Rights of Foreign Workers and the Politics of Migration in South-East and East Asia

Published by Blackwell Publishing Ltd.,9600 Garsington Road, Oxford OX4 2DQ, UK,and 350 Main Street, Malden, MA 02148, USA.

© 2004 IOMInternational Migration Vol. 42 (5) 2004

ISSN 0020-7985

* The Regulatory Institutions Network, Research School of Social Sciences, The AustralianNational University, Canberra, Australia.

Rights of Foreign Workersand the Politics of Migrationin South-East and East Asia1

Nicola Piper*

ABSTRACT

The issue of cross-border migration in South-East and East Asia is linkedto the integration of regional, if not global, labour markets. The types oflabour that are currently in demand have changed substantially since the1990s in terms of (1) overall magnitude, (2) gender composition, and(3) increased diversification. This paper, however, focuses upon thoseworkers classified as unskilled as they constitute numerically the largestand most vulnerable group. The challenges to provide adequate protectionfrom, and prevention of, exploitative and abusive practices that seriouslyminimize the socio-economic benefits for these workers are linked tomigration policies and the issue of rights in the origin and destinationcountries.

This paper’s objective is to provide a broad outline of the emerging trendsand issues revolving around contemporary cross-border labour migrationand the politics of migrants’ rights in South-East and East Asia, illustratedby the difficulties experienced with the ratification of the 1990 United NationsConvention on the Rights of All Migrants and their Families (ICMR). Thedata this paper is based upon were collected for a report commissioned bythe United Nations Educational, Scientific and Cultural Organization(UNESCO) with fieldwork carried out in seven countries located in the AsiaPacific region.

It is argued that ratification of the ICMR is obstructed by politics and by alack of political will. A rights-based approach to the protection of migrantlabour is thus related to a number of macro and micro level issues, revolvingaround development and practices of “good governance” in addition to

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interstate relations. This means that the promotion of migrants’ rights requiresa holistic approach addressing national and transnational issues in an eraof increasing mobility across borders.

INTRODUCTION

Since the late 1970s, Asia has witnessed increasing intra- and inter-regionalmigratory flows constituting an important subject area for the study of migrationfrom an academic as well as policy making perspective. For the whole of Asia,it is estimated that from 1995 to 1999 some 2.6 million workers left their countriesevery year under contract to work abroad. The South Asian countries accountedfor 46 per cent of this outflow, and South-East Asia made up 50 per cent (IOM,2003). These figures, however, do not take into account the many irregularmigrants, of which there are thought to be several millions (ILO, 2004: 12). ThePhilippines, together with Indonesia, Sri Lanka, and Bangladesh, constitute themajor source countries for labour within this region. In terms of receiving coun-tries, the Middle East still constitutes the major destination for female and malemigrant workers, but certain South-East and East Asian countries, such asMalaysia, Singapore, Hong Kong Special Administrative Region of China (here-inafter Hong Kong), Taiwan Province of China (hereinafter Taiwan), Korea,Japan, and Thailand have become increasingly significant as destination coun-tries also.

In addition, there are moves globally toward a “managed migration” regime, asreflected in the Berne Initiative aimed at facilitating cooperation between statesin planning the movement of people in a humane and orderly way, with a num-ber of regional consultative processes.2 Whether in direct response to suchglobal initiatives or as a (more or less) parallel development, countries such asThailand and Taiwan have begun to establish more regulated systems. However,this often relates to the control of entry and stay only, and to a lesser extent tolabour/working conditions and practices by employers (i.e. a more comprehen-sive rights-based approach to migration from the viewpoint of the foreign worker).According to the most recent report by the International Labour Organization(ILO), among the most vulnerable groups of migrants in terms of inadequateprotection and limited legal rights today are domestic workers, irregular work-ers, and temporary workers – three types of foreign workers particularly wide-spread in Asia (ILO, 2004: 95).

As the migration patterns in South-East and East Asia show, the issue of cross-border migration is not only an international issue, but essentially also a regionalphenomenon linked to the integration of regional labour markets as part ofongoing globalization processes (Gills and Piper, 2002). The types of labour that

73Rights of foreign workers and the politics of migration in South-East and East Asia

are currently in demand have changed substantially since the 1990s in terms of(1) overall magnitude, (2) gender composition, and (3) increased diversificationin terms of skill level, legal statuses, and countries involved. There has been asignificant flow of professional and technical workers from, for example, India,the Philippines, and Thailand to work in the information technology (IT) andnursing sectors, albeit mostly in Europe and North America with far fewernumbers of skilled migrants from Asia going to places such as Singapore orHong Kong. At the same time, intensified intra-regional migration has occurredparticularly from South-East Asia to East Asia, targeted at diverse (and gendered)employment sectors, but still mainly in the context of unskilled labour. With theexpansion of the service industries, demand for female labour has also been onthe increase, reflecting the feminization of labour migration which has becomea well recognized phenomenon by now (see e.g. Castles and Miller, 1998). Thisfeminization is especially evident in Asia (ILO, 2004: 11).3

Despite gender differences in the migration experience and the types or levels ofvulnerability, there are a number of common issues that individual migrants inthe unskilled or lower-skilled categories all face in both the countries of originand destination, including exploitative and abusive practices (at the recruitmentstage, during the migration process, and with regard to working conditions)that seriously minimize the socio-economic benefits of migration. The paper,therefore, argues that adequate protection from, and preventative measures to,such abuses can be addressed by migration policies if they include a rights-based approach as set out by international standards such as the 1990 UNConvention on the Rights of All Migrants and their Families (ICMR), whichconstitutes one of the three international instruments comprising the “Inter-national Charter on Migration” directly relevant to migrant workers.4

Most of the data this paper is based upon were collected for a report commis-sioned by the United Nations Educational, Scientific and Cultural Organization(UNESCO) with fieldwork carried out in seven countries in the Asia Pacificregion. The overall aim of this report was to identify the obstacles to the ratifi-cation of the ICMR in order to promote the protection of human rights formigrants by means of gaining wider acceptance of this particular instrument inthe specific context of the Asia Pacific region.5 This convention has been givenmore attention by UN agencies as reflected in the launch of the Global Cam-paign in 1998 to promote this instrument.

This article’s objective is to provide a broad outline of the emerging trendswithin contemporary cross-border labour migration and to highlight issuesrevolving around migrants’ rights in South-East and East Asia, through the lensof the ICMR. Rather than providing an in-depth discussion of this UN Con-vention as a legal document,6 I shall discuss the (largely political) difficulties

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experienced by both countries of origin and destination in ratifying this instru-ment. The specific focus will thereby be on migrants classified as unskilled asthey constitute numerically the largest category and the most vulnerable groupof labour migrants. The issue of migrants’ rights is of course not limited tocountries which have not ratified this Convention; the biggest “exporter” oflabour in this region, the Philippines, in fact ratified this Convention in 1995, butthere are implementation problems nonetheless (Piper, 2003a). Likewise, not allrights issues that arise from the experience of labour migration within Asia aresatisfactorily covered by the ICMR alone (Satterthwaite, 2005). But rising non-governmental organization (NGO) advocacy in support of migrants’ rights showsthe significance of this instrument in politicizing the situation of many foreignworkers (Piper, 2003c, 2004).

