In Search of Solutions for the Governance of the Rights of Migrant Workers in Southeast Asia: Regulatory Regionalism as a Reasonable Approach45262

In Search of Solutions for the Governance of the Rights of Migrant Workers in Southeast Asia: Regulatory Regionalism as a Reasonable Approach Thuy Duong Nguyen(1) (*) (1) Hanoi Law University, Hanoi, Vietnam * Correspondence: duongnt@hlu.edu.vn Abstract: The issue of migrant worker rights has been a difficult challenge for ASEAN to address Many commentators pointed out inadequacies of ASEAN’s governance on this issue such as the lack of legal binding regional instruments which are compatible with international labour standards; the absence of an enforcement mechanism; the low protection of migrant labour rights in its member states These shortcomings are the consequences of incompatible national interests of member nations and very strong working principles of ASEAN – non- interference in the international affairs of member states; consultation and consensus in decision-making These principles have been considered as a way to respect ASEAN member states’ sovereignty Hence, it is unrealistic to suppose that ASEAN could change these norms to improve the situation of migrant workers within the region The paper focuses on the concept of regulatory regionalism as a possible solution for ASEAN to deal with this problematic issue – although it will be a long and challenge process This innovative approach not only allows ASEAN to play the more central role but also ease member states’ concerns of their sovereignty in promoting and protecting the rights of migrant workers within the region in a truly comprehensive and integrated manner Keywords: migrant worker rights; regulatory regionalism; migrant workers in Southeast Asia; Introduction It is estimated that the number of migrant workers originated from Southeast Asia is 20.2 million, while there are approximately 6.9 million of intra – ASEAN migrant workers) There are two mainly migrant intraregional flows between ASEAN member countries First is in the Mekong sub regional areas including the migrant labours from Myanmar, Cambodia, Lao PDR, and Vietnam to Thailand Other corridor regards to migrant flows from Indonesia and Philippines to other Southeast Asia countries including Brunei Darussalam, Malaysia and Singapore (Allison-Reumann, 2017) Apparently, regarding to intraregional migrant labours, ASEAN member states could be divided as sending countries and receiving countries, which leads to the fact that it seems impossible to harmonize conflict of interests on the issue of migrant workers between them (Allison-Reumann, 2017) Given that most of Asian migrant workers are temporary and unskilled, they would easily be classified as undocumented hence remain more vulnerable, to be compared with skilled and professional labor Howbeit, the laws of member countries including home and host not provide adequate protection for migrant workers (Brown, 2016) In the countries of destination, migrant workers endure severe discrimination against citizenship For instance, Singapore does not have a provision for migrant workers, migrant helpers are not also protected under the country’s labor law Similarly, Malaysia does not mention medical care for migrants, their children are not allowed to enroll public schools (Ramji-Nogales, 2017) In their home countries, the insufficiency of legal mechanism and institutional capacity to protect migrant workers results in the prevalence of private bookers over national official recruitment process in terms of migrant workers’ choice, (Farbenblum, 2017; Kneebone, 2012), which later leads to the risk of those people becoming irregular migrant workers or even falling victims to human trafficking Subsequently, they would stand a lower chance of being involved in protection mechanism in the host states In other words, responsibilities over migrant workers are continuously unsettled between those countries Researchers concur that regional integration has led countries to fall into homogeneous situation, which is called ‘regional boats’ that requires regional decisions and actions (Chavez, 2015; Farbenblum, 2017) In addition, scholars also agreed that there were shared responsibilities between host and origin counties in protecting rights of migrant workers (Farbenblum, 2017; Kneebone, 2012) ASEAN is the regional organization with the earliest efforts to protect and promote rights of migrant workers as it is the origin of the largest number of persons who migrant workers Migration issue was acknowledged for the first time in 1999 in ASEAN Nevertheless, it seems that ASEAN recently has revealed many inadequacies in addressing this issue One of the basic characteristics of regional governance of migrant workers issue in ASEAN, which is clearly reflected in their legal documents, is a securitized approach, considering that migration needs monitoring to ensure national security, in spite of the fact that right-based approach is required to be contemplated when it comes to migration issue However, it seems that this approach is not, both on national and regional level Accordingly, migrant workers are violated in their rights and the raising number of migrant workers is unmanageable This paper aims to analyzes ASEAN’s efforts as a regional international organization in developing a governance