Who is responsible for protecting the migrant workers?

The answer to this question is simple. Whenever the issue of protecting migrants arises, we point to the national government of the source country while discounting other factors which have a definite role to play in the protection regime.

We can assume the protection system for migrants as a structure based on three essential pillars: the source country, the destination and other relevant international agencies. In addition, NGOs and civil societies including the media have significant roles in the process of providing better protection to migrant workers. To create a sustainable protection structure, these pillars need to act in close coordination through appropriate mechanisms.

But unfortunately, the discourse of migrant protection is heavily dominated by elucidating the roles of the source countries. Such fragmented and partial views often fail to capture the broader picture of protection system.

To identify the factors and parties for protecting the migrant workers we need to find out if the migrant workers only benefit the country of origin - the answer is obviously no. Migrant workers are not only contributing to the development of their home countries through remittance, knowledge and social networks but also playing an influential role in the social-economic spheres of the destination countries.

Migrant workers are relentlessly working to keep the vital services functioning in the host countries. Alongside, they are also important factors for expanding businesses, creating demand for new products and services, innovating sectors such as agriculture, adding new items to the export and import list, making the airlines more profitable in the host countries. Therefore, the destination country has certain obligations and responsibilities to protect the rights and ensure welfare of migrant workers. That is due to compliance of international obligations to various terms and degrees.

The responsibilities of destination countries can be carried out through bilateral and multilateral arrangements. The bilateral mechanisms are easier to implement compared to multilateral treaties, such as conventions and protocols. 

A recent example is the irregular Thai migrant workers in South Korea. A report says there are about 150,000 Thai migrants working in South Korea, of whom 80,000 are in irregular situations. To facilitate the process of their repatriation, the South Korean government granted an amnesty without blacklisting them.

In case of granting amnesty to irregular migrants, many destination countries often blacklist the returnees and impose a ban on them for a certain period of time. Such measures act as an impediment for them to come back as a regular migrant. 

To allow the Thai returnees to enter South Korea again with a legal status, a Memorandum of Understanding (MoU) was signed between Thai and South Korean governments, with a provision that the irregular migrants will not be blacklisted by the South Korean authority.

The above is an example of good practice. Both parties of the MoU considered the fact that regular migrants may become irregular through circumstances that may not be their own fault. The negligence of employers and change in policy of the destination country can result in changes of situation turning regular migrants into irregular, which they cannot overcome by themselves.

Signing a MoU between source and destination country alone cannot guarantee protection of migrant workers unless both parties comply with it religiously. However, creating obligations under a MoU may be difficult as such an instrument generally has a non-binding nature. A MoU simply expresses an agreed course of action without creating any specific legal obligations. There are some exceptions to it. For example, the MoU on migrant worker cooperation signed about two decades ago by Thailand and Laos, Cambodia and Myanmar constituted bilateral treaties setting out detailed obligations on the parties.

However, there is strong evidence that bilateral agreements are more effective than MoU in protecting migrant workers. The reason is that such agreements are binding on the parties and have clear legal obligations to fulfil. According to International Migration Law expert Professor Vincent Chetail, bilateral treaties are the most promising avenue for promoting inter-state cooperation on migration, which cover a wide range of issues such as labour mobility, rights, welfare, protection, readmission, etc. Thus, having a MoU or BLA can be an effective means to make both the source and destination countries legally responsible to ensure the protection of migrants during different phases of the migration cycle.

The second question possibly could be, whether the international communities, more specifically relevant UN agencies, have a responsibility towards the protection regime. The answer is yes. However, international organisations assist migrant workers through adopting legal instruments such as conventions and protocols, encourage the member states to ratify them and oversee their compliances.

For example, over the years International Labour Organization (ILO) have adopted several treaties pertaining to the protection of migrant workers. Of them, Migration for Employment Convention, 1949, Private Employment Agencies Convention, 1997, Domestic Workers Convention, 2011 are more relevant to the interest of migrants. Unfortunately, these conventions are not ratified by most of the migrant receiving countries.

Similarly, though the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) focuses on the rights of migrant workers and their families during the whole migration cycle, till the end of February 2020 only 55 countries had ratified it and most of them are migrant sending countries.

So, the fundamental problem with these multilateral treaties is the lower rate of ratification by the member states. Unless the destination countries ratify these vital conventions and comply with them, create a tangible mechanism, adopting conventions and protocols merely cannot bring any substantive benefits of the much-needed migrant workers.

We have noticed numerous initiatives are being undertaken by labour sending countries, especially in the South and South East Asian regions, over the last three decades as there are more regional and global demands for ensuring protection and welfare of migrant workers.

The adoption of the ICRMW on governing the protection of migrant workers and families in 1990 shed more light on the protection regimes, which also laid the foundation stone to take care of the rights and welfare of migrant workers.

It is noteworthy to mention that ICRMW provided a scope for the NGOs and civil societies to raise their concerns and voices for ensuring well-being of migrant workers and their family members.

The initiatives of the sending countries alone cannot guarantee protection of migrant workers as envisioned in various international instruments and development plans. For better protection of them, it is essential to involve destination countries and relevant international agencies through recognised processes and mechanisms.

The author is  Programme Coordinator at the Regional Support Office of the Bali Process in Bangkok, Thailand.