Jump to ContentJump to Main Navigation
Working Feminism$

Geraldine Pratt

Print publication date: 2004

Print ISBN-13: 9780748615698

Published to Edinburgh Scholarship Online: September 2012

DOI: 10.3366/edinburgh/9780748615698.001.0001

Show Summary Details

Working at the Borders of Liberalism

Working at the Borders of Liberalism

Chapter:
(p.93) Chapter 5 Working at the Borders of Liberalism
Source:
Working Feminism
Author(s):

Geraldine Pratt

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9780748615698.003.0005

Abstract and Keywords

This chapter examines how the Philippine Women's Centre deploys the language of rights in practice. It traces how certain boundaries naturalise domestic workers' unequal access to rights and considers whether rights discourse is itself a flawed and limited resource that throws responsibility for social inequality onto individuals and deepens the regulatory reach of the state. A close study of the Philippine Women's Centre's nimble use of rights discourse suggests the limits of a purely theoretical critique of rights. Four spatial arguments about rights are advanced: we inhabit multiple spaces and multiple discourses and this allows important room for manoeuvre; human rights is itself a fragmented discourse that has emerged from and is deployed in particular ways in specific geographical contexts; geographical scale can be exploited in productive ways; and universal rights are an ‘empty space’ that can be used to reveal exclusions and acquire concrete rights.

Keywords:   Human rights, individual and collective rights, geographical scale, migrant workers, liberalism, bodily integrity

When the United Nations' Rapporteur on Human Rights for Migrants, Gabriel Rodriquez, met at the Kalayaan Centre in Vancouver in September 2000, she was told of the ‘grave human rights violations’ perpetuated by the Canadian Government's Department of Citizenship and Immigration against domestic workers ‘as women, as workers, as youth, as migrant Filipinos and as a highly marginalized and vulnerable group’ (Philippine Women Centre 2000a). Speaking at a conference on Anti-Racist Teaching and Learning just eight months later, Cecilia Diocsin of the Kalayaan Centre criticised the Registered Nurses' Association of British Columbia (RNABC) for using their commitment to the Canadian Charter of Rights and Freedoms as an excuse for not formulating an explicit anti-racism policy. The same advocacy group, then, moves in and out of the discourse of rights, and both calls up and dresses down institutions that speak through the language of rights.

This is the paradox of rights. It is a language that works rhetorically through its universalistic claims: ‘[to characterise] a specific goal as a human right elevates it above the rank and file of competing social goals, gives it a degree of immunity from challenge and generally endows it with an aura of timelessness, absoluteness and universal validity’ (Alston 1988: 3). And yet particular world views are written into formulations of rights, access to rights is by no means universal, and the effectiveness of rights claims for marginal groups are situational. Cheah 1997: 261) names rights as ‘violent gifts’ that offer ‘the only way for the disenfranchised to mobilise’. No wonder domestic-worker advocacy groups approach rights strategically and ambivalently.

The appeal to human rights and the criticism of the effectiveness of citizenship rights for racialised groups in Canada are from one perspective fully compatible because appeals to human rights are typically made when the state fails to protect citizenship rights of particular categories of individuals. It is for this reason that Hannah Arendt 1951) judged human rights to be the worst possible rights to have to rely upon; they are the de facto rights of persons who have lost government protection.1 (p.94) That the Kalayaan Centre made such an appeal is still surprising because, relative to most other countries, migrant domestic workers in Canada have more rights, as well as the opportunity to obtain citizenship. This is in line with Canada's rating for many years as number one on the United Nations' Human Development Index.2 As Stasiulis and Bakan (1997a: 120) note: ‘[c]itizenship rights in Canada may therefore appropriately be considered among the “best” that liberal democratic capitalism can offer in the current period’. But the ‘best place in the world to live’, it turns out, ‘is hardly the best for all’ (Bakan and Stasiulis 1997: 121), and Canada's treatment of domestic workers appears so positive only because conditions elsewhere are so abominable. ‘Since the international consensus condones various degrees of oppression of migrant female [domestic] workers … any departure from this pattern that accords foreign domestic workers some rights, including those commonly enjoyed by most other categories of workers or immigrants, take on a progressive appearance’ (Stasiulis and Bakan 2002: 243; original emphasis). Situated in the best of a bad lot, domestic workers' struggles for and through rights in Canada ‘suggest the boundaries of such experiences in contemporary capitalism in general’ (Stasiulis and Bakan 1997a: 120), a kind of limit that exists at the contradiction between globalised power relations and universal norms of freedom and equality.

Migrant domestic workers are often framed within the past, as indentured servants or ‘modern day slaves’.3 In Macklin's assessment, ‘the role of the foreign domestic worker is not merely anomalous; it is an anachronism’ (1992: 749). It is an anachronism that seems at odds and out of step with the basic tenets of modern liberal democracy. Domestic workers – including those in Canada – have lost their economic rights to stay within their own country, most commonly the Philippines, insofar as their migration is forced by economic need. They have lost their rights to family unity when they are forced to leave their husbands and children in the Philippines, one instance of the racialisation of heterosexual privilege.4 The Live-in Caregiver programme ties domestic workers to a job and residential location; they thus lose basic rights to economic and social development, and mobility. Their employment rights are hollow. Basic rights to privacy and bodily integrity – the foundations of the liberal subject – are precarious.5 This reached its most intimate limit when the kidney of a Toronto Filipina domestic worker was transplanted into her 76-year-old employer's body (Priest 2002: A1).6

And yet if migrant domestic workers are often conceived within the (p.95) past of a feudal or slave economy, the urgency of contemporary rights violations emerges from the understanding that they not only describe present circumstances but foretell a future of increasingly differentiated citizenship rights within the borders of nation-states.7 Because of restrictions that have been placed on the Live-in Caregiver programme since 1992,8 over-all numbers coming into Canada through this programme have declined.9 Stasiulis and Bakan (2002) argue that there has been a corresponding increase in the numbers of undocumented domestic workers within Canada, whose rights and circumstances are even more precarious than those already described. The rights to acquire rights10 can be seen as a political struggle that is only intensifying.

This is a political struggle that is fought through imaginative, legalistic and concrete geographies. Certain boundaries naturalise unequal access to rights. A major question is whether it is sufficient to work away at these boundaries, or whether rights discourse is itself a flawed and limited resource that throws the responsibility for social inequality on to individuals and deepens the regulatory reach of the state; such hesitations about rights as a political tool themselves can be understood through the vocabulary of boundaries, in terms of geographies of containment. However, I want to argue that a geographical imagination also offers certain openings for working within rights discourse so as to hold liberalism to its promises of freedom, equality and justice for all. If the language of rights is now ‘the discourse of choice’, indeed ‘often the only discourse’ through which disadvantaged groups can articulate demands (Cossman 1991: 340), these openings warrant serious attention.

Borders and Unequal Access to Rights

Michael Walzer 1984: 315) has defined liberalism as ‘a certain way of drawing the map of the social and political world’. Reconstructing their world against feudalism, liberals practised an ‘art of separation. They drew lines, marked off different realms, and created the sociopolitical map with which we are still familiar’ (Walzer 1984: 315).11 These lines radiate from the body out wards, and they map the spaces of rights. I want to consider how three boundaries map domestic workers' rights, indeed their very right to rights: these are borders (1) at the limit of the body, (2) between private and public, and (3) of the nation-state.

One of the most persistent criticisms of the Live-in Caregiver programme is that domestic workers must live in their employers' homes for the two (p.96) years required before eligible to apply for an open visa. Much follows from the live-in requirement.12 I want to begin by considering chronic violations of privacy and how they figure into perceptions of Filipina bodies.

Although the federal government stipulates that employers must provide the domestic worker with a separate room that she can lock, there are many instances in which employers fail to provide this and/or feel no compunction about using the domestic worker's room in her absence.13 Two examples, taken from the series of focus groups with domestic workers at the Philippine Women Centre (PWC) in 1995–6,14 provide a sense of the chronic violations of privacy. In the first, Susan describes how her employers grossly misunderstood the contractual arrangement between themselves and Susan, and simply used her room to accommodate guests in her absence:

Susan:

  • Then when I'm on my holidays, and they had visitors, they let the visitors use and sleep in my room. One time when I was ready to return on Sunday evening, they asked me to just return in the morning because their friend is still around and staying in my room.
  • In a second conversation, Cristy and Joergie describe their understanding of their rights over their rooms.

