ASEAN on migrant rights: Making process, not progress

13 December 2021

As Southeast Asian states’ economic integration continues to strengthen, cross-border labour migration within the region is also on the rise. According to United Nations Department of Economic and Social Affairs (UNDESA) estimates, there are 7.1 million intra-regional migrants, making up two-thirds of the region’s total international migrants. The Philippines, Indonesia and more recently Myanmar are the big sending countries, while Singapore, Malaysia and Thailand are the major receiving economies. This figure has increased more than five-fold over the last 30 years, keeping pace with intraregional trade linkages and trade in services.

Apart from economic imperatives, these labour flows will likely continue due to demographic imbalances. Ageing societies like Singapore, Malaysia and Thailand will likely attract more migrants as their working-age population declines. Regional income disparities due to varying levels of development also create push-pull factors. According to the ILO, a majority of migrants employed in ASEAN work in the low-skilled sector and have mostly basic education. Basic employment rights are easier to violate in this sector — non-payment of salaries, onerous salary deductions (for example to pay for safety equipment that should be the company’s responsibility), excessive recruitment fees, non-observance of days off, among others. The region should expect an overall increase in cross-border labour flows as a result of deepening economic integration and demographic differences. It is therefore in the interest of regional actors to deepen their commitment to better implementing existing regional frameworks that deal with this issue.

Migration governance instruments

The region’s core intergovernmental organisation — the Association of Southeast Asian Nations (ASEAN) — has fully institutionalised regional dialogue on migrant worker issues. The ‘Declaration on the Protection and Promotion of the Rights of Migration Workers’ was inked in 2007. This was followed by the ‘Consensus on the Protection and Promotion of the Rights of Migrant Workers’ in 2017. Both documents commit the region to realise the rights of migrant workers, eliminate abuses, improve access to justice mechanisms and enhance overall migration governance. This ongoing process is overseen by ASEAN’s Committee on the Implementation of the Declaration (ACMW). The committee itself is comprised of ASEAN’s Confederation of Employers, the Trade Union Council, and the Task Force on ASEAN Migrant Workers (TFAMW), representing tripartite stakeholders. Labour ministers along with other stakeholders in civil society and international organisations meet annually at the ASEAN Forum on Migrant Labor (AFML).

As Southeast Asia, and indeed most other world regions age, without an increase in public spending on welfare, more and more migrant women will likely be called on for providing caring services.

While the desire, normative framework, logistical support and formal institutional channels exist, there have been only modest gains in realising ASEAN’s aims over the last two decades. The gains are in the least politically sensitive agendas — notably in information dissemination campaigns on safe migration and the implementation of pre-departure and post-arrival orientation training. Non-governmental organisations have helped fill the gap in assisting migrant workers in distress where such activities are possible (i.e., sanctioned by the state), and in helping them access complaint mechanisms. But these have not eliminated cases of wage theft or non-payment of salaries, among other labour rights violations.

According to the ILO’s recent assessment, workers in the agriculture, fishing and domestic work sectors are still not covered adequately by employment laws and are therefore more vulnerable. Even where legal mechanisms may exist to seek redress, the sheer economic cost of pursuing legal cases is prohibitive. Loopholes in recruitment policies make it difficult to realise efforts to reduce, if not eliminate recruitment fees. These are fees that have historically been borne by employers, but in the last few decades have become a cost shouldered by the migrant. There is little progress in simplifying cross-border recruitment regulation, making this a lucrative business for private employment companies. The Covid-19 pandemic has amply demonstrated that migrants, especially those working in the informal sector, have little access to social protection broadly. Migrants living in crowded dormitories have higher risks of infection. And since the virus does not discriminate, it makes little sense for this sector not to have equal access to vaccines in the same way as citizens.