CONTEMPORARY MIGRATION PATTERNSAND HUMAN RIGHTS OF MIGRANTS

Regional character of migration

Over the last few decades, the labour market conditions in the region underdiscussion have undergone considerable changes. Intensified migration pres-sures in much of Asia have resulted in the supply side of migrant labour out-balancing the demand, with the effect that benefits for migrants have been reducedas wages have been pushed down and recruitment fees have gone up. On thelabour-exporting front, new source countries such as Nepal and Viet Nam haveemerged, resulting not only in increasing competition at the receiving end, butalso within the sending countries themselves.

This increased competition has led to lower standards of labour migration pol-icies at the receiving end, where economic downturns and rising unemploymentamong the local workforce have undermined existing protective mechanisms,or reduced the prospects of implementing rights-based regulations/policies fornon-citizens. According to migrant-supporting NGOs, certain abuses seem tohave become more common, such as the non-payment of wages, reflecting thecurrent state of the economy in many receiving countries where unskilled mi-grants are usually employed in small- and medium-sized companies or in theinformal sectors, which typically take the brunt of economic downturns andincreased competition. Hence, the costs of migration have come to be dispro-portionately borne by migrants.7

Intra-Asian labour migration flows have become a structural part of the regionaleconomies and societies (Athukorala and Manning, 1999). Despite the increas-


ing cross-border movements, control over migration remains one of the lastbastions of individual states, creating a growing discrepancy between the socialreality of migration and its legal regulation. In much of Asia, this is also relatedto the political sensitivity of issues revolving around workers’ and human rightswhich has prevented a regional dialogue on international labour migration fromtaking place within fora such as the Association of South-East Asian Nations(ASEAN) or the South Asian Association for Regional Cooperation (SAARC).There are, however, tentative signs of solidarity emerging – at least as far as thesource countries are concerned – and moves toward collective bargaining onthe governmental level.8

Despite some variations, labour migration policies in the receiving countries inAsia can be broadly summarized as follows:

- Limiting labour migration,- Limiting the duration of migration, and- Limiting integration.

These policies all impact migrants’ rights as they classify migrants as workersor labourers to be deposed off when convenient and thus reduce the economicbenefits for individual migrants who are often forced into repeat or circularmigration. There is a tacit approval of irregular migration in much of the regionwith reluctance to regularize them (for instance by way of amnesties), with theexception of Thailand’s policies vis-à-vis Burmese migrants.

In terms of human rights protection in general, Asia is the only region withouta specific human rights treaty and without some form of a region-wide mech-anism. This is despite the fact that this region comprises about one-third of theworld’s territory and two-thirds of its population, of whom a substantial partmigrate across borders. The region’s enormous diversity, particularly in termsof political systems, largely explains the absence of a regional human rightsmechanism like the kind that exists in South America, Europe, and Africa.On the national level, in the countries under investigation here, human rightscommissions exist only in Indonesia, Malaysia, Thailand, and Korea.9 With noofficial Asian human rights monitoring system, however, the task of supervisingimplementation is largely left to NGOs.

None of the countries under investigation here have an immigration policy aimedat bringing in long-term and/or permanent settlers. None of the sending coun-tries have a migrant worker bill including human rights along similar lines to TheMigrant Workers and Overseas Filipinos Act of 1995 passed by the PhilippineGovernment, although a consortium of NGOs in Indonesia (KOPBUMI) sub-

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mitted a draft bill to the Indonesian Parliament in 2003 (largely modelled afterthe Philippine bill), but to date, it has not been officially passed yet (see alsoFord, this volume).

Feminization of labour migration

The feminization of labour migration has become a well established fact andthus deserves a special note. Not only are increasing numbers of womenparticipating, but at times they also exceed the numbers of the their malecounterparts (OECD, 1998). In the specific regional context here, most of thesewomen migrate from South-East Asia, notably the Philippines, Indonesia, andSri Lanka. In addition, the numbers of women who migrate from other parts inAsia, for example Bangladesh and Viet Nam, to destinations in the Middle Eastas well as East and South-East Asia have risen – a trend that is partly relatedto the lifting of bans imposed on women wanting to migrate in certain jobcategories or to certain destinations (Gamburd, 2000; Siddiqui, 2001; Ahn, 2000),but also to the rising demand of gender specific forms of employment.

By 2002 there were at least 1.3 million women working legally in the majorlabour-importing countries in East and South-East Asia (Singapore, Malaysia,Thailand, Taiwan, Hong Kong, Korea, and Japan). Adding the large butunknown numbers of unauthorized female migrant workers, especially inMalaysia and Thailand, the total number of migrant women working in this partof Asia could have reached 2 million in the beginning of the 2000s (Yamanakaand Piper, 2003). According to Battistella (2002: 406), by 2000 the stock ofauthorized migrants in the seven major labour-importing countries in East andSouth-East Asia was approximately 3.7 million, while unauthorized migrants inthe same countries were estimated at 2.4 million. Based on these statistics, theestimated 2 million women then account for an unprecedented one-third of the6.1 million migrant workers in the region.10

As regional economies have gradually become more integrated, increasing num-bers of women also work abroad in increasingly diversified jobs and sectors.Despite these recent signs of diversification in skill levels and employmentopportunities (Kofmann, 1999; Raghuram, 2000; Piper and Roces, 2003), plusrising numbers of women among overseas students (Ono and Piper, 2004), themajority of migrant women in South-East and East Asia still labour as unskilleddomestic helpers on short-term work contracts (Chin, 1998; Yeoh et al., 1999;Parreñas, 2001) or in the service sector as “entertainers” or sex workers, eitheron short-term visas (such as the entertainment visa granted in Japan and Korea)or as undocumented, often smuggled or trafficked, migrants (Piper and Uhlin,2002; Piper, 1999). Despite the significant levels of risk and vulnerability they


encounter, the harsh conditions of migrant women have attracted little adminis-trative or public attention in the region (Lim and Oishi, 1996).

Largely due to socio-political changes in the socialist countries in this region,new opportunities for women from countries that had not been sources ofmigrant labour before have opened. These new faces include Vietnamese inTaiwan; Cambodians in Malaysia; and Mongolians, Russians, Uzbekistans, andKazakhstans in Korea. Seeking new sources of migrant labour, however, is notonly related to demand in terms of numbers, but also to demand of a differentkind of worker – one who is less expensive and more docile (less “rights”conscious). A good example is that of Filipino domestic workers in Hong Kongwho allegedly have partially been replaced by less organized, and thus lessvocal, nationality groups, such as Indonesians and Sri Lankans.11 Similarly inTaiwan, the proportion of Filipino women in the country’s foreign domesticworker population plummeted from 83 per cent in 1998 to 18 per cent in 2002as they were replaced by less expensive Indonesian and Vietnamese women(Loveband, this volume). These changes in the composition of women’snationalities suggest their vulnerability to unpredictable changes in labour mar-ket forces and governmental policy. As a result, a new stratification is emerging,whereby women are ranked as a group in the demand and wage scale accordingto nationality, ethnicity, class, and social capital, which is also a developmentamong the male migrant worker population (Yamanaka and Piper, 2003).

