¹ Thomas Donaldson and Thomas Dunfee, Ties that Bind (Boston, Mass.: Harvard University Press, 1999); Thomas Donaldson and Thomas Dunfee, “Integrative Social Contacts Theory: A Communitarian Concept of Economic Ethics,” Economics and Philosophy, 11 (April, 1995): 85; Thomas Donaldson and Thomas Dunfee, “Toward A Unified Conception of Business Ethics: Integrative Social Contracts Theory,” Academy of Management Review, 19 (1994): 252, 264.

² Id.

³ Encyclopedia Britannica Online Edition, 1999, http://members.eb.com/bol/topic?eu=72449&sctn=1#s_top. For a virtually identical definition, see Merriam Webster Dictionary Online Edition, http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=sweatshop.

⁴ http://www.sweatshopwatch.org/swatch/industry/.

⁵ http://www.uniteunion.org/sweatshops/whatis/infosheet.html.

⁶ Ruth Rosenbaum, and David Schilling, In Sweatshops, Wages are the Issue, May 1997.

⁷ See Randy Shaw, Reclaiming America: Nike, Clean Air and the New National Activism (Berkeley, Calif.: University of Calif. Press, 1999). Note that, while this article focuses on sweatshops in the global marketplace, it is understood that the United States is not innocent of these transgressions of human rights. In fact, a 1994 U.S. Department of Labor spot check of garment operations in California found that 93% had health and safety violations, 73% of the garment makers had improper payroll records, 68% did not pay appropriate overtime wages, and 51% paid less than the minimum wage (Susan Chandler, “Look Who’s Sweating Now,” Business Week, Oct. 16, 1995, p. 96, 98). In 1996, the Labor Department found minimum wage violations in 43% of the firms sampled, and overtime violations in 55% of the firms (U.S. Department of Labor Press Release USDL: 96–181, May 9, 1996). Inspections of U.S. garment factories in 1999 found wage and hours law violations at 61% of factories in Los Angeles and 63% of the factories in New York (Robert Collier, “US Firms Reducing Sweatshop Abuses, But Wages Still at Poverty Levels,” San Francisco Chronicle, April 17, 1999).

⁸ New York Daily Tribune, Mar. 7, 1845, cited in Smithsonian Institution, “1845 Tribune,” http://www.si.edu/nmah/ve/sweatshops/history/2t5.htm (1999).

⁹ See Lammy Betten, International Labor Law (1993), 316 (noting that child labor legislation may lead to a movement of child labor from the formal to the informal sectors of the economy). See also, Ministry of Labour, Manpower and Overseas Pakistanis & SEBCON (Pvt) Ltd., Qualitative Survey on Child Labour in Pakistan (Islamabad: International Labour Organization/OPEC, 1996). ILO study in Pakistan evidences that, among the child labourers interviewed, 72% had no access to education at all; Alan R. Myerson, “In Principle, a Case For More ‘Sweatshops,’” New York Times, June 22, 1997 (online version: http://www.ncpa.org/pd/pdint152.html); and “Labor Secretary Herman Speaks out Against Child Labor,” Apparel Industry Magazine 58, no. 11 (Nov. 1997), 12. (Mohammed Hafizul Islam Chowdhury, an apparel manufacturer from Bangladesh asks “Why are Americans against child labor? It’s good in my country because it keeps children off the streets and out of prostitution.”); and Stephen Golub, “Are International Labor Standards Needed to Prevent Social Dumping?” Finance & Development (Dec. 1997), 20, 22, http://www.imf.org/external/pubs/ft/fandd/1997/12/pdf/golub.pdf.

¹⁰ Kebebew Ashagrie, Methodological Child Labour Surveys and Statistics: ILO’s Recent Work in Brief (Geneva: International Labour Organization, 1997), 10, http://www.ilo.org/public/english/120stat/actrep/childlab.

¹¹ The ILO reports that in the Philippines more than 60% of working children are exposed to hazardous working conditions, and 40% of those exposed experience serious injuries or illnesses including those that result in amputations and loss of body parts. International Labor Organization, Child Labor: Targeting the Intolerable (Geneva: International Labor Organization, 1998), http://www.ilo.org/public/english/90ipec/publ/clrep96.htm.

