse to avoid taking responsibility (Gurowitz, 1999). Labour migration has not only to do with the crossing of borders, but also with filling a role in labour markets. In this context, much of the literature on globalisation and the state has argued that a growing share of labour relations is regulated by firms and not by states (Leander, 2001: 122). One aspect of globalisation and changes in the way that states have embraced the neo-liberal agenda is characterised by undermining organised labour and labour agreements, thus isolating and individualizing workers. As a result work has become increasingly individualised, with conditions of employment being negotiated on a one-to-one basis between employer and employee. In the case of highly flexible systems of labour export, the migrant sending state is increasingly unwilling and is also compromised in its ability to be a guarantor of social protection, given that the ability of the state to be accountable to its transnational communities becomes blurred, once workers are employed outside the traditional spatial jurisdiction of the nation state. Thus, when globalisation forces the state to redefine its frame of reference away from the concept of the bounded national community, then such communities lose their channel of political representation. The resultant lack of social protection provided by labour exporting nations undermines the legitimacy of the state because it loses its appeal as the provider of last resort (Carnoy & Castells, 2001: 8, 12). This lack in protection of overseas contract workers thereby increases opposition to, and compromises, the legitimacy of strongly neoliberal states. In the case of the Philippines, the strident embrace of neo-liberalism under the Ramos government resulted in the adoption of new legislation in 1995, in response to the legitimacy crisis created by increased public awareness of the exploitation and abuse of—particularly female—overseas contract workers. The new Act (the Migrant Workers and Overseas Filipinos Act of 1995—discussed below) further aims to wind back the protective function of the state vis-a`-vis its overseas workers by individualising worker contracts, and further undermines the protective capacities of the state to even those employed in the most vulnerable and isolated of positions (such as domestic servants, and those in the “entertainment” professions). According to Carnoy & Castells (2001: 13), states have in fact reacted to the multidimensional crisis of weakening national jurisdiction and legitimacy by reconfiguring themselves in two major ways. First, nation-states build international, supra-national, and co-national institutions, in order to manage together the processes of globalisation that are overwhelming to individual states. For example, the creation of the European Union is a new instance of shared sovereignty. The growth of other regional associations such as Asia Pacific Economic Cooperation (APEC), the Association of Southeast Asian Nations (ASEAN), the Arab League etc., have created transnational spaces for mainly economic, and to a lesser extent political, negoti-

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ations. The enormous power of the global financial managers of the World Bank and the International Monetary Fund, albeit dovetailing with the interests of the United States, are some examples of the growth of global policy making. In this regard, Strange has pointed to the weak position of developing states in influencing their own economic and political fate which is increasingly being decided upon by international factors (1996). To return to the issue of labour migration, it stands to reason then that the many difficulties involved in the safeguarding of human and labour rights of temporary contract or ‘illegal’ migrant workers that have occurred through the globalisation of labour markets requires simultaneously a greater development of new protective regimes to address migrant workers’ welfare. The development of new legal and regulatory systems able to effectively ensure migrant workers rights would require further changes to the nature of the nation-state. Rather than leading to the ‘eclipse of the state’ (to use Evans’ phrase, 1997) as a consequence of globalisation and the increasing role of supranational organisations, the state’s role must be transformed in order to accommodate and protect those whose rights are undermined by virtue of their employment outside the country of their citizenship (Sassen, 1996). Providing new perspectives on the state, more and more scholars have pointed to the potential role of civil society (in particular NGOs) either to act as substitutes for the social institutions of the state (which Evans considers unrealistic and overtly optimistic— and we agree with him) or to form more complex relations in terms of mutual empowerment or synergy between state and NGOs (Evans, 1997). One major aspect of state reconfiguration concerns the devolution of power and resources in an attempt to regain legitimacy (Carnoy & Castells, 2001: 13). The proliferation of NGOs and revitalisation of regional and local governments can be regarded as the extension of the state into civil society, as a means of diffusing conflict and shifting responsibility to the grassroots. According to Carnoy and Castells (2001: 14) the two trends of supra-nationality and devolution go hand in hand. They thus argue:

With shared sovereignty, and shared sources of legitimacy, the social foundations of the classic nation state are irreversibly undermined by supranationality from above, and transnationalism from below.

These two trends combine to create a new and evolving form of the state comprised of supranational and national institutions, local governments and non-government organisations. Thus we argue that in order for citizenship and labour rights of overseas workers to be strengthened, ‘globalisation from above’ needs strong input from ‘globalisation from below’ (Falk, 1999) via the lobbying of labour exporting and importing states by nationally and transnationally organised NGOs/civic groups. In the following section, we explore the role of the Philippine state in more detail.

