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CIVIL SOCIETY-TRADE UNION: POSITION PAPER ON AN ASEAN INSTRUMENT ON THE PROTECTION AND PROMOTION OF THE RIGHTS OF MIGRANT WORKERS
(Draft ASEAN Framework)
Thu, Dec 07, 2006

Despite more than a decade of talk and commitments on paper, the Association of South East Asian Nations (ASEAN) has yet to establish a regional human rights mechanism that would promote and protect the human rights of all persons in the ASEAN region. Nor does ASEAN have a regional framework to protect the rights of migrant workers and members of their family who are living and working in the region. While accurate numbers of migrants in the ASEAN region are hard to come by, there are an estimated 50 million documented migrants in Asia as a whole (in addition to the undocumented or irregular migrants who rarely appear on official statistics, the often uncounted millions of internal migrants, as well as Asians who move to other continents). Many of these migrants live and work in appalling conditions and subject to horrific human rights abuses, including torture, slavery-like conditions, and even death.

At the 10th ASEAN Summit in November 2004, ASEAN Ministers signed the Vientiane Action Programme (VAP) which is a six-year plan aimed towards “realiz[ing] the end goal of the ASEAN Vision and the Declaration of ASEAN Concord II” (Chair’s Statement). Accordingly the VAP, under the goal of promoting human rights, includes a programme area dedicated to the “elaboration of an instrument for the protection and promotion of the rights of migrant workers”. The commitment of ASEAN member States to such an instrument was recently re-affirmed at the fifth Workshop on the ASEAN Regional Mechanism on Human Rights in Kuala Lumpur, Malaysia in July 2006. Importantly, the Workshop asserted “the need to encourage governments to ratify all relevant UN conventions and protocols related to migrant workers, refugees and asylum seekers, and to act on commitments made.”

Migrants in the ASEAN region, as in all regions of the world, are individual human beings, they have families, and they come from communities. Migrant workers, in addition to being workers, are first and foremost human beings with human rights, members of families and of communities. The diversity of migrant populations must be respected and reflected in the ASEAN policy responses to migration, including through providing specific protection to vulnerable, disadvantaged and marginalized groups of migrants, and ensuring that the fundamental principle of non-discrimination guides all policy and practice in relation to all migrants, regardless of their legal status.

While it is important to recognize the particular and special protection needs of refugees and asylum seekers who are fleeing serious human rights violation in their countries of origin, the fact remains that in this region refugees and migrants move together in so-called “mixed flows”, in search of security, safety from persecution, economic opportunity, and protection from deficits of development. In the cycle of movement, migrants can be in refugee-like situations as conditions in their home countries deteriorate, and refugees will require the same protections against abusive employers and unsafe conditions at their places of work as migrant workers. Victims of trafficking, whether trafficked for forced prostitution or forced labour, will require protection from and redress for the abuse they have suffered.

Civil society groups propose the following fifteen elements to be included in the ASEAN instrument on migrant workers:

1. Assert and uphold the fundamental human rights and human dignity of all migrants

All migrants are entitled to protection of their fundamental human rights by the States that they originate from, transit through and seek to live in. ASEAN states should ratify and effectively implement all conventions that comprise the international bill of rights. These are the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. This last instrument provides a comprehensive framework to protect the human rights of all migrant workers and their families, irrespective of their legal status.

The fundamental principles of non-discrimination and equality before the law should be at the core of all State policy and practice relating to migrant workers. Migrant workers and their families must be able to enjoy their human rights without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status. Any legally permissible distinctions made in the treatment of migrant workers and their families must not interfere with the right of the individual to respect for his or her human rights.

The principle of respect for the dignity of migrants requires states to ensure that all migrants on their territory are able to enjoy their economic, social and cultural rights, including the rights to adequate housing, adequate food and water, healthcare, and social security. This applies equally to asylum seekers and refugees, who like all human beings have the right to a dignified life and freedom from poverty. One important way of achieving this is to enable asylum seekers and refugees to enjoy their right to work, through access to legal and decent work in host countries.

