The first chapter of the ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers states the general principles of the Consensus and makes reference to respect for the principles of ASEAN stated in Article 2 of the ASEAN Charter. Promoting the full potential and dignity of migrant workers, upholding their rights and fair treatment with respect to gender and nationality are the main principles. There are clear boundaries for exercising these principles.
The fundamental rights of migrant workers are supposed to be upheld in a climate of freedom, equity and stability. However, this has to occur in accordance with the laws, regulations and policies of respective ASEAN member states. There are states where the law is inadequate in safeguarding migrants’ rights and there are states that on record have the relevant laws but lack the means of enforcing legislation. Each state has different policies governing migration and there is no regional policing instrument to ensure that migrant workers’ rights and dignity are indeed upheld. How is the full potential of migrant workers going to be realised by each state’s policies? How are the relevant institutions present in each state going to optimise migrant labour productivity and welfare so that its economy will progress?
Migrant workers are entitled to fundamental rights as stipulated in relevant regional and international treaties. But this principle is crippled by its accompanying conditions. ASEAN member states have to be parties to these treaties. Ratification of these treaties is very weak and it has been mainly done by sending states. This releases the majority of ASEAN’s member states from accountability to these legally binding instruments. The other condition is that migrant workers’ fundamental rights have to be in accordance with prevailing national laws, regulations and policies of member states. Who is going to ensure that rights are upheld when sovereignty is prioritised over humanity? Is there a process in place?
Migrant workers’ rights are preserved, provided it does not undermine the application by the receiving states of their laws, regulations and policies. To begin with, there is a lack of collaboration between sending and receiving states. There is a lack of clear communication to potential migrants on receiving states’ legal requirements and practices. Migrant workers end up incurring unnecessary costs, they are subjected to avoidable delays and they enter receiving states without having a clear picture of what they should expect and how they should conduct themselves. This makes them even more vulnerable to recruitment agencies and employers in receiving states. Given these obstacles, what happens if they are unaware that they are infringing the laws, regulations and policies of receiving states? What happens if receiving states policies infringe on their fundamental rights?
The general principles are supposed to be adopted in a constructive, non-confrontational and cooperative manner. The issue here is the term ‘non-confrontational’. This implies that in the event of non-compliance by a member state, the other states will not take any measure to ensure compliance if there is a possibility of a confrontation. In the event that migrant workers are deprived of their fundamental rights and dignity in a particular ASEAN state, other member states will not take measures to rectify this situation if it causes any acrimony between them and the state in question. Therefore, amity will be prioritised over humanity!
The most striking feature of the first chapter is that this Consensus covers only migrant workers who are documented and those who become undocumented through no fault of their own. What happens if an undocumented migrant worker is unable to prove that he has attained this status through no fault of his own? What happens if this migrant worker has been deceived into an irregular status? How will a member state determine that a migrant worker has had no part to play in becoming undocumented? What is each member state’s mechanism to ascertain this? Does it mean that undocumented migrant workers are not entitled to fundamental human rights and their dignity being upheld? The Universal Declaration of Human Rights is applicable to all human beings, including migrants, regardless of their status. Is there a reason for the omission of this crucial inclusion, from the ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers?
It is true that Article 2 of the ASEAN Charter emphasises independence, sovereignty, equality, territorial integrity, non-interference, peaceful settlement, renunciation of aggression and of the threat or use of force, amongst other principles. Despite this, policy-makers in the region need to come up with effective possible courses of collective action to ensure that fundamental human rights are upheld for all migrants, regardless of their status. It is impractical to adopt principles at the expense of human rights.