Under prevailing institutional arrangements of migration in Asia, it is difficult tofully protect the rights, physical safety, and psychological health of migrantwomen. Most governments have failed to provide protective legislation and ser-vices specific to their needs or position within the labour market. Indifferenceto feminized migration has led to a lack of relevant policies and public aware-ness in countries of origin as well as host countries (in Chin’s (1998) words“a wall of silence”). In addition, women migrants’ work in domestic or repro-ductive spheres, even more so when “illegal”, tends to have an isolatingeffect as it is outside any protective mechanisms and outside the coverage ofreceiving countries’ labour laws (Piper and Ball, 2001).12 As a result, substantialnumbers of female migrants are left with few means for recourse (Piper andYamanaka, 2003).

The feminization of labour migration can also be seen as involving widerviolations of social rights, such as the right to family life. Recent studies haveshown the psychological and other pressures women migrants encounter inso-called “transnationally split families”, which often have long-term negativeimpacts (Parreñas, 2001b; Piper and Roces, 2003). When women migrantstake on the role as main income provider, leaving their husbands and children

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behind in their country of origin, this can lead to a huge array of problems andstrains (Asis et al., 2004).13 No country in the region under investigation here,however, currently offers, or even contemplates providing family reunificationpolicies.

Migration policies and programmes insensitive to women-specific circumstanceshave been seen as one of the important factors contributing to these vulnerabilitiesand hardships, often by reinforcing stereotypes (Fincher, 1997). In addition,today’s climate of harsh immigration policies offering only short-term contracts(or no contracts at all) results in high incidences of women migrating as un-documented workers and hence even greater levels of vulnerability.

Migrants’ rights in East and South-East Asia

Unlike most Western liberal countries, East and South-East Asia practices a legalpermit system on a long-term basis only for highly skilled or professional mi-grants, and a labour contract policy for the unskilled whereby the latter aresupposed to leave after their contracts are expired (for Singapore, see Wong,1997).14 These policies impact migrants’ rights by reducing the economic bene-fits for individual foreign workers.

Despite the prevailing policy to send un-skilled migrants back to their countriesof origin upon the expiration of their contracts, there are signs that migrantshave prolonged durations of employment and residence – either by overstaying(and thus slipping into a state of “illegality”) or by being given extensions oftheir work permits. Domestic helpers, for example, are often granted suchextensions with the effect that some women end up staying a decade or so inplaces such as Hong Kong.15 One way of securing residential and work permitsis international marriage as evident in the rising numbers of such marriagesbetween South-East and East Asians, notably among women from lower-income countries married to local citizens in East Asia (Piper and Roces, 2003;Tsay, 2004).16 These examples clearly point to the fact that despite official policyand rhetoric of limiting migrant labour to short-term employment, migrants,especially women, tend to find ways to remain in the country longer thanreceiving governments (and often the migrants themselves) expected. Thisphenomenon is conspicuous for instance in Japan and Korea, the two EastAsian countries with a relatively homogeneous population, and also in Taiwan,and has become subject to increased interest by researchers.17 All of this haspotential implications for family reunification (which at this stage is largely im-possible in Asia) and policies dealing with the acquisition of citizenship. Immi-gration regulations are gendered in that they often do not accord femaleimmigrants with their own legal status but assume them to be dependents of


men (Espiritu, 1997; Bhaba et al., 1985). But immigration legislation is not justgendered, it is also based upon certain notions of the family, especially withinthe institutional setting of marriage. Marriage and migration are thuslinked to citizenship and to relations of power created and sustained by the law(Vogel, 1994).18

Migration theorists have pointed to the temporary nature of today’s migrationflows (see e.g. Castles and Miller, 1998), with some going as far as claimingthat citizenship rights are irrelevant and labour rights take precedence (Harris,1995). But much of women migrants’ experience does not comply with suchclaims. Through marriage – for whichever reason – they do potentially becomelong-term settlers and citizenship does matter. Unfortunately, procedures per-taining to immigration and residence permits have become more rigid all overthe world, even in more traditional immigration countries such as the UnitedStates (Parreñas, 2001a). Migration to receiving countries in East and South-East Asia does not usually lead to permanent settlement because of receivinggovernments’ harsh policies that do not allow settlement of what is commonlydefined as “unskilled” labour. Sending countries in this region – being dependenton remittances – do not want to lose their nationals permanently. As a result,dual nationality has been discussed and even legally implemented (notably in thePhilippines in 2003), while receiving governments strongly object to grantingimmigrants permanent residency easily. In the context of such rigid immigrationand visa policies, marriage to a local man may constitute an important strategyfor women in order to achieve economic and legal security (McKay, 2003; Mixand Piper, 2003). Regardless of whether a migrant is internationally ortransnationally married, another issue that demonstrates the importance of citizen-ship is the absence of family reunification policies in many countries followingthe European model (which is also restrictive in that it does not permit widerfamily entry but is limited to nuclear families). In Singapore, for instance, citizen-ship via marriage to a local man is not possible as such marriages are prohibited.According to Castles (2000), the notion of turning immigrants into citizens seemsthus unthinkable in much of Asia. What happens, however, is that throughmarriage (which is, apart from a few exceptions, usually possible), migrantwomen aim at achieving secure residential permits before the long process ofeventually gaining full citizenship rights. But precisely because of the barriersalong this process, the few scholars who have explored this topic havedescribed these women as receiving only “partial citizenship” (Stasiulis and Bakan,1997; Parreñas, 2001c).

The largely unavailability of full citizenship explains why rising pro-migrantworker NGO activism focuses on totally different rights issues. Their advocacyconcentrates more on labour rights rather than comprehensive citizenship

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entitlements (Bell and Piper, 2004). In the absence of governmental protectionin both labour-importing and labour-exporting countries, service provision andadvocacy have been left to NGOs (Piper, 2003c). Increasingly, one can witnesspolitical and economic activism on behalf of, and also by, migrant workersthemselves. The emergence of regional networks such as the Coordination ofAction Research on AIDS and Mobility (CARAM ASIA) in Kuala Lumpur andthe Migrant Forum in Asia (MFA) in Manila have resulted in more concertedefforts to pressurize governments at both ends of the migration process.

Despite all these developments, civil society’s responses to the largely absentrights – labour, citizenship, and human rights – for migrant workers varysignificantly depending upon types of policies, political freedom, and ethnicrelations in the host society as well as country of origin.

UN CONVENTION ON MIGRANTS’ RIGHTS (ICMR)

With the ratification by El Salvador and Guatemala on 14 March 2003 and byMali on 5 June 2003, the ICMR, adopted by General Assembly resolution45/158 of 18 December 1990, finally entered into force on 1 July 2003. To date,from among the 26 countries which have ratified, or acceded to, the ICMR,only the Philippines and Timur Leste are located in South-East and East Asia.Two more South Asian countries have also shown interest in this Convention,with Sri Lanka having ratified in 1996 and Bangladesh having signed in 1998. Itis important to note that signing is not the same as full ratification, as the mereact of signing does not impose specific obligations on a country.