ASEAN member States should provide sufficient and practical human rights training to all officials and personnel who will be responsible for the treatment of migrant workers and members of their families.

2. Protect the labour rights and decent work standards for migrant workers

All migrant workers are entitled to protection of their core labour rights regardless of their status in the country of employment. The International Labour Organisation has designated 8 Conventions as core to the protection of the rights of all workers (these are Conventions No.100: Equal Remuneration Convention; No.111: Discrimination (Employment and Occupation) Convention; No.138: Minimum Age Convention; No.182: Worst Forms of Child Labour Convention; No.87: Freedom of Association and Protection of the Right to Organise Convention; No.98: Right to Organise and Collective Bargaining Convention; No. 29: Forced Labour Convention, and No.105: Abolition of Forced Labour Convention.) In addition, ILO Conventions No. 97 Migration for Employment Convention (Revised) and No. 143 on Migrant Workers (Supplementary Provisions) Convention provide specific protection to migrant workers. Convention No. 181: Private Employment Agencies Convention, 1997 is also of particular relevance to the protection of migrant workers. ASEAN member States should ratify and effectively implement all instruments that provide protection of the labour rights of migrants.

Access to decent work is an essential element of protecting the human rights of migrant workers, and ASEAN member States are urged to provide opportunities to all migrant workers to obtain decent and productive work in conditions of freedom, equity, security and human dignity.

3. Effectively address the root causes of non-voluntary migration

Many decisions to migrate for employment are made not truly voluntarily, but as a result of pressures arising from severe economic deprivation, protracted conflicts, environmental crisis, and/or deficits in development. Recognizing this reality, ASEAN member States must address insecurity, discrimination, poverty and maldevelopment, within ASEAN countries and the wider neighbourhood. In particular, ASEAN member States should ensure that adequate plans are put in place, in both rural and urban areas, in a timely manner to achieve poverty reduction and development aims, including the achievement of the targets provided by the Millennium Development Goals.

Migratory movements should be the result of an informed and truly voluntary decision on the part of the individual rather than the result of direct or indirect coercion, including through the denial of fundamental human rights. While a specific protection regime exists for the protection of refugees and asylum seekers, there is a need to recognize that forced displacement in the ASEAN region is often part of broader migratory movements. Countries that produce refugees have the primary responsibility to remove the causes that give rise to forced displacement. ASEAN member States should ensure that they have adequate legislative and administrative systems in place to provide protection of the human rights of refugees and asylum seekers, and should ratify the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

Countries of origin should refrain from policies and practices that seek to “export” migrants en masse without protection of their human rights in order to generate remittance flows or profit from fees. Sustainable development in countries of origin should inter alia be premised on job creation and economic opportunities in the home country, not on compelling people to migrate abroad.

Countries of origin should provide food security, adequate housing and decent work for their citizens, so that they are not forced to migrate as a survival strategy to escape deficits in development, extreme poverty and associated violations of their rights.

ASEAN member States should ensure that migrant workers are provided with information on their human rights, and relevant protection mechanisms to ensure that they are able to enjoy their rights. This information should be provided to them, in a language they understand, prior to their departure.

4. Protect all migrant workers from abuse and exploitation at work

All migrant workers, regardless of their legal status, should be protected from discrimination in employment and occupation. Domestic labour legislation should apply to all migrant workers, in particular in the areas of employment, maternity protection, wages, occupational safety and health and other conditions of work.

Specific protections should be established in domestic legislation to protect the labour rights of migrant workers in certain sectors, including agriculture, construction, mining, and the tourism and hospitality industry.

ASEAN member states should ensure that all migrant workers, irrespective of their legal status, are protected from conditions of forced labour, including debt bondage and trafficking. Lack of formal permission to work is a strong indicator of vulnerability to exploitation.

ASEAN member States should put an end to the common practice on the part of employers of arbitrarily and unlawfully withholding, in part or whole, the salaries of migrant workers.

All migrant workers, regardless of their status, should have effective protection of their right to work and should obtain legal recognition and protection as workers. All migrants, regardless of their status should have access to decent working conditions, including humane workload and work hours, safe and healthy work environment, adequate salaries and compensation, and sufficient leisure time and annual leave. ASEAN member States should institute legislative and administrative measures aimed at preventing harassment or violence in the workplace, restriction of movement, debt bondage, forced labour.