    Cristy:

  • Don't we have the right, when we go out, to lock our doors? Why should employers enter our rooms when they have given us those rooms to stay in, if not so that they can check things inside? Because I'm sure that when they go inside the room they check inside, right?
  • Joergie:

  • My employer says that that's because it's part of her house, and so she has the right to check what's in there, what you do in your room, whatever things you are hiding there.
  • Lack of rights goes beyond the privacy of a room; in focus groups at the Philippine Women Centre, domestic workers spoke of a profound loss of bodily integrity. They live in fear of being accused of theft and feel relatively defenceless around this charge. The following exchange in a focus group conveys a sense of this:

    Endrolyn:

  • I don't touch their jewelry, even in Singapore. I am very (p.97) conscious. I use a towel or gloves [when cleaning jewelry]. Because some employers, they just set you up.
  • Marlyn:

  • When I quit my employer I knew she would do that. Because she was so mad at me. So I said that I want someone to go with me [when I pack my belongings] and check everything I get. I said, ‘You have to see everything that I am packing.’ Because if I don't [do this] she might just put something in and will charge me later on.
  • Endrolyn:

  • That happened in Singapore. The nanny worked for so many years and she spent her money to buy jewelry. And she had lots of jewelry. So her employer was jealous. I guess because she was only a nanny and had lots of jewelry. You know what she did? [The employer] got her jewelry and transferred it to the nanny's bag. [The nanny] was leaving to go to the Philippines the following day, and [the employer] called the police and said that her nanny is stealing her jewelry. Then what the nanny did was say, ‘Okay you trace whose finger prints are there.’ That's why I am always aware of that [and wears gloves to ensure that her fingerprints are not on her employer's jewelry] … Even the attaché case, I don't touch. I use a stick. You know why? They will take advantage. Because I've heard of this before.
  • It is worth reflecting on Endrolyn's concerns about her loss of control over the traces of her body, about a type of leakiness across the borders of the body; they can be read as both symptom and source of her insecurity about rights. Rights confer and protect bodily integrity. It is this understanding that founds Patricia Williams' defence of rights. The ‘black desire’ for rights in the United States is fuelled, she argues, ‘by knowledge of, and generations of existing in, a world without any meaningful boundaries – and “without boundary” for blacks has meant not untrammeled vistas of possibility but the crushing weight of total – bodily and spiritual – intrusion’ (1991: 164; original emphasis).

    The relationship between entitlement to rights and bodily integrity is recursive. Arguing from the perspective of Lacanian theory, Drucilla Cornell (1995) emphasises that individuation is by no means pre-given or assured. Rather, it is a fragile achievement that is necessarily dependent on constitutive relations with others. The legal system, she argues, functions as a type of symbolic Other that not only recognises but ‘constitutes’ and (p.98) ‘confirms’ who is to be valued and who counts as a person. For this reason, she believes that it is imperative that the law figures women as subjects of rights; it is a form of cultural symbolisation of bodily integrity that in turn constitutes identity. Berlant 1991) also explores how the law (and the space of the nation) mediates experiences of bodily and psychic integrity: birthright ‘affects profoundly the citizen's subjective experience of her/his political rights, but also of civil life, private life, the life of the body itself’ (20). It is through citizenship, she argues, that the citizen ‘reaches another plane of existence, a whole, unassailable body, whose translation into totality mimics the nation's permeable yet impervious spaces’ (24). It is perhaps no coincidence that Fanon 1967: 109) represents the colonial subject as an ‘amputation’ to himself.

    Bodily integrity has psychic and political consequences that feed back into understandings of which subjects are entitled to rights. Richard Dyer considers the controlled, bounded body to be one of the defining characteristics of white, heterosexual masculinity, and locates fears about loss of control of other bodies, particularly ‘those bodies whose exploitation is so fundamental to capitalist economy’, ‘at the heart of whiteness’ (1988: 63). As discussed in Chapter 4, historically, physical closure has been a defining characteristic of ‘civilised’ individuals and a source of their entitlement to individual rights; black bodies and women's bodies often have been read as lacking this characteristic of physical closure and consequently undeserving of individual rights15 (Comaroff 1995; Passavant 2000).

    When Endrolyn represents her body as leaking traces of her identity across her employers' property, she is expressing her vulnerability as a non-citizen, as a woman, as a woman of colour, whose rights are uncertain. However, such a bodily representation itself negates entitlements to rights, and Endrolyn unwittingly reproduces herself as other than the self-contained, autonomous body deserving of liberal rights. When employers move in and out of domestic workers' rooms without the occupants' consent, they both instantiate the insecurity of domestic workers' rights, and reproduce hegemonic understandings of domestic workers as women with no firm boundaries of their own from which to claim individual rights. Drawing gloves over her hands, using a stick to push her employer's briefcase, these are remarkable attempts by Endrolyn to remake her body within the terms of liberalism, and to control both the boundaries of her body and her vulnerability to employer abuse.

    If it is arguable that the boundaries of Filipina domestic workers' bodies are conceived as too fluid, too uncontrolled16 to fully lay claim to (p.99) rights, there are fixed boundaries that also make it difficult for migrant domestic workers to gain access to rights. The public and private divide is one such boundary that reverberates through domestic workers' lives. Although Staeheli 1996) has argued persuasively that the private sphere is not synonymous with private or domestic space, in practice it often is. And if space itself is often consigned to the realm of the pre-political, these spatialised categories of private and public can themselves appear to be natural and pre-given.

    It certainly has been argued that the fact that paid domestic work takes place in the home has played an important role in hampering claims to employment equity.17 Until 1995 in British Columbia, for example, domestic workers were not covered by basic regulations for minimum hourly wages or overtime provisions. They were regulated by a daily wage, with no stipulation of the number of hours they could be asked to work in a day. Discourses of the family and domesticity were deployed to justify this circumstance (see Chapter 3). Even when claims of domestic workers were recognised in British Columbia in 1995 and important changes were made to the Employment Standards Act (domestic workers are now covered by minimum wage and overtime provisions),18 it has been an entirely different matter to implement these formal regulations.19 There is ambiguity about the border between work and leisure time; many employers are still loathe to conceive of themselves as employers (and domestic workers as employees); and the Canadian state has been slow to enforce existing regulations.

    Living in an employer's house can blur the line between paid, ‘real’ employment, the employee's own work of social reproduction, and social gifts of time and labour. It is sometimes unclear, for instance, as to whether a domestic worker is an employee or ‘a family member’ when it comes to cleaning up after dinner, and whether work beyond eight hours is done by choice or coercion. It is interesting to listen to one set of employers explain why their Filipina nanny works 12–13 hours a day for 8 hours' worth of minimum wage.20

    Gary:

  • No, but then again, Rosa, on the other hand, I don't know whether she likes to work or she feels compelled to work. I'm always telling her, like, ‘Go home. Go home’ [to her basement suite]. And she's, like, ‘Oh, no, no, I just want to do this.’ And I'm, like, ‘No, you've done enough. Go home!’ But she'd rather, I don't know, do it. I guess. I don't know.
  • (p.100) Susan:

  • Because they're a fairly, sort of, very private people. And they're very hard working. So when Gary was [on a trip], and she said ‘I enjoy it. I want to help you while you're by yourself.’ But now, I mean, she really likes [my son], and it works out well.
  • Gary:

  • That's a plus!
  • Susan:

  • It's a big plus. But the other night, Gary's father was here, and his uncle, for dinner. And she cooked dinner and cleaned up afterwards. And so she's extremely good to us.
  • This short passage displays many of the ingredients that lead to persisting violations of labour codes: Rosa's labour in the evening is interpreted as a gift (‘she's extremely good to us’); Rosa's affection for their son is seen as compensation in itself; Rosa's self-exploitation is interpreted as a cultural trait (‘they're very hard working’). But Gary remains somewhat troubled by Rosa's long hours of work. (He wonders whether she likes to work or feels compelled to do so and repeatedly states: ‘I don't know.’) Gary and Susan are not ‘bad’ people, but this is really beside the point. As Christina Davidson, advisor to the West Coast Domestic Workers' Association, observes:

    It's not that all employers are mean, nasty, dirt y, evil people in comparison with lovely domestic workers. The point is, the way the system is set up, it's very easy to abuse domestic workers because they are in a powerless position. (Quoted in Macklin 1992: 729)

    Or as Macklin succinctly puts it: ‘That many (perhaps most) employers choose not to mistreat their domestic worker does not negate the availability of the option’ (1992: 729).

    And the options are extensive, given the privacy of the home. One common strategy is to subcontract a domestic worker to another employer. I interviewed one set of employers who had whittled the cost of a live-in domestic worker (who not only cared for their child but cleaned their house and prepared meals) to $500 a month. They did this by ‘sharing’ the domestic worker with another set of parents who paid them $700 a month in order to bring their child to their home. This violates the terms of the domestic worker's contract – which the employer has also signed – and places her in a position of extreme vulnerability. In fact, it is this circumstance that led to the much-publicised deportation of Leticia Cables from Canada in spring 2000 (Mahoney 2000).21 Perhaps the most unusual (p.101) aspect of Leticia Cables' case was that the multiple employers came to the attention of the state when she was deported. Much of this activity does not come into public view.22 This is because, generally, the home is conceived as a private space within liberal ideology, in which the employer has considerable discretion and protection from state intrusion.