mechanism for the rights of migrant workers Simultaneously, it would point out the limitations and explanations why ASEAN has obstructed in building a model of migrant workers’ rights management in accordance with regional countries, distinctively The paper would also discuss on researches’ suggestion for ASEAN in the process of detecting a relevant solution to this regional convoluted issue Among manifold solutions, regulatory regionalism is likely to prevail Methodology The paper considers migrant workers’ rights as a regional issue which requires common activities of ASEAN as a regional cooperation to search for a reasonable solution for the association to deal with this issue Hence, the paper does not focus on migrant worker issues in sending or receiving countries at the national level The scope of this research paper goes beyond the boundary of national territories Thus, it is impossible for the author to use research methods such as interview or observation which requires abilities of getting access to stakeholders who are directly related to migrant workers issues (for examples the brokers, the recruitment agencies, the migrant workers and their families) or policy – making actors at both of national and regional level Therefore, the author mainly uses the documentary analysis as an inexpensive and effective method to carry out this research The paper uses desk research based on the theory of regulatory regionalism Also, the paper considers the issue of migrant workers’ rights within Southeast Asia countries as a case study to explain the situation of migrant workers’ rights Results 3.1 ASEAN’s efforts in addressing migrant workers’ rights issues Though regional agreements and initiatives play a determining role in the governance of the rights of migrant workers in ASEAN, they have not gained comprehensive result as expected of the association In 1997, ASEAN started to implement activities in cooperation with respect to migrant workers issues ASEAN has come up with some notable innovations to solve migrant labor problems as illustrated below - The ASEAN Declaration on Transnational Crime 1997 to commit to fight against the illegal immigration and human trafficking - The ASEAN Vision 2020 (1997) to motivate the establishment of regulations and cooperating actions for transitional issues such as trafficking in women and children - The Hanoi Action Plan (1998) to elaborate the detailed schedules to execute The ASEAN Vision 2020 of an integrated ASEAN community and to make a commitment of fundamental cooperation in the combat of trafficking in women and children - The Bangkok Declaration on illegal immigration 1999 was signed by ASEAN members and other countries including Australia, Bangladesh, China, Japan, Korea, New Zealand, Papua New Guinea, Sri Lanka and Hong Kong government to take the pledge to solve the immigration problems, especially illegal immigration in a thorough and balanced way, and to strictly follow every step to fight against people trafficking in ASEAN area - The ASEAN Declaration Against Trafficking in Persons Particularly Women and Children 2014 to commit to build a head-connection against people trafficking in ASEAN area All these initiatives, programs not directly intend to the migrant worker issues in the regional scale As their focus is the issues of human trafficking or protecting vulnerable groups like woman and children, while the whole picture of migrant workers’ problem is still off the table In 2004, the Vientiane Action Program was the first reaction of the association toward the migrant workers’ rights issues This document aims to undertake ASEAN members to sing a regional framework instrument to protect and promote the rights of migrant workers within the region In order to implement the commitments reached in Vientiane Action Program 2004, the Declaration on the promotion and protection of human rights of migrant workers was adopted at the ASEAN Summit 12th in Cebu, Philippines on 13th January 2007 (referred to as the Cebu Declaration) has confirmed the necessity to adopt a comprehensive policy at regional level and determine the principles and measure specifically aim at protecting and promoting the rights of migrant workers in ASEAN The declaration recognizes the contributions of migrant workers in both receiving and sending states of ASEAN This document stipulates the need to adopt appropriate and comprehensive migration policies on migrant workers and to address cases of abuse and violence against migrant workers whenever such cases occur The declaration is considered as a momentous achievement when ASEAN firstly gives a general statement to protect and promote the rights of migrant workers The Cebu Declaration sets the general principles for the protection and promotion migrant workers’ rights for ASEAN members Accordingly, member countries will need to cooperate closely with each other and promote the value and potential of migrant workers in an environment of freedom, justice, stability in accordance with the national law and policies Furthermore, the Cebu Declaration stipulate obligations of both sending and receiving countries in promoting and protecting the rights of migrant workers in ASEAN To specify, the home countries have obligations to intensify efforts to protect the fundamental rights, promote the welfare and uphold human dignity of