SUMMARY OF FORTHCOMING ARTICLE:

(The full length article is scheduled to appear in the Seattle Journal for Social Justice in 2007)

ACCOUNTABILITY FOR MURDER IN THE MAQUILADORAS:
LINKING CORPORATE INDIFFERENCE TO GENDER VIOLENCE
AT THE U.S.-MEXICO BORDER

by

Elvia R. Arriola
Professor of Law
NORTHERN ILLINOIS UNIVERSITY

Claudia Ivette-González might still be alive if her employers had not turned her away. The 20-year-old resident of Ciudad Juárez-the Mexican city abutting El Paso, Texas-arrived at her assembly plant job four minutes late one day in October 2001. After management refused to let her into the factory, she started home on foot. A month later, her corpse was discovered buried in a field near a busy Juárez intersection. Next to her lay the bodies of seven other young women.
From article by Debbie Nathan

In less than a decade, a city that once had very low homicide statistics now reports that at least 300-400 women and girls were killed between 1994 and 2000. Along with an increase in murder rates, the rates of domestic violence have increased as the border town of Ciudad Juarez has experienced heavy industrialization since the signing of the North American Free Trade Agreement (NAFTA). Some murders have fallen into a bizarre serial killer pattern while others have been suspiciously linked to illegal trafficking gangs with money. Others clearly involve abductions of young, female maquiladora workers who never made it to or from work and whose bodies were later found dumped in Lomas de Poleo, the desert that surrounds Ciudad Juárez. Many of the murdered women have been raped, beaten, or mutilated.

In Mexico, the maquiladora worker is someone typically without much education or property and is often a migrant from an even poorer region of the country. Thousands of workers in these factories eke out sad lives in shantytowns without water, electricity, or public lighting. Dozens of families may stake out plots of land near public utilities or the industrial parks. There they camp out for years, pirating essential public services and building by hand or hiring itinerant laborers to build a shack out of sticks, cardboard, rags or discarded constructor's platforms. Some make home next to trash dumps. They walk on unpaved stretches of land that flood during storms.

Although news of the murders has generated much public discourse about the injustices taking place in Ciudad Juarez, an important factor is constantly overlooked in the discourse. What about the environment allowed the violence to take place? What about the fact that the government is in a cozy relationship with the CEOs of major corporations who come in to Mexico, lease large plots of land, set up factories with 24/7 operating schedules, pay no taxes, do little to make sure the workers they employ will have a roof over their head, a bed to sleep in and enough money to feed their families? What about the fact that the very girl whose body was found mutilated and dumped had worked hard, very hard, for one of those factories trying to improve her lot and that of her family? What of the fact that the same attitude about the murders - we are not responsible - is reflected in the policies of employment that encourage indifference to the workers needs or human rights whether in or out of the factories?

This paper argues that the Juarez murders are an extreme manifestation of the systemic patterns of abuse, harassment and violence against women who work in the maquiladoras, whose treatment derives from privileges enjoyed by the investors who employ them pursuant to the North American Free Trade Agreement. I begin by acknowledging that there is a critical relationship between women, gender violence and free trade as noted by Professor Weissman and others, but I also seek to understand how the absence of regulation to benefit workers in standard free trade law and policy perpetuates the degradation of maquiladora workers and produces environments hostile to working women's lives, including discrimination, toxicity in the workplace and threats of fatal assault. The unquestioned right to exploit the mostly female working poor incites gender violence while it makes Mexico a major player in global economic politics, even if rapid industrialization is encouraging more domestic violence and occasional incidents of female murder.

I. BEAUTY AND PAIN: GLOBALIZATION AND THE WOMEN OF THE MAQUILADORAS

A. Gender and Globalization at the Mexican Border: before and after NAFTA.

Globalization today has its fans and its critics. To some, like Thomas Friedman, it is the happy way of the future where people of different nations and cultures will interconnect easily through the Internet, where markets and democracy will flourish and all things stodgy, inefficient and dictatorial (e.g., Communism, Sadam Hussein) will fade. Others are more cautious, calling for better regulatory insight by the International Monetary Fund (IMF) and other financial players in the politics of free trade. Still others see a deadly combination for nations that make too quick a transition to market economies and democracy. Most contemporary discourse surrounding globalization focuses on the economic theories supporting or rejecting the trend; those who view gender and global trade as crucially related are still in the minority in academic discourse.

