Can Asean do an EU?

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Atty. Dodo Dulay

Atty. Dodo Dulay

BRUSSELS: This is question that I and my colleagues from the Association of Southeast Nations (Asean) committee on the implementation of the Asean Declaration on the Protection and Promotion of the Rights of Migrant Workers (ACMW) will try to answer during our visit to Brussels, the political capital of the European Union (EU).

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Lest I be misunderstood, we are not talking about an attempt to transform Asean into the Asian counterpart of the EU but rather to replicate its consensus-building processes in order to craft an agreement to protect the rights of migrants within the Southeast Asian region.

But first, a brief background.

We know for a fact that migrant workers are considered as one of the most vulnerable among the different categories of workers. As such, they must be accorded a minimum standard of protection if they are to be assured of decent work.

Recognizing this, the member states of the Asean issued in 2007 the Asean Declaration on the Protection and Promotion of the Rights of Migrant Workers, which outlines the obligation of both labor-sending and labor-receiving Asean countries to protect and promote the rights and welfare of migrant workers.

The ACMW was created primarily to develop the Asean instrument to implement the declaration. The instrument has been under negotiations for the past nine years. Through the efforts of the ACMW, around 85 percent of the provisions in the draft instrument have already been approved by the committee.

The ACMW, however, has been unable to agree on certain key principles such as the coverage of the instrument, that is, whether or not to include irregular (i.e. undocumented) workers; the form of the instrument (i.e. will it be legally binding, non-binding or a combination of both).

There is also the issue as to whether family members of migrant workers already residing in an Asean member state should be included in the instrument.

Organized as part of the “Technical Assistance to Regional EU-Asean Dialogue Instruments (READI) Human Rights Facility” project, we were briefed by experts from the European Commission, the international Center for Migration Policy Development (ICMPD), and other stakeholders such as those representing trade union and civil society organizations (CSOs) on the experience of the different actors in the EU with respect to migrant workers’ rights.

Our interactions covered a wide range of migrant worker rights issues from a European perspective such as EU migration procedures and the key actors at the EU level; EU labor migration and integration; the legal framework of EU rules as well as their characteristics (e.g. legally binding, non-legally binding); the EU “Blue Card” (resident visa for highly skilled workers) scheme; human trafficking (including labor trafficking); and the role of CSOs in protecting migrant workers’ rights.

Like the EU, the ASEAN Economic Community (AEC) is also moving to ease migration among “skilled labor/professionals,” coupled with multi-sectoral initiative to expand the “context and framework for the mobility of people” towards the free flow of skilled labor. To this end, the Asean members have signed seven mutual recognition arrangements (MRAs) on engineering services, nursing services, architectural services, medical practitioners, dental practitioners, accountancy services, tourism professionals, and the framework arrangement for the mutual recognition of surveying qualifications have been signed. But much work remains to be done to implement these agreements.

The way I see it, one big difference between the Asean and the EU is the existence and creation by the latter of a third-party arbiter by way of a European Court of Justice (ECJ). The European Court of Justice (ECJ) was formed in 1952 and is based in Luxembourg. It is now referred to as the Court of Justice of the European Union (CJEU).

The CJEU “interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions.” It can also, in certain circumstances, be used by individuals, companies or organizations to take action against an EU institution, if they feel it has somehow infringed their rights.

This forum enables sovereign states in the EU to have a mechanism to resolve inter-country issues. But as explained to us by the European Commission, the CJEU does not render judgment against any particular country. It only declares whether the action by an EU member state is in accord with the EU constitution, directives, or policies.

There is no such body in the Asean for resolving conflicts since the member-states mainly rely on consensus-building to reach an agreement. This explains why it has been quite difficult to break an impasse when some Asean members do not agree on any matter.

Another big difference that accounts for the faster adoption of EU rules and policies is the presence of a European parliament—the directly elected parliamentary institution of the EU—which together with the European Council and the European Commission, exercises the legislative functions of the EU.

There is no Asean counterpart for these institutions, and it is highly unlikely there will ever be. But that does not mean that Asean is doomed to fail. At the end of the day, the consent of each nation is necessary to implement a multilateral agreement or policy.

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