Scenario precarious for women migrants

       As clandestine migrant labour is an enormous issue in Thailand, a key challenge is how to address the issue effectively and humanely.
       Globalisation implies a greater integration of the international system from the angle of faster communications and information, and greater liberalisation of trade in goods, services, capital and investment flows.
       However, a recurrent question is to what extent globalisation enables migration to take place in an orderly and balanced manner, with due regard to the rights of migrant workers, especially women who now constitute a large part of the work force?
       Currently, the answer is somewhat ambiguous in that today's global system seems more ready to liberalise the flows of goods, services, capital and investment,rather than migration itself which is often seen as a challenge to national sovereignty and ethnic sensibility. The rules and agreements which have been evolved under the World Trade Organisation (WTO), an organisation closely linked with globalisation, have confirmed that trend.
       In this context, it is necessary to see the migration issue from three angles:white collar workers (skilled labour), blue collar workers (unskilled labour) and "no collar workers," namely those who cross borders clandestinely and who often land up in exploitative situations.
       White collar workers can cross borders to work in other countries quite easily,and under the WTO, this often takes place under the umbrella of opening up markets to services, thus enabling women executives and skilled workers to provide services in other countries.
       With regard to blue collar workers,there are large numbers working outside their country of origin, such as maids.The arrangements are at times bilateral,at times regional. Multilaterally, while a comprehensive agreement is lacking on the liberalisation of migration flows, there are some international standards in the form of treaties which offer protection to those on the move by safeguarding their rights; these have been propelled particularly by the United Nations, in particular through the International Labour Organisation (ILO) as a specialised agency.
       Yet the scenario facing women migrants is precarious for a number of reasons. First, increasingly it is evident there is a feminisation of thelabour flows,with women landing up in many jobs which exemplify the 3 D's of work dirty, dangerous and degrading. The Progress of the World's Women Report 2008-09 observes that over the last decade, more than 200 million women have joined the global labour force, and they often land up in labour-intensive and low-paying activities such as subsistence agriculture, domestic work and the clothing industry. Employers see women workers as free from the "fixed costs" of an organised labour force, such as basic minimum wages - particularly equal pay for equal work and social security guarantees. Women are thus more susceptible to discrimination and exploitation.
       Second, many countries have shied away from becoming parties to international treaties for the protection of migrant labour, thus preferring to retain their discretion in dealing with migration issues without international scrutiny.In particular, there have been few accessions to the 1990 UN Convention on the Rights of Migrant Workers and their families. This treaty guarantees the basic rights of all migrant workers whether they are documented or undocumented.While documented workers are guaranteed more rights than undocumented workers, the latter still enjoy key rights under the treaty such as the right to life and humane treatment and their right to seek redress, such as payment for their work even if they are part of the illegal migrant labour. The lack of accessions to this treaty testifies to the lack of political will globally to liberalise migration flows with safeguards for migrant welfare, even though many countries are short of workers and have to import foreign labour.
       Third, in the debate concerning whether to open up to migration, the environment behind the migration should not be overlooked. Often it is the lack of choice in their homesteads lack of opportunities, lack of income,lack of access to jobs and other productive activities which push people to leave and to seek opportunities elsewhere.This is particularly poignant for women who, more often than not, trail behind men in the availability of choices and accessibility to livelihood.
       Fourth, regionally many Free Trade Areas (FTAs) have come into existence,opening up markets to trade in goods,services and capital. While white collar workers have benefited from this, blue collar and no collar workers are in a more tenuous situation.
       Several export processing zones (EPZ)have grown which offer the benefits of easier trade, but without concurrent guarantees of labour rights. This has meant the lowering of labour standards on minimum wages for work and respect for worker rights, particularly women. More-over, there has been little assessment of how FTAs impact on women in the localities in general and women migrant workers in particular. In one Caribbean country noted by the Progress of the World's Women Report, it has been shown that job losses outweighed the benefits from the FTA, with women losing out in the process.
       Fifth, Thailand has faced the migration issue particularly by opting for the registration of foreign migrant labour and concluding bilateral a Memorandum of Understanding (MOU) with all of its immediate neighbours. These MOUs are based on the premise that migrants can enter Thailand to work if there is a labour shortage in relation to relevant sectors and there is an official channel for them to come into the country through official channels in neighbouring countries. If they enter legally and pay the relevant contributions, they have access to medical and other benefits as part of the social security programme offered by the destination country. However, as clandestine migrant labour is an enormous issue in the country, a key challenge is how to address the issue effectively and humanely.
       In addition to the prescription of registration of migrant labour introduced by Thailand several years ago, there is now a new law on the employment of alien workers. In 2008, this new law came into effect, with the innovation that unlike previous national laws which listed various types of work in which foreign labour could not be engaged, the new law will list the types of activities open to foreign labour. Employers and foreign employees must also make contributions into a fund which will be used to assist foreign migrant workers to return to their country of origin. However, one anomaly is that law enforcers will be able to arrest foreign migrant workers without a court warrant.
       On another front, it should be noted that the Labour Protection Act which was updated also in 2008, does not discriminate between Thais and foreigners in terms of labour rights protection. They all have a right to equal wages. Women and adolescent workers are protected from various types of harmful work. The minimum age of employment is set at 15, while there is protection of those under 18 years of age from certain kinds of dangerous work.
       To counter the exploitation and abuse which may affect workers, there are also special laws and policies, such as the law against human trafficking which came into force last year, and the antiprostitution law. The country's new National Health Act also opens the door to covering migrant workers in relation to healthcare access. Yet, in spite of these legislative changes, implementation often leaves much to be desired and there is a considerable gap between law and practice, legislation and enforcement.
       For the future, various orientations deserve to be highlighted with particular emphasis on the protection of women migrant workers. At the multilateral level,the WTO should be encouraged to promote a sense of responsiveness to labour standards. This can be done, in part, by requesting states which send in their reports under the Trade Policy Review mechanism to include information on labour rights.
       Countries should also sign up to the 1990 Migrant Workers' Convention as well as ILO Conventions, while ensuring that EPZs do not lower labour standards.Various anti-crime treaties such as the Palermo Protocol against human trafficking also voice the need for more global cooperation against transnational crimes.
       At the regional level, the Association of Southeast Asian Nations (Asean) itself should underline more effectively the need to protect migrant labour. On a welcome front, recently Asean adopted the Declaration on the Rights of Migrant Workers. Next month, the Asean Intergovernmental Human Rights Commission will also be set up as the overarching body on human rights in Asean. A related issue is to ensure that the Asean FTA is assessed from the angle of its impact on the situation of local and migrant labourers, with relevant remedies.
       Likewise, bilateral agreements on migrant labour in Asean need to abide by international labour standards. Various practices such as the caning of labourers and the expulsion of women migrant labourers who wish to marry the residents of the destination country, are unacceptable practices.
       With regard to Thailand, the country should accede to the 1990 Migrant Workers' Convention and relevant ILO treaties and implement them well.Undocumented migrant labourers should be assisted to access the remuneration to which they are entitled as part of access to justice.
       The new law on the employment of alien workers should also be applied to uphold human rights standards, such as the general principle that arrests should only by undertaken with court warrants. Legal and other measures in the anti-crime field, such as those against human trafficking, should abide by the need for gender sensibility and the protection of victims and witnesses from intimidation.
       In effect, a key message from the phenomenon of women migrant workers is that "Justice based on Women's Rights"should be increasingly resonant both locally and globally.
       Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University. He has helped the UN in a variety of capacities, including as an expert, consultant and Special Rapporteur. This article is derived from his speech at the National Platform for Women,Bangkok, Sept 17,2009.