After observation of the relationship between gender and the operation of the maquiladoras at the Mexican border it is easy to see how gender based attitudes, affect everything from recruitment and hiring (nearly 100% female for workers) to treatment of women in the workplace. When American electrical, television, and stereo component companies such as GE, Sony, and Panasonic, began relocating to Mexico, women were blatantly preferred for the job. Women were seen as better fits; with smaller hands and fingers, they could better assemble tiny parts of export goods such as light bulbs, cassette tapes, and recorders. The ideal maquiladora worker thus emerged as a hybrid of stereotyped images based on sex, race and class - she was not only more docile and passive than Mexican men, but submissive, easily trainable and unlikely to pose problems with union organizing.

B. Where the Violence Leading to Murder Begins - The Voices of Experience from Inside the Maquiladoras

Over several years I visited several border towns and began to meet privately with mostly female workers and heard about their experiences. I sometimes met workers in their homes, which were uniformly tiny and clean but quite often without flooring, plumbing or more electricity than a single light bulb. "Fatal indifference" is the best way to describe the totality of circumstances suffered by maquiladora workers - a systematic structural disregard by corporations and their agents for the humanity of the laborer.

1. The Unbearable Pace: "I tolerated them for a total of 8 years."

Amparo was 38 and raising two teenage boys. She was desperately trying to keep the older boy in school so that he might avoid the destiny of the working poor - to start working at age 15 in the factories that average 10 hour workdays and little pay. Amparo had been fired for being outspoken about the bad worker treatment at Dimmit Industries, which is now defunct. Amparo was hired at Dimmit to work sitting down for long hours sewing on the waistband to a minimum 1200 pairs of expensive dress slacks per day in order to receive the base weekly wage of 300 pesos and 200 pesos in bonus (about 35 dollars per week). To have a more livable take home paycheck she pushed herself to produce at 150% of the expected quota or about 1800 slacks per day. Everyday Amparo walked out with a blackened face full of lint and dust that escaped the poor ventilation system in the plant. She remembered the terrible coughs she endured almost all of the time as a result of the fibers distinctly visible in the surrounding air that settled on her skin and in her lungs. Then she had to endure the exhaustion of the typical 10-12 hour shift with only a half hour break for lunch and a ten minute break in the morning. Amparo was one of five workers who filed an unfair labor practice charge after she was fired for complaining about the piece work policy that keeps the wages so low. Amparo knew she was in for a long haul by filing a claim, but she said, it was worth it because "I've tolerated them for 8 years."

2. Miserly Wages in Return for exposure to Toxicity.

Maria Elena pointed to dark scarred tissue mostly on the upper side of her feet: old scratch marks and evidence of once-ruptured skin, from a year-long period when her feet had first developed an unexplainable fungus infection that had broken and rotted the skin so badly "that my own brothers and sisters would tell me to stay away from them because of the awful smell." The doctors concluded that the condition was so bad that if she did not find a remedy and did not stop working in the environment that had obviously contributed to the infection, she would lose her feet to gangrene. Her mother told her, "although I appreciate the help from your working I don't want you to lose your feet." Maria Elena quit the job where she had been assembling one section of seatbelts over and over for two years, during which she was exposed to fine chemical dust particles in the fabric of the seatbelt that caused a condition without a permanent cure. Maria Elena's condition is only one of a variety of illness and conditions, including back problems, carpel tunnel syndrome, asthma and disabling allergic reactions which typically accompany the privilege of working in a maquiladora.