    That the employers' flagrant disregard for the employment contract benefited them but only increased their nanny's workload and vulnerability to deportation is symptomatic of the contractual arrangement between Canadian employers and domestic workers. Macklin notes the paradox: domestic workers contract to assume the status of servant, ‘at which point the contractual model (with its assumption of juridical equality) ceases to inform the internal operation of the relationship’ (1992: 749). The status of the employment contract for employers is ambiguous. The information supplied by the federal government indicates that ‘Citizenship and Immigration Canada is not party to, nor does it bear responsibility for, the enforcement of this contract.’23 This is a statement that Stasiulis and Bakan (2002: 250) interpret as giving employees ‘implicit permission to violate contract provisions’. They judge it significant that, although contract transgressions by employers have come before Human Rights Commissions in Canada, they have rarely been the subject of court cases.24 In general, their assessment is that Canadian courts have been sympathetic to upholding domestic workers' procedural rights on an individual basis to counter unjust deportation decisions, but unwilling to review the pernicious systemic problems inherent to the Live-in Caregiver programme: the temporary visa status of migrant domestic workers, and the live-in requirement. And yet the abolition of both is ‘a key precondition to the realization and vindication of all other rights … [including] statutory rights under employment standards, labour and workers' compensation legislation and contractual rights under the employer/employee agreement’ (Macklin 1992: 739–40; see Figure 5.1).

    There is a second fixed border that the courts may be reluctant to cross and which certainly affects domestic workers' rights in Canada; this is the national border. After reviewing recent legal cases involving domestic workers, Stasiulis and Bakan 2002: 274) are of the opinion that there is a ‘high level of judicial discomfort’ about bringing immigration law and its administration under the scrutiny of the Canadian Charter of Rights and Freedoms. The Canadian state has the sovereign power to assert control over its territorial borders and immigration law has a reputation ‘as a sort (p.102)

    Working at the Borders of Liberalism

    Figure 5.1 A research participant steps into the public sphere. Reprinted with permission of The Georgia Straight. Photograph by Lorne Bridgman.

    (p.103) of wasteland’ (quoted in Stasiulis and Bakan 2002: 273) in which judges are reluctant to apply legal principles that operate in other areas of the law.25 Admitted on a temporary worker visa, foreign domestic workers remain citizens of the sending country. And yet, sending countries have been notoriously ineffectual in defending the citizenship rights of domestic workers abroad.26 Being inside and outside both sending and labour-receiving nations, domestic workers' rights to claim rights are precarious at best.

    Nonetheless, Honig 1998 reminds us that, contrary to a type of liberal meliorism that creeps into popular narrative, the history of suffrage and rights in liberal democracies is not one of continual expansion, and the United States in fact has a long history of ‘alien suffrage’ which Honig would like to recover and mobilise. In the Canadian case, a more specific history of domestic workers' rights can and has been told; Daenzer 1993 traces a gradual diminishment of rights to citizenship over the last century as the source of domestic workers moved from Western Europe to Southern and Eastern Europe, to the Caribbean, and then to Asia. As Balibar 1995 puts it, the right to rights should be seen as the right to politics, and this can include new (or old) political arenas and forms of citizenship. Thinking geographically about these political arenas opens further possibilities. Pincetl 1994 has argued the case for granting voting (political) rights at local and country levels of government to undocumented Latino immigrants in Los Angeles, on the grounds that they already practise and thus demonstrate the responsibility of citizenship within these local communities. In her view, rights of citizenship should, in this case, follow from evidence of the daily practice of citizenship responsibilities.

    Rights, Containment and Governmentality

    But is rights discourse a route to politics? I want to consider two interrelated hesitations around rights as political strategy: that rights contain politics by sustaining the illusion of individual freedom and personal responsibility for social difference; and that rights regionalise identity-in-injury in ways that extend the administrative and management reach of the state.

    When Sherene Razack 1998 lists which ideas allow her feminist students to deny the existence of racial oppression among women, rights thinking is at the top of it. The idea of rights rests on an autonomous (p.104) individual who is free to pursue her or his interests without inflicting harm on others. Competing interests receive equal consideration. Despite the improbability of this scenario in actual practice, the effect of attributing this sovereign self hood can be to turn back on the individual (and members of a marginalised group) all responsibility for social failure. Rights discourse veils the historical and existing social conditions that produce social difference, constraints and opportunities, and throws the responsibility for outcomes on to individuals.27 It is for this reason that Wendy Brown 1995: 122) names rights as ‘one of the cruelest social objects of desire’.

    Razack recognises that this critique simplifies liberalism and she acknowledges attempts by liberal thinkers such as Kymlicka to accommodate collective rights within liberalism. Kymlicka (1994) recognises two rationales for special rights for specific groups: historical (for example, treaty rights) and as a means to equality (to compensate for unequal circumstances). When groups are constrained by factors not of their own choosing, they are entitled to special rights to correct this situation. Razack is pessimistic about how this process will work in practice and is suspicious that existing power relations will dictate interpretations of choice and constraint. She cites Kymlicka's distinction between the national rights of Aboriginal peoples and French-Canadians to self-determination in Canada, and the multicultural rights of immigrant groups. Having chosen to immigrate to Canada, Kymlicka argues that these groups have relinquished some of their rights to cultural protection, although which rights they have relinquished and what they retain is open to discussion. Such a distinction is both telling and problematic because the question of choice and historical accountability is murkier than Kymlicka suggests. Do Filipina domestic workers freely choose to immigrate? And how does Canada's role in uneven globalised relations of economic development enter into assessments of historical accountability? Surely historical arguments cannot end at the nation's borders. But what is their geographical reach? Razack's view is that it is too costly to acknowledge all of these relations, in part because domestic workers support the freedom of middle-class, mostly white men and women to participate in waged labour. The cost would involve extending citizenship rights to migrant domestic workers, recognising their existing professional qualifications so as to release them from the necessity of live-in domestic work, and/or instituting a national system of affordable, accessible, publicly subsidised childcare. The costs are such, in Razack's view, that it is more likely that migrant (p.105) domestic workers will be seen as undeserving of special rights: ‘the major stumbling block to collective rights is not simply the failure of collective rights advocates to present their case within liberalism but the way in which the discussion is already regulated to obscure relations of domination’ (1998: 33). Despite Razack's pessimism, she acknowledges the necessity of working within a rights framework and urges vivid descriptions of the realities of oppressed groups in order to bring relations of domination and subordination into visibility.

    What is the effect of claiming special rights? One view is that the regionalisation of identity-in-injury through rights claims has the effect of producing more docile, more disciplined, more dependent subjects. If the subject of rights is ‘birthed from the womb of the state’ (McClure 1995: 153), when the state grants rights to groups, the effect can be to further naturalise group identity rather than unveil the social relations that constitute it. When individuals press claims as members of a subordinated group, they are accepting and redeploying an – often stigmatised – identity to gain rights. They allow themselves to step forward and be counted and administered by the state in particular ways. Rights, in other words, function as a modality of biopower. It is probably no coincidence, for example, that at the moment when same-sex benefits are being recognised by the Canadian state, the federal government introduced a question about sexuality on the national census.28 Concerns about state interference in private life have been countered by citing the necessity of this type of counting ‘because of human rights laws’ (Tibbetts 2003: A4). But rights are not simply a tool for individuals and groups to use instrumentally; they are themselves constitutive of these groups and individuals. They encourage identities to congeal around particular social characteristics.

    When Filipino domestic workers claim rights as ‘a highly marginalized and vulnerable group’ (Philippine Women Centre 2000a), they are solidifying an ethnic identity and claiming rights in the name of their disadvantage. This has at least two effects that are worth pondering. First, it brings Filipina domestic workers more fully under the regulatory gaze of the state. The Philippine Women Centre (PWC), for example, argues that domestic workers are deskilled through the Live-in Caregiver programme and has presented statistics produced by my colleague, Dan Hiebert, that show that Filipinas are the most occupationally segregated of all female workers in Vancouver (see Chapter 3). That is, Filipinas work in the narrowest range of occupations. This is an interesting move, because the state is persistently curious about the economic fate of immigrants. In (p.106) 1995, the Department of Immigration joined forces with the Social Sciences and Humanities Research Council to fund four Centres of Excellence to explore exactly this kind of question. In 1998 a Legislative Review of the federal government's immigration policy recommended that the Live-in Caregiver programme be discontinued, precisely because of some of the effects delineated by advocacy groups. It is the assessment of some of the Review's critics that this will have the effect of disengaging migrant domestic labour from the promise of Canadian citizenship (Hyndman 1999; Philippine Women Centre 1998). Critics speculate that migrant labour will still be admitted to Canada on visitors' visas to provide live-in domestic work but that this will no longer provide a route to Canadian citizenship, as it currently does.

    If increased state regulation is one concern that follows from the solidification of Filipina identity as marginalised, another is that potential alliances may be missed. This has emerged as an issue in recent campaigns to struggle for recognition of Filipina nurses' professional credentials. The Philippine Women Centre has been slow in accessing provincial government funding from the Ministry of Multiculturalism and Immigration to study and organise around this issue because they are unwilling to co-ordinate other ethnicised groups under the rubric of multiculturalism. The PWC's position is that Filipinas comprise the majority of foreign-trained nurses in Vancouver who seek accreditation and that they must be allowed to analyse and organise within their community in ways that engage the specificities of their historical and material circumstances. They are, in effect, levelling a decisive critique at liberal multiculturalism: this is that liberal multiculturalism abstracts racialised groups from their specific material histories to create a pluralistic string of equivalencies across all ethnic groups. But the other side of this refusal to be regulated by the state could be a type of ethnic separatism.