Until fairly recently, neither relevant institutions within the UN system nor gov-ernments which had played an influential role in the drafting process had madeefforts to promote this Convention. Unlike the six UN core conventions,19 theICMR is a smaller convention that has never been given much priority and hasnot been supported by European governments which are usually at the forefrontof ratifying international human rights instruments. Until 1996 even obtaining itstext was difficult, and before 2001 no single individual or organization any-where in the world was engaged on a full-time basis in promoting this Conven-tion. On the contrary, according to personal conversations with relevant NGOsin Asia and Europe in 2003, there is evidence that a number of governmentsstrongly discouraged attempts to do so.

The late 1990s, however, witnessed (1) intensified civil society activism, notablyin Asia which has the most advanced migrant worker NGOs and regional net-works; (2) the launching of a Global Campaign for its entry into force in 1998;20


(3) the appointment of an UN Special Rapporteur on Human Rights of Migrantsin 1999; and (4) the official launching of International Migrants Day on18 December 2000 by the UN (Taran, 2000). In April 2000, the United NationsCommissioner on Human Rights in Geneva passed a resolution calling upon “allmember states to consider the possibility of signing and ratifying or acceding tothe Convention as a matter of priority”.

Despite the existence of two “older” ILO Conventions specifically relevantto migrant labour (Migration for Employment Convention (Revised), 1949(no. 97) and the Migrant Workers (Supplementary Provisions) Convention, 1975(no. 143)), the ICMR is considered to be breaking new ground by clarifying thefull application of the human rights law to migrant workers and providing amore detailed definition of who constitutes a migrant worker (Taran, 2000). Sofar, it has gained only limited support from states generally and no support at allfrom labour-receiving countries.21 This stands in stark contrast to other UNconventions (such as the Convention on the Elimination of All Forms of Dis-crimination against Women and the Convention on the Rights of the Child)covering other vulnerable groups such as women and children.

More importantly perhaps, developing countries have always preferred the UNto the ILO as a forum for a number of reasons, one of which is that the UN issolely a “state forum” and not based on a tripartite system including trade unions.With the position of developing countries on issues such as migration beingsubject to challenge, not only from developed nations but also from employers’and workers’ representatives, it is in particular the voice by trade unions whichis less acceptable to developing nations (Cholewinski, 1997). This also under-scores the enormous importance of migrant worker NGOs and their role inadvocating for migrants’ rights.

With international migrants moving between states, however, the ICMR – inorder to provide full and comprehensive protection – needs to be ratified byboth sending and receiving countries, but there is no supranational agency whichcan enforce it. This Convention thus underscores the age-long conflict betweenthe international norms of human rights and state sovereignty – aparticularly thorny issue in the context of cross-border migration. Ultimately,the “rights of states” clearly prevail over the “rights of migrants” with statesretaining the right to set the conditions under which foreigners may enter andreside in their territory. Many of the problems migrants face, however, aredirectly connected to their visa status or type of work permit (or the lack thereof,which does not usually mean that there is no demand for their labour at thedestination). Migrants who are holders of valid work permits/visas tend to be ina better position than irregular migrant workers but they are also subject to state

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restrictions and their working conditions usually are poor. In this sense, it is amisconception that legal status alone solves all problems. Without doubt, how-ever, the situation is usually much worse for irregular migrant workers who areafforded little or no legal protection and face the constant threat of deportation.

Another problem is the ICMR’s absence of recognizing gender-specific vulner-abilities in gender-specific occupations, such as domestic and sex work. Despitesuch serious flaws, it has been noted that other international instruments, suchas the Convention on the Elimination of All Forms of Discrimination againstWomen (CEDAW) and the newly adopted Convention against TransnationalOrganized Crime (2000), deal with gender-specific discrimination of migrantwomen (ILO, 2004; Satterthwaite, 2005). On the whole, the ICMR is con-sidered “the first universal codification of the rights of the migrant workers andtheir family members in a single instrument” (Loennroth, 1991: 735).

So, what keeps most countries of origin and destination from ratifying thisimportant instrument and how do NGOs approach this?

Obstacles to ratification in South-East and East Asia

General

According to Piper and Iredale (2003), the obstacles to the ratification of theICMR are complex and need to be approached from a holistic framework, withprotection of migrant labour being related to issues revolving around develop-ment and practices of “good governance” on national levels as well as transnationallevels (i.e. economic and political relations between the countries of origin anddestination).

Labour-receiving countries, without a doubt, have more power to dictate theterms and conditions of employment, as well as the terms and conditions ofimmigration. This situation has become worse with increased competition andintensified push factors among the labour-exporting countries. In this respect,without the corresponding and reciprocal efforts from labour-receiving coun-tries, labour-sending countries can only hope to mitigate the negative effects ofoverseas employment on its workers. This also makes NGO and civil societyactivism in the labour-receiving countries enormously important and transnationalnetworking extremely crucial. Considering their limited resources and staff,plus the fact that they advocate on behalf of a marginalized group who is neededbut not wanted, however, NGOs’ success rate is limited and there is need forsupport on the international level.


In the countries under investigation here, none of the labour exporters have putany rights-based legislation in place which covers the pre-departure, workingabroad, and return phases. Labour-receiving countries in theory protect themigrants as worker, but because of the foreign workers’ immigration status,they are often not covered by existing legislation (i.e. labour or employmentlaws as well as occupational and health regulations) in practice. This is a par-ticularly serious problem for the huge number of foreign domestic workerswho are not included in national employment laws in the country of origin ordestination. Extending rights to undocumented workers is seen as unacceptablein all of the receiving countries. Likewise, the protection of migrant workers’families is also a taboo topic.

In addition, there are more or less high levels of corruption/collusion, particularlyin the context of recruitment of migrants at both ends of the migration processwith numerous anecdotal evidence of the involvement of, for example, embassystaff in the financial exploitation of migrant workers. Governments are generallynot prepared to consider rights of migrant workers and rights-based emi-/immi-gration policies. In this context, an international convention extending rights tomigrants throughout the entire migration process (pre-departure, working abroad,return) gains enormous importance.

Government level

In both the major exporting and importing countries, the ICMR is known aboutwithin government circles, largely due to the promotion by very active NGOswhich were usually responsible for translating the Convention into their locallanguages. This does not mean, however, that the document is fully understoodin all its details. On the technical legal level, apart from Japan (which is the onlycountry that joined the Working Group deliberations during the final phase ofthe drafting process), none of the other countries have come so far as to invest-igate clause by clause the exact legal implications of ratifying this Convention.Visibility of this instrument has also not extended into the wider public sphere.Human rights in general are reasonably well known, particularly in the receivingcountries where standards of education are on average higher, but the conceptof human rights of migrants is neither given much attention nor sympathy. Themedia are partially to be blamed because of their tendency to depict lower andunskilled migrant workers as criminals or undesirable/undeserving in otherrespects. In addition, those divisions at the ministerial level (usually Ministriesof Foreign Affairs) in any country tend to be understaffed and underfundedwhich shows a general lack in priority given by governments to internationalhuman rights treaties. The lack of experts in the area of international law andhuman rights is also a common problem.

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Overall, a better understanding of this Convention and the implications of ratifi-cation is needed in both countries of origin and destination. There is confusionas to what the gains and losses are in the event of ratification, and it is oftenassumed at either end of the migration process that the losses are greater thanthe gains. In addition, a change in the mind set or environment is needed, ad-dressing the unnecessary fear of “being first” to ratify this document. In thisregard, events such as the regional meeting of labour ministers of source coun-tries in Colombo in 2003 are potentially useful.