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The role of the Philippine state in labour export The use of the term “state apparatus” in this paper follows the work of Clark and Dear (1984: 45). Specifically it refers to the set of institutions and organisations through which state power is exercised (Tyner, 2000: 134–135). As far as the labour export industry in the Philippines is concerned, it is the state institution, the Philippine Overseas Employment Administration (POEA) which is a sub-apparatus of the Department of Labour and Employment, that is central in the regulation, administration and promotion of this industry. Indeed, state promoted and regulated labour export from the early 1970s has stimulated an ongoing source of foreign exchange that has been critical for its economic solvency (Ball, 1996, 1997; Piper & Ball, 2001). The Philippines has the most well developed apparatus for labour export in Asia, as indicated by both the volume of labour exported (with almost 5 million Filipinos working overseas in 1997 (POEA, 1998) and inflow of worker remittances (estimated to be US$5.7 billion in 1997) (Piper & Ball 2001: 538). In fact, the POEA has been so successful in its multiple functions, that it is regarded as the model for other labour exporting states. For example, POEA officials have on an ad hoc basis provided organisational training for their counterparts in Indonesia and Sri Lanka. This ‘success’ of the state sub-apparatus is derived from three decades of strong state involvement in the labour export industry. Beginning in 1973, the sub-apparatus of the Overseas Employment Development Board (within the Department of Labor), as both the industry regulatory body and a labour recruiter in its own right attempted to monopolise the nascent labour export industry. This state monopoly over the labour recruitment industry was abolished by 1982. Escalating international labour demand and illegal private sector recruitment led to the restructuring of the industry, with the formation of the POEA in 1982, and the legalisation of private sector recruitment. While capital accumulation through remittances constitutes the major reason for state regulation of the overseas employment industry, the state has also had to mediate its needs for capital accumulation with the political repercussions of social relations (i.e. to be seen as looking after worker welfare), in order to sustain legitimacy (Clark & Dear, 1984: 34; Ball, 1997; Tyner, 2000). Indeed, this fundamental tension is embodied in the sub-apparatus of the POEA itself. The structure of POEA has developed in order to mediate and balance between a range of often competing interests such as those between overseas workers and their families, recruiters and foreign employers, and the macroeconomic need of the state for foreign exchange for its continued viability. The basic methods by which the Philippine state and its sub-apparatuses seek to legitimise their role is through the regulation of private sector participation and promotion of industry efficiency; maximizing foreign-exchange earnings; marketing of Filipino labour internationally; promoting worker welfare; pre-departure orientation seminars; and government-to-government recruitment (Ball, 1997: 1618). The state is not monolithic and as a result, there often occur contradictions within the state apparatus. For example, Ball (1996) has demonstrated that there are major contradictions between influential sub-apparatuses of the state involved in the pro-

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duction and export of Filipino nurses. In this case, while policy formulation in the Departments of Health and Education were focused on the production of nurses for national health care needs, the strong labour export and marketing orientation of the Department of Labour and Employment (DOLE) articulated by the POEA was both at odds with, and contradicted, the production of nurses to meet national needs. The overwhelming ‘success’ of private labour recruiters and the POEA (in this case as both an industry regulator and recruiter of labour) to both market, recruit and export nurses has resulted in the situation where 75% of all Philippine trained nurses now work overseas, with 80% of nurses having no intention of ever returning to nursing practice in the Philippines (Ball, 2000). Quite clearly, contradictions in the operation of sub-apparatuses of the state can have profound and serious consequences for citizens. Following the controversial execution of Flor Contemplacion in Singapore, the trial of Sarah Balabagan in the United Arab Emirates, and the highly suspicious death of Maricris Sioson in Japan in the early-to-mid 1990s, there was mounting public awareness and pressure in the Philippines for greater state accountability for the welfare of overseas contract workers. This led to the creation of The Migrant Workers and Overseas Filipinos Act of 1995,3 which was promoted by the Philippine state as being the Magna Carta for overseas workers. The Migrant Workers and Overseas Filipinos Act of 1995 (RA 8042) was signed into law by President Ramos in 1995. According to both the Departments of Labor and Employment and Foreign Affairs (DOLE and DFA, respectively), this law: seeks to institute measures for overseas employment and establish a higher degree of protection for the welfare of migrant workers, their families, and overseas Filipinos. It affirms the State’s policy of ensuring full protection of labor, local and overseas, organized and unorganized . . . Moreover, the State accepts overseas employment as a present-day reality, and requires assurance for the protection of the dignity and fundamental human rights and freedoms of the (sic) Filipino citizens.