¹² International Labour Organization, Child Labor: Targeting the Intolerable, infra note 13, at 7, http://www.ilo.org/public/english/90ipec/publ/clrep96.htm. See also International Labour Organization, Child Labor Today, ILO/CLK/1 (Geneva: International Labour Organization, June 10, 1996), 1. For additional statistical information in this area, see also International Labour Organization, Facts and Figures on Child Labor, 1999, http://www.ilo.org/public/english/child/download/worstfrm/statistics.pdf.

¹³ International Labour Organization, World Employment Report 1998–1999 (Geneva: International Labour Organization, 1999).

¹⁴ World Health Organization, Children at Work: Special Health Risks, Technical Report Series No. 756 (Geneva: International Labour Organization, 1987); K. Satyanarayan et al., “Effect of Early Childhood Nutrition and Child Labour on Growth and Adult Nutritional Status of Rural Indian Boys around Hyderabad,” Human Nutrition: Clinical Nutrition, no. 40 C (1986).

¹⁵ Id.

¹⁶ El Salvadoran Delegation, Behind Closed Doors: The Workers Who Make Our Clothes (New York, N.Y.: National Labor Committee, 1998), 20–21.

¹⁷ Campaign for Labor Rights, Labor Alerts (Feb. 22, 1999).

¹⁸ Id.

¹⁹ UNITE v. The Gap et al., http://www.globalexchange.org/economy/corporations/saipan/complaint.html, at paragraph 43, p. 16. See also “First Ever Lawsuits Filed Charging Sweatshop Conspiracy,” Sweatshop Watch, http://www.sweatshopwatch.org/swatch/marianas/lawsuit.html (Jan. 13, 1999).

²⁰ Id.

²¹ Id.

²² World Health Organization, The World Health Report 1999—Making a Difference, 1999, http://www.who.org/whr/; “Globalization Bad for Health, say UN Agencies,” Financial Times, June 10, 1999 (electronic version).

²³ El Salvadoran Delegation, Behind Closed Doors: The Workers Who Make Our Clothes (New York, N.Y.: National Labor Committee, 1998), 9.

²⁴ Jill Murray, “Corporate Codes of Conduct and Labor Standards,” International Labor Organization, Bureau for Workers’ Activities Working Paper, 1996, as amended 1998, http://www.ilo.org/public/english/230actra/publ/codes.htm.

²⁵ Kebebew Ashagrie, infra note 12 at 10, 11.

²⁶ Neil Kearney, Sweatshops: An Ugly Stain on American Fashion http://www.dol.gov/dol/opa/public/forum/kearney.txt. For an analysis of free trade zones, see, e.g., Auret Van Heerden, International Labour Office, Heyday for Free Zones, but Will They Last? http://www.id21.org/insights28/art4.htm (1998).

²⁷ Maquiladora factories assemble imported materials for export.

²⁸ LaShawn, R. Jefferson, and Phoebe McKinney, “A Job or Your Rights: Continued Sex Discrimination in Mexico’s Maquiladora Sector,” Human Rights Watch 10, no. 1(B), Dec. 1998, http://www.hrw.org/reports98/women2/.

²⁹ National Labor Committee, “Zoned for Slavery” (video), 1995.

³⁰ Saipan is a United States territory. Firms that import goods from Saipan into the United States receive substantial tax benefits. For example, while The Gap had to pay 20% tax on clothing imported from other countries, it did not have to pay the tax for imports from Saipan. Also, The Gap could use a “made in the USA” label for Saipan-manufactured garments. Over the past four years, The Gap paid $237 million for imports from Saipan; in 1998, The Gap generated $1 billion in revenues (11% of total revenues) from the sale of its imports from Saipan. ([Kelly Barron, “Gaplash,” Forbes, June 14, 1999, 110]. In a “20/20” news program ABC described Saipan garment manufacturers’ effort to lure workers from nearby China and the Philippines; as a part of their effort, manufactures promised personal services from women who, as it turned out, were forced into prostitution. (“The Shame of Saipan” May 24, 1999, transcript available at http://www.globalexchange.org/economy/corporations/saipan/2020expose.html.)