Priority (and the pushing for certain issue areas to reach internationalpolicy attention by northern countries) is another important element. SinceSeptember 11, counter-terrorism conventions seem to take precedence and thereare certain ratification deadlines to be met which keep relevant ministries verybusy with little time left to consider other conventions. The current prioritygiven to “national security” issues is welcomed by some countries in thisregion, especially those of multi-ethnic composition and those which harbourextremist groups. This means that other conventions, including the ICMR, arefurther down the line of priority. In this context, anti-trafficking issues are con-sidered more important than conventions dealing with broader migrant workerrights, which is reflected in the greater ratification record of the 2000 Conven-tion on Transnational Organized Crime and its two protocols dealing with smug-gling and trafficking of humans.22

NGOs

Combined interests which go against granting rights to foreign workers – recruit-ment agencies, employers, governmental officials – constitute a huge force thatare not easily counteracted by NGOs and the few sympathetic individuals withinthe government structure. At the NGO level, one big problem is the small amountof resources available to campaign for this Convention. As a result, NGOs oftendecide to concentrate on the improvement of national legislation first.

NGOs in both sending and receiving countries are currently lobbying to havenational laws or bills implemented or amended, rather than concentrating onpromoting the UN Convention alone. However, NGOs in the source countrieslobby their governments to ratify this document. NGOs in destination countries,on the other hand, believe it is not the right time to push for the ICMR ratifica-tion (because of economic downturn and the protection of migrants’ families aswell as undocumented workers being a big taboo). This does not mean, how-ever, that the NGOs based in the destination countries do not support the prin-ciples of this Convention. In fact, they engage in transnational networking whichis partially aimed at giving support to NGOs in the source countries. But their


strategy is to achieve the amendment of national legislation first which wouldthen gradually be followed by campaigns for the ratification of the ICMR.

On the whole, NGOs take the view that this Convention is too far removed fromwhat is politically possible, especially in destination countries, so spendingefforts and resources on lobbying is seen as a waste. NGOs acknowledge thatit is most crucial to achieve ratification of this instrument by host countries.However, they feel that pressure to compel labour-importing countries to ratifyhas to come from the outside, and unless exerted from the UN itself, this externalpressure will not come about easily – an aspect which is related to the fact thatno Western country has ratified the ICMR so far.

Despite these general observations, we need to distinguish between countriesthat mainly send and those that mainly receive migrant labour to gain a moredetailed picture.

Indonesia

The situation in Indonesia, the second largest source country in South-EastAsia, largely echoes that of other sending countries such as Bangladesh:the ratification and the implementation processes for any UN convention areregarded as expensive undertakings and the country’s governmental budget aswell as staff assigned to such matters is very limited. Another huge problem isposed by the high levels of corruption and collusion between government circlesand those involved in the export business (recruitment agencies). Creation of anenvironment of “good governance” is needed which would involve broad levelreforms to render ratification of this Convention meaningful.

According to the ICMR, the biggest obligation on the part of sending countriessuch as Indonesia would be pre-departure information campaigns and trainingsessions, monitoring and imposing sanctions on brokers and recruiters oper-ating illegally, and the provision of embassy services while their citizens workabroad. Under the current infrastructure, considering the size of its population,this is a difficult task. To make recruitment a public service is also based uponthe state’s ability to guarantee that there is no corruption. Only then can thismatter be dealt with satisfactorily by the state rather than private companies.This is not the case in Indonesia.

Indonesia’s current political situation and the fact that its entire bureaucraticsystem is in turmoil or in the process of re-organizing makes ratification (andeven more so implementation) within the near future very difficult. Movestoward decentralization are potentially conducive to better regulation of out-

86 Piper

migration. In the event of ratification, source countries like Indonesia are afraidof losing jobs abroad. They also worry that other sending countries (non-ratifiers)would pick up their workers’ share. An additional obstacle is posed by the col-liding interests among governing elite and recruitment agencies (Jones, 1996).

A fairly new consortium of NGOs has been campaigning for the ICMR and fornational legislation to regulate out-migration. This group of NGOs has drafted anational Migrant Worker Bill modelled after the ICMR. In addition, the Philip-pines’ Migrant Workers Act of 1995 (RA 8042) was also used as a frame ofreference which resulted in the inclusion of a gender perspective into the Indo-nesian bill – an element missing from the ICMR.

On the whole, major problems are posed by a lack of resources, both on agovernmental and NGO level; by the unawareness or ignorance on the part ofthe migrants themselves; and by the strong interests involved in the “migrationbusiness”. All of this would need to be addressed in a promotional campaign.

Destination countries

The destination countries in this study can be clustered together in the followingmanner with regard to their immigration policies on the one hand, and politicalsystems and attitudes toward human rights on the other hand: (1) Malaysia andSingapore, and (2) Japan and Korea.

In countries like Malaysia and Singapore where human rights discourse, gener-ally speaking, poses a political taboo, rights advocacy work by NGOs vis-à-vissuch governments is next to impossible and existing NGOs have to frame theirefforts in less controversial terms. In addition, migration policies and proceduresare treated in a highly non-transparent and uncoordinated manner between themany ministries. Outside of government circles, nobody knows which ministryis in charge of what migrant worker-related aspect. In this environment, it ishard for NGOs to find allies within the government structure, and trade unionstend to be too closely linked with ruling parties.

In Japan and Korea, the political system allows for political activism on thepart of civil society, and migrant supporting networks run by concerned localcitizens in both countries are mushrooming. A major obstacle to ratificationof the ICMR is that both countries consider themselves strictly mono-ethnic/mono-cultural and not as destinations for immigration. Government officialsin both countries feared that if their governments ratified, this would result inlarge scale influx and settlement of foreign workers. In addition, protectingundocumented migrants is considered unacceptable. What distinguishes Japan


from Korea is that in the former, where there are high proportions of foreignresidents and workers, social welfare and legal aid facilities have been put inplace. These policies are, however, highly localized and do not result in generalrights as stipulated by the ICMR.

An additional problem in most of the receiving countries is that two specificcategories of migrant workers are not well covered by the Migrant WorkerConvention: (1) domestic workers (who are explicitly excluded from nationallegislation in all receiving countries), and (2) trainees who are explicitly excludedfrom the ICMR. Links of immigration policies and discriminatory practicesbased on visa status or ethnicity also exist in all of the receiving countries underinvestigation. The preference for certain migrants is related to the importancegiven to maintain the (often false) mono-ethnic/mono-cultural nature of societyor to maintain a balance with existing ethnic groups. No government is preparedto extend rights to undocumented migrants, and there is very little critical assess-ment of how migrants become “illegal”.

Levels of corruption or collusion between employment circles and governmentsare stronger in countries such as Malaysia and Singapore, but problems withrecruitment agencies exist in all countries. States typically protect employersmore than foreign workers, and this is typically approved of by the public atlarge. Although most receiving countries claim that they have sufficient legisla-tion in place, by excluding trainees and domestic workers from coverage oftheir employment acts or labour laws, a substantial part of the foreign migrantworkers population are without protection.