Other salient features of the law include the progressive policy of deregulation of recruitment activities and the eventual phase-out of the regulatory functions of the POEA (http://www.dlsu.edu.ph/pinas/gov/ocwhb.html). This Act uses the language of human and labour rights to promote ‘a new era’ of state consciousness over the need to protect migrant workers. However, these two quotes are in essence contradictory. On the one hand, the Act has as its centerpiece the protection of migrant workers, and on the other hand it promotes the deregulation

3

For a copy of the complete Act see Republic of the Philippines, 1995.

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of the labour export industry, through a winding back of the regulatory functions of the POEA. This Act is based on a strong endorsement of neo-liberal, free trade thinking underpinned by the notion of deregulation. In so doing, however, the Philippine State embraces a victim discourse with respect to the broader process of globalisation, where the provision of labour to meet international demand is outside its ability to control.4 There are a series of statements from the POEA echoing this sentiment. For example, in 1994, the POEA stated that ‘overseas employment is an inherent structural feature of the international economy’ (POEA, 1994: 2). This statement, according to Tyner (2000: 145), deflects responsibility away from government institutions, the implication being that labour migration would continue with or without government or private recruiter participation. The emergence of POEA accordingly is simply as manager of this ‘natural process’ (Tyner, 2000: 146). Deregulation of the labour export industry is a logical outcome of the natural processes of globalisation. As an outcome of RA 8042, the Full Disclosure Policy has become the centrepoint of these efforts to deregulate the labour export industry. The Philippine State and its apparatuses occupy often contradictory positions in promoting globalisation, on the one hand, and discourses of human rights for migrant workers (as part of its broader legitimacy function) on the other hand. What is antithetical about this stance is that in its efforts to further globalisation, the Philippine State has also adopted the neo-liberal stance of deregulating the responsibility of its institutions—the POEA and the Department of Foreign Affairs and its consular offices—for worker welfare. Under RA 8042 and ensuing legislation and efforts for deregulation, the Philippine State treats migrant welfare and human rights as the responsibility of the individual rather than a broader responsibility of the state to nationally and internationally foster the well-being of migrant workers en masse. For example, the Full Disclosure Policy: calls for the policy norm that honest (sic) is the best policy. To promote a culture of well-informed public is to stimulate a universal environment conducive to it . . . Full disclosure is not a matter of recognizing and accepting one provision of the employment contract and rejecting the others. It is laying the cards on the table and when one makes a decision, he is primarily responsible for that decision (Casco, 1995: 4). As a result of this policy of full-disclosure, all government and private recruitment agencies are required to provide all information—wages, conditions, length of contract and so on—to empower potential migrants workers to make “free and rational employment decisions” (Tyner, 2000: 148). Thus, while POEA is still able to maintain and impose standards, the ultimate responsibility is firmly placed in the hands of the employers and employee, each with the ‘full’ understanding of the ‘rewards and risks’ (Casco, 1995: 4; Tyner, 2001: 148). The exploitation of migrant workers

4

See Tyner (2000) for great elaboration of this issue.