3. NAFTA: Setting an Agenda for the Global Factories of the World

The maquiladoras thrive on the structure of a work week designed to produce the highest levels of output. In the United States, the average work week is 38 to 40 hours. However, in the maquiladoras, the average is 5 to 10 hours longer. Maquiladora workers average 48 hours per week, sometimes 10- and 12-hour shifts, no overtime pay, and, in some factories, only one day off per week. One worker named "Angela," who had arrived from Veracruz seven years earlier, earned 750 pesos per week (about $75.00) and felt grateful not to have to work weekends. She said that her daughter was earning much more, about 950 pesos per week, (about $95.00) but to do this she had to work 12 hour shifts, 6 days per week. As one worker stated: "It's really unreasonable because we work from 7 a.m. to 5:30 p.m., Monday through Friday. To arrive on time, I have to get up at 5 a.m., and at that hour you really don't feel like eating. At 9:30 they give us 10 minutes for breakfast, and half an hour for lunch at 1 p.m."

Global employment then, whether in Mexico or elsewhere, falls into a familiar pattern - one where the policies of worker treatment emphasize rapid production, not worker health and safety or improved living conditions. As some critics note, the new wealth that comes with free trade often benefits a tiny privileged minority not the general population of the poorer country. To care about the workers would entail caring about things that don't factor well in a business driven by commitment to the bottom line, or cost-benefit analysis. The disciplinary methods, the production quotas at any cost, the speed-ups and injuries, punishments for using the bathroom during work time, the exposure to danger instruments or chemicals, all flow directly from the signal by company owners and their agents to supervisors and managers that:

• Workers' lives are less important than production schedules; and
• Safety of the workers is another cost that disturbs the projected return from investment.

Therefore, adequate safety gear for employees who must work with toxic chemicals, lighting around the factory, security for the workers -- all of these things are not as important as making sure workers do their tasks, supervisors meet the production schedule, and goods are exported and released into the stream of commerce that generates the consumption and the profits that will ultimately line the pockets of the owners and shareholders. These are the consequences of privilege and rights enjoyed by employers under free trade law and policy. It is a policy that doesn't give a damn about workers. The workers, after all, are only an insignificant cog in the wheel of production.

III. CORPORATE ACTIVITY AT THE MEXICAN BORDER AND QUESTIONS OF ACCOUNTABILITY.

Stories from the workers in the factories disturb the abstract discourses of free trade and the supposed mutual economic benefits that flow from a free trade agreement. A survey of the language in NAFTA will quickly reveal a skewed set of policies: more rights for the investor than for the worker or migrant laborer. That imbalance will explain why it is so difficult to say that corporations can be held accountable for their harmful activities in foreign countries. Public awareness that corporations do abuse their privileges in other countries has generated considerable literature on the possible legal theories that might be used to make the corporate actor accountable whether under U.S. domestic law, international law, or under the law of the host country, in this case Mexican tort law. The next section very briefly explores these options.

A. NAFTA'S labor side agreement- the North American Agreement on Labor Cooperation and the case of The Custom Trim/Auto Trim Litigation before the National Administrative Office.

The NAFTA complaint process is purely administrative. It might be however, a powerful organizing tool for workers as it can be used to present evidence and personal testimony about the problems that are illegal under existing labor or health and safety laws. The NAFTA labor side agreement, NAALC, codified that the Parties to NAFTA (the U.S., Canada and Mexico) promised to improve the "working conditions and living standards in each Party's territory." The best way to understand a NAFTA complaint is to see it as a reminder to the Party nations that promises were made to treat workers fairly in pursuit of free trade and open economic borders.

The matters which a NAALC complaint can be based on include:

(a) freedom of association and protection of the right to organize;
(b) the right to bargain collectively;
(c) the right to strike;
(d) prohibition of forced labor;
(e) labor protections for children and young persons;
(f) minimum employment standards, such as minimum wages and overtime pay, covering wage earners, including those not covered by collective agreements;
(g) elimination of employment discrimination….
(h) equal pay for men and women;
(i) prevention of occupational injuries and illnesses;
(j) compensation in cases of occupational injuries and illnesses; and
(k) protection of migrant workers.

Nothing about the NAFTA complaint process really brings the corporation under scrutiny, instead a maquiladora worker or group of workers lodges a complaint directly at Mexico, as the country that invited the foreign investor. The complaint is filed before an agency known as the National Administrative Office (NAO) which then conducts its own investigation and issues a report of findings on whether or not Mexico properly enforced its relevant labor, health and safety standards.