Having conducted its own study, the National Commission of Human Rights inKorea does not recommend ratification of the ICMR at this stage. Instead, itsuggests improving existing legislation and practices in order to enhance thesocio-economic security of migrants.

CONCLUSION

Contemporary forms of labour migration are characterized by (1) increasedparticipation of women, (2) increased regionalization, and (3) obstacles tolong-term residence, let alone settlement due to short-term contracts or due tounauthorized or irregular status. With the gap between governmental policiesand migration reality widening, and rampant abusive practices, NGOs have takenan important role of service providers and rights’ advocates, engagingin transnational networking as best as they can on the basis of their limitedresources (financial and staff).

88 Piper

When crossing borders in the search for employment abroad, migrant workersare operating in a transnational sphere of jurisdiction with many loopholesresulting in an abundance of human rights violations. The ICMR could addressand resolve many of these issues if widely ratified and implemented. As it stands,however, the ICMR has a relatively low number of ratifications. This is largelydue to lack of exact understanding of its content and benefits. It needs to becommunicated that this Convention: (1) applies rules to sending countries andreceiving countries, (2) that it includes attempts to control “illegal” migration tothe benefit of receiving countries, and (3) that it is not redundant with the ILOConventions.

When taking all reasons given for not ratifying the ICMR in both the sendingand receiving countries into consideration, the conclusion is that although theconcept of “migrants’ rights” is fairly novel, ratification of the ICMR is largelyobstructed by a lack of political will. Together with combined interests thatoppose granting rights to foreign workers – recruitment agencies, employers,governmental officials – this constitutes a huge force which is not easily counter-acted by NGOs and sympathetic individuals within government structures.

The promotion of a rights-based approach to the protection of migrant labour islargely related to a number of macro- and micro-level issues, revolving aroundsocio-economic development and practices of “good governance” in additionto interstate relations. This means that a holistic approach is required thataddresses national and transnational aspects of protection involved in contempor-ary forms of cross-border mobility. On a practical level, political alliances needto be formed to challenge governments’ reluctance to improve the human rightssituation of migrants. This requires local, regional, and global campaigns byNGOs with active support by UN agencies and the academic community.

NOTES

1. This paper as well as the following three and the discussion note were originallypresented at the international workshop on “The Rights of the Migrant” thattook place at the Australian National University (ANU) in Canberra in August2003. This event was co-organized by myself and Dr. Patrick Kilby (Asia PacificSchool of Economics and Government, ANU) and funded by the NationalInstitute for Social Sciences and Law, ANU.

2. For more information, see www.iom.net/berneinitiative/index.shtml.3. Despite being well recognized, it has to be said that the “feminization of mi-

gration” is still often mentioned only in passing and thus in a neutral manner(see Piper, 2003b for a detailed critique).


4. The other two are ILO conventions.5. The countries which were investigated as part of this report are (in alphabetical

order): Bangladesh, Indonesia, Japan, Korea, Malaysia, New Zealand, andSingapore. The full text of the report is available on-line (www.unesco.org/most/apmrn_unconv.htm).

6. A legal content-analysis plus historical background information is provided byCholewinski (1997) in chapter 4.

7. A good example is Singapore where employers pay one single S$ as a “fee” toagents for an Indonesian maid but the maid herself has to pay for her expensesand the proper fees, resulting in several months without wages to pay off thedebts.

8. In April 2003, a ministerial level meeting among the labour sending countries inthe Asian region was instigated by the Governments of Sri Lanka and Indonesiaand was held in Colombo. The next meeting took place in Manila in 2004, but atthe time of writing no more specific information was available.

9. These national commissions are members of the Asia Pacific Forum of NationalHuman Rights Institutions, based in Sydney (for more information, seewww.asiapacificforum.net). Although Japan has not established a national com-mission, the Japanese Government set up the Promotion Council for HumanRights education in 1995 and the Council for Human Rights Protection in 1997.

10. For a more detailed statistical breakdown, see the special issue of the Asian andPacific Migration Journal, edited by Piper and Yamanaka (2003), and the Intro-duction by Yamanaka and Piper therein.

11. This issue requires more in-depth research which is in fact one of the severalrecommendations made by Piper and Iredale (2003) in their UNESCO report onthe obstacles to the ratification of the Migrant Worker Convention.

12. Domestic helpers are excluded from national Employment Acts or Labour Stan-dards Laws in every receiving country in Asia. If not explicitly excluded in theacts themselves, they are excluded by specific policies stipulated in their workcontracts.

13. It has to be noted here that there are no studies on the effects of transnationallysplit families on male migrants.

14. The difference between Western liberal democracies’ approaches to migrationand the East Asian experience is discussed in detail by Bell and Piper (2004).Despite their more liberal citizenship and family reunification policies, mostEuropean countries have at the same time tightened their immigration and visapolicies vis-à-vis newcomers from non-EU member countries.

15. This has been observed by many migrant supporting NGOs in this region whowere interviewed as part of the UNESCO report. Informal conversations that Ihave had throughout 2003 with individual migrants in Kuala Lumpur, HongKong, and returned migrants in Manila have confirmed this as well.

16. There are no studies on international marriages between men from lower-income countries and women from higher-income countries, but such couplesexist (e.g. South Asians married to Japanese or Malaysian women). This is atopic worthy of research as it would give comparative insights to existing stud-

90 Piper

ies. Also, it should be noted here that Singapore and Malaysia prohibit themarriage between domestic workers and local citizens.

17. For Japan, see Piper (1997, 1999, 2003d); for Korea, Lee (2003); for Taiwan, Tsay(2004).

18. From the perspective of liberal theorists, it has been argued that labour migrantsshould eventually be put on the road to citizenship. Although there might be acase for differential rights in the short term, they should not be treated aspermanent second-class citizens (for a more detailed discussion see Bell andPiper, 2004).

19. The ICESCR and ICCPR came into effect after ten years (1966-1976); the CEAFRDafter four years (1965-1969); CEDAW (1980-1981) and CROC (1989-1990) afterone year; and CAT after three years (1984-1987).

20. The Campaign Steering Committee includes 16 leading international bodies onhuman rights, labour, migration, and church organizations. See for more detailthe Global Campaign website at www.migrantsrights.org. This Committee con-tinues its efforts to raise the overall numbers of ratifications throughout theworld.

21. As of July 2004, the following countries ratified the ICMR: Azerbaijan, Belize,Bolivia, Bosnia and Herzegovina, Burkina Faso, Cape Verde, Colombia, Ecua-dor, Egypt, El Salvador, Ghana, Guatemala, Guinea, Kyrgystan, Libya, Mali,Mexico, Morocco, Philippines, Senegal, Seychelles, Sri Lanka, Tajikistan, TimurLeste, Uganda, and Uruguay (for a regular update, see: http://www. december18.net/web/general/page.php?pageID=79&menuID=36&lang =EN#eleven).

22. For more detailed information, see http://www.unodc.org/unodc/crime_cicp_signatures.html.

REFERENCES

Asis, M., et al.2004 “When the light of the home is abroad: female migration and the Filipino

family”, Singapore Journal of Tropical Geography, forthcoming.Athukorala, R.C., and C. Manning

1999 Structural Change and International Migration in East Asia, OxfordUniversity Press, Oxford.

Battistella, G.2002 “International migration in Asia vis-à-vis Europe: an introduction”, Asian

and Pacific Migration Journal, 11(4): 405-414.Bell, D., and N. Piper

2004 “Justice for migrant workers? The case of foreign domestic workers inEast Asia”, in W. Kymlicka (Ed.), Asian Minorities and Western Liberal-ism, Oxford University Press, Oxford (forthcoming).