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is thereby implicitly treated either as an issue of illegality and/or the migrant’s own doing (Tyner, 2000: 149). Following the logic of this policy, abused women are therefore considered to be willing participants in overseas migration through free and rational choices, with accountability for cases of exploitation being transferred to the migrants. So far from increasing worker welfare, and despite the rhetoric, the full-disclosure policy could be regarded as an undermining of worker welfare through state retreat of its responsibilities, with the transference of responsibility for exploitation away from government and private institutions (e.g. recruitment agencies) towards the migrants (Tyner, 2000: 149). Not surprisingly, amongst the NGO community concerned with the welfare of migrant workers, there is wholesale criticism of RA 8042 and the full disclosure policy (De Guzman, 1995; Lagarde, 1995; Philippine Migrants Rights Watch, 1995) as being unrealistic and opening migrant workers up to greater exploitation. The following statements are indicative of the responses of NGOs to this law: From all indications, rather than protecting the workers, the deregulation policy is more for opening the doors for deployment, thus profit-making for recruiters. With an independent and full-blown labor export industry in place, such policy unleashes the full fury of recruitment and placement agencies in bleeding the migrant workers dry. Furthermore, the policy is a clever way for government to abdicate its responsibility and role in labor migration while at the same time continuing to profit from it (Philippine Migrants Rights Watch, 1995: 83-84). Instead of deregulation, many NGOs argue strongly for improved regulation of both private recruiters and for new initiatives which pursue bilateral and multilateral agreements with major labour importing nations. Tyner (2000) draws on the discourse of the body to emphasize the major shifting of responsibility from the state to the workers themselves for their welfare, as a result of RA 8042 and the full disclosure policy: when confronted with charges of migrant exploitation, the Philippine state couples a discourse of globalisation with a discourse of bodies, wherein abuses are scaled down, metaphorically, to the body of the migrant. This corporeal discourse thus deflects attention and criticism away from the state, thereby maintaining its political hegemony (Tyner, 2000: 150–151) A major implication of this notion of abuses being scaled down to the body of the migrant is the weakening of citizenship rights both for national and transnational communities. In one response to this Act, an NGO called the Entertainment Industry Development Congress (EIDC), poses the following question: But isn’t a citizen’s constitutional right to protection by the state a birthright? A perpetual right? Why the change of heart? (Lagarde, 1995: 77–78).

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This paper now turns to the role of the Japanese state before further developing these concepts of citizenship in the context of transnational migrant rights.

The role of the Japanese state Japan has been able to avoid enhanced globalisation of its labour market by strategies such as off-shore investment. However, the growth of geographically immobile sectors, such as the construction industry, has required a mobile foreign labour force. This fairly new dependence of the Japanese economy on external sources of labour5 due to demographic changes, such as an aging population, has meant that Japan has become structurally dependent on migrant workers in some sectors of its economy. The countries of origin of Japan’s migrant labour are largely determined by Japan’s popular image as a rich and powerful country which is also related to its emergence as a major presence in the regional Asian economic system through direct investment, foreign-aid donations and export of consumer goods “made in Japan” (Sassen, 1996). Since the burst of the economic bubble in 1991 and the onset of a serious recession, foreign labour seems to have become part of a wider restructuring of the Japanese labour system following (albeit reluctantly and in a piecemeal process) the neoliberal pattern of deregulation by showing signs of parting from the famous life-time employment structure to more ‘flexible’ forms of employment at cheaper wages and with less benefits. Hence, it can be assumed that the presence of foreign workers is part of an on-going transformation of capital–labour relations in Japan, characterized by rising insecurity and income inequalities among the national workforce. The breakdown of full-time employment systems, together with a trend towards casualisation of labour in Japan is thus at the root of further incorporation of undocumented migrants into the labour system (Piper, 2002). Based on this structural dependence on migrant export and import, it seems that the presence of foreign labour will not be a temporary phenomenon. Despite this dependency on foreign labour, however, the cornerstone of the Japanese government’s migration policy was and remains that of limiting the stay of migrants and assuring their return to their home countries after short periods of time (between six months and several years). Among the visa categories available, there are none for un- or semi-skilled workers. Largely based on strong pull factors, much of the labour migration flows, particularly from Asia, hence occurs in an undocumented or ‘illegal’ manner. Conservative estimates put figures for ‘illegals’ at around 300,000. As a result of the revised Immigration Law (1990), there are two exceptions, however: the only group of ‘unskilled’ foreigners who are granted ‘longterm residency’ (or rather “longer term”) are foreigners of Japanese ancestry, the so-

5

Japan was dependent on external labour during the Pacific War when considerable numbers of forced labourers from its colonies (Korea and Taiwan) were brought to the Japanese mainland. For more information, see Weiner (1989).