The labor side agreement has not been received well by labor activists. It creates a labyrinth of procedure that sets no specific standard for enforcement; it merely asks the Parties to enforce their own laws, tells interested parties to go to their appropriate local agencies for enforcement and then, even if a violation is found, the "remedy" is a fine that may not exceed .007 of the total trade in goods between the countries, which is to be spent on the enforcement of labor laws in the country complaint against.

The NAFTA/NAALC/NAO procedure strikes an amazing contrast to the rights and remedies for investors under NAFTA. NAFTA never included workers' rights language; whereas NAALC tells the host government simply to enforce existing law. But investors get quite a different deal that is extremely beneficial to them. The infamous Chapter 11, for example, permits one country's corporations to sue for compensation when another government's regulatory conduct is deemed "tantamount to expropriation." Not only does this reflect an anti-regulatory sentiment in NAFTA, it seemingly protects corporate activity/profit at any cost - even if that means effectively stopping governments from regulating for public health.

B. Women's Bodies as Part of the Free Trade Deal? Women's Rights as Human Rights.

The Juarez murders are being viewed internationally as a grave human rights problem for Mexico. Mexican government officials resist this international scrutiny with classic defensiveness: blaming the victims for their dress or referring to working girls that frequent bars and clubs as immoral. Better to invoke sexism than admit that the murders reveal a masculine attitude of power, along with subordination and fatal indifference to the health and welfare of poor working women.

1. The Maquiladora Worker versus the Multinational Corporation?: The Alien Tort Statute.

The spirit of "social responsibility" have generated many self-promoting campaigns by large corporations to say they are socially responsible, rather than attempts by legislators to amend existing employment law or to incorporate provisions in trade agreements that look out for workers. One is more likely to encounter speculations for using the Alien Tort Statute which provides "original jurisdiction [to the federal courts] of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the U.S." The statute has generated a new body of law potentially applicable in the international labor context for suing multinational corporations who systematically treat workers in violation of the law of nations. In Filartiga v. Peña-Irala, the Second Circuit recognized claims when "deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties."

Whether the transnational employer's practices, like the harsh disciplinary measures, rise to the level of violating the "law of nations" is the most difficult question to answer under this jurisprudence. It is enough to say that an alleged violation has to meet the "jus cogens" test, i.e., something prohibited and recognized by all nations. These include genocide, slave trade, murder or causing the disappearance of individuals; torture or other cruel, inhuman or degrading punishment; prolonged arbitrary detention; systematic racial discrimination; or a consistent pattern of gross violations of internationally recognized human rights.

The case law interpreting the "law of nations" has obviously looked at more extreme examples of corporations cooperating with governments to produce inhumane conditions for workers, like the forced slavery practices that were enforced by the Burmese government to aid the corporate activities of a global oil company. Maquiladora activists often decry the arbitrary imposition of extended work hours, on short notice, with the penalty of being fired if the worker refuses, just so a production schedule can be met. Maybe such practices are like the imposition of forced labor. Does the murder of a maquiladora worker who would not have been put in the path of danger but for the policy in effect at her place of employment qualify as a "causing the disappearance of an individual" and as a violation of the law of nations? When the host government does not question the use of these and other policies that endanger the worker, is the employer now an actor under color of law? Is the MNC that has a budget larger than that of several countries and whose presence causes massive social reorganization in social and public policy an actor under color of law, with or without the tacit approval of its practices by the host government? These are but questions I suggest for the lawyer interested in creating new legal strategies on behalf of the maquiladora worker.

