Migrant Workers’ Rights and Status under International Law: the Asian Experience
| Author | Patricia R.P. Salvador Daway |
| Position | Associate Dean of University of the Philippines College of Law |
| Pages | 263-292 |
Patricia R.P. Salvador Daway. Associate Dean of University of the Philippines College of Law & concurrently, Supervisor of U.P. Law Center for publication in the Journal of East Asia & International Law (Focus Issue on Migrant Workers). A.B./LL.B (Philippines). The author may be contacted at: psdaway@yahoo.com / Address: U.P. College of Law Malcolm Hall, Diliman, Quezon City, The Philippines.
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In late 2008, the entire world was jolted from its complacency by the widening financial crisis that has spread to economies integrated into the global market, causing “massive retrenchment and lay-offs of workers and increased unemployment in labor receiving and sending countries alike.”1
Indeed in the Philippines which sends one of the biggest contingents of migrant workers all over the world, banner headlines - 200,000 layoffs feared,2 Hundreds lose jobs3 - at the beginning of the year 2009, prognosticated hundreds of layoffs on a daily basis in domestic corporations as an offshoot of the global economic crisis which was precipitated by the Lehman Brothers’debacle sometime in October 2008. The Department of Labor and Employment forecasted that:
“[I]f companies continue to shed jobs at the present rate, the government may be looking at 200,000 jobless workers in six months.”4
Optimistic business leaders highlighted the options available to affected workers. Those workers “finding themselves suddenly without employment because of the slowing global economy can turn to the information technology and business process outsourcing sectors where thousands of jobs are on offer” or they “can join the approximately 3,000 Filipinos who fly out of the country every day for countries where apparently the demand for Filipino workers has not abated.”5
The global economic crisis, needless to state, will certainly increase the already phenomenal rate of migration at present time and magnify the problems of migrant workers. UN Secretary-General Ban Ki-Moon said: “[G]iven these developments, it would be naive to think the current crisis will have no effect on the movement of people across borders, and how our publics perceive migration and the migrants in their midst.”6 More than ever today, there should be a sustained concern for the implementation of universal, international standards affording protection to migrant workers.
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The Overview on Migration in Asia7 reveals that “[o]ver the past three decades, international labour mobility has become an increasingly important feature of the Asian economic landscape,” relying on the estimated data on Asian migrant workers abroad of “around 25 million,”8 including both within and beyond the “Asian region,” much of which are undocumented and not included in official statistics. Asian migration has truly become “an increasingly intra-regional phenomenon.”9
Many East Asian countries, including Thailand and Singapore, indicate high dependence on foreign labour.10 Asian countries, on the basis of their internal labour migration situation, can be classified as: (1) “mainly emigration” (2) “mainly immigration” and (3) “both significant immigration and emigration.” Thus, Bangladesh, Cambodia, China, India, Indonesia, Laos, Myanmar, Nepal, Pakistan, the Philippines, Sri Lanka, Vietnam are categorized as ‘mainly emigration.’Brunei, Hong Kong SAR, Japan, Macao SAR, Malaysia, Singapore, Republic of Korea (South Korea), Taiwan Province of China are ‘mainly immigration.’Thailand is “both significant immigration and emigration.”11
The two Special Administrative Regions of China--Hong Kong and Macao-‐ have the highest concentration of international migrants in East Asia (43% and 56% of their total population, respectively).12 Hong Kong SAR is the major destination in East Asia while Japan follows with two million international migrants.13 In Southeast Asia, Singapore has the highest number of international migrants with 1.8 million, followed by Malaysia with 1.6 million.14 Many Southeast Asian countries are major sources of migrant labour.”15 The Philippines has the largest number of migrant workers in foreign countries. As of 2006, official figures show that 8.2 million overseas Filipinos are distributed as follows: 3.6 million permanent residents, 3.8 million temporary residents and 875,000 irregular migrants. Indonesia, as of the end of 2006 had two million overseas workers.16
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Addressing the global economic debacle, the Geneva-based International Organization for Migration (“IOM”) which has gone a long way since its establishment in 1951 to become “the leading inter-governmental organization in the field of migration,”17 issued IOM Policy Guidance Note 1 dated on January 12, 2009. In sum, IOM opines that the “global financial crisis is expected to lead to a downturn in the global economy (and perhaps a deeper recession).” It admits, though, that the “depth and extent of the crisis is difficult to predict and the impact of the crisis is likely to vary according to country, geographic region and employment sector.”18
The view is advanced that at such a time, the first to lose their jobs are migrant workers,19 for which it cautions against any such policy given that sending migrant workers home “could have potentially disastrous consequences for development,” if one considers the scale of remittances and the high unemployment rates in developing countries. While optimistic that “[h]uman mobility makes economies more dynamic and more efficient” and may be “a positive force in alleviating various aspects of the financial crisis,” IOM predicts that “countries of origin are likely to experience some influxes of returning migrants, which may result in economic and social instability in poorer countries.” In the same vein, it warns against possible increases in irregular migration and human trafficking.
Along this line, IOM urges the formulation of “flexible, coherent and comprehensive migration management policies to maximize the benefits of migration, protect migrants and take their needs into account in measures addressing the crisis.” Justifying this outlook within the historical context of the oil crisis of the early 1970s and the 1998 Asian financial crisis wherein migration continued with irregular migration even increasing, it concludes that the Asian financial crisis “also demonstrated that keeping markets open to migrants and migration is important to stimulating a quicker economic recovery.”20
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As early as 1919, the need to address the special concerns of the labour sector was brought to fore with the founding of the International Labour Organization (“ILO”), the agency of the United Nations “devoted to labour issues.”21
The earliest instrument which underscored ILO’s concern for migrant workers was entitled Reciprocity of Treatment Recommendation (“R2”) which was adopted in 1919.22 This was followed by six other Conventions/Recommendations namely, Migration Statistics Recommendation (“R19,” 1922),23 Inspection of Emigrants Convention (“C21,” 1926),24 Migration (Protection of Females at Sea) Recommendation (“R26,” 1926),25 Migration for Employment Recommendation (“R61,” 1939),26 Migration for Employment (Cooperation between States) Recommendation (“R62,” 1939),27 and Migration for Employment Convention (“C66,” 1939).28 These Conventions / Recommendations were subsequently, either withdrawn or replaced.
It took the ILO all of three decades to adopt a Convention which sets forth international standards specific to the protection of migrant workers as a special group. This isPage 268 Convention No. 97 of 1949 (“C97”), otherwise known as Migration for Employment Convention. It came into full force on January 22, 1952, that is, one year after ratification by two Member-States.
C97 defined the term migrant for employment as “a person who migrates from one country to another with a view to being employed otherwise than on his account and includes any person regularly admitted as a migrant for employment.” It, however, excluded from its...
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