migrant workers; facilitate access to resources and remedies through information, training and education, access to justice, and social welfare services as appropriate and in accordance with the legislation of the receiving state; Promote fair and appropriate employment protection, especially in payment of wages, and adequate access to decent working and living conditions for migrant workers (from Article to Article 10) For sending countries, their policies and legislation need to ensure access to employment and livelihood opportunities for their citizens as sustainable alternatives to migration of workers relating to recruitment issues; set up policies and procedures to facilitate aspects of migration workers, including recruitment, preparation for deployment overseas and protection of the migrant workers when abroad as well as repatriation and reintegration to the countries of origin (from Article 11 to Article 14) The Cebu Declaration reflects initial steps of the association which makes commitments of ASEAN members regarding to migrant workers’ rights This document also sets provisions on monitoring progress in implementing these activities and requests the ASEAN General Secretariat to submit an annual report on the implementation of the Cebu Declaration on the ASEAN Summit through the Council ASEAN Ministerial Meeting (from Article 15 to Article 22 of the Declaration) However, one of the biggest drawbacks of this document is that it is political binding instead legally binding (Ramji-Nogales, 2017) Hence, Article 22 in the Cebu Declaration imposes obligations for ASEAN members to “develop an ASEAN instrument on the protection and promotion of the rights of migrant workers” as a first step to prepare the foundation for future development of an effective mechanism in protecting migrant workers’ rights in ASEAN It is likely that ASEAN often starts at low or non-legal binding frameworks, often for a political purpose, and then gradually, they upgrade to formal instruments that have higher legal binding effect After the Cebu Declaration was signed in 2007, ASEAN has taken specific actions to bring the commitments in the Declaration into reality, which was the trigger for some future progresses of the association in the governance of the migrant workers’ rights issue Firstly, ASEAN has taken the first steps to implement the Declaration by establishing ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (ACMW) In 2008, the ACMW was established with the main task to develop a legal binding instrument to protect and promote rights of migrant labours The first Meeting of the ACMW was held on 15 – 16 September 2008 in Singapore, adopted its Terms of Reference and Work Plan ACMW has the responsibility to ensure the commitments in the Declaration will be implemented As can be seen in the Work Plan of ACMW, the Committee has four main activities: (i) Step up protection and promotion of the rights of migrant workers against exploitation and mistreatment; (ii) Strengthen protection and promotion of the rights of migrant workers by enhancing labour migration governance in ASEAN Countries;(iii) Regional cooperation to fight human trafficking in ASEAN; (iv) Development of an ASEAN Instrument on the Protection and Promotion of the Rights of Migrant Workers Secondly, ASEAN has established an expertise group to support the implementation of activities to promote and protect the rights of migrant workers in the region - Task Force on ASEAN Migrant Workers (TF-AMW) Task Force on migrant workers is a mechanism to ensure the rights of migrant workers through civil society organizations of the region and the country, trade unions, human rights organizations and institutions, NGOs on immigration The TF-AMW is composed of SAPA regional networks of civil society organizations and trade unions including: - Asian Forum for Human Rights and Development (FORUM-ASIA); - Migrant Forum in Asia (MFA); - Mekong Migration Network (MMN); - ASEAN Service Employee’s Trade Union Council (ASETUC); - Southeast Asia Migrant Workers’ Initiative; - National Working Groups and Focal Points who coordinate national advocacy activities in ASEAN Countries: Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, and Vietnam The Task Force will continue to work with ASEAN member countries to ensure the implementation of the Cebu Declaration 2007 in protecting and promoting migrant workers’ rights efficiently, especially in enhancing the progress of drafting the ASEAN Framework Instruments in this issue Thirdly, ASEAN established the ASEAN Forum on Migrant Workers (AFML) At the first meeting of the Senior Labour Officials Meeting (SLOM) held on March 2008 in Thailand, the members agreed to establish an ASEAN forum on migrant workers as a regular activity in the work plan of ACMW The objectives of the AFML are three folds: - To share stakeholder experiences, challenges and good practices in implementation of the Recommendations at past AFML meetings This is undertaken during the Review Session in each of the AFML meetings - To examine in detail Articles of the Cebu Declaration that pertain to the obligations of both countries of origin and destination This is completed through the adoption of two Thematic Sessions in every AFML meeting - To draft and agree on Recommendations arising from discussions of the thematic sessions This is an event