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called Nikkeijin (Komai, 1995) from South-America.6 The second exception is the so-called ‘entertainers visa’. The latter is in fact considered a ‘skilled’ visa category and is mainly used by Asian women, most of whom are Filipinas. Women without the official ‘entertainers’ visa’ from other Asian countries or South-America and most recently also Eastern Europe, typically enter Japan on tourist visas and then engage in entertainment-related jobs ‘illegally’. An interesting aspect of labour migration is its highly gendered nature, with particular regions providing different proportions of male or female workers and quite distinctive employment patterns. Those countries with striking gender imbalances in favour of males are Bangladesh, Iraq and Pakistan—all of whom are ‘illegal’ migrant workers; females are disproportionately represented from Thailand and the Philippines. The largest single category for legal and illegal immigrant women is bar hostess, followed by factory work, prostitution, dishwashing, etc. (Mackie, 1999). The gender balance from among the Nikkeijin is slightly in favour of males, with both men and women typically working for car manufacturing companies and engaging in other factory work. Recently, workers in the so-called ‘entertainment’ industry comprise a slightly diminishing proportion of immigrant workers, and there has been a small rise in such jobs as factory work (Kasama, 1996). Unlike other highly developed countries in East and Southeast Asia, Japan is relatively distinctive in not importing large numbers of domestic workers. Prostitution, and labour by unskilled migrants (with the exception of Nikkeijin) are ‘illegal’ in Japan. Thus, women from Thailand who typically enter Japan on a tourist visa without even the minimal contractual and legal advantages provided by the entertainers’ visa, are ‘illegal’ on two counts: (1) as unskilled labourers and (2) as prostitutes. Regardless of nationality, the most common work-related problems encountered by female migrant workers are: contract violation, non-payment of wages, verbal and physical assault, forced prostitution, rape and forced use of drugs, illegal confinement, and the confiscation of documents. Contract violation and nonpayment of wages are also the most common problems experienced by male migrant workers. Despite an overall anti-immigration attitude and a policy position disallowing the legal entry of unskilled labour without ethnic or racial ties, different positions are being held within Japan’s state structure. The Ministry of Labour has in fact proposed the legal entry of unskilled workers to respond to the shortage of labour in certain sectors. This proposal has been vehemently opposed by other ministries, notably the Ministry of Justice as well as the Ministry of Health and Welfare (Komai, 1995; Mori, 1997; Thraenhardt, 1999). The implications of the recent merger of the Ministry of Labour with the Ministry of Health and Welfare (to form the so-called Kousei Roudousho) cannot be assessed yet. Another migration supportive ministry is the Ministry of Economy and Industry. In fact, it plans to compile a white paper by the 6 By 1995 there were approximately 195,000 Nikkeijin—South Americans of Japanese descent working in Japan, of whom approximately two thirds were men and one third women. Their ability to work legally in Japan is due to an amendment of the Immigration Law in 1990—which permits them to work in Japan for up to four years. For more information see Komai (1995).

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year 2003 proposing a total revision of the immigration system by moving to a point system like Canada and Australia’s, together with the creation of a new ministry in charge of handling all immigration related matters (to be called Kokusai Jinzai Kyoryokusho).7 As it stands, however, the present Department of Immigration (which is part of the Ministry of Justice) has failed to permit immigration for the purpose of engaging in unskilled labour (or what is conventionally seen as unskilled). Thus, by way of state policies, a large component of imported labour is ‘illegal’ and its presence tacitly approved of. At times, selected nationality groups are being targeted by immigration officials (such as Iranians in the early 1990s) to calm public opinion. Thus, unskilled migrant labour is deliberately marginalised within the Japanese labour market to allow for utmost flexibility with regard to labour market fluctuations by posing the least possible social costs for the Japanese government. There are also signs, that the Japanese state institutions deregulate any official policy issues to do with migrant workers’ protection or welfare from the national to local levels. The national government, for instance, does not object to initiatives launched by local governments or councils. There are, for instance, Labour Relations Offices set up by local councils, some of which offer legal help for migrants experiencing contract violations. This, however, happens in a highly arbitrary manner and depends very much on the commitment by individual bureaucrats; or it is up to the migrants (or NGOs) to find out this kind of information. In an interview with a senior member of staff of one such Labour Relations Office in Tokyo, for instance, we were informed that many provisions in the Labour Standards Law would legally apply to foreign migrant workers; the problem is only that most people are not aware of this. NGOs hence fill an important gap in the dissemination of information and raising of awareness. It appears, therefore, as if state institutions on the national level are deliberately taking a passive stance rather than actively opposing the provision of welfare to migrant workers once they are present in Japan. This does not, however, solve the many problems that occur in the context of the non-existence of official, nationally-sanctioned policies and guidelines that would prevent physical and psychological exploitation of migrant workers. More open and clearly expressed migrant protection policies on the national level are thus required, and the impetus for these has to come from combined efforts by supra-national and regional institutions as well as from citizens at both ends of the migration chain.

Citizenship ‘from above’ and ‘from below’ Citizenship is one important theoretical as well as practical concept incorporating the notion of rights. As in the case of the institutions in charge of regulating the economy and states’ changing roles in influencing these, nation-based citizenship too is “being destabilized and even transformed as a result of globalisation” (Sassen, 1996: xii). It does not come as a surprise, then, that the re-emergence in recent years

7

Personal conversation with John McLaughlin, researcher and labour union activist based in Japan.