ASEAN member States should ensure labour inspection of all workplaces that employ migrant workers, in order to effectively monitor their working conditions and supervise compliance with employment contracts.

5. Hold accountable recruiters and employers of migrant workers for human rights abuses

Employers of migrant workers include large transnational corporations and small sub-contractors, factories that employ thousands of irregular migrant workers and private individuals who employ domestic migrant workers in their homes. Recruitment agencies are also important private actors that are involved in violating the human rights of migrant workers. Transnational companies engage sub-contractors to recruit migrant workers, and often turn a blind eye to the human rights situation in which these migrants live and work, using a legal fiction to distance themselves from responsibility for this abuse. Migrant workers often pay significant sums of money to sub-contractors and recruitment agencies for jobs and salaries that do not exist; and on arrival in the country of destination are forced to work off their debt in highly abusive conditions without legally enforceable contracts or work visas.

ASEAN member States should ensure that all employers of migrant workers are effectively held accountable for abuse of the human and labour rights of migrant worker employees. ASEAN member States should practice due diligence to ensure that private actors are not able to violate the rights of migrants with impunity. States should ensure that employers of migrant workers are effectively prohibited from engaging in abusive practices, including holding the passports/identity documents of migrant workers, denying migrant workers the right to freedom of movement, and illegally confining workers in inadequate and abusive living conditions.

ASEAN member States should monitor the practices of recruitment and brokerage agencies to ensure protection of the rights of migrant workers. In particular, recruitment agencies should not be permitted to recruit, place or employ migrant workers in jobs where they will be subject to unacceptable hazards and risks or human rights abuse. Fees or other charges for recruitment and placement should not be borne, directly or indirectly, by migrant workers. Recruitment agencies that violate the human rights of migrant workers should be effectively prohibited from operating, and sanctions should be placed on abusive agencies, including the permanent suspension of operating licences and individual criminal sanction where appropriate.

Corporate codes of conduct that voluntarily bind private corporations to upholding fundamental human rights standards should pay due attention to the needs and particular circumstances of migrant workers employed, directly or indirectly, by the corporation. ASEAN member States should ensure that robust legislation is put in place to protect migrant workers from abuse by employers, whether transnational corporations or national companies.

Employers should put in place appropriate and accessible complaints channels through which migrant workers can seek remedies without discrimination, intimidation and retaliation.

6. Recognize domestic work as work and protect migrant domestic workers

The particular vulnerabilities of migrant domestic workers (especially women and children domestic workers) require specific attention, including the fact that their workplace is in the private sphere and, consequently, they live and work in isolation. In addition, the fact remains that there is currently no standard definition of ‘domestic work’ that is agreed upon by the international community, and consequently limited protection tools have been created specifically for the protection of domestic workers. Domestic work, most often carried out by women and girls, is undervalued and unrecognised, and accordingly accorded little protection.

ASEAN member States should recognize, in law and practice, domestic work (household work) as work, and accord migrant domestic workers the protection of the law as provided in international labour and human rights standards. Without legal recognition and protection, domestic workers are vulnerable to exploitation and discrimination.

Governments should ensure fulfilment of the specific needs of women migrant domestic workers, including: the right to integrity of their body and soul, free from all forms of physical, psychological, and sexual violence in their workplace and residence; the right to obtain reproductive health services and the right to obtain aid, assistance, and empowerment when they experience violence.

7. Protect the right of migrant workers to freedom of association and expression

Protection of the right to freedom of association can enable migrant workers collectively to expose human rights abuses perpetrated against them, and to seek redress for such abuses. Freedom of expression is also of fundamental importance to migrants. Many migrants, because of the precarious nature of their situation, are too afraid to speak out for themselves. It is therefore also vital to safeguard the right to freedom of expression for human rights defenders who speak out for migrant workers and their families.

