Against many odds, we have a consensus. Ten years in the making, the ASEAN Consensus on the Protection and Promotion of Rights of Migrant Workers was unveiled by Manila as the centerpiece of its chairmanship during the 31st ASEAN Summit. Considering that it has taken an entire rotation of ASEAN chairmanships for the original Declaration on the Promotion and Protection of Migrant Worker Rights (the “Cebu Declaration”) to receive a vehicle for implementation, its eventual delivery is a surprising success for ASEAN. Philippine President Rodrigo Duterte must be proud.
Finally, Progress
Since the Cebu Declaration in January 2007, ASEAN’s commitment to strengthen migrant worker rights has not been accompanied by any enforcement instruments. While not an instrument itself, the present ASEAN Consensus calls for member states to “establish a framework for cooperation on migrant workers in the region and contribute to the ASEAN Community building process.” This provides a strong mandate for the ASEAN Committee on Migrant Workers to begin work on developing an action plan that includes specific policy instruments.
Even if nothing else comes out of the ASEAN Consensus, its existence is beneficial. The Consensus indirectly influences non-state actors and strengthens the migrant workers agenda. The Consensus publicly and visibly signals a commitment by member states to protect migrant worker rights. This visibility and commitment keeps the issue of migrant rights in the public consciousness and legitimizes the work of migrant rights advocates in the civil society and NGO space. Moreover, the increased collaboration sought by the Consensus is likely to serve a capacity-building function for stakeholders, building on the success of the existing ASEAN Forum on Migrant Labor.
ASEAN’s presentation of the Consensus as “a living and evolving document” provides member states with the necessary latitude to act effectively. It allows states to craft an approach consistent with the principles of the Consensus without fixing politically untenable expectations. This latitude is especially critical due to the contentiousness of labor migration issues and enables states to manage their own domestic political considerations. Leaving flexibility in the language of the Consensus will enable ASEAN to amend the Consensus and future policy instruments to leverage the public sentiment of the day.
What Consensus?
Yet calling this agreement an “ASEAN Consensus” is somewhat of a misnomer. From the start, Manila’s chairmanship prioritized a “people-oriented, people centered ASEAN” with labor migration as a key strategic issue. Yet despite early efforts, including a Special ASEAN Labor Ministers Retreat in February 2017, advancement of the labor migration agenda stalled. While the Philippines was ready to move ahead with the language of a “morally binding” agreement, Indonesia reportedly objected and insisted on the language of “legally binding.” Caught in a tussle between aspiration and enforcement, the ASEAN commitment to consensus all but extinguished hopes for progress.
The inability for ASEAN to agree on common language is not surprising. In its brief history, the consensus-based approach has led to moments when ASEAN has failed to issue joint statements due to individual objections by one or more members. The issue of labor migration has been one such issue. It remains contentious due to competing interests of member states in various stages of economic development. While Malaysia, Singapore, and Thailand are labor-receiving states and emphasize the economic aspect of migration, Indonesia and the Philippines are labor-sending states and emphasize the rights aspect of migration. With such opposite priorities, consensus is hard to achieve.
Old Allies, Competing Agendas
While the inability for ASEAN to agree is not surprising, the disagreement between the Philippines and Indonesia is highly surprising. This year’s developments highlight how labor-sending states do not always have aligned interests. The disagreement between Manila and Jakarta on the language of the agreement challenges the traditional expectation that labor migration is hindered by clashes between labor-sending and labor-receiving states. Yet in 2017, the region’s two largest labor-sending states were caught in a rare occasion of opposition.
What might explain this difference? One reason relates to how the narratives surrounding migrant workers vary in both countries. While the dominant narrative surrounding Philippine Overseas Foreign Workers (OFW) is one of them as “national heroes,” it is much more common in Indonesia relatively speaking to perceive overseas migrants, especially those engaging in domestic work, as simply victims that are often preyed on due to the nature of their work. These two separate discourses — a vision of an empowered OFW in contrast to a vision of a disempowered Indonesian domestic worker — inform both governments’ positions. A moral justification is sufficient for a brave individual while vulnerable groups need legal protections. Translated into policy, while the Philippine government is expected to promote migrant worker rights, the Indonesian government is expected to protect migrant worker rights
Variation in how migrant workers are perceived nationally influence diplomatic and policy directions. Governments are concerned about domestic political legitimacy and migrant work is a priority issue for both the Philippines and Indonesia due to a dependence on workers finding economic opportunities abroad and remitting some portion of their income. Here, Manila faced multiple incentives to proceed with the language of “morally binding” – not only would it reflect positively on its chairmanship, it will provide the government with flexibility in claiming it as a victory for the promotion of rights while avoiding the reduction of economic opportunities that might result from stricter legislation. Unfortunately, Indonesia took a different view.
Manila Again, in Ten Years
Facing a stalemate over the language of “legal” or “moral,” we now know that ASEAN resolved the issue by removing binding language entirely. While necessary for consensus, this has long-term repercussions for the implementation of the new ASEAN Consensus. Facing continued pushback from migrant-receiving states, the absence of language formalizing a stronger commitment will stall efforts to build capacity around the issue of migrant worker rights. As the ASEAN Chairmanship transfers to Singapore, a predominantly migrant receiving state, progress on developing an enforceable instrument is likely to be slow.
The reality is that Manila’s chairmanship was the best chance for tangible progress to be made toward a strongly worded and robust instrument with an eye toward implementation. Labor migrants will continue to face vulnerability until substantive and not just discursive change is made on the migrant labor rights agenda. For such substantive change to be feasible, the arbitrary categorization of labor-sending and labor-receiving states must make way for a focus on the political legitimation concerns of each member state.
While the product is far from perfect, the existence of this new Consensus remains a net positive for the region. Even if implementation is a distant prospect, one must always remember that change is a slow and steady process, especially for matters on which not all member states agree. Amidst the new uncertainties created by this imperfect consensus, one critical lesson has been reinforced from this attempt, which policymakers and diplomats in both Jakarta and Manila as well as in other capitals should heed: labor-sending states too have different perspectives on this question, and those are often as difficult to bridge.
Tommy K.S. Koh is a Masters of Public Policy and Global Affairs Candidate at the University of British Columbia where he is also a Graduate Student Researcher at the Institute of Asian Research. His research focuses on Southeast Asia, especially at the intersection of ASEAN, domestic political legitimation, and issues of mobility.