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of citizenship as a dominant concept in social sciences has, among others, been attributed to the “forces of globalisation” in general, and “growing movements across national borders of migrants” more specifically (Lister, 1997: 2). Historically and conceptually, there are no universally accepted definitions or descriptions of citizenship (Oliver & Heater, 1994). However, they all have in common an understanding of citizenship not only as a relationship between an individual and ‘the state’ which exerts regulatory and protective measures, but also the relationships between individual community members. In this way, in its modern understanding it is a concept tied to the nation-state.8 However, migration flows—in what has been labeled the international ‘age of migration’ (Castles & Miller, 1998)—have challenged the conceptual link of citizenship to nation-states, and it has been remarked by a number of commentators that the rigid distinction between citizens and aliens is made increasingly problematic in recent times because of the fluidity of populations (Oliver & Heater, 1994; Piper, 1997). Some commentators have argued, therefore, for an idea of multiple citizenship and the distinction between ‘national citizenship’ and ‘new citizenship’ in order to overcome the traditional equation of citizenship with nationality (Oliver & Heater, 1994) and hence attachment to one country only. Also, when referring to ‘multiple citizenship’, authors typically conceive of ‘dual citizenship’ (i.e. the holding of two passports) which does not constitute an option for many contract workers or ‘undocumented workers’ engaging in return and often repeat migration. It is not our aim here to reiterate the general debate on citizenship with its inclusionary and exclusionary implications.9 Rather, we attempt to emphasize the changing reality brought about by globalisation processes in terms of responsibility towards the protection of any worker (regardless of passport), but also with regard to activism on behalf of migrant labour. We thereby find the notion of ‘negotiated citizenship’ as conceived of by Stasiulis and Bakan (1997) a very useful starting point. We intend to elaborate this conception by emphasizing citizenship ties and responsibility on the part of migrant sending and receiving societies—not only on the level of state policies, but also civil society’s engagement. In other words, changes affecting citizenship are not only instigated by ‘globalisation from above’, but also by ‘globalisation from below’. In this sense, we focus on citizenship as a practice rather than just as a status (Oldfield, 1990). In the context of globalised labour markets and the presence of non-national workers, new concepts need to be developed to incorporate changing realities of migrants working outside their country of citizenship. In particular, attention needs to be given to human rights of workers to avoid their being treated as tradeable commodities. The institutionalisation of rights through the UN Charter of Human Rights, for instance, has been described as a central aspect of the social process surrounding globalisation (Turner, 1993). Other international actors concerned with the rights of 8

See, for example, Yuval-Davis (1991) and Lister (1997). See Marshall and Bottomore (1992) for inclusionary perspectives; for feminist critiques see Lister (1997) and Phillips (1991). From the point of view of ethnic minorities and immigrants, see Piper (1998) and Stasiulis and Bakan (1997). 9

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migrants are the International Labour Organisation (hereafter: ILO) and the International Organisation of Migration. It was in fact with the establishment of the ILO and its numerous efforts to generate global standards that a number of international norms for the protection of migrant workers came into existence.10 There are also UN Conventions such as the 1975 Convention on Basic Human Rights of Migrant Workers and its expanded version of 1990 on the prevention of discrimination against foreign workers. In view of the feminisation of international migration, UN conventions specifically targeted at women’s welfare, together with the UN Convention of Protection of Rights of All Migrant Workers adopted in 1990, could potentially offer satisfactory protection for migrating men and women.11 However, all these initiatives have little support anywhere in the world. In fact, many migrant host countries in Asia have not even ratified ILO conventions that would guarantee basic rights to their own local workers (Lawasia, 1998). The view of a global spread of conventions surrounding human rights, which leads to the claim that the advances of values attached to human rights would render the concept of citizenship almost irrelevant, seems to be rooted in European philosophy and regional systems such as the European Union (and EU citizens only), but cannot necessarily be extended to other regions, such as Asia, or to all types of migrants (Solinger, 1999). When pitting ‘rights of states’ versus ‘rights of migrants’, it remains a fact that “states retain the right to set the conditions under which foreigners may enter and reside in their territory” (Weiner, 1995: 153). States have an important place in citizenship struggles and remain the central actors in the enactment and implementation of any progressive policies, but in the absence of a political will to do so, civic or NGO activism is required to target states. As remarked by Stasiulis and Bakan, immigrants who are seeking “to attain increasing citizenship rights through the migration process are [ . . . ] under considerable pressure to find creative and collectively effective negotiating strategies in face of increasingly severe restrictions on permanent, non-discriminatory and accessible citizenship rights” (1997: 132). A re-conceptualisation of citizenship is, therefore, ideally to be achieved through negotiations largely to be done by grass-root support groups and NGOs with state governments and multilateral institutions. As a result, the role of NGOs in ensuring states comply with international conventions is crucial. For instance, there is great potential for NGOs to lobby states to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) so that it can be enforced. Once conventions are in place, NGOs can play a major role in monitoring, organising public hearings, and encouraging political and public debate. In addition, NGOs can submit informal reports to the relevant UN Committee (Cholewinski, 1996: 198–199). 10 It has been observed, however, that ‘global’ often meant ‘western’ in the early days of the ILO. According to Ghai (1999), the ILO tended to treat problems of migrant workers in Europe differently from those in the developing countries. It now, however, seems to have adopted a global approach. 11 Such as the legally binding Convention on the Elimination of Discrimination Against Women (CEDAW) from 1979 and the Declaration on the Elimination of Violence Against Women from 1993 (Lawasia, 1998: 179).