All migrant workers, regardless of their status or sector of work, should be guaranteed their right to freedom of association in both formal and informal networks. Migrant workers should be allowed to form and join trade unions. Those who join trade unions should have the right to hold office and to participate without discrimination in all of the activities of the trade union.

Employers of migrant workers and workers’ organizations should ensure that the needs and concerns of migrant workers are effectively integrated into collective bargaining processes and social dialogue.

8. Protect and promote the human rights of vulnerable migrants

In the ASEAN region, there are many groups of migrants and individual migrant workers who are particularly vulnerable to human rights abuse, due inter alia to who they are, the work that they do, or their legal status in the country of destination.

Up to half of all global migrants are women, and in some ASEAN countries women constitute more than 70% of migrant workers who are leaving their countries of origin. While for many women, as for men, migration can be an important empowering or emancipating experience, the fact remains that migrant women are particularly at risk of discrimination, exploitation and abuse, because of their status as women, as migrants, and often as workers in non-regulated and gender-segregated labour markets. All states should respect, protect and fulfil the human rights of all migrant women, and apply gender-sensitive perspectives to migration policy and practice.

ASEAN member States should ensure that all women migrant workers are protected from abuse, including harassment and intimidation, economic and sexual exploitation, poor working conditions, trafficking, debt bondage and involuntary servitude. States must practice due diligence to protect migrant women against violence and abuse by non-state actors, including hate speech.

Migrant children are especially vulnerable to deception and exploitation, due inter alia to their age or lack of education.

ASEAN member States should ensure that migrant children are not forced into employment, and they should effectively prohibit the worst forms of child labour in relation to migrant children, including trafficking and forced labour.

Ensure that all children of migrant workers, regardless of their status or the status of their parents, are accorded the right to be registered immediately after birth and the right to acquire a nationality, particularly if they would otherwise be stateless.

All children of migrant workers, regardless of their status or the status of their parents, should be guaranteed access to education, particularly free and universal primary education, healthcare, and social services as appropriate.

9. Defend the human rights of migrants in an irregular situation

Migrants who do not have adequate documentation or find themselves in an irregular situation are at increased risk of human rights abuse. The vulnerabilities of irregular migrants arise principally from a lack of legal status and the fact that most are employed in unregulated informal sectors of the economy. Those committing abuses against irregular migrants are often able to operate with impunity, knowing that these individuals are unable or unwilling to contact the authorities or seek legal redress. In the ASEAN region, there is an inadequate understanding of the scale and complex dynamics of undocumented and irregular migration. There is no dependable statistical data on the numbers and situation of irregular migrants. Compelling persons to migrate in an irregular situation makes them vulnerable to abuse by traffickers and those involved in transnational organized crimes.

ASEAN member States should ensure that the human rights of all migrants on their territory are promoted, protected and respected, irrespective of the legal status of the migrant.

Any deportations of migrants must only be carried out lawfully, in a safe and dignified manner and in humane conditions. ASEAN states should institute a screening mechanism in deportation proceedings that filters out specially protected categories of foreigners, such as asylum-seekers and refugees, trafficked persons and vulnerable migrants on the basis of commonly agreed criteria based on international standards (such as medical and exceptional humanitarian reasons). All efforts should be taken to prevent migrants being pushed back and forth from one country to another, without being able to access the protection of their national authorities or to access international protection.

Penalties for remaining in an irregular manner on the territory of an ASEAN member State must be proportionate, and must in no circumstances subject migrants to torture or cruel, inhuman and degrading treatment including whipping, caning and stoning.

ASEAN member States should adopt and implement legislation and policies to ensure that migrants are not compelled to utilize irregular and dangerous channels of migration. Measures should be instituted to ensure that irregular migrants are not abused or kept silent by threats of denunciation of their presence to the authorities.

10. Protect the health rights of migrant workers

Health status serves as one of the most tangible indicators of the well-being of migrant populations. Yet, migrants, particularly vulnerable migrants, often live and work in conditions that do not protect their right to the highest attainable standard of physical and mental health. Vulnerability to HIV infection is greatest when people live and work in conditions of poverty, social exclusion, loneliness and anonymity. These factors may provoke risk-taking behaviors that would not have normally been exhibited.

