Migrant rights activists from the region have noted a number of important shortcomings in the Asean Declaration which they hope the regional body will remedy during the drafting of an Instrument to implement the Declaration. They are calling on Asean to give importance to the mainstreaming of gender-responsive, rights based policies in both the Asean Declaration and national government policies.
23 May 2008
H.E. Surin Pitsuwan
Dear Secretary-General Surin,
We, the participants of the regional workshop on Gender Perspectives on the Asean Declaration on the Protection and Promotion of the Rights of Migrant Workers convened on May 22-23, 2008 in Bangkok with the support of United Nations Development Fund for Women (UNIFEM), Southeast Asia Regional Cooperation in Human Development (SEARCH) and the Task Force on Asean Migrant Workers, wish to share our views and concerns related to the above-mentioned Asean Declaration. We recognize this Declaration as a very important and welcome first step for Asean on the issue of migrant workers. Our engagement is based on the premise that the wider participation of Asean civil society will ensure that Asean’s work on migrant workers truly meets the needs inherent in the organization’s vision of creating a “sharing and caring” community. We believe that this statement should also be considered as an input to Asean’s current efforts to develop the relevant Pillar Blueprints.
Our workshop focused on conducting an intensive analysis of the Asean Declaration from a gender-based rights perspective. Over fifty participants from the nations of Asean contributed to the points that we are sharing with you. We pledge to continue our engagement with the Asean Secretariat, and the member states of Asean, over the coming months, and will further intensify our efforts later this year, once the Asean Committee to Implement the Declaration on the Protection and Promotion of the Rights of Migrant Workers is operational.
We respectfully propose the following recommendations for your review and consideration, and request you to kindly ensure that these recommendations are also conveyed to each of the member nations of Asean.
First, we note that many women, within a constraining socio-economic environment where they do not have a full range of options, are making their own decisions to migrate. Women are exercising their agency to make decisions on migration benefits versus losses. The challenge facing us and Asean is to ensure that the rights of all women are protected during this migratory process.
Overall, we wish to call to your attention the importance of mainstreaming gender-responsive, rights based policies into both the Asean Declaration and national government policies. We note that all ten Asean Governments have ratified the UN Convention on the Elimination of Discrimination Against Women (CEDAW), and that Asean committed itself in the Asean Charter to act according to a set of principles including “upholding the United Nations Charter and international law…subscribed to by Asean Member States.” Accordingly, we recommend that Asean Member States take immediate steps to harmonize their national laws with CEDAW, starting with labour and other laws affecting migrant workers. Furthermore, in line with CEDAW, the principles of substantive gender equality, non-discrimination and state obligation should be suffused through all aspects of States’ policies toward migrant workers.
As we analysed the Declaration, we noted a number of important shortcomings that we believe Asean should focus and take corrective action on during the drafting of an Instrument to implement the Declaration. While we commend the Declaration’s stated willingness to “…resolve the cases of migrant workers who, through no fault of their own, have subsequently become undocumented…” we note the particular vulnerability of undocumented workers. Therefore, we strongly recommend that all migrant workers be covered by the Declaration, irrespective of their status.
Similarly, we support the Declaration when it calls for both sending and receiving states to “…take into account the fundamental rights and dignity of migrant workers and family members already residing with them…” The participants of the workshop noted the critical importance of the family unit for a stable, peaceful and prosperous society and therefore strongly recommend the recognition of the rights of all family members to reside together in countries of destination, and emphasize the importance of the fact that family members, especially children, be able to access health, education, and protection services. Women migrant workers must have adequate access to health care, including especially reproductive health, and enjoy reproductive rights.
Based on the principle of non-discrimination, we recommend the adoption of “national treatment” as the policy towards migrant workers, with special emphasis on ensuring that wages and conditions of work for women migrant workers are no less than the minimum legally required standard, and equal to those received by national workers of the receiving country. This principle extends to provision of social services to all migrant workers.
Unfortunately, for an important segment of women migrant workers, their work is not recognized, and they lack privacy, and other significant protections, where they live. These women are domestic workers whose long hours and difficult situations are not recognised under the labour law in most Asean countries. We strongly recommend that all nations in Asean amend their labour law(s) and migrant worker policies to ensure that domestic work is protected by labour legislation. Legally enforceable standard contracts for domestic migrant workers should be created and enforced in accordance with the labour law. Importantly, migrant domestic workers should be entitled to one paid day off within every seven days.
Migrant domestic workers should also be provided with privacy, humane living conditions, and freedom of movement and communications wherever they reside.