relating to the governments of the ASEAN member countries, organizations of workers, employers and civil society organizations (CSOs) The forum provides a space of dialogue and exchange of ideas on issues facing migrant workers in Southeast Asia Each forum focuses on a theme, usually relates to the problem of how to implement the ASEAN Declaration on the rights of migrant workers At each forum, participants agree to adopt a set of conclusions in a document namely “Recommendations” The Recommendations are crafted by a drafting committee during the AFML meetings which would be discussed, finalized and adopted in a plenary session with all stakeholders attending the AFML Eventually, after a long time of negotiation, ASEAN reached a final agreement by signing the Consensus on the Protection and Promotion of the Rights of Migrant Workers at the 31st ASEAN Summit on 14 November 2017 (referred to as the Consensus) Although it took ASEAN a decade to adopt the Consensus, this document was morally binding rather than a legally binding as intended in the Cebu Declaration (Rother, 2018) The Consensus was considered that brings a step forward of ASEAN in the protection of the rights of migrant workers in the region Albeit the document created non-binding principles, it also increases and expands the important obligations of ASEAN member states After the Consensus was signed, ASEAN members also decided to adopt the Action Plan (2018 – 2015) to implement the Consensus which was developed by the ACMW It is also necessary to refer to the adoption of the ASEAN Declaration on Human Rights in 2012 (ADHR) Albeit the ADHR is also a non-legally binding agreement, this document shows the stronger commitments in addressing the migrant workers’ rights issues Article of the ADHR expresses that the rights of migrant “are an inalienable, integral and indivisible part for human rights and fundamental freedoms” It is the important evidence of commitments of ASEAN member states in the protection of the rights of migrant workers In general, ASEAN has a tendency to use “soft law” tools in the governance of migrant worker issues All most all of regional documents regarding to migrant workers are non-legally binding (Ramji-Nogales, 2017) 3.2 Inadequacies of ASEAN governance regime of migrant workers’ rights Although ASEAN made an attempt on the establishment of a governance regime on the issues of migrant workers’ rights within its member states, the association still shows the limitations and deadlocks on this progress It is likely that except for strong words expressed in non-binding agreements ASEAN reveals its inadequacies on the governance of migrant labour rights issues Firstly, provisions of ASEAN non-binding agreements are relatively vague, which diminishes the effectiveness of the regional mechanisms regarding to the protection of migrant workers’ rights On the one hand, ASEAN documents show the imbalance between sending and receiving member states, which is expressed by Kneebone (2011) that it reflects the status of “weak” and “strong” states in the ASEAN countries’ relationship with respect to migrant worker concerns For example, Article 13 of the Cebu Declaration impose the responsibilities of protecting migrant workers not only in the progress of recruitment, preparation for deployment overseas but also when they are working abroad as well as repatriation and reintegration to the home country without mentioning any obligations of cooperation of the host states Kneebone (2012) claimed that despite both of sending and receiving countries gain benefits from migrant workers but it seems to have disjointed responsibilities in the protection of migrant workers between these two partners Secondly, ASEAN focuses on securitized aspects when it comes to migrant workers problems rather than human rights ones This is also a traditional approach of countries that considers migrant workers as an issue which have negative impacts on national security Therefore, the issues related to the rights of migrant workers has not been gotten attention of regional agendas in Southeast Asia sufficiently Instead, ASEAN member states concentrate on the negative aspects of migrants to national security, for example illegal immigration, human trafficking, and smuggling (Cheah, 2009; Kneebone, 2011), affecting to the regional cooperation activities An example of this is the situation of undocumented migrant workers account for a large number in total of migrant workers within the region They are able to get a high exposure of being abused, working under the insufficient conditions, having health problems without getting access to medical care or even being treated as criminals in the host states However, ASEAN seems to keep silent on the protection of undocumented migrant workers in its regional instruments ASEAN has raised its attention for irregular migrants since 1999 The 1999 Bangkok Declaration on irregular migration prescribed that “regular and irregular migration should not be considered in isolation from each other” The next documents of the Association states otherwise Both of the Cebu Declaration and the Consensus stipulated that undocumented migrant workers’ rights are only considered when it comes to “humanitarian reasons” (Article of the Declaration and Article 56 of the Consensus) It can be seen that this humanitarian approach