III. FROM PASSIVITY TO EMPOWERMENT: GLOBALIZATION AND THE WOMEN OF THE COMITE FRONTERIZO DE OBRERAS (CFO).

The CFO, as well as other labor groups, independent unions and individuals around Mexico continues to resist and fight back against the "three-headed monster" that continues to exploit and abuse workers: the government; the corporations that take maximum advantage of labor conditions; and the pro-business, official unions like the CTM that are loyal servants of the corporations.
Julia Quiñonez Gonzales,
in e-mail to CFO supporters, December 2006

A. The Movement for Justice by Women Workers

Questions of legal accountability for the abuse of employees of multinational corporations (MNCs), which benefit from free trade agreements such as NAFTA, are complex. In the past two decades, the world has been reorganized along borderless regions by a significant consensus-mostly among the financial leaders of the wealthiest nations-that freer trade among all nations in targeted regions will end poverty and promote democratic forms of government. But to the workers the promises of "la globalizacion" have been a lie. Their experiences betray more stress, constant betrayal from government backed unions that side with management, chronic illnesses associated with the toxicity and the demanding hours, and an inability to make ends meet on the pitiful wages. But the workers I have been privileged to meet also do not give up easily the struggle for justice at the border industries. I am always in awe of the methods of organizing used by the CFO, which are premised on mutual respect, community, safety, creating a sense of dignity in every worker no matter how old, young, educated or not.

The organizing methods of the CFO operate on simple principles. The key is listening to the worker, getting a sense of their needs and only then beginning the process of introducing the worker to the idea of rights that may be relevant and are in print in a copy of the complied Federal Labor Law. The first steps in this educational process are powerful - it empowers the worker to connect the injustices they are enduring inside the factory to the existence of a rule of law that says "this is illegal." They then connect with each other and they understand the need for community, for strategy, for patience. The CFO volunteers constantly stress the importance of acting upon the voice, cause and interests of the workers. Nothing is done until many are committed. The numbers of workers in the factories are too large to risk a firing of just a few workers who can easily be discarded before a problem has been resolved. So they organize patiently, sometimes taking months before a critical mass is formed who will back up the firing of a worker willing to take the heat for speaking up to injustice.

More recently the work of the CFO has seen a new stage of the effects of personal empowerment. Sometimes workers who win at labor board arbitrations come out with generous lump sum settlements that allow them to leave maquiladora work and open small businesses, like beauty shops or food stands. A few years ago a few workers took a bold step and ventured into the world of fair trade, instead of free trade. With the help of the CFO and U.S. allies knowledgeable about business they took their former garment factory skills into the creation of Fábrica Dignidad y Justicia, a fair trade company run mostly by women who are working decent hours, earning a living wage, producing goods that people want (T-shirts and canvas bags) and engaging in labor they can love and be proud of.

B. The Nemesis of the Activist Workers - Hostile Governments and the Delusions of Global Democracy.

In recent years, U.S. President George W. Bush has made clear his support for more free trade pacts and has explicitly linked the expansion of markets for American entrepreneurs and farmers with greater freedom throughout the world. He argues that more free trade between countries, regardless of the size and wealth disparities between trading partners, leads to the expansion of civil and political freedom. But, if there is in fact such a great benefit to be gained from globalization, and if the corporate investor is key to promoting globalization and global democracy, then I argue, it must meet the highest standards of conduct.

Regardless of how and why free trade pacts are promoted and set in place, it is mainly corporate CEOs and stockholders who reap the benefits of treaties. These pacts provide the legal framework that allows expansion of markets and reorganization of labor operations throughout the world. And as key actors in economic globalization, corporations stand in place of governments that want freer trade, presumably to ensure the social and economic conditions that secure peace. Arguably, this important role fulfilled by the multinational corporation clothes it in a blanket of authority or quasi-governmental agency. Should there not be more courage on the part of legislators to hold the multinational corporation more accountable?

One might ask why is it necessary to focus on the multinational corporation and not on the more complex relationship between the maquiladora worker, her government or even other explanations for the gender violence (e.g., cultural patterns of sexism). It is because:

Corporations are enormously wealth and powerful enough to supplant governmental power and authority
These corporate leaders encourage their governments to pass the laws and create the legal environment that promotes their activities in the name of global democracy
In that capacity, these powerful and gigantic corporations might as well be quasi-governmental actors whose essence and function is to create the infrastructure and culture of new global democracies, with their money, technology, construction, policing, and armies of independent contractors for multiple public services
These corporate leaders stand to benefit from the treaties that will allow them to venture forth in the name of global democracy and profit throughout the world to contract for new forms of business with mostly third-world countries.

