The Balancing Act: Preserving National Sovereignty in ASEAN while Promoting Regional Growth and Protecting Migrant Rights

The Balancing Act: Preserving National Sovereignty in ASEAN while Promoting Regional Growth and Protecting Migrant Rights

As a regional organization, the Association of Southeast Asian Nations (ASEAN) prides itself on forging its own course, yet ASEAN should not allow this fierce independence to inhibit the achievement of its economic and humanitarian goals. Roughly 40% of all migrants who originate from within ASEAN remain within the nations of the regional organization. This arises from patterns of cyclical migration stemming from the temporary nature of the low-paid, low-skilled work that drives the majority of migration in the region. Such transient labor forces result in a population of nearly 7 million intra-ASEAN migrants, constituting almost 10% of the region’s total population. Analysis of ASEAN’s labor force by the International Labour Organization reveals that an amalgamated sum of three-fifths of the total working population in ASEAN work in vulnerable employment. Vulnerably employed workers lack formal work arrangements, and thus lack guaranteed minimum wages or safe working conditions. Of the total 179 million workers in vulnerable employment in ASEAN, 92 million do not earn enough to escape poverty. The migrant population faces additional challenges, for, while formal migration channels are open to high-skilled professionals, the low-skilled migrant population that composes the majority of all migrants lacks the same migration opportunities. This gap in regional migration policy creates large numbers of undocumented migrants. Furthermore, the lack of adequate migration policy endangers undocumented low-skilled migrant by forcing them to work for exploitative employers who hire migrant to work in hazardous working conditions for substandard wages. Current structural limitations and disparate national priorities impede ASEAN’s ability to protect migrant rights, and thus impedes communal growth. Understanding the inimical contrast between ASEAN nations’ distinct national goals and ASEAN’s collective goals allows the reader to understand that binding supranational migrant rights protections are a prerequisite for regional growth.

Due to ASEAN’s organizational structure, which requires full consensus to pass any agreement, and ASEAN nations’ strong emphasis on independent sovereignty, ASEAN lags behind the rest of the international community in terms of humanitarian law. While the United Nations General Assembly passed the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families in 1990, ASEAN took its first steps towards cohesive regional migration policy in 2007 with the release of the “Cebu Declaration,” or the Declaration on the Protection and Promotion of the Rights of Migrant Workers. It took another 10 years after this declaration for ASEAN to adopt the Manila Consensus on the Protection and Promotion of Rights of Migrant Workers, signing the declaration in 2017. Scholars often laud ASEAN’s subalternity, noting that the regional organization fights to preserve its postcolonial autonomy through its lack of supranational authority that could infringe on member states’ sovereignty by enforcing external norms. In order to maintain regional priority cohesion without supranational authority, ASEAN periodically releases a statement of its community vision. The most recent community vision outlines in its fourth goal a desire to “…realise a rules-based, people-oriented, people-centred ASEAN Community, where our peoples enjoy human rights and fundamental freedoms…” and, in its tenth goal, a desire to build “a highly integrated and cohesive regional economy that supports sustained high economic growth by increasing trade, investment, and job creation…” with the eventual goal of creating an ASEAN common market. An ASEAN common market would entail the free movement of labor, goods, services, and capital, and in 2015 ASEAN founded the ASEAN Economic Community (AEC) with this goal in mind. Efforts such as the Manila Consensus and the AEC provide clear examples of the potential benefits of heightened communal action, yet they also underscore the difficulty in reaching decisive action in an organization that relies on consensus. Disparate national priorities often become roadblocks to effective action, leaving important issues to be addressed solely at the state level. Indonesia, Thailand, and the Philippines prefer the idea of more robust and centralized ASEAN institutions, while Cambodia, Laos, Vietnam, and Myanmar prioritize protecting their autonomy. These incongruent goals hamper ASEAN’s efficacy on issues that require collective action. ASEAN adopted the Vientiane Action Programme (VAP) at its tenth summit in 2004, aimed at streamlining ASEAN integration; however, while the VAP commits to addressing ASEAN’s lack of a human rights framework, it is limited in function to research and monitoring. Many ASEAN member states have fragmented national identities, which, when combined with a strong memory of external influence during ASEAN nations’ colonial histories, results in a strong emphasis on national sovereignty. The ramifications of this sentiment are elucidated by Pranoto Iskandar of the Institute for Migrant Rights, who postulates that “the predominant activism has willfully disengaged itself from the international concept of human rights and embraced a ‘nationalist’ conception that has eschewed non-citizens’ entitlement to human rights in the domestic legal systems.” As a result, national self-interest often mars ASEAN humanitarian efforts, with the ASEAN Community Vision 2025 specifically identifying the free movement of “skilled labour, [and] business persons” when discussing an ASEAN common market, promoting the rights of upper-class migrants that nations desire while ignoring the rights of low-skilled migrants. National self-interest further complicates consensus on regional migration compacted by stratifying the interests of nations that primarily send migrants, and nations that primarily receive migrants, each of which prioritize their own distinct objectives. The current Manila Consensus privileges the rights of wealthy migrants, such as educated professionals and tourists, while failing to adequately protect the rights of the low-skilled workers who constitute the majority of the migrant population. Although chapter 7 of the Manila Consensus pledges to create an “action plan” on protecting migrant workers’ rights, ASEAN does not command the adequate enforcement mechanisms to implement such an action plan. To maintain its strength, the organization must chart a course that both circumvents interventionist human rights regimes that privilege norms exported by the West and avoids relying on postcolonial elites who mobilize on national autonomy for personal gain for human rights enforcement. ASEAN can preserve its postcolonial autonomy while simultaneously enhancing its subalternity by developing a new structure for regional cooperation that effectively protects migrant rights without imposing external norms on nations. This new structure can take the form of regulatory regionalism, which allows for nations to adhere to mutually agreed upon rules under the auspices of their own sovereign governments. A migrant rights framework with binding language will fulfill the ASEAN Community Vision 2025’s fifth and tenth goals by not only protect ASEAN citizens’ human rights, but also by enabling greater communal growth through regional economic integration.