excludes responsibilities of ASEAN member states in protecting the rights of undocumented migrant workers Clauses 49 and 59 also showed that ASEAN focus is still on preventing irregular migration rather than protecting their rights when they have been already worked at the host states This humanitarian approach excludes responsibilities of ASEAN member states in protecting undocumented migrant workers’ rights Cheah (2009) criticized that the humanitarian approach could allow member states consider undocumented migrant workers simply from the lens of the lack of kindness rather than a more complicated problem may exist such as synesthetic elitism in Southeast Asia society Secondly, it is evident that the attempts on the build of formal normative frameworks for the association has been failing As noted above, the Cebu Declaration aimed to enhance the progress of adopting a regional instrument which have legally binding effect on the protection and promotion of migrant workers’ rights This shows the deadlock of the association in reaching the consensus between member states on the common approach of migrant workers issues There are several reasons for this situation One of the main reasons for the delay in signing a legal binding instrument for this issue is the contradict interests between sending and receiving member countries In the progress of drafting the regional framework instrument, there are three points that revealed major conflicts between ASEAN members which are the legal-binding effect of the document; irregular migrant workers issue; and the protection of family members of migrant workers (Allison-Reumann, 2017; Bal & Gerard, 2018; Rother & Piper, 2015) These conflicts, as explained by Chavez (2015), comes from the priority of ASEAN member states to sovereignty which was expressed by the ASEAN principles of non-interference and consensus on decision making (Kneebone, 2012) (Auethavornpipat, 2017) This is evident in the case of Malaysia which required full sovereignty in the migrant policies (Ramji-Nogales, 2017) 3.3 Regulatory regionalism as an appropriate solution for the governance of migrant workers’ rights issues in Southeast Asia 3.3.1 The concept of regulatory regionalism The concept of “regulatory regionalism” developed initially by Jayasuriya (2009) Regulatory regionalism is a new mode of regional governance which places emphasis importance on actual activities of national and local institutions of states rather than formal regional cooperation mechanism or official international agreements Its emergence of regulatory regionalism to tackle transboundary issues more effectively in Asia would be firstly discussed on this paper, then followed by Southeast Asia Jayasuriya (2009) uses the term “regulatory regionalism” in reference to a new mode of regional governance which takes root in possibilities of reshaping economic and political borders between countries in the context of globalization Globalizations have contributed to develop cross-border interactions among different actors in various countries, which created the so called “political and ideological boundaries” As a result, the new borders system will be ameliorated under complex transnational economic and political relations between countries which later creates new spaces of governance that are dependent from territorial national boundaries (Jayasuriya, 2015) From this lens, Jayasuriya and Hameiri (2011) pointed out that these new spaces have been created as regional regulatory frameworks and networks in terms of convoluted transnational social, economic, security issues through soft law and informal mechanism rather than official international and regional agreements or institutions In addition, regulatory regionalism is an internal transformation process of states (Jayasuriya & Hameiri, 2011), enabling the implementation of regional policies in the national level (Chattranond, 2018) A radical example is when China actively participated in regulatory regionalism projects The Greater Mekong Subregion (GMS) in the Economic Cooperation Program of the Asian Development Bank reflected the engagement of local authorities of Yunnan and Guangxia provinces in the National Coordination Group for the GMS Program which were established by the Chinese government in 2006 This institution was the combination of central government and local authorities including Ministry of Trade, Ministry of Finance, Ministry of Foreign Affairs, General Department of Customs and local authorities of Yunnan and Guangxi (Jayasuriya, 2015) Unlike nationalism methodology, regulatory regionalism does not express state sovereignty within the national territory in regional integrations There appears to reach some agreements of scholars regarding to disadvantages of the nationalism approach in the international and regional integration (Jayasuriya, 2009) To effectively address transboundary issues, concerned nations need to have a cross-border governance system through the engagement to international or regional institutions However, from the lens of nationalism approach, some functions of states are able to be replaced by the establishment of such institutions, which limits state power in some national domestic affairs (Jayasuriya, 2009) As a result, countries are not willing to engage into regional integration addressing variety of cross-border problems due