³¹ Saipan’s poor working conditions eventually resulted in a $1 billion lawsuit filed in 1999. The suit is against 18 garment manufacturers and their American retailers, including The Gap, Tommy Hilfiger, Sears, and Wal-Mart. The suit charges that the companies engaged in a conspiracy that involving, among other things, indentured labor, failure to pay overtime and intolerable working conditions. UNITE v. The Gap et al., infra note 21. Four of these defendants—Nordstrom, Gymboree, Cutter & Buck and J. Crew—eventually settled the lawsuit, agreeing to require independent monitoring for compliance with basic labor standards. Steven Greenhouse, “Four Companies Gain Accord in Labor Suit,” New York Times (Aug. 10, 1999) (electronic version). The settlement also established a $1.25 million fund to finance the program.

³² UNITE v. The Gap et al., infra note 21, at paragraph 43, p. 16. See also “First Ever Lawsuits Filed Charging Sweatshop Conspiracy,” infra note 21.

³³ Elwood K. Mott, Sweatshop for Levi Strauss, Anne Taylor, LA Gear and Gap, http://www.sweatshopwatch.org/swatch/what/mott.html (1999).

³⁴ Id., at 2.

³⁵ Thomas Donaldson and Thomas Dunfee, “Toward A Unified Conception of Business Ethics: Integrative Social Contracts Theory,” infra note 2, at 265.

³⁶ Thomas Donaldson and Thomas Dunfee, Ties that Bind, infra note 2, at 60.

³⁷ Democratization, the Rule of Law, Respect for Human Rights and Good Governance: the Political Issues of the Partnership between the European Union and the ACP States, Commission Communication COM (98) 146 (March 12, 1998) at 1(1.2)(3), http://europa.eu.int/comm/dg1a/human_rights/com_98_146/index.htm.

³⁸ Id. at 2(A)(3).

³⁹ United Nations Database, http://www.un.org/rights/50/decla.htm.

⁴⁰ United Nations, Declaration of Human Rights, Article 2 (Dept. of Public Information) http://www.un.org/rights/50/decla.htm.

⁴¹ Id. at Articles 3, 4, and 5.

⁴² Id.

⁴³ Adopted and opened for signature, ratification, and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 3 January 1976, in accordance with article 27. See http://www.unhchr.ch/html/menu3/b/a_cescr.htm.

⁴⁴ United Nations, Article 3(2), Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), http://www.dol.gov/dol/ilab/public/media/reports/iclp/sweat5/appendixf.htm.

⁴⁵ Id. at Article 32(1).

⁴⁶ OCDE/GD(97)36, guidelines: OECD Doc. OCDE/GD(97)40 (updated 1997) (originally adopted by the Governments of OECD Member countries on June 21, 1976).

⁴⁷ http://www.oecd.org/els/pdfs/Labour/docs/MULTI.pdf. See also Jill Murray, “Corporate Codes of Conduct and Labour Standards,” Bureau for Workers’ Activities Working Paper (Geneva: International Labor Organization), http://www.ilo.org/public/english/230actra/publ/codes.htm. The OECD is currently working with a number of organizations to develop a comprehensive framework for the review and revision of the Declaration.

⁴⁸ International Labour Organization, ILO Declaration on Fundamental Principles and Rights at Work (Geneva, 86^th Session, June, 1998), http://www.ilo.org/public/english/10ilc/ilc86/com-dtxt.htm. This distinction between the seven fundamental principles and the other (now 168 labor-related covenants) is a necessary one for our inquiry as one economist points out, “one could define unfair conditions to be any which do not meet the standards of the ILO. But such a definition has the undesirable consequence of putting just about every nation in the doghouse on at least one of the ILO’s 161 [now 175] Conventions.” Steve Charnovitz, “Fair Labor Standards and International Trade,” Journal of World Trade Law, 20 (1986): 61, 68.

