Nike’s Law: The Anti-sweatshop Movement, Transnational Corporations, and the Struggle Over International Labor Rights in the Americas
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Just as sweatshops have become the symbol of the perverse effects of neoliberal globalization, the transnational anti-sweatshop movement lies at the heart of the struggle for social justice in the global economy. In the global North, the reemergence of sweatshops in such cities as New York and Los Angeles entails the return of the economic and legal realities of the nineteenth century. In the South, the exploitative labor conditions and the unfulfilled promise of employment and growth have turned maquilas into an icon of the failure of late twentieth-century neoliberalism. In bridging the North–South divide through highly plural, dynamic, and decentralized transnational advocacy networks (TANs), the anti-sweatshop movement holds out the prospect of a revamped, twenty-first century labor internationalism. Beyond its political and symbolic importance, the anti-sweatshop movement offers a privileged vantage point to examine the role of law in counter-hegemonic globalization for two reasons. First, in terms of social movement theory, the ‘‘framing’’ of the anti-sweatshop cause has crucially relied on law and legal discourse. Given that abuses committed in global sweatshops – from physical violence to sexual harassment and misery wages—undermine fundamental conditions of human dignity, TANs have framed their struggle as a vindication of basic human rights. This has not only lent a potent moral force to the movement but has also placed the mobilization of human rights rules and discourses at the center of TANs’ strategies. Secondly, as I will argue below, the anti-sweatshop movement can be best understood as a component of a broader movement to regulate the operation of transnational corporations (TNCs) in the global economy. A key stake in this global field of confrontation pitting TNCs against TANs—and the myriad governmental and non-governmental organizations siding with each camp, as well as the lawyers, consultants, and academics providing the legal and intellectual ammunition to each—is the definition of the rules establishing the rights of corporations and workers in the global economy. As Wallerstein has put it, ‘‘the creation of these legal structures as well as their real enforcement becomes therefore one of the prime political arenas of conflict in the world-system’’. Thus, as I set out to show in this chapter, the counter-hegemonic potential of the normative vision and legal strategies of the anti-sweatshop movement can be assessed only if seen in relation to the hegemonic visions and uses of law through which TNCs and their supporters seek to consolidate their dominance in the global economy. The legal tools available to actors in the confrontation over labor rights are highly heterogeneous and operate at different scales. In the absence of effective institutions of transnational governance, working conditions in global commodity chains are regulated through myriad public and private arrangements that constitute a legal kaleidoscope rather than a legal system. Thus, in terms of sociolegal theory, the struggle for worker rights takes place in a context of legal pluralism in which national labor laws, ILO conventions, corporate codes of conduct, social clauses in bilateral and regional trade agreements, and unilateral sanctions overlap and clash. This legal kaleidoscope involves both ‘‘soft law’’ created by private actors such as TNCs (e.g. codes of conduct) and NGOs (e.g. alternative treaties) as well as ‘‘hard law’’ backed by state apparatuses. Hegemonic and counter-hegemonic actors actively exploit and shape the unequal opportunities created by the tensions and contradictions within this pluralist legal arena. The use of plural legal fields by social movements is a staple topic of sociolegal research. The existing literature, however, continues to be largely focused on the local and national scales, thus missing the novel forms of legal pluralism and transnational political mobilization associated with globalization. Specifically in the Americas, the area on which this chapter focuses, two different trends have converged to produce this important blind spot in our understanding of contemporary law and social movements. In Latin America, the vibrant tradition of studies on the alternative use of law by popular actors has overwhelmingly focused on local processes of informal law creation within marginalized communities, or the mobilization of national courts by activists. In the US, despite the recognition of legal pluralism, the literature on legal mobilization continues to be dominated by analyses of the use of litigation and domestic courts by social movement organizations. In both scholarly traditions, therefore, the task of inquiring precisely how transnational social movements shape and are shaped by the plural array of rules regulating the world economy remains to be done. The growing literature on transnational social movements offers some useful clues for this task. Particularly relevant is recent exploratory work on the role of NGOs in the ‘‘social construction of law’’. However, as Rajagopal (2003) has noted, social movement research has yet to systematically examine the use of legal institutions and discourses as frames and arenas of contentious political action across borders. Based on ethnographic research on anti-sweatshop activism in the apparel industry in Mexico, Guatemala, and the US, in this chapter I set out to contribute to filling this void by examining the way in which the transnational anti-sweatshop movement has combined political and legal strategies to advance the cause of international labor rights. Since a central premise of my analysis is that such counter-hegemonic use of law should be