    Openings

    And yet rights claims seem not to have this effect of separation on the Philippine Women Centre. Members refuse one imposition of multiculturalism even as they actively seek out and participate in multiracial alliances with other advocacy groups. They deploy the language of rights without absorbing the depoliticising individualism that it is claimed to produce. I want to pursue their labile use of rights discourse through four spatial arguments. These are the following: we inhabit multiple spaces (p.107) and multiple discourses; human rights is itself a fragmented discourse because it has emerged from and is redeployed within specific geographical contexts; geographical scale can be exploited and, finally (to draw upon the resources of Chapter 4), universal rights are an ‘empty space’ that can be used to reveal exclusions and acquire concrete rights.

    Developing her critique of rights from those of Marx and Foucault, Brown 1995 notes a tension in Foucault's writing: at the same time as he ‘conjures’ a political field ‘with relatively little open space and none of the tricks of self overcoming, of forward motion, contained in Marxist historiography’ (111), he makes no claims to spatial comprehensiveness and represents space as a domain of multiple and contestable discourses. We might push the latter insight more fully than does Brown to consider what a multiplicity of spaces can mean for the politics of rights.

    One could argue that the Philippine Women Centre has both absorbed and strategically redeployed an understanding that rights constitute and solidify identity. In recent years it has moved away from lobbying for changes to the Live-in Caregiver programme to an outright condemnation of it. In its press release on 27 September 2000 the Philippine Women Centre (2000a) stated that: ‘the community stands clear that even with this visit from the UN Special Rapporteur they will continue their struggle to scrap the LCP’. One might translate the PWC position into the following terms: the programme produces marginalised subjects, and individual rights have been and will continue to be insufficient to remedy the injuries constitutive of Filipina domestic workers.

    One irony is that the PWC aspires to scrap the LCP through the legal technology of citizenship rights, namely the Canadian Charter of Rights and Freedoms. It is over a decade since Macklin 1992 laid out what such a ‘frontal assault’ (740) on the LCP through section 15 of the Charter could look like. She judged it beyond the jurisdiction of the courts to remedy the most ‘egregious’ aspects of the programme and thought the most likely outcome of a successful Charter challenge would be to strike the programme down in its entirety. If this had the effect of leaving domestic workers with only the option of entering Canada on visitor visas, Macklin felt that such a legal strategy would have ‘disastrous consequences for domestic workers’ (742).29 That a number of domestic worker advocacy groups30 no longer judge these consequences to be disastrous is an index of how fully they understand the limitations of rights in repairing the injuries that constitute domestic workers.

    But refusing the identity of domestic worker that is offered by the (p.108) Canadian state need not end the immigration of Filipina women to Canada, and the PWC is presently seeking to alter the definitional terms by which Filipinas enter Canada. It is a requirement of the existing Live-in Caregiver programme that entrants have at least two years of post-secondary education. In fact, many who enter the programme have university degrees, often in Nursing.31 The Philippine Women Centre is now organising for recognition of these degrees by professional nursing organisations in British Columbia so that Filipina women can enter Canada as regular immigrants rather than domestic workers (see Figure 5.2). This is part of a broader feminist strategy to lobby for women's admission to Canada under conditions other than dependency. This campaign has operated in part through a discourse of rights: for example, through demands for protection from the sex discrimination implicit in the existing evaluation of skills in the point system used to regulate admission of ‘regular’ immigrants (Macklin 1992).

    This multiplication of identities is institutionally explicit. Since I began working with the Philippine Women Centre in 1995, it has created a number of new organisations, all housed within the Kalayaan Centre (for example, Filipino Nurses' Support Group, SIKLAB (Filipino migrant workers' organisation) and Filipino-Canadian Youth Alliance). Many of the same individuals work within a number, even all, of the organisations. But the groups house – indeed implicitly insist upon – different identities, and the proliferation of political spaces available to Filipinas in Vancouver. It is this very multiplication of spaces, the lived experience of a multiplicity of spaces, which seems missing from critiques of rights, such as the one so ably advanced by Wendy Brown.32 Brown criticises Patricia Williams' defence of rights as a valid social aspiration for African-Americans, arguing that rights produce a ‘buffered and enclosed space of liberal personhood’, which distracts from the ‘generative sources’ of the ‘desire for withdrawal’, and can ‘intensify the isolation of struggle’ (120). And yet (outside of the abstractions of theory) we do not live within a single discourse, and the multiplicity of spaces in which we live likely modifies some of the depoliticising effects attributed to rights discourse.

    Indeed, this multiplicity inhabits rights discourse itself. Like any discourse, rights discourse is polyvalent, but the point goes beyond this. There is a way in which abstract theorisations of rights are inevitably misleading because the meaning of rights is historically and geographically contingent and contextual. It is such an understanding that allows McClure (1995) to ‘take liberties’ (and find some theoretical space for resistance) (p.109)

    Working at the Borders of Liberalism

    Figure 5.2 The Filipino Nurses' Support Group protests the Live-in Caregiver Programme. Photograph courtesy of Leah Diana.

    within Foucault's triangle of sovereignty, discipline and governmentality. She identifies three distinctive kinds of rights: positive rights (such as citizenship rights to political participation), negative ones (such as rights to protection of personal security, against discrimination, violence or (p.110) unwanted interference) and entitlement rights (or claims to public access to specific goods). These rights, she argues, produce different subject positions, and relations to legal and political institutions (the autonomous subject of modernity, the protected subject and the dependent subject, respectively). She argues that these rights developed very differently in different places. In the English context, negative liberty rights preceded positive rights, and the language and existence of rights preceded the modern state. The language of rights was authorised as a language of political dissent against the state from the Renaissance onwards. She detects in the archival evidence ‘something in excess of Foucault's subjected sovereignty’ (181). Opposition to, as well as complicity with, different types of state power were voiced in terms of, and through the play and tension between, different types of rights. It is in the proliferation of political spaces engendered by the multiple languages of rights that McClure glimpses the potential for resistance.

    A multiplicity of rights talk can be traced through other historical geographies. Assessing the development of universal rights norms at an international scale, Cossman 1991 argues that there are three generations of human rights, which correspond to three different political visions (and are embedded in three different historical geographies): civil and political rights associated with Western liberal democracies; social and economic rights associated with Eastern European socialist states; and development rights initiated by developing, postcolonial countries. The division of the International Bill of Rights into two Covenants, one that deals with political and civil rights and the other with social and economic rights, reflects the difficulty of merging liberal and socialist conceptions of rights. Alston 1988 has remarked that ‘[p]erhaps the most important … characteristic of international human rights law is its philosophical complexity’ (quoted in Cossman 1991: 344). In some senses these philosophies have not been successfully merged at an international level; the United States has never accepted the validity of social and economic rights, choosing to view them as expressing aspirations rather than enforceable standards, and Canada and Australia stand as the only Western countries to sign the Declaration on the Right to Development. Cossman's concern is that the end of the Cold War has brought Eastern European countries more fully in line with the individualism of the United States, and that this will have the effect of deepening divisions between north and south. Significantly, she detected that economic and social rights were being increasing downplayed in Eastern Europe, relative to civil and political (p.111) ones, and wondered whether some civil and political rights ‘will be more equal than others’ (345). The ‘assault on women's rights’ (346) in Eastern European countries, she took as ominous. As one border recedes, other geopolitical and social boundaries strengthen.33 And yet the jumble of philosophies remains within international rights norms; we might see it as offering some valuable political space for democratic contestation.34

    The mention of international human-rights norms raises a third geographical concept; this is the concept of scale. Appeals to the United Nations and other sets of transnational networks have the potential, Jenson and Papillon 2000 argue, to challenge the existing Canadian citizenship regime, and to redefine both individual and collective rights within Canada.35 I began this chapter with an appeal by the Philippine Women Centre to the United Nations' Rapporteur to remedy human-rights violations perpetuated by the Canadian government. In another context, the Philippine Women Centre (2000b) has called upon human-rights discourse, specifically for a campaign to lobby the Canadian government to ratify the United Nations' Convention for the Protection of the Rights of all Migrant Workers and their Families, opened for signatures as long ago as December 1990.36 Stasiulis 1997) is pessimistic about the efficacy of such international human-rights provisions and principles in general, and of the Convention for the protection of the rights of migrant workers in particular. The Convention has now acquired the necessary t wenty ratifications and came into force on 1 July 2003, but to date it has not been signed by a single G7 or major industrialised state (Brouwer 2003). Canadian officials' rationale for not signing the Convention is that the definition of ‘migrant worker’ is not relevant to Canada, and non-Canadians working in Canada are already protected by a range of employment standards regulations. As Stasiulis and Bakan (2002: 276) put it: ‘[t]his reasoning reinforces the invisibility of paid domestic labour and the plight of domestic workers’.