Emphasising process over progress

Various explanations have been offered for why ASEAN has been making process but not progress in advancing migrant workers’ rights in the region. Some blame ASEAN’s dominant intergovernmental norms of non-interference (also known as the ‘ASEAN Way’) — which means that the declaration and consensus documents mentioned above were designed to be non-binding and subordinate to national laws. But some policies are explicitly in conflict with each other. For example, the Philippines does not allow its private recruitment agencies to charge fees to migrant domestic workers. The Singaporean government allows their agencies to charge a fee equal to two months’ worth of the worker’s salary (on a two-year contract). And since a migrant works with these two agencies on either end of the migration trajectory, the likelihood of collusion between the agents makes it possible to circumvent both policy directives. Such instances highlight the need for the harmonisation of laws.

Successful cooperation hinges on the consensus of all member-states, which accounts for slow, piecemeal change. National interests prevail over community-making norms envisioning ‘caring and sharing’ societies. Origin countries export surplus workers to solve domestic unemployment and reap the benefits of remittances. Destination countries augment their workforce with a relatively cheap and politically disenfranchised population who have very little bargaining power to change their employment conditions. The difference in minimum wage rates is such that a migrant from Myanmar, who would earn the equivalent of USD 3 at home could triple her daily earning to USD 10 in neighbouring Thailand. For both groups of countries, the economic calculus may outweigh welfare considerations.

Worse, for some sectors, rights are a direct cost. Here ‘national interest’ needs to be disaggregated, as sectoral interests may cut across sovereign borders. For example, employment agencies in both origin and destination countries share the common goal of maintaining, if not increasing their profit shares. Civil society organisations across the region may likewise have more in common with each other than their own national governments. This means that various regional actors should find common interests across national jurisdictions — which should make regional bargaining, incentives and solutions not only possible but desirable.

There are more and more women migrating to work overseas, and Southeast Asia is no exception. The fisheries, agriculture, manufacturing and hospitality industries have almost as many female migrants as men. About 19 per cent of all female migrants in the region are in the domestic work sector. This is an especially vulnerable population given that they work in their employer’s private home, which makes it difficult to access help if needed, especially if their mobile phones are confiscated by their employer. Domestic work is not generally included in employment laws, which make it even more difficult to realise claims and seek redress. Some of the most egregious human rights violations occur due to the severe power asymmetries between workers and their employers. Often the worker’s employment conditions and well-being depend on her employer’s goodwill — from the room/space she is allotted in the household, to the kind of food she eats, to the possibility of her getting a day or weekend off.

While there are campaigns that sensitise citizens to treat their workers humanely, there is little recognition that cooking, cleaning and caring for dependents in households are important economic activities — “the work which make all other work possible”. In other words, the pleas for better treatment for this category of migrants stem from humanitarian rather than political and economic considerations. This obscures the fact migrants make a concrete economic contribution to host countries and should not be seen as recipients of charity, or indeed employers’ goodwill.

Time to make progress on migrant rights

As Southeast Asia, and indeed most other world regions age, without an increase in public spending on welfare, more and more migrant women will likely be called on for providing caring services. To complicate things further, the region is a crossroads of inter-regional migration flows — sending its workers to East Asia, the Gulf countries and beyond. It also hosts migrants from neighbouring South Asia, working in the manufacturing sector and construction, as well as domestic work.

As labour flows continue to diversify and intensify, there is an even more urgent need to get ASEAN’s house in order. As ‘talks shops’ proliferate and cross-sectoral migration diplomacy becomes more mainstream, it would help for governments, trade unions, civil society, employers and other actors to disaggregate interests, values and goals to identify points of divergence and convergence, and to pragmatically work on acting on or resolving them. A major fault line continues to be the trade-off between governments seeing their migrants as little more than instruments of economic gain or as rights-bearing individuals, full stop.

DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.

Author biography

Liberty Chee is Lecturer in Political Science at the Vrije Universiteit Amsterdam. She researches migrant domestic work and migration governance. You can visit her website here. Image credit: Flickr/UN Women Asia and the Pacific.

*The title is a reference to David Jones and Michael Smith’s article “Making Process, Not Progress: ASEAN and the Evolving East Asian Regional Order”.