The Asean Consensus on migrant workers’ rights: A cause for celebration?

By Danilo Ibayan, THE MANILA TIMES, Dec 23, 2017

TEN years after the 2007 Cebu Asean Declaration on the Protection and Promotion of the Rights of Migrant Workers,there is now an Asean Consensus on the Protection and Promotion of the Rights of Migrant Workers after its signing by the association’s 10 leaders in November 2017 during theAsean’s 50thnniversaryasummit in Manila.

The major Philippine newspapers headlined the Consensus as a good step that would have beneficial effects on migrant workers in the Asean region, particularly the Filipino workers overseas. The Department of Foreign Affairs cited it as among the major outcomes of the summit, describing it as an agreement that “upholds fair treatment of migrant workers with respect to gender and nationality, provides for visitation rights by family members, prohibits confiscation of passports and overcharging of placement or recruitment fees, and protects against violence and sexual harassment in the workplace; regulates recruiters for better protection of workers, and respects their right to fair and appropriate remuneration and benefits and their right to join trade unions and associations…”

The Senate’s labor committee chairman, Sen. Joel Villlanueva, said that the Consensus was “a testament to the commitment of the region to improve the labor standards and protect the legal rights of our workers especially in line with Asean integration” and that “it would complement and strengthen the pending bills in the Senate, including the creation of a separate department for OFWs.”

Not unalloyed praise

Praise for the consensus, however, was not unalloyed with misgivings from quarters here and abroad. The Asean Parliamentarians for Human Rights (APHR) in Jakarta was reported to have considered “that the adoption at last week’s Asean Summit of a new regional Consensus covering the rights of migrant workers fails to provide adequate protections for them region-wide.”While commending Asean leaders for coming to an agreement on the importance of safeguarding migrant workers’ rights, the APHR said that the final document was not enough, more robust protections were needed, including through a legally binding regional treaty. Regional MPs viewed the “language in the document—particularly repeated clauses qualifying commitments as being‘subject to national laws, regulations, and policies’— undermined its potential impact and reflected the problematic approach of previous Asean documents, including the Asean Human Rights Declaration.”

APHR board member Rep. Teddy Baguilat of the Philippines said: “The Consensus affords wide latitude to states to limit protections in accordance with domestic laws and policies, essentially allowing them to selectively opt out of adherence to critical provisions. We have seen this sort of qualifying language in Asean documents before, and those have been implemented in ways that have allowed for the continued violation of the rights of millions of Asean citizens. It is extremely disappointing that Asean leaders decided to limit the scope of migrant workers’ rights in this way,”.

Human rights are universal and should supersede domestic law, not be curtailed by it,”said another APHR board member Eva KusumaSundari of Indonesia. “Asean was able to agree on a legally binding treaty on human trafficking, so they should be able to do the same for migrant workers. Renewing discussion on a legally binding instrument, along with fast-tracking the development of action plans to implement this Consensus would be good way to prove that the political will to address the situation does exist.”

Must be binding, not optional

Migrante International, the militant group purporting to represent the principal stakeholders,migrant workers abroad, said that “with the lack of comprehensive legislative protection of migrant workers in destination countries where most violations happen, it is important in the continuing battle for protection of migrant workers that the Consensus on the protection and promotion of the rights of migrant workers is binding.If the implementation is optional for member states, migrant workers will not be able to maximize its benefits wherever they may work or migrate, however strong the principles may be.

“The concept of ‘non-interference’ has been effectively instituted in Asean through the Asean Charter and had been used consistently as a method to avoid state human rights obligations in deference to the need to ‘respect state sovereignty’ and ‘non-interference’ allowed the perpetuation of human rights violations in deference to the goals of regional and intergovernmental collaboration and economic development. The consensus on the protection and promotion of the rights of migrant workers should be legally-binding and obligate Asean member states to fully commit to the protection and promotion of the rights of migrant workers.”

In my view, the significance of the Asean Consensus must be considered in the context of the overall human rights situation in the region and the status of the adherence of the member-countries to legallybinding international instruments for the promotion and protection of the rights of migrant workers.