When the policy for promoting globalization is structured to promote fatal indifference to the plight of global workers, left undisturbed and without effective amendments to future trade agreements, globalization of the economy will continue to guarantee less rather than more global freedom. Meanwhile, free trade, as opposed to fair trade, advances with more corporations and their high paid directors raking in profits as they globe trot in the corporate race to the bottom of the wage scale in third-world countries. And with increases in globalization there may continue the other developments that follow the profits of jobs that have not reduced poverty, workers complaining of systematic abuse, and female murder in the maquiladoras of the world.

IV. CONCLUSION

Feminists and others who are speaking out about the Juarez murders have an important task ahead of them. If the patterns of gender violence that come with globalization are to be halted in other parts of the world, then from a platform of global sisterhood it is the responsibility of feminists in first world countries to ask for changes in the law and social policy of trade. It is a responsibility to educate the policy wonks, to elect the legislators who will study the issue with nuance to the political economics of racism, classism, and sexism. Progressive globalization analysts, like influential Joseph Stiglitz, also need to re-examine their critiques that focus only on economic disparities from pushing more and more poor countries to participate in the global economy.

Feminists need to put the story of the Juárez murders into a context that appreciates the powerful attraction governments have to participate in the global economy. Meanwhile, globalization critics need to consider the impact of globalization on women's safety in the workplace, their homes, and their communities and question the integrity of the familiar argument that globalization benefits all-even when the evidence of egregious harm is abundant and contrary.The fact that a third-world country is pressed by major economic institutions to open its doors to foreign investors in exchange for new jobs and wealth, but must also abandon concern for basic human rights and safety for its citizens, is unconscionable. Yet it is modern reality. Globalization of a poor nation's economy exacts a heavy price in guaranteeing the production and reproduction of gender-based violence and femicide.

I have introduced some of the stories and testimony gathered on many visits to the border as a supportive ally of women working in the maquiladoras and more recently as a committed educator trying to introduce students to the human face of free trade. What I have hoped people would witness is how a combined host of variables, including typical corporate decisions about discipline for workers as well as the clear bias that favors investors in free trade law and policy, produces a hostile work environment with a discriminatory effect on women and female children. What happened to Claudia Ivette Gonzalez and other maquiladora workers, is inseparable from the employer's attitude about workers inside the factories. If he doesn't care about the injuries and the toxicity in the factory why would he care about the safety of a young girl who sets out on foot in the early hours, headed for parts of the city known to lack adequate street lighting, public security services, much less public traffic that would make her trip home more secure?

The year 2006 was a difficult one for immigrants of Mexican descent in the United States. A Republic majority in Congress pushed the anti-immigrant agenda by exploiting the rhetoric of anti-terrorism. The unarticulated racism of the proposals was frightening. Undocumented workers of all backgrounds live in the U.S., but the targeting of the most hostile policies is always directed at the Southern border and at Mexicans, while the elephant in the living room is ignored - the role NAFTA has played in luring rural families north to the maquiladoras only to discover nonliving wages, no place to make home, and frightening social conditions that threaten the safety of their health and their families. Because of the historic presence of women in the maquiladoras, gender discrimination once in place turned into gender violence with the push for trade liberalization and NAFTA. Ciudad Juarez is still Mexico's shining star as a major center for commercial activity as an export processing zone. But it is also a haven for violence against women, enough of whom were factory workers that one cannot deny the subtle but real effects of the global corporation, with the acquiescence of the government, in producing the environment suitable for the rise of the maquiladora murders.

Sadly Claudia Ivette Gonzalez is a martyr for justice in the maquiladoras, a place where workers have no expectation of safety in or out of the workplace and settings where supervisors can take actions against workers that become the structure of fatal indifference. Claudia's abduction, and that of so many of the victims of Juarez who were maquiladora workers, is the ultimate act in the name of free trade and globalization. She is the sacrificial female body that has been dedicated to the gods of production and profit. Her body may have been abducted and grossly violated by whomever found an easy target that morning but the life preceding her brutal killing already had already been defined as insignificant: a fleck in the fabric of global production.