Since the adoption of the ASEAN Charter in 2008, ASEAN has become a legally binding organization. With its current status, ASEAN has the power to demand real commitment from its member countries to adopt regional provisions into national law.

By having an ASEAN migrant-workers protection regime, the protection of migrant workers in the region should be comprehensive and identical.

ASEAN has, in fact, managed to produce an instrument for the protection of migrant workers. The ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (Cebu Declaration) 2007 consists of the fundamental norms of the protection of ASEAN migrant workers.

However, this political declaration by heads of state/government requires a mechanism that is operational. ASEAN leaders have mandated an ASEAN instrument as a follow up to the Declaration. Yet there have been multiple interpretations on what is meant by “instrument” outlined in the Cebu Declaration.

This “instrument” is interpreted by Indonesia and other sending states as an international “agreement”. However, to some other ASEAN countries, mostly receiving states, the “instrument” is no more than guidance, which is not legally binding.

The organization assigned to carry out the mandate is the ACMW or the “ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers” established during the foreign ministers meeting in Singapore in 2008.

However, this meeting structurally placed ACMW under the Senior Labor Officials’ Meeting (SLOM). This structure is actually slightly inappropriate since the issues in ACMW are not synonymous with those discussed in SLOM.

In ACMW, ASEAN member states are split into two opposing camps; the sending and the receiving countries of the migrant workers. The sending party comprises six countries, which are Indonesia, the Philippines, Cambodia, Laos, Vietnam and Myanmar while the receiving countries are Malaysia, Singapore, Brunei Darussalam and Thailand.

Both parties’ conflicting interests are vividly reflected in their opposing position, commitment, and approach to dealing with issues and problems concerning migrant workers. There are differences in the fundamental contents, like definition and scope of migrant workers.

The sending countries wish to include documented and undocumented migrant workers in the definition of migrant workers. On the other hand, the receiving countries will only accept legal or documented migrant workers in the definition.

Furthermore, the sending countries expect the instruments for migrant workers to be legally binding, while the receiving countries view this instrument merely as non-legally binding regional guidance. The excessive differences in the drafting process resulted in four years of deadlock, one of the longest negotiation processes in ASEAN.

At the operational level, it seems that these differences are too difficult to mediate. Several reviews and modifications in the drafting team composition have not resulted in any breakthrough.

In Singapore in 2008, 10 ASEAN member states could not resolve this matter, thus, the formation was reduced to four countries. Furthermore in 2010, similar deadlock in the negotiation process returned the drafting team to its original formation.

At its core, the settlement of the contesting interests requires serious political will and the highest level discussion in ASEAN.

Indonesia’s basic position regarding migrant workers in ASEAN is to have all migrant workers protected for the sake of human rights. Indonesia’s main argument for this notion is that “the fact that some migrant workers are undocumented or illegal does not necessarily mean that their human rights can be violated”.

There might be a distinction between documented and undocumented status in terms of their labor rights, but not in terms of their human rights. Unfortunately, violations of illegal migrant workers’ human rights seem to be rampant and common. Indonesian migrant workers’ basic rights are being stymied.

Thus, realization of migrant workers’ rights protection in the legal framework of ASEAN should become Indonesia’s top priority in moving toward an ASEAN community by 2015.

The writer is director of the Foreign Service School at the Foreign Ministry and former negotiator of the ACMW.
The opinions expressed are his own.

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