Bhaba, J., et al.1985 Worlds Apart: Women under Immigration and Nationality Law, Pluto

Press, London.


Castles, S.2000 “Migration as a factor in social transformation in East Asia”, unpub-

lished paper, CAPSTRANS, Wollongong.Castles, S., and M. Miller

1998 The Age of Migration, Macmillan, Basingstoke.Chin, C.

1998 In Service and Servitude: Foreign Female Domestic Workers and theMalaysian “Modernity” Project, Columbia University Press, New York.

Cholewinski, R.1997 Migrant Workers in International Human Rights Law: Their Protection

in Countries of Employment, Clarendon Press, Oxford.Espiritu, Y.L.

1997 Asian American Women and Men: Labour, Laws, and Love, Sage,London.

Fincher, R.1997 “Gender, age and ethnicity in immigration for an Australian nation”,

Environment and Planning A, 29: 217-236.Gamburd, R.

2000 The Kitchen Spoon’s Handle: Transnationalism and Sri Lanka’s Mi-grant Housemaids, Cornell University Press, Ithaca.

Gills, D-S, and N. Piper (Eds)2002 Women and Work in Globalising Asia, Routledge, London.

Harris, N.1995 The New Untouchables, Penguin, London.

ILO (International Labour Organization)2004 “Towards a fair deal for migrant workers in the global economy”, Report

VI for the International Labour Conference, 92nd Session, ILO, Geneva.IOM (International Organization for Migration)

2003 World Migration 2003, IOM, Geneva.Jones, S.

1996 Making Money off Migrants: The Indonesian Exodus to Malaysia, Asia2000 Ltd., Hong Kong.

Kofmann, E.1999 “Female ‘birds of passage’ a decade later: gender and immigration in the

European Union”, International Migration Review, 33: 269-299.Lee, H-K

2003 “Gender, migration and civil activism in South Korea”, Asian and PacificMigration Journal, 12(1-2): 127-153.

Lim, L.L., and N. Oishi1996 “International labour migration of Asian women: distinctive character-

istics and policy concerns”, Asian and Pacific Migration Journal, 5:85-116.

McKay, D.2003 “Filipinas in Canada: de-skilling as a push towards marriage”, in N. Piper

and M. Roces (Eds), Wife or Worker? Asian Women and Migration,Rowman and Littlefield, Lanham: 23-52.

92 Piper

Mix, P.R., and N. Piper2003 “Does marriage ‘liberate’ women from sex work? Thai women in Germany”,

in N. Piper and M. Roces (Eds), Wife or Worker? Asian Women and Mi-gration, Rowman and Littlefield, Lanham: 53-72.

Ono, H., and N. Piper2004 “Japanese women studying abroad: the case of the United States”,

Women’s Studies International Forum, forthcoming.Parreñas, R.S.

2001a Servants of Globalization: Women, Migration and Domestic Work,Stanford University Press, Stanford.

2001b “Mothering from a distance: emotions, gender, and inter-generationalrelations in Filipino transnational families”, Feminist Studies, 27(2):361-90.

2001c “Transgressing the nation-state: the partial citizenship and imaginedglobal community of migrant Filipina domestic workers”, Signs, 26(4):1129-1154.

Piper, N.1997 “International marriage in Japan: ‘race’ and ‘gender’ perspectives”, Gen-

der, Place and Culture, 4(3): 321-338.1999 “Labour migration, trafficking and international marriage: female cross-

border movements into Japan”, Asian Journal of Women’s Studies, 5(2):69-99.

2003a “Regional perspectives on the 1990 UN Convention on the Rights of AllMigrant Workers”, paper presented at the University of New England,Asia Centre and School of Economics International Conference on Mi-grant Labour in South-East Asia: Needed, not Wanted, 1-3 December.

2003b “Feminization of labour migration as an issue of violence: international,regional and local NGO responses in Asia”, Violence against Women,special issue, 9(6): 723-745.

2003c “Bridging gender, migration and governance: theoretical possibilities inthe Asian context”, Asian and Pacific Migration Journal, 12(1-2): 21-48.

2003d “Wife or worker? Worker or wife? Marriage and cross-border migration incontemporary Japan”, International Journal for Population Geogra-phy, 9(6): 457-469.

2004 “Gender and migration policies in South-East and East Asia: legal pro-tection and socio-cultural empowerment of unskilled migrant women”,Singapore Journal of Tropical Geography, 25(2): 216-231.

Piper, N., and R. Iredale2003 Identification of the Obstacles to the Signing and Ratification of the UN

Convention on the Protection of the Rights of All Migrant Workers 1990:The Asia Pacific Perspective, UNESCO, Paris.

Piper, N., and M. Roces (Eds)2003 Wife or Worker? Asian Women and Migration, Rowman and Littlefield,

Boulder.


Piper, N., and A. Uhlin2002 “Transnational advocacy networks: female labour migration in East and

South-East Asia: a gendered analysis of opportunities and obstacles”,Asian and Pacific Migration Journal, 11(2): 171-195.

Piper, N., and K. Yamanak (Eds)2003 “Gender, migration, and governance”, Asian and Pacific Migration Jour-

nal, special issue, 2-3.Raghuram, P.

2000 “Gendering skilled migratory streams: implications for conceptualizationsof migration”, Asia Pacific Migration Journal, 9(4): 429-457.

Satterthwaite, M.2005 “Crossing borders, claiming rights: using human rights law to empower

women migrant workers”, Yale Human Rights and Development LawJournal, 8, forthcoming.

Stasiulis, D., and A. Bakan1997 “Negotiating citizenship: the case of foreign domestic workers in Canada”,

Feminist Review, 57: 112-139.Taran, P.

2000 “Human rights of migrants: challenges of the new decade”, InternationalMigration, 38(6): 7-51.

Tsay, C-L2004 “Marriage migration of women from China and South-East Asia to Tai-

wan”, in G. Jones and K. Ramdas (Eds), (Un)tying the Knot: Ideal andReality in Asian Marriage, Asia Research Institute, National Universityof Singapore Press, Singapore: 173-191 (forthcoming).

Vogel, S.1994 “Marriage and the boundaries of citizenship”, in B. van Steenbergen

(Ed.), The Condition of Citizenship, Sage, London: 115-137.Wong, D.

1997 “Transcience and settlement: Singapore’s foreign labour policy”, Asianand Pacific Migration Journal, 6(2): 135-167.

Yamanaka, K., and N. Piper2003 “Introductory overview”, Asian and Pacific Migration Journal, 12(1-2):

1-2.Yeoh, B., et al.

1999 “Migrant female domestic workers in the economic, social and politicalimpacts in Singapore”, International Migration Review, 33(1):114-136.

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APPENDIX

SUMMARY OF MAIN OBSTACLES TO RATIFICATION

Main Obstacles

Sending countries

Political/economic climate

Perceptions of impact of ICMR

Other

Bangladesh Good ratification record but bad implementation largely based upon poor resources; high rates of illiteracy resulting in little awareness.