to the impact of this approach Thus, unlike nationalism approach, regulatory regionalism as the new mode of governance is not based on the idea that regional institutions would replace national sovereignty or even the cooperation of intergovernmental organizations, which would create more opportunities for conservative countries to seek for a more effective governance forms addressing transboundary issues 3.3.2 The emergence of regulatory regionalism governance in Asia Pacific As mentioned above, ASEAN shows a weak regionalization (Fernández-i-Marín & Jordana, 2015) when it compares to other regions due to the persistence of absolute sovereignty of country members which results in the strong conservative of ASEAN members on innovative governance modes (Ravenhill, 2009) (Fernández-i-Marín & Jordana, 2015) However, Asia witnessed a broad spectrum of new governance forms – regulatory regionalism governance, starting at financial surveillance forms, then expanding to a variety of other issues such as water management (Jayasuriya & Hameiri, 2011) There are several primary reasons for the emergence of a new regulatory form of regional governance in such a conservative region as Asia when it comes to regional integration Firstly, the emergence of regulatory regionalism in Asia is a predictable inevitability which attributes to the economic and political impacts of the globalization to national governance of many countries in Asia This alternative governance mode is not a political choice of parties in a state (Jayasuriya, 2009), but their responds to the strong demands for an effective governance system Which could be capable of solving cross-border issues rising in the context of globalizations Globalizations with the development of transnational productivity networks have facilitated continuous flows of capital across international borders in various regions including Asia, creating changes in regional economical governance form On the one hand, transnationalization of markets in the region which accede countries to get access to economic resources and enabled them to reach economic development Instantaneously On the other hand, cross-border trade and investment flows create new problems within the states such as financial crises, climate changes, environmental degradations, infectious diseases, migrant, human trafficking, laundry crimes, and so on In this context, it is difficult to ensure the stability of the markets and address these transboundary issues without a regional governance regime including evolving countries Chattranond (2018) gave example of the overlapping systems of different countries along the Mekong rivers to manage the hydro power market in this region However, it is likely that states demonstrate their central roles in policy making and the market management to serve public interests Thus, it leads to conflicts between requirements for effective governance and demands of keeping the power of national states regarding to transboundary issues Therefore, regulatory projects have appeared to aid states to diminish concerns of transfer of power for regional institutions to have an efficient governance system to ensures the stability of transnational markets Secondly, scholars also suggest that new generation FTAs which has been signed recently reflects a new approach in establishing transnational governance systems (Jayasuriya, 2009) Such FTAs like RCEP or TPP (and now CPTPP) show that besides stipulating traditional provisions related to trade arrangements among countries, these agreements also set rules and principles for social issues in country members such as environmental protections, safety food and labour standards in national policies This approach creates new political relations and compel governments to participate in political and social regulatory projects, which brings more reactions and communications among national agencies of states In other words, Jayasuriya (2015) suggested that new generation FTAs ride the forefront of the new mode of regional governance development As mentioned above, Jayasuriya (2009) expressed the importance of active participation of national agencies in the implementation of regulations rather than in international treaties and formal regional cooperation Unlike Jayasuriya, Fernández-iMarín and Jordana (2015) also proved that when becoming members and participating on international and regional agreements or institutions, national agencies of states communicate, learn experiences and exchange views from each other These interactions gradually form internal transformations in national agencies, then in governance system of these countries Representatives of countries in international and regional institutions brings national-level initiatives and experiences of other countries in practice Eventually, networks of new national regulatory agencies between countries were established in the regional level In other words, it is likely that the emergence regulatory regional governance has come from the actual interrelations between national agencies Thirdly, scholars also pointed out that due to inflexibility and structural rigidity of prevailing systems of regional governance in Southeast Asia, a new form of regulatory regional governance had a chance to appear Indeed, there are various issues rising from globalizations in the region, demanding