When human rights don’t cross borders

Protecting migrant workers in Indonesia

Antje Missbach, Wayne Palmer

International relations, Law, Social policy | Asia, Southeast Asia

15 November 2018

Despite its international legal obligations, Indonesia is not doing enough to protect the work rights of asylum seekers and victims of trafficking, Antje Missbach and Wayne Palmer write.

Under the 1990 UN Convention on the Rights of All Migrant Workers and Members of Their Families (ICRMW), irregular migrant workers have the legal ‘right to protection against labour exploitation’. This right applies even when they work despite the government’s prohibition on employment.

Although Indonesia ratified the convention in 2012, the country has so far implemented insufficient protections for foreign migrants there, as new research on trafficking victims and asylum seekers shows.

Indonesia often sees itself exclusively as a sending country for migrant labour. High unemployment and underemployment levels in Indonesia drive many men and women to seek work elsewhere. They mostly do it hoping that their remittances will lift their families out of poverty and guarantee those left behind some sort of upward social mobility. In 2016 the World Bank estimated that more than nine million Indonesians were living and working abroad in both regular and irregular situations.

Unsurprisingly, Indonesia’s main focus is on its own citizens when it comes to protecting the rights of migrant workers. In practice, this means that the government mostly pays attention to outgoing migration patterns and related rights issues, but largely ignores the rights of incoming migrants – despite the fact that the ICRMW requires Indonesia to protect the human rights of both groups.

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Indonesia is a destination for a wide variety of migrant workers, including those with and without work permits, trafficking victims who have been coerced into taking up exploitative employment in the country, and asylum-seekers with ongoing claims for international protection. But they only make up a very small proportion of the overall migrant population – only around one per cent or so.

Although these foreigners belong to different administrative categories for incoming migrants, and domestic abuse of their human rights has been widely reported, the Indonesian government has done little to protect them.

In fact, rather than helping trafficking victims claim restitution, the Indonesian government has directed efforts towards activities that effectively deny them the ability to do so, including by facilitating repatriation to their home countries. Similarly, rather than supporting asylum seekers to claim wages when they have been underpaid, which is illegal, Indonesian authorities send the foreigners to immigration detention centres.

Continuing to ignore the exploitation of those highly vulnerable groups of migrants while they live and work in the country undermines Indonesia’s international credibility and long-term commitment to protection of migrant workers’ rights.

The 1948 UN Universal Declaration of Human Rights affirms 30 individual rights, including the ‘right to work’. But this and other human rights were not always accorded to migrant workers, especially those living and working in irregular situations, such as asylum seekers who are not yet recognised refugees. Governments justified denying rights to migrants without full sets of migration documents, such as a valid passport and visa.

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To correct this practice, the UN adopted the ICRMW, which mostly outlines how the human rights contained in the Universal Declaration ought to apply to migrant workers. For instance, instead of the ‘right to work’ everywhere, migrant workers are only entitled to the ‘right to protection against labour exploitation’ in countries where they do not have citizenship. Despite popular belief, even migrants who work without government permission are entitled to this right.

Having said that, some migrants are excluded from the ICRMW’s protections, including recognised refugees, stateless people and seafarers. These migrants’ rights are protected under other arrangements, such as the UN 1951 Convention Relating to the Status of Refugees, which has several articles on labour and employment rights.

Unfortunately, Indonesia has not yet signed this convention and has no intention to do so anytime soon. In the case of refugees, the Indonesian government could have extended ICRMW rights to them, so they could enjoy the same human rights protections as other migrants. But instead the government chose to stay consistent with its commitment to deny rights to migrants it has not permitted to enter the country.

As a consequence, however, a glaring protection gap has emerged. According to the ICRMW, asylum seekers with ongoing applications for Refugee Status Determination are deemed to be migrant workers. But if successful, the recognised refugees end up with less protection, as they cease to be covered by the ICRMW but are not then protected by the refugee conventions. This also runs against the global plea for governments to grant refugees work rights that will increase the asylum seekers’ autonomy during the period (which is often years!) they seek protection.

Of course, this absurdity of refugees ending up with less protection as a result of the refugee determination process should not discourage asylum seekers from applying for refugee status in Indonesia. By doing so they become eligible for the support services of the United Nations High Commissioner for Refugees and International Organization for Migration while they wait for resettlement in another country or for ‘voluntary repatriation’.

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But for the asylum seekers whose refugee status has not yet been determined, the failure to protect their labour and employment rights is clearly an implementation problem.

In practice, the Indonesian Directorate-General of Immigration prioritises enforcement of the employment prohibition, which it is tasked to do. The authorities focus their efforts on control and surveillance of migrants and their activities, because in the officials’ minds, working despite the employment prohibition negates ICRMW rights, including the right to protection against exploitation at work.

Indonesia’s refusal to protect the labour and employment rights of unauthorised migrants is further evidence that just like many other migrant-receiving countries in the region, such as Singapore and Australia, Indonesia remains reluctant to help those migrants enjoy basic human rights.

Greater rights protection could be achieved in Indonesia if the sending/receiving dichotomy was abandoned in favour of attending to the country’s role as both ‘sender’ and ‘receiver’ of migrants.

The protection of migrants’ labour and employment rights is key to achieving goals set out in the United Nations 2030 Agenda for Sustainable Development, which is currently discussed as part of the Global Compact for Safe, Orderly and Regular Migration. A step towards doing so is to educate government authorities, especially those that champion the cause, about the fact that international human rights law stipulates the ‘right to protection against labour exploitation’ for incoming migrants, even if they work without the host government’s permission.

Until the Indonesian government accepts this, the experiences of migrants in Indonesia will become another cautionary tale that shows how human rights do not always move with people as they cross international borders.

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