Known officially as the Asean Consensus on the Promotion of the Rights of Migrant Workers, it covers fair treatment of foreign workers, the right to visit their families, and protection from abuse, exploitation and violence.
As of 2015, officially there were over 450,000 migrant workers deployed between Asean countries, though that leaves out the millions who are undocumented. The new pact, adopted a decade after the signing of the Cebu Declaration on the Protection and the Promotion of the Rights of Migrant Workers, is claimed to strengthen protections for migrant labour in Asean.
But interestingly, only two Asean members – Indonesia and the Philippines – have ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Cambodia did sign but has never acceded to the convention.
As with the grouping’s other agreements, it is no surprise that the new pact is not legally binding. Though the Asean Committee on Migrant Workers is tasked with ensuring the effective implementation of the commitments made and to help develop a regional instrument to protect migrant workers, the responsibility to meet such commitments falls to each member state.
Besides being non-legally binding, several other problems arise after closer scrutiny of the pact.
For example, it refers to “the prevailing national laws, regulations, and policies of Asean Member States”. This “decentralised” approach does not bring fresh thinking to the situation of migrant workers across the region, nor does it solve the unequal treatment of migrant workers.
Of course the non-uniform migrant worker laws in each Asean member state are part of their respective sovereignty.
Moreover, the overarching focus of the agreement on fair or unfair treatment neglects the importance of a standardised treatment towards migrant workers. This gap leaves it to the judgement of each Asean member to decide what laws are to be passed. This means that unfair treatment of migrant workers as defined in one Asean state may be considered fine in others.
In addition, the agreement does not specify in detail what constitutes fair or unfair treatment. From Chapter 1 to 7, the agreement only mentions fair treatment for the fulfilment of migrant rights yet lacking necessary details.
The pact is also silent on individual or collective procedures to complain in the face of unexpected, unfair treatment. The agreement only describes Asean member states’ responsibility and duties to fulfil migrant workers’ rights without mentioning necessary details on how migrant workers can file complains against the receiving state that breaches its obligation.
In comparison, for instance, the European Convention on the Legal Status of Migrant Workers says: “Migrant workers shall be entitled, under the same conditions as nationals, to full legal and judicial protection of their persons and property and of their rights and interests.”
In the Asean pact, such regulation is absent. The most probable and common procedure is of course to access local courts in the receiving state, but it is not mentioned clearly how that procedure takes place.
Thus the absence of procedure, in fact, does not reflect claims of a people-oriented Asean, but confirms the grouping’s non-inclusive and elitist approach in protecting migrant workers.
It is too soon to assess how Asean and its member states will voluntarily comply and enact the non-binding regional agreement on migrant workers. But based on wording of the pact, which is missing crucial parts needed to ensure their rights, it is right to question the bloc and its members’ commitment to establishing a framework of protection and promotion of migrant workers rights.
Dio Herdiawan Tobing is a research associate at the Asean Studies Centre, Gadjah Mada University in Yogyakarta.
Published : November 21, 2017
By : Dio Herdiawan Tobing The Jakarta Post Asia News Network