The ‘ASEAN Way’ of operating purely on consensus is indeed a triumph of subalternity, yet, when combined with sending nations’ and receiving nations’ disparate migration policy goals, it inhibits the creation of an effective migrant rights framework. Current policies problematically distinguish between professional migrants and low-skilled migrants, restricting the rights of low-skilled migrants. The low-skilled migrants denied sufficient legal protection by current laws already work in precarious environs, due to the lack of labor rights that innately comes with their undocumented migration status. Low-skilled migrants in ASEAN endure high migration costs, lengthy travel times, and complex migration paths, even within the legitimate migration frameworks, and inadequate regional guidance exacerbates these tolls for irregular migrants. Article 56 of the Manila Consensus outlines that governments will, “for humanitarian reasons, closely cooperate to resolve the case of migrant workers who, through no fault of their own, have subsequently become undocumented,” however ambiguity in the definition of ‘humanitarian reasons’ imperils migrants by leaving interpretation open to national governments. The focus of the Manila Consensus, as a whole, illustrates its limitations, for the rights outlined in the document only apply to documented migrant workers, bypassing the majority of the migrant population that is undocumented. While drafting the document, the Philippines proposed that the consensus should be ‘morally binding,’ while Indonesia suggested that the document should instead be ‘legally binding,’ and this schism resulted in a final consensus that is neither morally nor legally binding. This is but one example of the difficulties rooted in operating on consensus, yet, interestingly, both the Philippines and Indonesia are primarily labor-sending nations, and the majority of conflicts on migration policy emerge between labor-sending and labor-receiving nations. Migration within ASEAN falls into two normative patterns, with Laura Allison-Reumann of the Nanyang Technological University in Singapore explaining that “the first involves the Greater Mekong Subregion with workers from Cambodia, Laos, Myanmar, and Vietnam primarily moving to Thailand for work; and the second involves Brunei, Malaysia, and Singapore as destination countries for workers from Indonesia and the Philippines.” The priorities of sending and receiving states diverge because sending states focus on the human rights of their citizens abroad, while receiving states focus on the economic implications of hosting migrant workers. State policies diverge due to the disparate national discourses surrounding migration, with some nations portraying their migrant worker populations abroad as victims and others portraying them as heroes, resulting in different policy approaches towards worker rights. Furthermore, the Cebu Declaration and the Manila Consensus both counterproductively stratify the obligations of sending and receiving nations, rather than emphasizing the shared responsibility of all nations to protect the human rights of migrants, both those migrating from them and those migrating into them. Even if the Manila Consensus defined specific national obligations, the lack of binding language makes the agreement virtually superficial. Although Myanmar is a signatory to the Convention on the Rights of the Child, which guarantees children the right to nationality and registration at birth, as well as a signatory to the ASEAN Human Rights Declaration, the Rohingya minority in Myanmar is routinely denied citizenship and are the target of rampant human rights abuses, demonstrating the weakness of nonbinding agreements. Undocumented migrants must be afforded the same human rights as migrants who travel through formal channels, and these rights can only be protected by legally binding language.

