Migrant workers: Whose responsibility to protect?

The International Organisation for Migration (IOM) estimates that, globally, there are 214 million migrant workers, and 10.2 million of which are residing in Southeast Asia (IOM 2010). Scenarios of labour migration within the region display a certain familiarity, such as, Malaysians cross the border to Singapore to provide the skilled and semi-skilled labour in the city-state; Filipino domestic workers move to Malaysia and Singapore to take over the social reproductive roles of women in these countries; Indonesians cross the borders of Malaysia to lead the workforce in the plantation, construction and domestic work, and to Singapore to work in the domestic service; Myanmareses, Cambodians and Laotians go to Thailand to work in the fishing industry, and Myanmarese to Malaysia to provide services in hotels and restaurants; and, Vietnamese to work in the manufacturing sector in Malaysia. Based on the above configuration of migrant labour in the ASEAN setting, it is easy to say that migrant workers play an important role in the continued economic growth in Southeast Asia. However, there seems to be a vacuous understanding of the status of migrant workers – of which cheap and commoditised labour is embodied and exacted – and the social protection that accompany their important role.

With regular reports in the media of the challenges migrants face in this region, it is important to explore the protection mechanisms availed to them, its effectiveness, and to what extent enforcement of these mechanisms is a challenge to allow for the full enjoyment of the spirit of these instruments.

The growth of the “tiger cub” economies brings to the fore varying levels of social and economic conditions that influences the kind of migration policy and regulations that will have fundamental implications on the position of migrant workers. It should be stressed that the ASEAN bloc, though may be a formidable force to advance and protect the interests and security of ten countries under it, remains a heterogeneous grouping of nation-states. Hence, the importance in recognising that the ASEAN community presents a diverse environment and the approach to protecting migrant workers would likely to be varied.

Migrant worker protection

At the ASEAN level, there are existing declarations, regulations, policy frameworks and agreements aimed at protecting the livelihood, security and welfare of migrant workers. The DPPRM or the Declaration on the Protection and Promotion of the Rights of Migrants which was promulgated in 2007, the ASEAN Inter-Parliamentary Caucus on Labour Migration, the ASEAN Charter which was ratified in 2008, the ASEAN Economic Community Blueprint which promised full integration of the ASEAN Economic Community by 2015, are just samples of the many regional instruments that can be made available to sustain a viable sharing of migrant labour in Southeast Asia. These regional instruments are important – and relevant – in as much as a legal framework must be in place to monitor, facilitate, negotiate and enforce what has been duly agreed upon by the member nations. However, there occurs different approaches towards governance, human rights, democracy, trade and investments and, specifically, on labour migration. This difference is seen more as a norm rather than an exception, and, in itself, slows down whatever attempts to be made, especially by the labour-sending countries.

So, aside from the regional legal framework, bilateral agreements between the labour-sending and labour-receiving countries do exist, such that, ideally, both the responsibilities and welfare of migrant workers and employers are protected [i].

What accounts for the challenge is the way national policies of social protection or security of workers is framed in member nation-states. In the Philippines, for example, workers in the formal and informal economy face different conditions of protection. When migrant workers leave the country, even if they have enlisted themselves in the national social security system, there is a real question on whether they are “secured” outside the national borders. In this context, the issue of “portability” of worker’s security is put in the frontline of discussion as his/her welfare outside the country hinges on what this mechanism provides. “Portability” of security mechanisms can be daunting when the sending and receiving countries have different understanding of migrant workers’ welfare protection. This, even if there is available regional instrument that could possibly explain the challenge at hand. Another case looks at whether foreign migrant workers are protected in the receiving country’s employment acts. For instance, in Malaysia, foreign domestic workers cannot invoke the Employment Act 1955 when there are violations against the employers [ii] since domestic worker as a category of worker is not mentioned in the Act.

How could the existence of multilateral agreements affect the status of domestic workers in this sense? At the international level, there are international protection declarations that hold United Nations (UN) member countries accountable to migrant workers and their families. The most important ones are the UN International Convention on the Protection of the Rights of All Migrant Workers and their Families (1990), the UN Declaration of Human Rights (1948) and the International Labour Organisation’s Social Security (Minimum Standards) Convention (1952), and the International Labour Organisation’s Multilateral Framework on Labour Migration. These five (5) instruments are comprehensive in their breadth and depth and would have been sufficient to ensure that migrant workers all over the world, whether they are internal or international migrants, would live under no threat to their personal dignity and freedom of travel and work.