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An additional issue when discussing international migration and citizenship is the need to distinguish between citizenship and protection from the perspective of the sending as differentiated from the receiving countries. In the case of the Philippines as a labour exporter, the responsibilities of the state to its globalised citizenry is an issue of political legitimacy, where there is a strong expectation from Philippine nationals at home and abroad that the state will act to protect the interests and wellbeing of its migrating workers (Ball, 1997; Tyner, 2000). This follows the concept of ‘external citizenship’, referring to the right to seek diplomatic assistance and protection by the representatives of a migrant’s home country (Bauboeck, 1994: 31). Public expectations often are not reconciled to the fact that once a Philippine national becomes a migrant worker abroad, the Philippine state is constrained in its ability to act on the worker’s behalf, even though greater funding of consular activities would assist many. With the Philippines being structurally dependent on exporting migrant labour and receiving their remittances, there is a strong incentive to maintain links with emigrated nationals via citizenship. In this sense, the Philippine government should be more forthcoming in protecting its citizens, but the increasing activism of NGOs shows that this is not the case. The existence of hundreds of Filipinorun NGOs all over the world targeting their own country’s labour export policies as well as the receiving countries’ immigration policies12 reflects (1) the global nature of labour exports from the Philippines, (2) the extent to which the Philippine state has been unable to match the needs of its migrant worker diaspora, and (3) the linkages between sending and receiving countries. Governments in receiving countries in Asia, such as Japan, treat foreign migrant workers as temporary migrants by keeping any official declaration of labour rights very limited and the provision of proper citizenship rights almost impossible.13 The granting or withholding of citizenship rights is being used by the Japanese state as a regulatory mechanism by which the Japanese state exerts a hegemonic authority in determining access to its labour markets and society at large (Bakan & Stasiulis, 1994). In addition, Japan has not ratified important international agreements on the treatment of foreigners such as the above mentioned International Convention on the Protection of Migrant Workers from 1990 (Komai, 1995), and others. It took until 1995 for Japan to finally ratify the International Convention on the Elimination of All Forms of Racism. Although general declaratory human rights are contained in Japan’s post-war constitution, it leaves the legal situation of immigrant workers ambiguous. Article 14, for instance, states that all people are equal under the law, but there is no evidence yet that this has been expanded to migrant workers. This is, however, not a legal matter per se, but rather an issue of political will. In response to the harsh immigration policies by the Japanese government, local NGOs have been addressing migrants’ work-related and other types of problems for over a decade. Although the percentage of foreigners of the total population (1.2%)

12

In the context of Filipino-run NGOs in Hong Kong, see Law (forthcoming). Freeman and Mo (1996: 156–173) explain this by referring to a “3-S” strategy of immigration: skilled, short term and sectorially targeted. 13