Clashes with domestic law; fear of being made liable for migrants in Bangladesh; fear of losing market for own workers abroad; fear of being made liable for irregular migration.

Migration between Pakistan, India, and Bangladesh politically very sensitive because of ethno-religious conflicts.

Indonesia Transition phase to democracy and decentralization; weak bureaucratic structure; labour issues marginalized; priority put on ratifying other core conventions; lack of international pressure to ratify ICMR; reasonable ratification record, but poor implementation.

Fear of losing out on regional labour market; reluctance to criticize Muslim brother countries; fear of being liable for migrants in Indonesia.

Lack of transparency in bureaucratic processes; lack of experts (HR and international law).

Receiving countries



Other

Japan Grip on power by the Conservative Party (LDP); ICMR considered unimportant (not a core convention; not ratified by other G7 countries); lack of international pressure to ICMR; good ratification record but no interest in entry into more multilateral treaties (critique of UN system).

Clashes with domestic law; favourable treatment to migrant workers; implications for basic immigration policies; lack of willingness to give protection to irregular migrants; lack of willingness to accept family members.

“Oldcomer” immigrants are not protected according to international standards either.


APPENDIX (continued)

SUMMARY OF MAIN OBSTACLES TO RATIFICATION

Main Obstacles

Receiving countries



Other

Korea Fear of losing “mono-ethnic” character; Korean foreign policy reactive, not pro-active; economic recession does not allow for protection of migrant workers; conservative politicians in majority.

Lack of willingness to accept family members; fear of migrants joining strong labour unions; high burden of monitoring and implementation.

Possibility of reunification with North and influx of workers from the North.

Malaysia Poor ratification record, little appreciation of universal HR by Government; little pressure from within civil society; no public debate; existing legislation seen as sufficient to protect foreign workers.

Lack of willingness to accept family members and settlement; fear of ethnic society becoming unbalanced; protection of irregular workers seen as unacceptable.

Collusion with employers and recruiters; composition of ethno-religious politics.

New Zealand ICMR seen as irrelevant in view of existing settlement policies and protective legislation; high burden of implementation and monitoring; best ratification record but no interest in entry into more multilateral treaties (critique of UN system); no pressure from NGOs.

Lack of willingness to protect irregular migrants; clash with domestic laws.

Maori communities might object to giving newcomers special treatment.

Singapore Poor ratification record and little civil society advocacy for HR in general; reluctance to be inspected by UN system.

Clash with immigration policies; avoidance of settlement and family unification for unskilled workers.

Lack of transparency regarding migration policies and official statistics unavailable.

Source: Piper and Iredale, 2003.

96 Piper

LES DROITS DES TRAVAILLEURS ÉTRANGERS ET LA POLITIQUEEN MATIÈRE DE MIGRATION EN ASIE DU SUD-EST ET DE L’EST

La question des migrations transfrontières en Asie du Sud-Est et de l’Est est liéeà l’intégration des marchés du travail régionaux, si ce n’est mondiaux. Les typesde main-d’œuvre actuellement en demande ont considérablement changé depuisles années 90, quant à : (1) leur ampleur globale, (2) leur composition par sexe,(3) leur diversification accrue. Cet article porte sur les ouvriers non qualifiésparce qu’ils constituent le groupe numériquement le plus grand et le plusvulnérable. La difficulté de fournir une protection adéquate contre l’exploitationet les pratiques abusives qui réduisent les avantages socioéconomiques de cestravailleurs, tout comme la difficulté d’une bonne prévention, sont liées auxpolitiques migratoires et à la question des droits dans les pays d’origine et dedestination.

Cet article a pour objectif d’esquisser les tendances et la problématique actuellesde la migration transfrontières de main-d’œuvre et de la politique relative auxdroits des migrants en Asie du Sud-Est et de l’Est, comme l’illustrent les difficultésque rencontre la ratification de la Convention internationale sur la protection desdroits de tous les travailleurs migrants et des membres de leur famille (NationsUnies, 1990). Les données sur lesquelles s’appuie cet article proviennent d’unrapport commandé par l’Organisation des Nations Unies pour l’éducation, lascience et la culture (UNESCO), le travail sur le terrain ayant été effectué danssept pays de la région Asie-Pacifique.

Nous avançons que des questions politiques et un manque de volonté politiquefont obstacle à la ratification de la Convention internationale sur la protectiondes droits de tous les travailleurs migrants et des membres de leur famille. Unefaçon de concevoir la protection de la main-d’œuvre migrante, fondée sur lesdroits de ces travailleurs, est liée à plusieurs questions de niveau macro et micro,qui tournent autour du développement et de la « bonne gouvernance », sansoublier les relations entre États. Promouvoir les droits des migrants demandedonc une approche globale qui portera sur des questions nationales ettransnationales, à une époque où la mobilité entre frontières ne cesse d’augmenter.


DERECHOS DE LOS TRABAJADORES EXTRANJEROS YPOLÍTICAS DE MIGRACIÓN EN ASIA ORIENTAL Y SUDORIENTAL

La cuestión de la migración transfronteriza en Asia oriental y sudoriental estávinculada con la integración regional, por no decir mundial, de los mercadoslaborales. Desde los años noventa, los tipos de mano de obra que han sido objetode demanda han cambiado radicalmente en términos de: (1) magnitud global,(2) composición por sexo, y (3) creciente diversificación. Ello no obstante, esteartículo se centra en los trabajadores no calificados, puesto que constituyennuméricamente la proporción más importante y vulnerable del grupo. El retoconsiste en ofrecer protección adecuada e impedir que estas personas seanvíctimas de prácticas de explotación y abusos, que reducen considerablementelos beneficios socioeconómicos de estos trabajadores, que están vinculados conlas políticas migratorias y con la cuestión de los derechos en los países deorigen y de destino.

Este artículo esboza las tendencias y cuestiones emergentes, a saber, la migra-ción laboral transfronteriza contemporánea y las políticas de derechos de losmigrantes vigentes en Asia oriental y sudoriental, ilustradas por las dificultadesexperimentadas en la Ratificación de la Convención de las Naciones Unidas de1990 sobre los Derechos de todos los Trabajadores Migratorios y de sus Fami-liares. Los datos en que se basa este artículo fueron acopiados para un informeencargado por la Organización de las Naciones Unidas para la Educación, laCiencia y la Cultura (UNESCO) para un trabajo realizado en siete países localizadosen la región de Asia Pacífico.

Se arguye que la Ratificación de la Convención sobre los Derechos de todoslos Trabajadores Migratorios y de sus Familiares se vio obstaculizada por laspolíticas y por la falta de voluntad política. Por tanto, en una serie de instanciasmacro y micro, surgió la perspectiva de protección de los trabajadores migrantesbasada en los derechos que giraron en torno al desarrollo y prácticas de “buengobierno” además de las relaciones interestatales. Ello significa que la promociónde los derechos de los migrantes exige una perspectiva holística que encare lascuestiones nacionales y transnacionales en una era de creciente movilidadtransfronteriza.

Documents

Rights of Foreign Workers and the Politics of Migration in South-East and East Asia