Gender inequality creates and perpetuates vulnerability to HIV infection and other health problems among female migrant workers. They are also often exposed to forced labour and sexual exploitation.

Rather than applying a “surveillance paradigm” that places the blame for her or his health status on the migrant, ASEAN member States should institute a framework of protection, based on fundamental human rights standards, to ensure the health rights of all migrants, regardless of their status.

ASEAN member States should ensure accessible, affordable and quality health care counseling and legal services for migrants. These interventions must also ensure access for female migrants to gender sensitive health care, including sexual and reproductive health services.

States should recognize that mandatory HIV testing is abusive of individual human rights, and should ensure confidentiality of the HIV status of migrant workers and members of their families. Migrant workers and their families should not be obliged to undergo discriminatory or abusive medical examinations.

11. Ensure the social integration and inclusion of migrants in host countries

ASEAN member states should promulgate robust anti-discrimination legislation in relation to all migrants, including refugees, asylum seekers and irregular migrants. Specialized government departments should be established to promote equality and non-discrimination of migrants. All migrants should be effectively protected, in law and practice, from racism and xenophobia, including violence and hate speech.

The media in ASEAN countries should be provided with training and sensitization to ensure the provision of an accurate and balanced portrayal of migrants. Public education and awareness-raising campaigns regarding the contributions of migrants would aid their integration into the host country.

An important way to facilitate the social integration of migrants in their countries of employment is to enable them to maintain family unity inter alia through facilitating family reunification and guaranteeing access to the right to family unity.

12. Ensure that linkages made between migration and development are rights-respecting

The contribution of migration to the development, including as a priority human development, of countries of origin, transit and destination should be recognized and maximized. At the same time, migrants should not be treated solely as “agents of development” and encouraged or even coerced to migrate in the absence of protection of their human rights. The use of migrants as cheap and unprotected labour, particularly through the guise of schemes such as “trainee”, “cultural exchange” or “seasonal worker” schemes must be avoided. Such methods are not a viable development plan, and leave migrants vulnerable to abuse and exploitation. Remittances are the private money of migrants, often earned at a high individual cost. Any use of remittances for the economic development of the country of origin can only happen with the full and prior informed consent of the migrants themselves. Care must be taken to ensure that the remittances sent home by women migrant workers are not appropriated or misused by their husbands and/or families. Therefore adopting a gender lens in the analysis of remittances’ impact on development is imperative, especially when women are fast becoming a predominant force among migrant workers.

ASEAN member States should ensure a common system of recognition and accreditation of migrant workers’ skills and qualifications to ensure that migrants are able to migrate in dignity across the region, are able to contribute effectively and with dignity to the economy and society of the host country, and are not forced into using irregular migration channels. The system should integrate an appeals process for migrant workers who are denied recognition or accreditation.

ASEAN member States should ensure that temporary labour schemes for migrant workers respond to established labour market needs and are not merely designed to facilitate the movement of expendable migrant labour. Migrant workers employed in temporary labour schemes should be able to enjoy all their human rights, including the right to family life. Host countries should ensure that migrant workers employed under temporary schemes are able to remain on the territory of the state in order inter alia to claim unpaid dues or obtain effective legal remedies to violations suffered in the course of their employment.

ASEAN member States should develop financial regulations regarding remittances, including by facilitating accessible financial services, reducing transaction fees, providing tax incentives and promoting greater cooperation between financial institutions that are handling remittances.

13. Ensure the promotion and protection of rights within migration management regimes

There is an urgent need to address critical gaps in the management of migration, and this requires primarily concerted efforts and cooperation on the part of all key stakeholders; including state agencies (government and law enforcement agencies), independent human rights institutions, civil society organizations, especially those formed by migrant workers themselves and their families and including advocacy NGOs, private agencies involved in the recruitment and placement of migrant workers, as well as employers of migrant workers including transnational corporations. Governments must ensure that migration management regimes do not prioritise bureaucratic interests over the rights of migrants, or further marginalise, exploit and exclude migrants. Governments should also ensure that adequate international protection safeguards are properly included in migration management regimes.