    Nevertheless, there are two arguments for maintaining some cautious optimism about the local impact of international human-rights norms, both of which are inherently geographical. First, there is evidence of Canadian courts taking into account international treaties that have been ratified by Canada, even when these principles have not been directly incorporated into Canadian law. Although there is no express reference to Canada's international human-rights treaties in the Charter, or other federal and provincial statutes, the concept of ‘implicit incorporation’ has been both theorised (Bayefsky 1992) and practised. One instance of (p.112) practice is Baker v Canada,37 a case that involved Mavis Baker, a Jamaican woman who worked for eleven years as a domestic worker after overstaying her visitor's visa, during which time she had four children. Much of the legal argument against the decision to deport her, as the case advanced through the Federal Court of Appeal to the Supreme Court of Canada, turned on the relevance of the Convention on the Rights of the Child to Canadian domestic law. All seven Supreme Court judges were unanimous in granting Ms Baker's appeal. In reaching this decision, the majority held that international legal instruments constitute an important part of the context within which the phrase ‘compassionate or humanitarian considerations’ is used in Canada's Immigration Act and Regulations. The Court found that ‘the values reflected in international law may help inform the contextual approach to statutory interpretation and judicial review’ (quoted in Aiken and Scott 2000: 239). This is a judgement that is said to embrace a ‘cosmopolitan conception of the law’.38

    A second argument for cautious optimism about the local impacts of international human-rights norms turns on the way that Canada as a nation imagines itself. Razack 1998 is rightly critical of Canada's self-portrait of national innocence, one that is framed especially in relation to the United States. This is evidenced, for instance, in claims such as: ‘Canada's experience of active multiculturalism within its borders and its promotion of reconciliation and active, engaged peacekeeping abroad makes it distinctive among rich nations. This is becoming its trademark’ (Lloyd 2002: A13). This self-representation has only been heightened since refusing to join the ‘coalition of the willing’ in the US-led war against Iraq in 2003 in the absence of United Nations' support.39 Razack notes the rhetorical and political importance to the project of Canadian nation-building of casting Canada as saviour to the third world and international peacekeeper, and reads this as a national fantasy that is one instance of, quoting Spivak, the ‘long term toxic effects’ of imperialism. ‘It is through such images that … when people of the Third World come knocking on our [Canadian] doors, we are able to view them as supplicants asking to be relieved of the disorder of their world and to be admitted to the rational calm of ours’ (Razack 1998: 91). I think that it is also worth considering that the effects are more plural and that this national imaginary can function as a resource as well as an alibi.

    In Canada, much nation-building in recent years has been achieved through the discourse of human rights (Blomley and Pratt 2001). Pierre (p.113) Trudeau, who played the leading role in advancing the concept and implementation of the Charter of Rights and Freedoms, saw constitutional reform as a vehicle for nation-building. Many observers saw the Charter as a vehicle for restraining the Quebec sovereignty movement, but publicly Prime Minister Trudeau framed it thus:

    We must now establish the basic principles, the basic values and beliefs which hold us together as Canadians, so that beyond our regional loyalties there is a way of life and a system of values which make us proud of the country that has given us such freedom and such immeasurable joy. (Quoted on Canadian Broadcasting Corporation Radio 1995)

    And if attempts have been made to unify the Canadian nation from within through a human-rights discourse, the nation, as Razack notes, regularly defines itself against others in these terms. Canada's place for many years as number one on the Human Development Index is widely publicised within Canada, as is the fact that a Canadian, John Humphrey, was a key architect of the Universal Declaration of Human Rights, along with Canada's distinguished record as a United Nations' peacekeeper (Forsythe 1997; see also Gee 2002; Lloyd 2002). Given the rhetorical importance of human rights to Canadian self-definition, the discourse carries considerable moral authority in Canada. It is a moral authority that needs to be played as well as critiqued.

    Aside from activating international legal instruments and norms, there are other ways of thinking about scale and the elasticity of borders, of being both inside and outside of the national border. A concrete example of the political potential of the paradox of being both inside and outside national space is provided in Lowe's (2001) description of the empirical research that she and Laura Pulido have done with Mexican maquiladora workers on sexual harassment in the workplace. With the knowledge that no Latin-American country has a national law that defines sexual harassment as a human-rights violation, the data from the workers' survey may be used in a struggle to test whether international law will extend relevant US civil-rights legislation to subjects working in US plants outside of the United States. It is the ambiguity of the US firms' position: both inside and outside the USA that opens this opportunity for feminist organising to extend ‘universal’ rights for women from one context to the other. Another fascinating example of this use of paradoxical space involves (p.114) the recent conviction of a French citizen for sexually violating an eleven-year-old girl in Thailand while on holiday as a sex tourist. A 1998 law authorises French courts to try ‘sexual aggression committed abroad’ even when the deed is not considered a crime in the country in which it is committed. As Llosa 2001) notes, if this principle could be extended to other countries from which sex tourists originate, this could have a significant impact on the sexual exploitation of children in developing countries.40 As an extension of this line of thinking in relation to domestic workers, could Canadian civil servants working outside Canada who hire domestic workers be obliged to comply with employment standards specified in Canada, say in Ontario?

    One further geographical strategy is worth thinking about in relation to rights. In theorising democracy, a number of theorists conceive of democracy and universal principles as an empty space (see Chapter 4, also Lefort 1988). The hallmark of democracy is the disappearance of certainty about the foundations of social life. Old sources of authority were dismantled. There is nothing outside society to found social unit y. ‘The people’ become the place from which power derives but ‘the people’ have no fixed, essential, positive identity. The right to contest who are ‘the people’ is the starting point of a properly democratic politics. Using the metaphor of empty space, we might think of rights discourse not only as an effective means of repairing injury, but as an important mechanism for a persistent critique and public discussion of who constitutes ‘the people’ and upon which exclusions this is built. This is an idea that Wendy Brown 1995 gestures towards when she argues that rights work best as a (fictional) egalitarian imaginary. In part this is because this use of rights does not found an identity but can be used as a means of critiquing the practices of liberal nation-states (see also Lisa Lowe 2001). I think that we can see citizenship rights being deployed in this way at one of the focus groups held at the Philippine Women Centre in 1995. At one point in the discussion, the director of the PWC urged a domestic worker to apply for Employment Insurance. She argued that ‘[the process of applying] is also trying to find out whether or not this is a democratic country. And in doing so, you can learn something about whether there is a different set of rights between you and other Canadians’ (for the extended quote, see Chapter 3). This is a small example of an activist deploying rights discourse to politicise, to build awareness of the exclusions, the unevenness, of citizenship rights in Canada. It is an organising tool that simultaneously (p.115) marks a possible exclusion from formal rights and the moral authority of being in the right. Universal rights as a kind of empty space that we measure inequalities against may be as significant as rights as mechanisms for achieving them.

    Closing

    In conclusion, this chapter has been an effort to work at the borders of liberalism to think about the effects of deploying rights discourse, and the ways that domestic workers do and might work with the tools offered by liberalism. Such a discussion is necessarily thoroughly embedded in geography. Because rights claims are so often about claims to access, protection, defence against incursion, it is a congenial discourse for a group of workers whose claims to a place and privacy are so fragile. As an organising imaginary of the nation, it offers an effective means of critiquing the exclusions of Canadian society. At the same time, some of the geographies written into liberalism make it very difficult to make rights claims in some spaces: the autonomous liberal citizen subject has often been conceived against unbounded, irrational female, racialised, or primitivised bodies; and the home is a very difficult space in which to claim rights because it is so self-evidently private. Between nations, both insiders and outsiders, domestic workers have no firm ground from which to claim rights.

    Rights claims are also risky politics, because they have the potential of solidifying identities around identities of injury, and proliferating identity-based politics. In some situations, it may be a more effective strategy to abandon attempts to repair injury through rights and refuse the conditions that produce that injury; some domestic-worker advocacy groups in Canada have come to this position in relation to the Live-in Caregiver programme. This point of refusal has generated organising around another identity and another immigration strategy: immigration of professional nurses as regular immigrants rather than by means of a stigmatising and specialised (non-)immigration programme. Other geographical tactics are possible: jumping from the national to international scale is one example.

    Strategy, tactics, refusal – all of these terms suggest the need for a very close and careful consideration of rights discourse. To question the utility and effects of rights is not to condemn them. In Wendy Brown's words ‘it is to refuse them any predetermined place in an emancipatory politics (p.116) and to insist instead upon the importance of incessantly querying that place’ (1995: 121). I think that we need to take place more seriously than does Brown and more fully consider the geographies that structure it.

    Notes

    (1.) I thank Jennifer Hyndman for this point.