⁴⁹ International Labour Organization, Fundamental ILO Conventions, http://www.ilo.org/public/english/50normes/whatare/fundam/index.htm (1998). See also International Labour Organization, ILO Declaration on Fundamental Principles and Rights at Work, infra note 50.

⁵⁰ International Labour Organization, Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, C182 (87^th Session of the International Labour Conference, 1999), http://ilolex.ilo.ch:1567/scripts/convde.pl?C182, Article 1.

⁵¹ Id. at Article 3.

⁵² Issues addressed include holidays with pay, rest periods, hours of work for specific professions, and others. See, e.g., Hours of Work Convention, 1919, C1, Unemployment Convention, 1919, C2, Holidays with Pay Convention, 1936, C52, Hours of Work and Rest Periods Convention, 1939, C67, Labour Standards Convention, 1947, C83, http://ilolex.ilo.ch:1567/public/english/docs/convdisp.htm. See also, International Convention on the Elimination of All Forms of Racial Discrimination (adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965, entry into force 4 January 1969, in accordance with Article 19); Convention on the Elimination of All Forms of Discrimination against Women (adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979, entry into force 3 September 1981, in accordance with article 27(1)); Convention on the Rights of the Child (adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990, in accordance with article 49).

⁵³ Caux Roundtable, Mission, http://www.cauxroundtable.org/MISSION.HTM.

⁵⁴ Caux Roundtable, Principles for Business, http://www.cauxroundtable.org/ENGLISH.HTM (1999).

⁵⁵ Id.

⁵⁶ A similar set of fundamental rights has been proposed as a version of a “social clause” by the International Confederation of Free-Trade Unions. But see, Virginia Leary, “The Paradox of Workers’ Rights as Human Rights,” in Human Rights, Labor Rights, and International Trade, ed. Lance Compa, Stephen Diamond (Philadelphia, Pa.: Univ. of Pa. Press, 1996), 38. Fundamental rights should only include right to association and right to be free from forced labor. Leary contends that these are, at their core, rights, not standards, and (contrary to standards) should never be denied, even if their protection imposes an economic hardship.

⁵⁷ For three earlier studies of intergovernmental agreements using a similar method and reaching a similar conclusion, see, e.g., Virginia Leary, “Workers’ Rights and International Trade: The Social Clause (GATT, ILO, NAFTA, U.S. Laws),” in Fair Trade and Harmonization: Prerequisites for Free Trade, ed. Jagdish Bhagwati and Robert Hudec (Cambridge, Mass.: MIT Press, 1996), 177, 218 (though, while Leary agrees in connection with nondiscrimination, she does not agree on the issues of equal pay nor minimum hours); William C. Frederick, “The Moral Authority of Transnational Corporate Codes,” Journal of Business Ethics, 10 (March, 1991): 165; and Gijsbert van Liemt, “Minimum Labour Standards and International Trade: Would a Social Clause Work?” International Labour Review, 128 (1989): 433. See also Peter Doorman, Policies to Promote International Labor Standards: An Analytical Review (Washington, D.C.: Bureau of International Labor Affairs, U.S. Department of Labor, 1995), Table 11. (Doorman conducted an investigation similar to that in this paper in connection with nine corporate codes of conduct and found similar results except for “fair” wages and maximum hours. Out of the nine codes, only two addressed these issues. Id.)

⁵⁸ T. Donaldson, The Ethics of International Business (New York, N.Y.: Oxford Univ. Press, 1989), 81. For a critique of Donaldson’s rights analysis, see John Hendry, “Universalizability and Reciprocity in International Business Ethics,” Business Ethics Quarterly, 9 (July, 1999): 405, 413–14.

⁵⁹ Richard De George, Competing with Integrity in International Business (New York, N.Y.: Oxford Univ. Press 1993), 19–22.

⁶⁰ Id. at 19.

⁶¹ Id. at 45–58.

⁶² Richard P. Nielsen, “Do Internal Due Process Systems Permit Adequate Political and Moral Space for Ethics Voice, Praxis, and Community?” Journal of Business Ethics, 24, (Mar. 2000): 1.

⁶³ Bryan W. Husted, “A Critique of the Empirical Methods of Integrative Social Contracts Theory,” Journal of Business Ethics, 20 (Jul. 1999): 227, 228.