All agreements, whether bilateral, regional or multilateral, related to the management of migration, must ensure that they promote, protect and respect the human and labour rights of all migrants. ASEAN member States should ensure that they formulate and implement comprehensive and coherent national migration policies which are in accordance with international principles and standards on the protection of migrant workers and members of their families. In particular, measures to address irregular migration should take place within transparent and accountable multilateral for a. Unilateral approaches to the management of irregular migration should be avoided.

ASEAN member States should ensure that all bilateral and regional Free Trade Agreements (FTAs) and Preferential Trade Agreements (PTAs) integrate obligations to protect the human and labour rights of migrant workers and members of their families. ASEAN member States should ensure that the texts of all agreements are available in a public depository to ensure transparency and accountability.

Data on migrants and on violations of their human rights remains limited. This lack of information, including the absence of comprehensive and authoritative statistics, has been an obstacle to policy development as well as to effective campaigning for the protection of migrants’ rights. There is a need to accurately measure the high market demand for irregular migrant workers in the region. ASEAN member States should attempt to gain accurate data on the presence of migrants on their territories in order to protect and promote the human rights of these individuals. Due attention must be paid to international data protection standards and obligations to protect the right to privacy.

14. Put in place adequate legislation, administrative measures to protect migrants at the national level

ASEAN member States should ensure that effective remedies are available to migrants who have suffered violations of their rights. In particular, states should eliminate impunity for all state and non-state actors who violate the human rights of migrants.

States should pass legislation to criminalize trafficking in human beings in all its forms and purposes, including as sources of forced labour. Traffickers and their accomplices, whether state or non-state actors, should be prosecuted and penalized to the full extent of the law and accordance with international standards.

ASEAN member states should promulgate legislation, in accordance with international standards, explicitly designed to protect the human and labour rights of all migrant workers and members of their family. The fundamental human rights of irregular migrants should be protected by law in host countries and transit countries. All migrants, regardless of their status, should be guaranteed equality before the law, and where necessary appropriate legal aid should be provided to migrants to enable them to access effective redress for abuse perpetrated by state or non-state actors.

National Human Rights Institutions, in countries of origin as well as destination, should conduct regular reporting on the human rights of all migrants. National Institutions should establish a dedicated unit within their structures to provide research and analysis on the situation of migrants, and to respond to complaints and inquiries about the national human rights situation of migrants.

ASEAN member States should establish adequate structures and mechanisms to provide facilities for psycho-social recovery, compensation and where appropriate reintegration in their places of origin of abused migrant workers.

ASEAN member States should ensure that embassies and consulates of the country of origin of migrant workers protect the rights, welfare and well-being of all migrants, including ensuring that migrants, regardless of their status, are not subjected to prolonged or indefinite detention.

15. Establish a regional monitoring and complaints mechanism to protect and promote the rights of migrant workers and their families

ASEAN member States should establish an effective monitoring and complaints mechanism within the proposed instrument for the promotion and protection of the rights of migrant workers. Such a mechanism could incorporate regular reporting by States Parties to a body of independent experts on progress and challenges on the implementation of the instrument. The monitoring mechanism would set out benchmarks for measuring progress in the implementation of the different areas covered by the instrument. Clear guidelines should be elaborated regarding the content of reports, in consultation with States Parties. States Parties should elaborate their reports through an open and transparent process, in consultation with relevant national governmental and non governmental bodies.

The monitoring mechanism would be entitled, on the basis of the information received through the reporting system, to issue comments, observations or recommendations on the implementation of the convention, including the identification of capacity building and technical assistance needs. The mechanism could conduct regular fact-finding missions and could include a provision enabling it to receive individual and collective communications and complaints and establishing a procedure to that effect.

In addition, ASEAN member States should consider establishing the office of a regional Special Rapporteur or Ombudsperson on the Human Rights of Migrants to conduct advocacy and public-awareness activities and to issue Urgent Appeals on the protection and promotion of the rights of migrant workers and their families.

10 December 2006
Task Force on ASEAN Migrant Workers


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