for a regional governance form to handle transnational issues promptly and effectively However, Southeast Asia countries lack flexible governance structures adapting to continuous changes in the context of globalization Various scholars indicated that it has been a long and slow process of cooperation of risk managements through formal regional organizations in Asia countries, for examples APEC and ASEAN (Narine, 2004) This attributes to the common concerns of states in region about the possibility of losing power if they enter into regional and international agreements The ideas of transfer power to international and regional institutions prevent states from the region being willing and eager to fully participate in a regional governance mechanism These doubts and hesitations create an internal contradiction of nation states in the process of addressing the transboundary risk issues (Chattranond, 2018) On the one hand, apparently, governments understand that it is impossible to manage the crisis which comes from transnational issues efficiently without cooperation between nations, particularly regards to developing countries who are lack of institutional capacities On the other hand, states always demonstrate their central role in all aspects of governance within the boundary of the nation Therefore, countries in the region need a “softer” form of regional governance, which have no threatens over their sovereignty and ensures the central role of national authorities but also allows them cooperating to regulate transboundary issues effectively (Jayasuriya, 2015) As a result, in Asia in general and Southeast Asia in particular, there has been emergences of regulatory regionalism to meet the demands for a new and flexible governance mode of countries in the region To conclude, it is evident that the emergence of regulatory regionalism in the region is an inevitable result of a long and complex progress of economic and political interactions and communications between nations in the context of globalization 3.3.3 Regulatory regionalism as a reasonable solution for migrant workers’ rights issue in ASEAN As explained earlier, ASEAN member nations have been influenced by the traditional understanding of regional integration which underpinned the need for the transfer of power to regional institutions It is evident that political elites in ASEAN member countries have tendency to fight against the invasion of regional institutions to the power of the state, leading to the deadlock on establishments of regional systematic mechanisms to deal with a wide range of transnational issues such as terrorist, human trafficking, undocumented migrant workers, laundry, transnational crimes, etc This is partly attributable to a colonial history of the region which has an adverse effect on member countries, pushing them to prevent the intervention from external powers Almost all countries in Southeast Asia has undergone the fights for national independence and selfdetermination lasted for a long time to escape from dominations of Western countries In fact, the establishment of ASEAN aimed to maintain and promote the independence of member countries (Narine, 2004) Hence, it seems to be impossible for them to accept the idea of “transfer of sovereignty” in regional integration activities, especially in so called “sensitive” transnational issues, for example migrant workers’ rights issue This is certainly true in the case of migrant workers’ rights issues in ASEAN as discussed above One of the most criticisms regarding to ASEAN’s governance of migrant workers issues is that the lack of legal binding agreements and an effective implementation mechanism However, migrant workers policies of international community nowadays has changed, supporting for informal and non-binding instruments approach which has promoted to generate set of guidance and recommendations for countries alongside with international standards and norms in legal documents (Allison-Reumann, 2017; Cheah, 2009; Rother & Piper, 2015) Xinying (2008) also claimed that governance models which not seriously focus on legally binding agreements is compatible with the general trend of international community One of main reasons why it took ASEAN so long for signing a legal binding instruments in the field of migrant workers’ rights is the conflict interests between sending and receiving countries in the region These apparent conflicts were in combination with the consensus principle in ASEAN decision deadlocked the negotiation process of reaching a legal binding agreement on protection of the rights of migrant workers This problem could have been solved if we thought beyond the traditional approach that pushes ASEAN members to place the region above the state interests and fully participate on the regional process by signing legal binding instruments or establishing more regional monitoring mechanisms Instead, ASEAN members would only need to encourage constructive engagements of various actors including ministries, civil society groups, private stakeholders with transboundary interactions which plays a vital role in the development of regional regulatory projects in the national level (Allison-Reumann, 2017) The fact that the new regulatory projects is an inevitable result which meets the demands of countries to seek for appropriate solutions for transboundary