The Consensus – Sending States

The obligations of migrant-sending states are listed in Chapter 5 of the ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers. Collaboration with receiving states, information symmetry, standardisation and streamlining of recruitment procedures, health checks, reintegration initiatives and the enforcement action against forgery of migrant workers’ documents have been identified as key elements of sending states’ obligations. This list, though not exhaustive, could serve as an encouragement to efforts mitigating the plight of migrant workers before, during and after the transition process. However, considering each sending state’s present status on this issue, these obligations appear to be a tall order.

ASEAN’s main sending states are Cambodia, Indonesia, Lao PDR, Myanmar, the Philippines and Vietnam. Though there is no official quantity restriction on the number of outgoing migrants, there are several common shortcomings in migration management. All these sending states have a weak legislative framework for migration governance. Relatively, the Philippines’ legislation has the most comprehensive coverage of migration, diaspora engagement and special protection initiatives for migrant domestic workers. The most significant achievement of the Philippines Overseas Employment Administration (POEA) is the Household Service Workers Reform Package which was adopted in 2006. This policy instrument increased protection for domestic workers. Despite this, the abuse of Filipino migrant domestic workers prevails, especially in the Middle East. Vietnam’s Law on Overseas Workers does not adequately protect migrant workers; it excludes informal workers and potential migrants have insufficient information on this legislation. Indonesia’s legislation does not clearly define institutional responsibilities. Responsibilities among national government agencies and responsibilities between national and local authorities overlap one another. Resources are wasted on duplicate processes. This can only mean that migrant protection is not operating at an optimum level. Cambodia’s sub-decrees and ‘prakas’ (regulations) are not enforceable. Instead, they serve as mechanisms for implementation. Lao PDR’s regulations need to be updated so that there is continuous compatibility with the evolving trend of migrant outflow. In the case of Myanmar, there is a lack of regulation of recruitment agencies and thus, inadequate protection for migrant workers. Each of these sending state’s specific plan to improve migration legislation is not clear, assuming that there is a proposal in the pipeline, to begin with. Without this clarity, it would be challenging to ensure fulfilment of recruitment and enforcement objectives stated in the consensus.

While the Philippines and Indonesia have institutions dedicated to migration governance, coordination within and among institutions is insufficient, coupled with a lack of credible data. Though Vietnam and Myanmar have specialised institutions to manage migrant outflow, these are understaffed and handle multiple migration issues. Segregation of responsibilities within institutions is not possible due to a lack of resources. As a result, migrant issues do not receive due attention and the possibility of resolution is rare. Immigration and emigration are managed by the same institution in both Cambodia and Lao PDR. There is no clear line of authority between migrant inflow (return migration) and migrant outflow. Institutional structures such as these, pose challenges to effective regulation of recruitment agencies, prevention of forged travel documents and reintegration initiatives.

In ASEAN, there is no regional migration policy with common rules, regulations and standards of governance. The principles of sovereignty, non-interference and consensus have successfully hindered the possibility of a multilateral, enforceable framework for migration governance. All collaboration pertaining to migration is in the form of MOUs and bilateral agreements. The Philippines’ agreements are not binding, lack civil society participation, monitoring and oversight, and they omit special needs of female migrants. Most of Indonesia’s bilateral agreements are in the form of MOUs that are not binding. It is noteworthy that the text of these MOUs is not made available to the public. Vietnam’s bilateral agreements are also not published. Moreover, these agreements do not cover many prominent destinations for Vietnamese migrant workers. The MOUs for the formalisation of undocumented migrants, signed by Cambodia, Lao PDR and Myanmar with Thailand, have not been successful. Irregular migration prevails and is on the rise in Continental Southeast Asia. This is mainly due to the long duration and high complexity of migration processes spelt out in the MOUs. Many migrants choose the faster and cheaper alternative-informal migration. In addition, bilateral meetings are not transparent and the sharing of data is limited. There is a lack of knowledge on what needs to be done and what is actually being done.

Without establishing a strong common foundation for collaboration between sending and receiving states, the aspiration to achieve other obligations stated in Chapter 5 of the Consensus is far-fetched. Having a multilateral ‘Consensus’ and working in silos will not produce the desired outcome. ASEAN has to decide on what its ‘desired outcome’ needs to be. This should be done collectively. Only then can MOUs and bilateral agreements serve their intended purpose. Only then can the possibility of a multilateral framework for migration governance be entertained.

Migrant workers boarding trucks leaving Thailand at the Thai-Myanmar border in Mae Sot, northern Thailand. Photo: AFP

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