Policies that differentiate between high-skilled and low-skilled workers impede human rights promotion because they provide institutional justification for neglecting the needs of populations already prone to dangerous working conditions and exploitative employers. ASEAN member states enacted eight Mutual Recognition Arrangements (MRAs) that expedite the migration process for professions deemed to be especially desirable, such as doctors and engineers. While the AEC should aspire to achieving free migration for all of its citizens, the majority of all ASEAN migration is from the six poorer nations to the Singapore, Brunei, Malaysia, and Thailand, and is predominantly by low-skilled workers. Without legally binding protections, these low-skilled migrants are at risk of abuse, and the economic benefit they confer will diminish. Article 57 of the Manila Consensus provides hope for a more robust migration framework, recommending that nations “take measures to prevent and curb the flow of undocumented migrant workers and explore cooperation and coordination among ASEAN Member States in providing assistance to those who are in need of protection.” For such an agreement to manifest itself, motivated leadership or widespread interest is needed. The Philippines chaired ASEAN in 2007 when the Cebu Declaration was signed and in 2017 when the Manila Consensus was signed, and this makes sense given that the Philippines sends the largest number of labor migrants worldwide, providing the motivated leadership necessary. Currently, however, Singapore occupies the ASEAN Chairmanship, and migration is not one of the issues Singapore identified as is focus. Thus, the nations of ASEAN must recognize the benefits attached to more liberal migration policies and migrant rights protections in order to achieve the widespread interest necessary to adopt a new framework with binding language.

One such benefit is the economic growth that a transient regional labor force facilitates, providing sound justification for ASEAN nations to pursue a binding migrant rights framework that will enable greater worker migration. The Manila Consensus acknowledges that migrants are the “driving force of economic growth in ASEAN,” as expounded by Khampheng Saysompheng, Minister of Labour and Social Welfare Ministry of Lao PDR and Chair of ASEAN Labour Ministers Meeting. The economic growth already experienced within the region is unevenly distributed, tied to the uneven distribution of migrants throughout the region. Unemployment in Thailand is at 1.5%, while it is at 10.9% in the Philippines, and three quarters of Foreign Direct Investment (FDI) in the region flows into Singapore, Thailand, and Malaysia, leaving the other seven nations in ASEAN to split the remaining quarter. Even within nations, the benefits of growth are not equally shared, with women, minorities, and rural communities given short shrift. Despite these disparities, both sending and receiving nations enjoy some level of economic benefit from migration, indicating that a comprehensive and binding migration framework would benefit the region as a whole by increasing migrant flows. Although not ASEAN members, Japan and Taiwan both illustrate the correlation between migration and investment, following what Japanese scholars call the ‘flying geese’ model of development, wherein one nation experiences growth that is a catalyst for foreign investment, and thus becomes the target of migrant flows from neighboring nations, and these regional migrant flows build economic linkages that enhance the prosperity of both nations. The arguments against liberal migration policies such as free labor movement within a common market hinge on the influx of migrants reducing the number of jobs available to locals and lowering wages in already low pay low-skilled work. In reality, data from the World Bank verifies that migration doesn’t depress wages in receiving countries. Indeed, liberal migration policies in a binding consensus would also enable firms to attract populations with specific desired skill sets to migrate to them, allowing nations in the region to build their competitive advantages, and thus all the nations in ASEAN would benefit from gains through regional trade due to nations’ disparate specializations. In addition, a freer flow of labor, goods, services, and capital through an AEC common market would provide more benefit through the jobs created by the economic growth it enables than the detriments perceived to be brought by heightened migration. The World Bank postulates that any ‘brain drain’ incurred within ASEAN due to more liberal migration would be offset by ‘brain circulation’ wherein educated workers move regionally to where their skills are in demand. The regional trade enabled by free labor migration of all types of workers is key to communal growth, with World Bank data demonstrating that “…a 1 percent increase in the bilateral stock of migrants increases bilateral trade by 0.11 percent, though there does not seem to be a difference in the pro-trade effects of low- and high-skilled migrants.” The relationship between regional growth and liberal regional migration is clearly illustrated above, and ASEAN can benefit from such regional growth and quicken its progress towards a common market with a binding regional migration policy.