understood in the context of the ongoing struggle to define the rules regulating capital and labor in the global economy, I also discuss the strategies of hegemonic actors (namely, TNCs targeted by anti-sweatshop TANs) to constrain the reach, the scope, and the enforceability of international labor regulations. My argument is threefold. First, I claim that at the heart of the anti-sweatshop movement lies the effort to realign legal responsibility and corporate economic power. In seeking to establish de facto or de jure joint liability for labor conditions in the global apparel industry, activists seek to cut through the fiction of the Northern manufacturers and retailers and their Southern contractors as independent entities. Conversely, corporate responses to the movement are largely aimed at maintaining this fiction and the existing legal arrangements that support it. Secondly, contrary to approaches focusing on the functionality of legal pluralism and novel forms of ‘‘soft law’’ for the smooth operation of the global economy, I argue that global legal fields are sites of uneven political contention where hegemonic and counter-hegemonic actors struggle to set the hierarchy and the content of competing legal rules. As the study of the field of international labor rights shows, the privileged scale of regulation (whether global, national, or local) and the ‘‘hardness’’ or ‘‘softness’’ of the law are themselves objects of political contention rather than the result of a systemic trend toward global governance and soft law. Thirdly, I posit that transnational hegemonic and counter-hegemonic coalitions pragmatically exploit the tensions and contradictions of this kaleidoscopic legal landscape. TNCs’ and TANs’ strategies constantly shift among different scales and types of law, as well as between political and legal strategies. For instance, TANs simultaneously engage in efforts to bolster national states’ regulatory capacity, create effective global corporate codes of conduct for labor and promote direct action campaigns to boycott the products of targeted TNCs at the regional level. Similarly, while strategically invoking their abidance with weak national labor laws to fend off attempts at cross-border regulation, TNCs strive to maintain the non-enforceable character of codes of conduct and use the political muscle stemming from their capacity to shift production away from inhospitable regulatory environments. In order to substantiate these claims, in what follows I explore the three key issues of contention between anti-sweatshop TANs and their corporate targets. I begin by analyzing the struggle over whether to create a global regulatory system on labor. Then, I examine the battle over precisely how to regulate working conditions in the global economy. In the third section, I consider the conflict over the privileged scale of regulation. Finally, I offer some conclusions. Before proceeding, a note on data is in order. The empirical evidence used in this chapter was collected as part of a broader research project on cross-border organizing campaigns and labor rights in the apparel industry of North and Central America. The project included detailed case studies—based on participant observation, factory visits, and interviews with key actors in Guatemala, Mexico, and the US—of exceptional campaigns that resulted in the unionization of maquila workers. Prominent among them is the campaign at Kukdong, a Korean-owned Nike contractor located near the city of Puebla, Mexico. Since the Kukdong case vividly illustrates the core legal issues of the anti-sweatshop movement in the Americas and has become an icon of the accomplishments of the latter, I will use it to empirically ground the discussion throughout this chapter. The basic facts of the case are as follow. On January 9, 2001, more than 600 out of the 850 Kukdong workers occupied the yard of the factory to vindicate their right to form an independent union and demand the improvement of the worm-infested cafeteria food. Management reacted by firing the strike’s leaders and suing them for ‘‘destruction of private property.’’ After two days of protests, the police forcefully evicted the strikers. The violent reaction of management and the state authorities escalated the conflict and prompted the activation of a budding US–Mexico anti-sweatshop TAN as well as of the code of conduct monitoring systems that had been recently set up under pressure from US student organizations as well as Mexican and US NGOs and unions. By organizing demonstrations at Nike stores in the US and summoning independent monitoring organizations from both countries, the TAN put heavy pressure on Nike (as well as on Reebok, a Kukdong customer at the time) to in turn pressure management to enforce the code of conduct and abide by local labor laws guaranteeing workers’ right to organize. The campaign achieved rapid success and resulted in the reinstatement of all the workers and the founding of an independent union in March 2001. Mexican labor authorities, under strong international pressure, officially recognized the union in September 2001. The union signed a labor contract with management in October 2001 that included a 40 percent wage increase and considerable improvements in working conditions. Kukdong’s union, which continues to thrive several years after its foundation, is the first (and still the only) independent union in the Mexican apparel industry.
Source Publication
Law and Globalization from Below: Towards a Cosmopolitan Legality
Source Editors/Authors
Boaventura de Sousa Santos, César A. Rodríguez-Garavito
Publication Date
2005
Recommended Citation
Rodríguez-Garavito, César, "Nike’s Law: The Anti-sweatshop Movement, Transnational Corporations, and the Struggle Over International Labor Rights in the Americas" (2005). Faculty Chapters. 1900.
https://gretchen.law.nyu.edu/fac-chapt/1900