⁶⁴ Thomas Donaldson and Thomas Dunfee, “Toward a Unified Conception of Business Ethics: Integrative Social Contracts Theory,” infra note 2 at 276.

⁶⁵ Bryan W. Husted, infra note 65 at 230.

⁶⁶ Id. at 230–231.

⁶⁷ Id. at 231.

⁶⁸ Id. at 232.

⁶⁹ Thomas Donaldson and Thomas Dunfee, Ties That Bind, infra note 2 at 74.

⁷⁰ Id. at 76.

⁷¹ Don Mayer, “Hypernorms and Integrative Social Contracts Theory,” Proceedings: International Association for Business and Society, 1994.

⁷² Thomas Donaldson and Thomas Dunfee, Ties That Bind, infra note 2 at 76.

⁷³ Bryan W. Husted, infra note 65 at 234.

⁷⁴ Thomas Donaldson and Thomas Dunfee, Ties That Bind, infra note 2 at 77.

⁷⁵ Umezu, M. “International Communitarianism and Moral Consensus Building Procedure,” Journal of Japan Society for Business Ethics, 2 (1995): 21–32. (In Japanese.)

⁷⁶ Taka, I. “A New Direction of Integrative Social Contracts Theory,” Journal of Japan Society for Business Ethics, 3 (1996): 3–15. (In Japanese.)

⁷⁷ Thomas Donaldson and Thomas Dunfee, Ties That Bind, infra note 2 at 77.

⁷⁸ Thomas Donaldson and Thomas Dunfee, “Toward a Unified Conception of Business Ethics: Integrative Social Contracts Theory,” infra note 2.

⁷⁹ Bryan W. Husted, infra note 65 at 231.

⁸⁰ Thomas Donaldson and Thomas Dunfee, Ties That Bind, infra note 2 at 75.

⁸¹ For additional analysis on the failure of qualitative models to create adequate parameters for human rights, see, e.g., Gregory Shaffer, “Globalization and Social Protection: The Impact of Foreign and International Rules in the Ratcheting Up of U.S. Privacy Standards,” Yale Law Journal (forthcoming).

⁸² Thomas Donaldson and Thomas Dunfee, Ties that Bind, infra note 2, at 23. Donaldson and Dunfee consistently refer to the terms “hypermorns” and “universal principles” interchangeably. (See p. 49, “ISCT avoids the extremes of either position by recognizing the dynamic relationships among the authentic ethical norms of diverse communities, bounded in turn by universal principals. The latter principles are called ‘hypernorms’ in ISCT.”)

⁸³ While a right may be absolute, interpretations of rights violation may differ. With regards to a prohibition against killing, for example, the act of killing involves issues of proximity and causality. Is the person who orders, or the person who offers a reward for, the killing of another a violation of a prohibition against killing? If so, is there a degree of non-proximity when such an act does not constitute killing someone else? For causality, shooting someone can be a direct cause of the other person dying; however does exposing someone to secondary smoke mean that the smoker violated another’s right to life?

⁸⁴ Thomas Donaldson and Thomas Dunfee, Ties that Bind, infra note 2, at 44.

⁸⁵ Thomas Donaldson and Thomas Dunfee, Ties that Bind, infra note 2, at 44.

⁸⁶ Thomas Donaldson and Thomas Dunfee, Ties that Bind, infra note 2, at 44.

⁸⁷ Opportunity costs are the lost earnings that result from not choosing another path of action.

⁸⁸ United Nations, 1996 Human Development Report Overview, http://www.undp.org/hdro/e96over.htm.

⁸⁹ Set Maung, quoted in John Schermerhorn, “Terms of Global Engagement in Ethically Challenging Environments: Applications to Burma,” Business Ethics Quarterly, 9 (July, 1999): 485, 488.

⁹⁰ International Labour Organization, World Employment Report 1995 (Geneva: International Labour Organization, 1995), 75–76, cited in Ian Maitland, “The Great Non-Debate over International Sweatshops,” British Academy of Management Annual Conference Proceedings (1997), 240–265.