    (2.) Canada was ranked number one on the index for seven years running, but slipped to third place (behind Norway and Australia) in 2001, because of a drop in the life-expectancy indicator (Knox 2001a). The Human Development Index includes measures of life expectancy, adult literacy rates, school enrolment and GDP per capita. It does not include an explicit score on civil human rights, in part because of the negative reaction to its inclusion in the index in 1991 (Hsiung 1993). In the United Nations' general definition of human development, however, guaranteed human rights are identified as a necessary feature of human development (Stasiulis and Bakan 1997a: 120).

    (3.) For example, the documentary film on domestic workers in Canada by Boti 1997 is entitled Modern Heroes, Modern Slaves.

    (4.) Surveys of Filipina domestic workers routinely document the large proportion of married women with children among migrant domestic workers, and the importance of sending remittances to relatives in the Philippines as a major motivation for migration (for example, Mikita 1994; Stasiulis and Bakan 1997a). Rhacel Parreñas (2002) has been studying this transnational mothering through lengthy interviews with children and extended families in the Philippines.

    (5.) See West Coast Domestic Workers' Association (2001) for a careful delineation of rights violations, analysed through existing human rights legislation, both the Canadian Charter of Rights and Freedoms and United Nations' instruments to which Canada is a signatory, such as the Universal Declaration of Human Rights, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child.

    (6.) The operation was performed in the United States, after being refused by four Canadian hospitals on ethical grounds. The media reporter raised the prickly question: ‘Can an employee freely give her kidney to her employer upon whom she depends for her livelihood?’ (Priest 2002: A1). The operation came to light when the employer sought to exercise his citizenship rights by claiming reimbursement from the Ontario Health Insurance Plan for out-of-country care.

    (7.) This is an argument that has been developed by Hage 1998, Lowe (1996a), Ong 2000, Stasiulis 1997, among others.

    (8.) In April 1992 the Foreign Domestic Movement Programme was replaced by the Live-in Caregiver Programme (see Stasiulis and Bakan (2002) for a detailed discussion of these changes). One change, raising the educational requirement from an equivalent of Canadian grade 10 to an equivalent of Canadian grade 12, was interpreted by some as a deliberate attempt to restrict the entry of women of colour from developing countries into Canada via the LCP.

    (9.) This generalisation requires some qualification because the patterns differ by geographical location. As Table 3.1 shows, the number of people admitted through the (p.117) Foreign Domestic Movement and Live-in Caregiver programmes has actually increased in Vancouver since 1992, from 421 in 1992 to 1,203 in 1996. The situation is different in Toronto, where numbers decreased from a high of 3,377 in 1993 to 1,710 in 1996 (Pratt in collaboration with the Philippine Women Centre 1999). Concerns about a growing informal sector of domestic workers are thus probably greater in Toronto than Vancouver.

    (10.) The phrase, the rights to have rights, is Hannah Arendt's 1951: 296). She was concerned about the growing number of individuals who were living outside of the context of citizenship rights. She understood the right to have rights to mean to be living within a framework in which one is judged by one's actions and opinions. She argued that the loss of polity was effectively to be cast from humanity, to lose the right to humanity, to live within a context where one's actions and opinions were meaningless.

    (11.) This chapter grew out of and draws upon another, written with Nicholas Blomley (Blomley and Pratt 2001). I thank Nick both for some specific phrasing, the insights that have come through working with him, and for comments on this chapter.

    (12.) Domestic worker advocacy groups argue that injustices in terms of basic rights to housing continue even after a domestic worker has attained an open visa and is no longer required to live in an employer's home. A recent target of their criticism has been access to social and non-profit housing. This is because applications to this type of housing will not be considered until landed immigrant status is attained, inevitably years after the domestic worker first enters Canada (Kalayaan Resource and Training Centre 2000). Advocacy groups frame this as a violation of citizenship rights.

    (13.) A recent survey of 104 domestic workers in British Columbia found that about half reported no locks on their doors. Indeed, 16 per cent did not even have a separate bedroom (Mikita 1997).

    (14.) Methodological details are provided in Chapter 3.

    (15.) Comaroff (1995) argues that in the South African colonial context this legitimated two interdependent systems of rights: individual and tribal rights, for white Europeans and black, tribalised South Africans respectively.

    (16.) To more fully substantiate this argument, recall from Chapter 3 nanny agents' remarks about Filipinas' embodied primitivism, which ranged from tolerating public urination to greedy and unruly dining etiquette. In relation to African-American women, it has been argued that myths of uncontrolled sexual voraciousness make it difficult for African-American women to claim their rights to a workplace free of sexual harassment. In Lisa Lowe's (2001) terminology it is ‘epistemologically uncertain’ whether an African-American woman can claim sexual harassment because of stereotypes about her sexuality and body.

    (17.) There is an abundant and excellent literature on this: for example, Aitken 1987; Bakan and Stasiulis 1997; England and Stiell 1997; Macklin 1992; Schecter 1998; Stasiulis and Bakan 1997a, 1997b, 2002.

    (18.) Labour legislation varies by province. Only Ontario and British Columbia presently guarantee minimum wages, overtime and most employee benefits within existing provincial employment standards. Manitoba, Quebec, Newfoundland and Prince Edward Island have lower minimum wages for domestic workers and/or longer (p.118) work weeks. Alberta, Saskatchewan, Nova Scotia, New Brunswick and the Northwest Territories continue to exempt domestic workers from minimum wage, hours of work and overtime provisions (Stasiulis and Bakan 2002). In this sense, the situation in British Columbia and Ontario present the ‘best case’ scenarios for domestic worker rights.

    (19.) In a recent survey of 104 domestic workers in British Columbia, it was found that 82 per cent of respondents did not receive their proper wages. The average work week was 51.4 hours, and the average shortfall in legally required wages was approximately $600 a month. Given that the average monthly pay was $1,278, including overtime and before deductions for room and board, this shortfall amounts to about one-third of the wages to which the domestic worker was entitled (Mikita 1997).

    (20.) I draw from one of fifty in-depth qualitative interviews that were done with employers in the summer of 1995. We contacted employers who had advertised for a nanny during the past year in one of three local newspapers. One, The Courier, is distributed free of charge to households living in the more affluent west side of Vancouver. Another is delivered to the outer suburbs of Coquitlam, Port Coquitlam and Port Moody, and a third is circulated to Surrey households. I drew a random sample of advertisements placed between June 1994 and July 1995. A small sample of employers who advertised in The Courier lived in East Vancouver. An astonishing 90 per cent of those we contacted agreed to an interview; this is a striking measure of how eager they were to talk about their experiences. The interviews were unstructured and in-depth, typically lasting for over an hour. I thank Trina Bester for doing about half of the interviews; the rest I did myself.

    (21.) Leticia Cables was re-admitted to Canada in July 2000.

    (22.) The practice of subcontracting was recognised as very common among domestic workers who participated in focus groups and is discussed more fully in Pratt in collaboration with the Philippine Women Centre (1999). Stasiulis and Bakan (2002) review one legal case that involves subcontracting.

    (23.) This statement appears at the bottom of the ‘Sample Contract’ provided by Immigration Canada in the booklet, ‘The Live-in Caregiver Program: Information for employers and live-in caregivers from abroad’, Minister of Supply and Services Canada, 1992. Reported in Stasiulis and Bakan (2002).

    (24.) Stasiulis and Bakan (2002) also judge it significant that in the one exceptional case in which a nanny was awarded $250,000 for virtual enslavement within a British Columbian home, the employers were exceptionally abusive, exceptionally wealthy, and foreign-born Asians. In their view, this combination of factors may ‘limit the beneficial aspects of this legal victory for other domestic workers’.

    (25.) Macklin 1992 also makes this point: ‘[i]mmigration is one of the least controllable aspects of government activity’ (745) because there is considerable bureaucratic discretion, those subject to it are politically powerless, and public support is limited.

    (26.) See Stasiulis and Bakan (1997b: 40–3) for a survey of sending countries' protection of the rights of their citizens working overseas as domestic workers. The Philippines government has the most extensive system of bureaucracy to regulate the labour conditions and lives of overseas contract workers. Nevertheless, its inadequacies are well documented (Presidential Fact-finding and the Policy Advisory Commission 1995, cited in Stasiulis and Bakan (1997b).

    (p.119)

    (27.) Jennifer Hyndman 2000 analyses the way that liberal sovereign subjecthood can be returned to individuals as social failure in relation to workplace affirmative action and employment equity programmes. ‘New sexism and its corollary, “new racism”, are effects of affirmative action initiatives targeted, literally, at women and other groups. The new sexism speaks from the view that women were given the chance to prove themselves vis-à-vis such equity initiatives, and yet they have still not succeeded in increasing their representation. If women and minority groups don't meet the mark when given the “extra” chance, the blame falls on them. These arguably new kinds of prejudice stem from good intentions of liberal equity policies which aim to include underrepresented groups, but often end up in a quagmire of statistical distributions and bureaucracy’ (51, n. 5). See also Yount (1993).

    (28.) In the 2001 census Canadians were asked for the first time to identify whether they are part of a same-sex couple. See Hannah 2001 for a discussion of the US census and notions of statistical citizenship.

