Global alliance of overseas Filipinos Migrante International today said that while the Duterte government hails the pending signing of the ASEAN consensus on the protection and promotion of the rights of migrant workers as the “centerpiece” of the Philippine chairmanship, migrant workers from the Philippines and the ASEAN are yet to assess if the final document adequately protects migrant workers’ rights or provides redress mechanisms, especially for those in distress.
In 2007, the ASEAN made a leap to address the issues of migrant workers by adopting the ASEAN Declaration of the Protection and Promotion of the Rights of Migrant Workers. However, the drafting of the instrument had come to an impasse since 2009 after members of the committee, specifically migrant-sending countries, failed to agree with provisions proposed by committee members and migrant-sending countries like the Philippines and Indonesia. The dispute involves whether the instrument will be legally-binding, will protect undocumented or irregular migrant workers, will cover migrants’ family members and will cover migrant workers who are not from ASEAN member states.
If the consensus still does not address these core issues, then President Duterte just signed a “landmark” spoiler for migrants rights that, ironically, the Philippines has been contesting for 10 years now.
There is also a lack of clarity, consultative process and scarcity in information-sharing with relevant stakeholders, including migrant workers themselves. Proposed changes to the draft instrument, to exclude families, undocumented migrant workers and to remove legally-binding clause of the draft, would have a significantly negative impact on migrant workers. If Duterte brokered the signing of such a consensus, then he cannot boast of having signed a “centerpiece” agreement for ASEAN migrant workers.
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 and provisions 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’. The emphasis on ‘regional particularities’, principles of ‘sovereignty’ and ‘non-interference’ allowed the perpetuation of human rights violations in deference to the goals of regional and inter-governmental 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 the rights of all migrant workers.
There is also a need for urgent review of existing legislation and national laws with the aim to harmonize such with a legally-binding consensus. Likewise, existing legislation and national laws that would contradict or be inconsistent with the legally-binding consensus should be repealed. These efforts should also include destination countries outside of the ASEAN if the source countries of migrant workers are in ASEAN in order to better ensure the protection and promotion of the rights of migrant workers.
Why include undocumented migrant workers?
The 2007 draft instrument related only to documented migrant workers so the framework does not correspond with the reality of migration, particularly in the Mekong region where the majority of migrant workers are living and working abroad with undocumented status.
It is also important to note that undocumented migrant workers are not necessarily only those who entered a destination country illegally. They may include those who lose status when their work permits were not renewed, they leave their employer even if due to abusive and exploitative conditions, and, those whose employers cancelled their work permits.
Most countries in ASEAN and Asia Pacific do not have specific legislations pertaining to the protection of undocumented migrant workers and mostly deny the growing magnitude of this problem. The solution by some states for undocumented persons is typically deportation. Some corrupt immigration officers may also trade detainees to traffickers to be sent to work on fishing boats and other work. Migrant workers who are arrested are charged for working without appropriate permits and violating visa requirements or being involved in prostitution. There are no screening processes for identifying trafficked victims from undocumented migrant workers.
However, sadly, embassies and consulate offices that should serve as sanctuaries and support mechanisms for undocumented workers have been found lacking. In the case of the Philippine government, for instance, the proposal of establishing a diplomatic outpost in Sabah has been denied, mainly because it would risk the country’s diplomatic ties with migrant-receiving Malaysia.
Why include families of migrant workers?
There are often social costs to the families of migrant workers, including family dislocation with children growing up without a parent or parents. When migrant workers leave their children behind, the children are more likely to suffer academically, have emotional problems, suffer from substance abuse, be forced into the labor force at an early age, and suffer physical or sexual abuse.
Women typically bear the major responsibility for care of the family. Therefore, measures to fulfill women migrant workers’ rights must improve the treatment of women migrant workers as workers, and must minimize the hurdles women migrant workers face in maintaining their family and cultural obligations.
Furthermore, the UN Convention on Migrant Workers recognizes family as the fundamental group unit of society. As such, family unification is a major goal of the Convention. States Parties are directed to “take appropriate measures to ensure the protection of the unity of the families of migrant workers.” This provision benefits not just women who are “left behind” by their migrant worker husbands, but it benefits migrant workers who wish for their families and children to join them. Where children are able to accompany the parent or parents when they migrate for work, there are also protections needed in host countries, such as ensuring that children of migrant workers have access to social security, health care, education and other basic social services.
Family reunification/reintegration in countries of destination is the second-best option as forced migration continues to force families apart. The best option is still for sending countries to come up with alternatives to migration, such as job generation, land reform and the provision of sufficient basic social services.
There is also a need for the creation of an ASEAN-level body, structure, commission, or possibly even a tribunal, to address migrant-related violations and concerns. This formation may be a consultative body which would specifically focus on migrant workers, with the powers to investigate and recommend appropriate actions to member states; or in the form of an ASEAN-level tribunal or court dedicated solely, with judicial functions, to facilitate trials of and impose sanctions on violators; or reprimand, if need be, governments that would violate the consensus.
Because there is a lack of support mechanisms in both sending and receiving countries, the tendency is always to deport or repatriate victims of abuse and exploitation resulting in the denial of justice and non-persecution of perpetrators. This attitude of “exporting the problem” limits and hinders migrant workers’, for instance victims of rape and/or sexual harassment, access to justice.
Migrante International believes that national, regional and international migration policy must take place within a human rights framework that protects, promotes and fulfills the rights of migrant workers. Human rights standards in general, as well as those concerning migrants, have been codified into international human rights law, through treaties and conventions, as well as incorporated into domestic law. These have been the foundation of many state efforts in the ASEAN region to realize the civil, political, economic, social and cultural rights of migrants. While there has been progress in the past decades, the achievements have been minimal and, considering the present condition of migrant workers, insufficient.
Also, while there have been efforts within ASEAN member states to defend rights of migrant workers, they have not necessarily led to greater protection and instead even gone against migrants’ rights. For instance, some have resulted in the criminalization of victims, such as of undocumented/irregular workers and trafficked migrant workers. Crackdowns on work places, tightening up on movement, and border controls may have effectively restricted the right of nationals to migrate. The creation of the impression that there are sufficient mechanisms and legal responses to migrants in crisis may have also encouraged migration, resulting in the increasing number of distressed migrant workers unaided upon the onset of crises because of a lack of national and regional level mechanisms of protection.
Migrante International reiterates that the most basic right of migrant workers is to be able to have decent, regular work and livelihood at home without having to seek these in other countries under likely very difficult conditions. This draws attention to how recommendations need to first of all be grounded in a solid understanding of the root causes of forced migration which create the basic conditions for rights violations. Addressing these root causes and implementing policies that prevent forced migration are vital and should proceed astride more immediate efforts to advance migrant workers’ rights.
Another key point is the recognition of the right of migrant workers to organize among themselves. The united action of migrant workers, their families and advocates, to provide venues for redress when there are none is a significant step in the promotion and protection of the rights of migrant workers in the ASEAN. ###