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is small in comparison to other industrialized countries, there were 145 NGOs supporting migrant workers all over the country by 1997 (Roberts, 2000: 276). Most migrant worker NGOs, in fact, are either set up by Japanese or mainly by Filipinos. It has been observed in the case of female migrants in Japan that apart from using general church based groups, foreign women tend to seek shelter and social justice from female run advocacy NGOs (Shipper, 2000). They are less frequently seen at community workers unions, which male migrants from South Asia and Iran turn to for assistance as well as civil rights NGOs (Roberts, 2000). Migrant worker NGOs and support groups are increasingly being confronted with problems that have shifted over time from being about ‘help to return’ to ‘livelihood support’ in Japan (Roberts, 2000: 286). This indicates a shift in approach by these support groups along with prolonged immigration: instead of short-term intervention for people who are considered to be sojourners, there is now a stronger emphasis on settlement and citizenship or Human Rights provisions. This shift was led by local welfare workers but also by the foreign workers themselves. At the same time, the limitations of Japanese NGOs have also been pointed out, the most important of which is the lack of direct targeting of state institutions (Truong, 1996). Overall, it can be said that there is a plethora of NGO activity in labour exporting and receiving countries which act both as advocates or lobbyists vis-a`-vis the states involved, and as service providers to individual migrant workers—thus supplementing the shortfalls in the state apparatus. There is evidence of increasing transnational networking between migrant worker NGOs in both sending and receiving countries (Law, forthcoming; Chen, 2001). These steps towards forging of service and advocacy alliances have great potential in making the needs and rights of globalised workers more broadly recognised and ultimately attended to. In this sense, globalised or transnational citizenship has taken on a new meaning: nationals are engaging in political campaigns on behalf of their own migrating compatriots ‘at home’ and ‘abroad’, and citizens in migrant receiving societies are fighting for protection of migrant workers within their own midst. In this sense, solidarity across borders has begun to address the transnationality of the phenomenon of the global labour trade.

Conclusion This paper has shown that states at both ends of the migration chain are actively promoting the globalisation of their labour markets without taking adequate measures to ensure the protection and fair treatment of migrant workers as set out by international law and standards. In this way, states are both active and passive at the same time. The Philippines finds itself trapped between its state-organized system of extensive labour export which made it highly dependent on this form of social problem solving and income creation on the one hand; and widespread public anger over the exploitation and serious maltreatment of Filipino workers (particularly women), on the other. To address this complex situation, it has adopted the language of human rights

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and concern for its citizens on a discursive level by enacting legislation aimed at deregulating state responsibility towards worker welfare. This had the consequence of placing increasing responsibility onto the workers themselves, rather than making migrant worker welfare the responsibility of the state. Japan has finally been forced to make use of foreign migrant labour relatively late when compared to other highly industrialized countries. This has, however, happened via tacit approval of the otherwise unauthorized entry of migrant workers which has put the latter in a highly vulnerable, if not exploitative, position. Based upon the experience of ‘illegal’ (male) and contracted (female) Filipino migrant workers in Japan, we have argued for a new approach to migrant worker protection and an innovative perspective on citizenship reflecting the new transnational patterns of labour migration foreign workers are facing today. We have hence argued for people involved in NGO activism across national borders taking up a new role as active citizens on behalf of their compatriots (as in the case of Filipino-run NGOs) or on behalf of non-nationals as part of a globalised workforce (as in the case of Japanese-run NGOs). We have emphasised the existing and future importance of the roles of NGOs in addressing the negative outcomes for citizenship rights ensuing from the embrace of neo-liberalism by the state. NGOs will increasingly play a pivotal role in lobbying nationally and transnationally for greater state and multi-lateral institutional accountability to both national and global citizens. This, however, has to happen in the form of a combined effort (or ‘synergetically’) involving state, civil society, and relevant international or regional organisations. As it stands, NGOs need to target far more aggressively state governments and state institutions which maintain a central role in policy making to push for the embracing of human and labour rights of non-nationals in a globalised labour force. Such NGOs have to form alliances within the national state system as well as transnationally between those states involved in the migration process to achieve social justice for migrant workers. In this vein, we feel that more scholarly attention needs to be focused on the role of (local and international) migrant workers’ NGOs in directing the agenda on greater recognition of the transnational human, labour and citizenship rights of migrant workers, through lobbying of national and multilateral institutions to legislate for such rights.

Acknowledgements This paper was written whilst Nicola Piper was a Visiting Fellow in the School of Geography and Oceanography, UNSW/ADFA. An earlier version of this paper was presented at the International Conference on New Patterns, New Theories: Conference on International Migration, Nottingham Trent University (UK), 11–13 September 2000. We would like to acknowledge the following people who have contributed to the paper: research assistance from Julie Kesby, Christine Kertesz and Penny Umphelby from the School of Geography and Oceanography, University College,

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