    (29.) In this, Macklin anticipates a rift that Stasiulis and Bakan (2002) detect between advocacy groups and legally inclined feminist groups, the latter being more likely to support reforms to the LCP, namely admission as landed immigrants and removal of the live-in requirement.

    (30.) Other domestic worker advocacy groups that have taken this stance in recent years include: Association des Aides Familiale du Québec (AFFQ), the National Action Committee for the Status of Women, and INTERCEDE. See Stasiulis and Bakan (2002) for details.

    (31.) It is difficult to use publicly available government statistics to attach specific numbers to such a claim. The Filipino Nurses' Support Group at the Kalayaan Centre in Vancouver was at the time of research (in 2001) in contact with about 250 trained Filipino nurses in the Vancouver area.

    (32.) Brown's critique is widely cited and influential. For example, Debra Morris 2000 calls Brown's critique ‘formidable’ (341) and considers it to be ‘the most challenging with respect to any contemporary reclamation of privacy’ (342).

    (33.) Writing later in the 1990s, Cheah 1997 rearticulates the generational argument within a new geopolitical context. He distinguishes ‘three voices of existing human rights practical discourse’: the first voice is the position of constitutional democratic governments in the hegemonic north or west; the second is the position of Asian governments that claim rights to development above all others; the third is the position of human rights NGOs (non-governmental organisations) in the south (which articulate most forcefully social and economic rights).

    (34.) In an effort to keep this contestation democratic, Cheah 1997 judges it imperative that we understand that each ‘voice’ within human rights discourse emerges from a particular set of interests, none is more universal or ‘pure’ than the other, and that all are contaminated or complicit with global capital.

    (35.) Jenson and Papillon 2000 are particularly interested in how the Cree in Quebec have turned to transnational net works to confront their ‘limited political opportunity structure’ at home. They term this ‘weak transnational collective action’ because it involves the strategic use of transnational net works and alliances to achieve the recognition of rights within Canada: the struggle is local/national and the main opponents remain the federal and provincial governments. Canadian governments have thus found themselves being challenged by international environmental and (p.120) human rights groups. In the summer of 2000 alone, Canadian governments were accused by two separate representations to the United Nations of ‘violating native rights’ (Thanh Ha 2000), and committing ‘economic genocide’, that is, governmental neglect causing the collapse of the local economy (Branswell 2000). The former representation was made by a coalition of Canadian native leaders to the UN Working Group on Indigenous Populations, the latter by L'Action des patriotes gaspésien(ne)s, which presented accusations of ‘economic genocide’ by the Canadian federal and provincial governments to the United Nations Commission on Human Rights (UNCHR). It is the view of Jenson and Papillon that such appeals have the potential to strengthen conceptions of multiple nationhood within Canada, and possibly alter territorial borders within the nation (those of Quebec).

    (36.) This convention supports rights for all migrants, documented and undocumented, to family reunification, consular or diplomatic protection, information about working conditions, political rights and equality with nationals in educational, social and health services. It does, however, affirm the broad exclusionary powers of sovereign states (see Stasiulis and Bakan 2002).

    (37.) This case is discussed in detail by Aitken and Scott (2000) and specifically in relation to the Live-in Caregiver programme by Stasiulis and Bakan (2002).

    (38.) This is the opinion of Craig Scott (1999) who was counsel for the Charter Committee on Poverty Issues in the Baker case. Quoted in Aiken and Scott 2000: 239).

    (39.) The self-image may be as much fiction as fact: ‘the peacekeeping forces wearing Canadian flags are now less numerous than those from Bangladesh or Nepal. Foreign aid contributions from Canada now rank 19th of the 22 industrial nations’ (Saunders 2003).

    (40.) Another important example involves convicting crimes against humanity in a country in which they did not occur. The Belgium courts charged four Rwandans with genocide in June 2001. The trial was the first in which a jury of citizens in one country judged defendants in war crimes committed in another. Regarding this conviction, the advocacy director of Human Rights Watch was quoted as saying ‘The idea that justice has no border has received a big boost’ (New York Times 2001). At the same time, it is important to register the difficulties of putting these principles into practice. In 1997 the Canadian Criminal Code was also amended to allow Canadians who engage in sex with children abroad to be brought to trial in Canada. The law requires the consent of the country where the alleged offence occurred. In one attempt to implement the law in 2000, consent from the Costa Rican government was not forthcoming. As of December 2001, no prosecutions had been made (Knox 2001b; Leidl 2002).

    Notes:

    (1.) I thank Jennifer Hyndman for this point.

    (2.) Canada was ranked number one on the index for seven years running, but slipped to third place (behind Norway and Australia) in 2001, because of a drop in the life-expectancy indicator (Knox 2001a). The Human Development Index includes measures of life expectancy, adult literacy rates, school enrolment and GDP per capita. It does not include an explicit score on civil human rights, in part because of the negative reaction to its inclusion in the index in 1991 (Hsiung 1993). In the United Nations' general definition of human development, however, guaranteed human rights are identified as a necessary feature of human development (Stasiulis and Bakan 1997a: 120).

    (3.) For example, the documentary film on domestic workers in Canada by Boti 1997 is entitled Modern Heroes, Modern Slaves.

    (4.) Surveys of Filipina domestic workers routinely document the large proportion of married women with children among migrant domestic workers, and the importance of sending remittances to relatives in the Philippines as a major motivation for migration (for example, Mikita 1994; Stasiulis and Bakan 1997a). Rhacel Parreñas (2002) has been studying this transnational mothering through lengthy interviews with children and extended families in the Philippines.

    (5.) See West Coast Domestic Workers' Association (2001) for a careful delineation of rights violations, analysed through existing human rights legislation, both the Canadian Charter of Rights and Freedoms and United Nations' instruments to which Canada is a signatory, such as the Universal Declaration of Human Rights, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child.

    (6.) The operation was performed in the United States, after being refused by four Canadian hospitals on ethical grounds. The media reporter raised the prickly question: ‘Can an employee freely give her kidney to her employer upon whom she depends for her livelihood?’ (Priest 2002: A1). The operation came to light when the employer sought to exercise his citizenship rights by claiming reimbursement from the Ontario Health Insurance Plan for out-of-country care.

    (7.) This is an argument that has been developed by Hage 1998, Lowe (1996a), Ong 2000, Stasiulis 1997, among others.

    (8.) In April 1992 the Foreign Domestic Movement Programme was replaced by the Live-in Caregiver Programme (see Stasiulis and Bakan (2002) for a detailed discussion of these changes). One change, raising the educational requirement from an equivalent of Canadian grade 10 to an equivalent of Canadian grade 12, was interpreted by some as a deliberate attempt to restrict the entry of women of colour from developing countries into Canada via the LCP.

    (9.) This generalisation requires some qualification because the patterns differ by geographical location. As Table 3.1 shows, the number of people admitted through the (p.117) Foreign Domestic Movement and Live-in Caregiver programmes has actually increased in Vancouver since 1992, from 421 in 1992 to 1,203 in 1996. The situation is different in Toronto, where numbers decreased from a high of 3,377 in 1993 to 1,710 in 1996 (Pratt in collaboration with the Philippine Women Centre 1999). Concerns about a growing informal sector of domestic workers are thus probably greater in Toronto than Vancouver.

    (10.) The phrase, the rights to have rights, is Hannah Arendt's 1951: 296). She was concerned about the growing number of individuals who were living outside of the context of citizenship rights. She understood the right to have rights to mean to be living within a framework in which one is judged by one's actions and opinions. She argued that the loss of polity was effectively to be cast from humanity, to lose the right to humanity, to live within a context where one's actions and opinions were meaningless.

    (11.) This chapter grew out of and draws upon another, written with Nicholas Blomley (Blomley and Pratt 2001). I thank Nick both for some specific phrasing, the insights that have come through working with him, and for comments on this chapter.

    (12.) Domestic worker advocacy groups argue that injustices in terms of basic rights to housing continue even after a domestic worker has attained an open visa and is no longer required to live in an employer's home. A recent target of their criticism has been access to social and non-profit housing. This is because applications to this type of housing will not be considered until landed immigrant status is attained, inevitably years after the domestic worker first enters Canada (Kalayaan Resource and Training Centre 2000). Advocacy groups frame this as a violation of citizenship rights.

    (13.) A recent survey of 104 domestic workers in British Columbia found that about half reported no locks on their doors. Indeed, 16 per cent did not even have a separate bedroom (Mikita 1997).

    (14.) Methodological details are provided in Chapter 3.

    (15.) Comaroff (1995) argues that in the South African colonial context this legitimated two interdependent systems of rights: individual and tribal rights, for white Europeans and black, tribalised South Africans respectively.

    (16.) To more fully substantiate this argument, recall from Chapter 3 nanny agents' remarks about Filipinas' embodied primitivism, which ranged from tolerating public urination to greedy and unruly dining etiquette. In relation to African-American women, it has been argued that myths of uncontrolled sexual voraciousness make it difficult for African-American women to claim their rights to a workplace free of sexual harassment. In Lisa Lowe's (2001) terminology it is ‘epistemologically uncertain’ whether an African-American woman can claim sexual harassment because of stereotypes about her sexuality and body.