The situation of migrant workers/ rights is aptly and comprehensively described by the foundation Heinrich Boll Stiftung of Germany in an article dated November 23, 2015 entitled “Labor migration in the Aseanregion,” stating that “migrant workers in the Asean region live and work under inhumane conditions. To improve this situation the policies, the migration industry and the accountability of employers must all get a lot more attention…Migrants in Asean are experiencing a lack of access to regular forms of migration and safe migration channels; high costs and illegal migration fees; problems with recruitment agencies and agents; abuses at various stages of the migration process; trafficking; violence against women and gender-based exploitation/abuse; large undocumented populations; low wages; long working hours; exploitative working conditions; non-payment of salaries; workplace safety and health issues; non-recognition of domestic work under labor laws; abuse and mistreatment in domestic work conditions; and the criminalization and detention of undocumented migrant workers. As the number of migrant workers increases annually, so does the probability of workers experiencing such inhumane actions.”

Harmonize national laws with international standards

The Stiftung article further stresses that, “All member states of Asean need to ratify … core Inernational Labor Organization conventions … and to harmonize national laws with the standards. They should also favorably consider the ratification of ILO Conventions 94 and 143, which are related to migration, and the UN Convention on the Protection of the Rights of all Migrant Workers and members of their Families.” It further added that among the Asean countries, “no member country—except the Philippines—has specific laws for domestic workers. Moreover, Malaysia and Singapore have exclusion clauses for foreign domestic workers. This is quite alarming, as domestic work is the most prevalent field of work for migrant workers from the Asean region.”

Taking a look at the record of ratifications byAseancountries’ ofUN conventions, particularly ILO conventions, in relation to migration, the Philippines leads the group with 17 ratifications, followed by Indonesia with 12, and Cambodia 11. With regard to the UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, only the Philippines and Indonesia among the 10 Asean nations have so far ratified the convention. Cambodia signed the convention but has not yet ratified it. It is worth noting here that as far back as 2007 during the Asean Civil Society Organizations-Trade Unions Consultation Workshop on the Protection and Promotion of the Rights of Migrant Workers held on May 12, 2007 in Jakarta, Indonesia, the Task Force for Asean Migrant Workers in its recommendations to the Asean countries “urges the member states of Asean to immediately ratify ILO Conventions 97, 143 and 181 (concerning migrant workers) as well as the UN Convention on the Protection of the Rights of Migrant Workers and Their Families.”

In the context of the highly uneven record of ratifications by the Asean membercountries, one understands why the document concerned is intriguingly titled Asean Consensus, ”suggesting that the member-countries’ consent to it varies. One may also understand why the Consensus is peppered with the qualifying phrase, “pursuant to the prevailing national laws, regulations and policies of Aseanmember states” which occurs in Chapter 3 (Fundamental Rights of Migrant Workers and the Members of their Families), Chapter 4 (Specific Rights of Migrant Workers), Chapter 5 (Obligations of Sending States). Chapter 6(Obligations of Receiving States) and Chapter 7 (Commitmentsof ASEAN Member States.)The Department of Foreign Affairs in any case points out that “like all Asean agreements, the implementation of the Asean Consensus will be subject to the respective laws of the organizations’ membercountries.”

Despite its obvious imperfections, the Asean Consensus is a step in the right direction considering the prevailing human rights situation in the region and the difficulties of concerned Asean member states to adhere to some UN and ILO standards on labor migration at the present time. The Asean peoples should push for the fullest respect by their governments of the rights of migrant workers and look forward to the day, though somewhat distant it may be, when all the remaining Asean states will have made adjustments to their internal laws, rules and regulations on migration and decided to accede and become parties to the UN International Convention on the Rights of Migrant Workers and the Members of Their Families as well as to the other UN and ILO conventions related to migration. There hopefully will be a day when migrating Asean peoples from one Asean country to another can happily put the hassles, the pains and indignities of the migration process behind them.

The author is a retired career diplomat and was last posted as Philippine Consul General in Macau. He is an eminent member of the cluster on the protection of overseas workers of the Philippine Ambassadors Foundation Inc. (PAFI).