Do these protection mechanisms work?

However, there are serious challenges migrant workers encounter to attain a higher level of well-being and better quality of life they wish to experience in the country of destination. These challenges are reflective of the implications that regional and national labour policies and agreements have on the social protection of migrant workers. The question is: despite the existence of available international and regional social protection instruments for migrant workers, why the unabated stories of exploitation and human rights abuses of migrant workers?

Seemingly, the answer lies in the nature, scope and efficacy of international, regional and even national policy and declaration frameworks, and, more importantly, the political will of both sending and receiving countries to fully respect the agreements to give meaning to their existence. Granting that these instruments are effective in the sense that countries abide by every expressed proviso therein, one serious migration pattern that can delay its efficacy is the movement of migrants who, legally, by definition, cannot fall under the category of migrant workers, in the sense that they are undocumented or irregular migrants. In the present state of affairs, using Malaysia as a case in point, there are already more than a million undocumented migrants/immigrants from Indonesia, Philippines and Myanmar and are actively working in the informal sector of the economy. Undocumented migrants cannot legally invoke the protection of DPRMW as its concern is focused on documented workers alone. While sending countries may push for the recognition of undocumented migrants in the Declaration, receiving countries would definitely muster whatever political influence there is in the ASEAN Committee considerably since said recognition may send a wrong signal to labour-sending countries.

In addition, while protection mechanisms are in place, migrant worker communities still have to deal with the recurring racial or ethnic profiling that receiving countries have subtly founded on. Such environment of latent discrimination and precarious living does not in any way promote the welfare of migrants wherever they are. Another critical issue related to migrant protection is the role of the coastal border communities in the archipelagic South China Sea region on the threats of human trafficking, national security and military incursion, illegal trading, and cross-border crimes.

At the level of migrant worker communities in receiving countries, legal options seem to be the farthest they could go when there are threats to their employment or person. Migrant workers – documented or undocumented – find solace in the comfort of their co-nationals. One migrant worker’s problem is a problem of the small support group that workers have created and sustained in the course of their stay in the destination country. This is reflected in the cluster of small communities or “enclaves” that migrant workers have built across time and space. The use of informal social groups founded on friendship or on similar religious affiliation is as effective if only to maintain what is left of their human dignity and well-being.

Conclusion

No doubt the existence of various international and regional legislations and protocol instruments pertaining to the social protection of migrant workers is a proactive move given the increasing mobility of people who seek for work beyond their national borders. However, it is not sufficient, more so effective. The fault line lies in the area of “political sincerity” and regional partners’ “myopia”. Political sincerity reckons the willingness of both the sending and receiving countries’ leaderships to book anyone that defies the letter and spirit of these instruments beyond political expediency. It also means a political leadership that accepts the indispensable role of migrant workers in the overall development agenda of the region and, at the same time, at will, secure a dignified future of these workers.

In addition, when legislations fail to comprehensively address the generic and specific issues that migration entails, such as in the case of undocumented workers and workers who were trafficked, then these protection mechanisms are deemed fruitless or simply not attuned to the subjective and objective changing conditions of migrants in destination countries.

Southeast Asian nations themselves head the way in sending their citizens within the region. Having said that, the ten nation-states must be made aware that their primary responsibility in the migration-for-work enterprise is to ensure that the interests of their neighbours’ citizens will at least be given a place in the regional agenda. Social protection mechanisms are rendered ineffective when the very subject of protection become further disenfranchised and marginalised despite regional collaborative partnerships. If this continues, member nations need to go back to the drawing board and chart a “humane” and effective policy where migrant workers’ dignity and respect are simply not based on hollow rhetoric.

Dr. Linda A. Lumayag is a lecturer at the University of Malaya and researches on migration issues.

References

IOM 2010. Migration Report 2010 (IOM, Geneva)

IOM 2013. The World Migration Report 2013, (IOM, Geneva).