    (17.) There is an abundant and excellent literature on this: for example, Aitken 1987; Bakan and Stasiulis 1997; England and Stiell 1997; Macklin 1992; Schecter 1998; Stasiulis and Bakan 1997a, 1997b, 2002.

    (18.) Labour legislation varies by province. Only Ontario and British Columbia presently guarantee minimum wages, overtime and most employee benefits within existing provincial employment standards. Manitoba, Quebec, Newfoundland and Prince Edward Island have lower minimum wages for domestic workers and/or longer (p.118) work weeks. Alberta, Saskatchewan, Nova Scotia, New Brunswick and the Northwest Territories continue to exempt domestic workers from minimum wage, hours of work and overtime provisions (Stasiulis and Bakan 2002). In this sense, the situation in British Columbia and Ontario present the ‘best case’ scenarios for domestic worker rights.

    (19.) In a recent survey of 104 domestic workers in British Columbia, it was found that 82 per cent of respondents did not receive their proper wages. The average work week was 51.4 hours, and the average shortfall in legally required wages was approximately $600 a month. Given that the average monthly pay was $1,278, including overtime and before deductions for room and board, this shortfall amounts to about one-third of the wages to which the domestic worker was entitled (Mikita 1997).

    (20.) I draw from one of fifty in-depth qualitative interviews that were done with employers in the summer of 1995. We contacted employers who had advertised for a nanny during the past year in one of three local newspapers. One, The Courier, is distributed free of charge to households living in the more affluent west side of Vancouver. Another is delivered to the outer suburbs of Coquitlam, Port Coquitlam and Port Moody, and a third is circulated to Surrey households. I drew a random sample of advertisements placed between June 1994 and July 1995. A small sample of employers who advertised in The Courier lived in East Vancouver. An astonishing 90 per cent of those we contacted agreed to an interview; this is a striking measure of how eager they were to talk about their experiences. The interviews were unstructured and in-depth, typically lasting for over an hour. I thank Trina Bester for doing about half of the interviews; the rest I did myself.

    (21.) Leticia Cables was re-admitted to Canada in July 2000.

    (22.) The practice of subcontracting was recognised as very common among domestic workers who participated in focus groups and is discussed more fully in Pratt in collaboration with the Philippine Women Centre (1999). Stasiulis and Bakan (2002) review one legal case that involves subcontracting.

    (23.) This statement appears at the bottom of the ‘Sample Contract’ provided by Immigration Canada in the booklet, ‘The Live-in Caregiver Program: Information for employers and live-in caregivers from abroad’, Minister of Supply and Services Canada, 1992. Reported in Stasiulis and Bakan (2002).

    (24.) Stasiulis and Bakan (2002) also judge it significant that in the one exceptional case in which a nanny was awarded $250,000 for virtual enslavement within a British Columbian home, the employers were exceptionally abusive, exceptionally wealthy, and foreign-born Asians. In their view, this combination of factors may ‘limit the beneficial aspects of this legal victory for other domestic workers’.

    (25.) Macklin 1992 also makes this point: ‘[i]mmigration is one of the least controllable aspects of government activity’ (745) because there is considerable bureaucratic discretion, those subject to it are politically powerless, and public support is limited.

    (26.) See Stasiulis and Bakan (1997b: 40–3) for a survey of sending countries' protection of the rights of their citizens working overseas as domestic workers. The Philippines government has the most extensive system of bureaucracy to regulate the labour conditions and lives of overseas contract workers. Nevertheless, its inadequacies are well documented (Presidential Fact-finding and the Policy Advisory Commission 1995, cited in Stasiulis and Bakan (1997b).

    (27.) Jennifer Hyndman 2000 analyses the way that liberal sovereign subjecthood can be returned to individuals as social failure in relation to workplace affirmative action and employment equity programmes. ‘New sexism and its corollary, “new racism”, are effects of affirmative action initiatives targeted, literally, at women and other groups. The new sexism speaks from the view that women were given the chance to prove themselves vis-à-vis such equity initiatives, and yet they have still not succeeded in increasing their representation. If women and minority groups don't meet the mark when given the “extra” chance, the blame falls on them. These arguably new kinds of prejudice stem from good intentions of liberal equity policies which aim to include underrepresented groups, but often end up in a quagmire of statistical distributions and bureaucracy’ (51, n. 5). See also Yount (1993).

    (28.) In the 2001 census Canadians were asked for the first time to identify whether they are part of a same-sex couple. See Hannah 2001 for a discussion of the US census and notions of statistical citizenship.

    (29.) In this, Macklin anticipates a rift that Stasiulis and Bakan (2002) detect between advocacy groups and legally inclined feminist groups, the latter being more likely to support reforms to the LCP, namely admission as landed immigrants and removal of the live-in requirement.

    (30.) Other domestic worker advocacy groups that have taken this stance in recent years include: Association des Aides Familiale du Québec (AFFQ), the National Action Committee for the Status of Women, and INTERCEDE. See Stasiulis and Bakan (2002) for details.

    (31.) It is difficult to use publicly available government statistics to attach specific numbers to such a claim. The Filipino Nurses' Support Group at the Kalayaan Centre in Vancouver was at the time of research (in 2001) in contact with about 250 trained Filipino nurses in the Vancouver area.

    (32.) Brown's critique is widely cited and influential. For example, Debra Morris 2000 calls Brown's critique ‘formidable’ (341) and considers it to be ‘the most challenging with respect to any contemporary reclamation of privacy’ (342).

    (33.) Writing later in the 1990s, Cheah 1997 rearticulates the generational argument within a new geopolitical context. He distinguishes ‘three voices of existing human rights practical discourse’: the first voice is the position of constitutional democratic governments in the hegemonic north or west; the second is the position of Asian governments that claim rights to development above all others; the third is the position of human rights NGOs (non-governmental organisations) in the south (which articulate most forcefully social and economic rights).

    (34.) In an effort to keep this contestation democratic, Cheah 1997 judges it imperative that we understand that each ‘voice’ within human rights discourse emerges from a particular set of interests, none is more universal or ‘pure’ than the other, and that all are contaminated or complicit with global capital.

    (35.) Jenson and Papillon 2000 are particularly interested in how the Cree in Quebec have turned to transnational net works to confront their ‘limited political opportunity structure’ at home. They term this ‘weak transnational collective action’ because it involves the strategic use of transnational net works and alliances to achieve the recognition of rights within Canada: the struggle is local/national and the main opponents remain the federal and provincial governments. Canadian governments have thus found themselves being challenged by international environmental and (p.120) human rights groups. In the summer of 2000 alone, Canadian governments were accused by two separate representations to the United Nations of ‘violating native rights’ (Thanh Ha 2000), and committing ‘economic genocide’, that is, governmental neglect causing the collapse of the local economy (Branswell 2000). The former representation was made by a coalition of Canadian native leaders to the UN Working Group on Indigenous Populations, the latter by L'Action des patriotes gaspésien(ne)s, which presented accusations of ‘economic genocide’ by the Canadian federal and provincial governments to the United Nations Commission on Human Rights (UNCHR). It is the view of Jenson and Papillon that such appeals have the potential to strengthen conceptions of multiple nationhood within Canada, and possibly alter territorial borders within the nation (those of Quebec).

    (36.) This convention supports rights for all migrants, documented and undocumented, to family reunification, consular or diplomatic protection, information about working conditions, political rights and equality with nationals in educational, social and health services. It does, however, affirm the broad exclusionary powers of sovereign states (see Stasiulis and Bakan 2002).

    (37.) This case is discussed in detail by Aitken and Scott (2000) and specifically in relation to the Live-in Caregiver programme by Stasiulis and Bakan (2002).

    (38.) This is the opinion of Craig Scott (1999) who was counsel for the Charter Committee on Poverty Issues in the Baker case. Quoted in Aiken and Scott 2000: 239).

    (39.) The self-image may be as much fiction as fact: ‘the peacekeeping forces wearing Canadian flags are now less numerous than those from Bangladesh or Nepal. Foreign aid contributions from Canada now rank 19th of the 22 industrial nations’ (Saunders 2003).

    (40.) Another important example involves convicting crimes against humanity in a country in which they did not occur. The Belgium courts charged four Rwandans with genocide in June 2001. The trial was the first in which a jury of citizens in one country judged defendants in war crimes committed in another. Regarding this conviction, the advocacy director of Human Rights Watch was quoted as saying ‘The idea that justice has no border has received a big boost’ (New York Times 2001). At the same time, it is important to register the difficulties of putting these principles into practice. In 1997 the Canadian Criminal Code was also amended to allow Canadians who engage in sex with children abroad to be brought to trial in Canada. The law requires the consent of the country where the alleged offence occurred. In one attempt to implement the law in 2000, consent from the Costa Rican government was not forthcoming. As of December 2001, no prosecutions had been made (Knox 2001b; Leidl 2002).