Breaking the deadlock between sending and receiving states is vital if human rights are to be protected.
The interests that ASEAN member states have in protecting their migrant workers are not confined to the bilateral level, but extend to the regional level as well. Those ASEAN states that are the source of migrant workers – the sending states – need to push harder for an ASEAN consensus on a regional legal instrument establishing the rights of migrant workers and the minimum standards of treatment accorded to them.
However, creating such a regional instrument is not an easy undertaking. As far back as a decade ago, ASEAN leaders had already envisioned the need for such an instrument through the adoption of the 2004 Vientiane Action Program. Subsequently, ASEAN leaders also adopted the 2007 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers through which they tasked ASEAN bodies with developing an instrument that would provide the necessary protections. That same year, ASEAN foreign ministers established an ASEAN Committee mandated to pursue the objective.
Despite all this, efforts stalled due to the reluctance of the ASEAN states receiving a large influx of migrants workers (receiving states). Over many years of negotiations, they have persistenly challenged efforts, raising arguments that demonstrate a lack of political will to establish such an instrument.
The ASEAN sending states favor a legally binding instrument. To them, an effective framework for the protection of the rights of migrant workers would be possible if it were underpinned by a regional legal instrument. On the other hand, the receiving states seem to be allergic to any attempt aimed at concluding a legally-binding ASEAN instrument. Their preference is to have no more than guidelines that are not legally binding.
The ASEAN sending states also insist that the scope of the application of the instrument should extend to undocumented migrant workers. Sending states argue that migrant workers are human beings with rights, and ASEAN member states are obligated to respect those rights as reflected in their commitment in the ASEAN Human Rights Declaration. In return, the receiving states argue that such an approach would only lead to legal and practical issues at the national level. The exclusion of undocumented migrant workers from the instrument is certainly not agreeable as it is both unjust and destined to fail.
Similarly, the ASEAN sending states maintain that the instrument should cover the family members of migrant workers. Although the protection of the rights of migrant workers and their family members is one of the defining human rights issues of Southeast Asia, receiving states prefer to treat this issue as merely a matter of technical labour and immigration, and refuse to countenance coverage of family members.
ASEAN sending states also hold that such a regional instrument should encompass a wide-range of fundamental rights, as set out in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the ASEAN Human Rights Declarations. In contrast, the receiving states systematically narrow the scope of the rights to far fewer than those safeguarded by the two international instruments.
The diverging interests of the sending and receiving states have left negotiations at an impasse. Progress will require a new approach, along with a major push by ASEAN sending states. Their action needs to be more proactive and strategic. They should touch on all outstanding issues under negotiation, going beyond the technical aspects of the debates. The process should be holistic, addressing the political, legal and human rights dimensions of every outstanding issue. Accordingly, future work should not be entirely left at the labor expert level as is the case in current negotiations. Bringing the matter to senior levels, particularly the ASEAN Foreign Ministers Meeting, for policy guidance is also essential if the process is to move forward.
In short, the ASEAN sending states, as the ones making demands, need to redouble their efforts to ensure a legal deal in which respect for the fundamenal rights of all ASEAN migrant workers and their family members are provided, and national policies are harmonized in accordance with a regional minimum standard of treatment. The time is ripe to bring ASEAN cooperation on migrant workers into a higher level. Any delay in pursuing this objective will only weaken the ASEAN vision of “sharing and caring” for the poor, weak and voiceless.
Abdulkadir Jailani is an Indonesian diplomat who is currently serving as the Director for Treaties and Legal Affairs of the Ministry of the Foreign Affairs of the Republic of Indonesia.
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