In fact, throughout our discussions we realized there is a trend of growing feminisation of labour migration in Asean, with an increasingly predominance of women in contractual, temporary, lowest-paid, and sometimes hazardous jobs. The extension of basic rights to these highly vulnerable women is critical if they are to prevent themselves from being caught in highly exploitative situations. The Declaration speaks with concern about supporting a better quality of life for people in “vulnerable and disadvantaged sectors” – and frequently it is low-skilled women migrants who fall into this category. Therefore, we recommend that migrant workers, including migrant domestic workers, should be allowed the right to freedom of association and to collective bargaining, and that the migrant workers associations and unions which form should have significant female representation. Moreover, governments should create enabling environments and permit the creation of social networks of migrants that are able to help workers defend themselves and access support services and assistance. Wherever possible, migrant community centers could be established to service migrant workers’ needs. We also recommend that migrant workers be assured of freedom of movement, and security from improper arrest and harassment, when they are not at work.
The high prevalence of women migrant workers in dangerous jobs means that Asean’s work on occupational safety and health issues (through OSHNET) should make special efforts to include the migrant worker portfolio.
Asean is to be commended for recognizing in the Declaration that there is a “need to address cases of abuse and violence against migrant workers whenever such cases occur…” Violence against women migrant workers is a particularly important problem. We recommend that Governments must focus their attention on the gender-based aspects of violence against women migrants, and ensure appropriate legal and policy responses, in coordination with migrant communities and other groups assisting the migrants.
Sending countries should ensure that their representative officials who are responsible for migrant workers in the receiving countries shall undergo training on gender-sensitivity, human and migrant worker rights, and labour and other relevant laws. These officials shall be duty-bound and administratively and financially supported to provide gender-responsive assistance to all migrant workers, irrespective of status, seeking assistance through appropriate complaints and grievance handling mechanisms.
Where an Asean nation does not have diplomatic presence in a country, arrangements to assist migrant workers who are nationals of that country should be made in accordance with article 20 of the Declaration on the Protection and Promotion of the Rights of Migrant Workers, and officials shall be trained appropriate to take up those duties.
Working together, the labour-sending and receiving nations of Asean, in cooperation with civil society, should set up and/or support the operation of shelters for migrant workers who have suffered from exploitation, human trafficking, sexual and/or physical abuse, and ensure that appropriate services (such as psycho-social support, counselling, and other programs) are provided at the shelter.
We recommend that information systems should be set up to exchange data and knowledge on migration between various Asean countries.
Key government officials in receiving countries who are involved with migrant worker issues – such as law enforcement officials and judges – should be provided with comprehensive gender-sensitivity training and guidance.
Recruitment processes for women migrant workers also require reform, with the attention and ideas coming from civil society. Governments should ensure that there is effective pre-employment/departure orientation should provide women workers with information about safe migration and the gender-related risks they face as they move. Topics should include, but not be limited to, education about rights; destination country laws, language, and socio-cultural aspects; and organisations to contact if a migrant faces difficulties.
Increased reports have been received about recruitment companies, brokers and other intermediaries unfairly profiting from sending workers overseas. Governments should make reforms and more strictly regulate private recruitment agencies, in order to reduce costs, simplify procedures, prevent the cheating of workers, and eliminate debt bondage arrangements. Governments should also examine other options for migrant recruitment processes, including but not limited to government-to-government arrangements.
We also note that women migrant workers play a critical role in supporting their families by sending back remittances. We recommend that migrant workers shall be given access to banking systems in receiving countries, and control their own bank accounts. Governments should ensure that systems for remittances are made easy to access and relatively inexpensive. Mechanisms should be put in place to promote women’s greater access and control over the use of their earnings.
These remittances are an important part of the economy in the sending country, showing the benefit to the households of the migrants. Support should also be provided in training and resources to assist the families of migrant workers while the worker is still away.
We recommend that the Asean Committee to Implement (ACI) the Declaration on Protection and Promotion of the Rights of Migrant Workers should work closely with the Asean Committee on Women (ACW) and civil society organisations in Asean committed to support and empower women migrant workers.
Finally, we stand ready to communicate and collaborate with the ACI, and the Asean Secretariat, and we will continue to closely follow Asean’s efforts in this important area.
On behalf of the participants of the workshop,
Sinapan Samydorai, Convener, Task Force on Asean Migrant Workers
Jean D’Cunha, Regional Programme Director, UNIFEM East and Southeast Asia Regional Office
Michael Miner, Regional Director, Southeast Regional Cooperation in Human Development (SEARCH)
All Asean Ministries of Foreign Affairs
All Asean Ministries of Labour
All Asean National Women’s Machineries
National Human Rights Institutions of Indonesia, Malaysia, Philippines, and Thailand
All Workshop Participants