Achieving both stronger migrant rights protection and greater regional growth does not require the supranational institutions that ASEAN is so reticent to establish, but it does require accountability for member states, which can be provided by regulatory regionalism. A regulatory regionalism structure is multinational and flexible, allowing it to adapt to the demands of the region. Laura Allison-Reumann summarizes the applicability of regulatory regionalism to ASEAN, describing that “regulatory regionalism also lends itself to a more favorable operationalization of ASEAN's foundational norms, given that it does not aspire to be a supranational entity that may threaten national sovereignty.” Thus, nations can align their national agendas through the use of binding language without any greater authority figure. The ASEAN structure allows for sweeping government powers to be exercised in order to promote development, yet the consensus format often results in nations kicking contentious issues down the line rather than addressing them. ASEAN’s attitude towards supranational authority originates from the first three regional behavioral principles asserted in the foundational Treaty of Amity and Cooperation and reasserted in the Bangkok Declaration, respect for state sovereignty, freedom from external interference, and non-interference in internal affairs over all others, yet the Treaty of Amity and Cooperation also highlights that states will adhere to certain norms. This commitment to regional norms enables the efficacy of a binding regulatory regional agreement, transcending the limitations that come with a lack of supranational governing bodies. ASEAN’s inability to enforce its norms while it lacks both supranational authority and binding agreements stems from its emphasis on noninterference, for in 2010 the Thai government rejected efforts for an ASEAN Intergovernmental Commission on Human Rights (AICHR) fact finding mission to investigate its political crisis, and in Myanmar the rampant human rights abuses enacted against the Rohingya are decried but not addressed. The organization defends its noninterference by lauding the broad economic power wielded by its governments, for, as described by Aguirre and Pietropaoli, “While this may weaken ASEAN’s human rights legitimacy, it must be seen within the context that places priority on regional economic development and the maintenance of domestic sovereignty.” Yet, human rights enforcement and economic development are far from mutually exclusive. Indeed, the AEC can enhance its growth by extending protections to all levels of migrant workers, for while low-skilled work such as agriculture, fishing, domestic work, manufacturing, and construction account for 87% of ASEAN’s regional migration, the AEC’s MRAs cover only 1% of member states’ employment. The resulting irregular migration flows result in a massive stateless migrant population within ASEAN, all of whom lack adequate legal protection due to their precarious migration status. Thailand and Myanmar combine to host 10% of the world’s stateless population, and a lack of citizenship documentation precludes effective workforce utilization, with Thai scholars Palapan Kampana and Adam Richard Tanielian positing that “statelessness is an economic death sentence in a world on the move.” Thailand and Malaysia attempted to address the problem of stateless migrants by enacting 10 amnesty programs since 1992, yet this ad hoc approach to migration policy impairs ASEAN’s ability to communally negotiate with external bodies due to the lack of regional migration policy. When Singapore assumed the ASEAN Chairmanship, it highlighted its goal of improving business opportunities, and one way to achieve this goal is implementing a binding regulatory regional agreement on migration. Regulatory regionalism allows ASEAN to maintain its subalternity and avoid supranational intervention while codifying migrant rights, thereby enhancing regional growth.

A binding consensus agreement in the form of regulatory regionalism will protect migrant rights in a way that the current ‘ASEAN Way’ cannot parallel. Protecting migrant rights in ASEAN confers benefits to the migrants whose rights are protect and to the nations whose growth potential is enhanced. A unified regional migration policy allows nations to attract desired workers, thereby allowing national economies to specialize. When combined with the reduction of regional trade barriers, specialized regional economies benefit the entire region. Furthermore, Foreign Direct Investment will be enhanced by such unified migration policy, and the region will also be able to more effectively negotiate with external nations. ASEAN does not need to cave to building supranational institutions to protect its migrants and achieve greater regional growth, but it requires enforceable human rights policy. Regulatory regionalism with binding language will protect migrants and enable growth without infringing on national sovereignty, thus preserving ASEAN’s subalternity while simultaneously achieving ASEAN’s Community Vision goals and making strides towards a regional common market.

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