risks under impacts of globalizations In the case of Southeast Asia, there has been the emergence of some elementary forms of regulatory regionalism A good example of this could be found in the case of ASEAN in the situation of the Asian economic crisis The negative impacts of the crisis to ASEAN revealed the incapacities of ASEAN to deal with regional economic issues, and more severely, ASEAN could not be reformed to adapt with it (Narine, 2004) As a result, miscellaneous initiatives were raised to devise the alternative solutions that would be more efficient in facing future crisis in the region Narine (2004) mentioned the establishment of the ASEAN Surveillance Process (ASP) in 1998 as an informal monitoring mechanism for giving member countries more tools to cooperate more closely, improve fundamental transparency in the national financial governance systems to deal with the economic crises Indeed, there were no rules or regulation be set in the ASP agreement which is an initial form of regulatory regionalism Narine (2004) also argues that due to the deadlock of ASEAN to change its non-interference principle, numerous monitoring and exchange information models was created without setting binding rules or official obligations of ASEAN members, for example the Asian Monetary Fund, the ASEAN Plus Three cooperation, and the Chiangmai Initiative (CMI) () Albeit ASEAN members are probably not willing to participate in legally binding agreements or to establish regional monitoring mechanisms which limits the authorities of national agencies, these mentionabove initiatives reflects the fact that ASEAN have tried to improve regional governance in different ways, with non-legally binding instruments but gives states more opportunities to collaborate, exchange views and learn experiences from each other In addition, international norms and standards are not get along with local norms and value systems in national level regarding to the rights of migrant workers Thus, informal and flexible forms of regulatory regionalism which allows local stakeholders including migrant workers themselves in ASEAN members raising their voices and participating on the progress of the governance of migrant workers’ rights issues in the region (Ramji-Nogales, 2017) On the other hand, state power in the remote areas particularly in the border areas would be faded Thus, it is more efficient when focusing more on the intermediary communications at local level of these areas to regulate migrant workers issues (Rungmanee, 2016) Regulatory governance projects may give ASEAN a good opportunity to enhance the collaboration between local agencies, particularly at remote zones which are the focal points of migrant workers corridors in Southeast Asia Furthermore, the model of regulatory regionalism in governance is also appropriate for developing countries which possess insufficient resources and institutional capacities in dealing with complicated transnational issues As noted by Chattranond (2018), regulatory regionalism supports the active involvements of private actors in the governance system, which mitigates the burden on resources of the state Chattranond (2018) mentions the situation of hydropower markets in the Mekong basin which created transnational relationships between the consumers, the producers and the concerned states in a governance agreement sharing common norms rather than developing a “rule-based” region In addition, Chattranond (2018) claimed that countries in Southeast Asia have tendency to share their transnational development functions with other private actors in dealing with transnational issues and to exercise their authorities in domestic policies In other words, regulatory regionalism even emerges as a mean to strengthen the role of national governments in running the countries Cheah (2009) also supported for the multistakeholders approach that requires the collaboration between a wide range of actors in dealing with national problems Farbenblum (2017) suggested that there is no single actor could take the responsibilities of protecting the rights of migrant workers These belongs to various actors including state and non-state actors such as NGOs, businesses, activists, and migrant workers also Overall, there is possibility that It these kinds of regulatory projects could also be a reasonable approach to tackle migrant workers’ rights issue in Southeast Asia through focusing on official but informal regional agreements and initiatives as discussed above Conclusions ASEAN has shown great efforts in managing the rights of migrant workers in the region Notwithstanding, the approach that promotes the signing of legally binding principles, establishes monitoring enforcement frameworks for ASEAN in the field of protecting the rights of migrant workers is arduous due to ‘sensitive sovereignty’ issue of the region Solutions which gradually eliminate the principle of non-interference in internal affairs and consensus plays pivotal role in ASEAN’s stalemates towards building a stronger legal framework, though could not be executed immediately Besides, right-based approach solutions are not efficacious for this issue as member countries are heavily influenced by securitized approach Therefore, it is necessary to establish an innovative, flexible and localized for ASEAN to obtain ASEAN has shown great efforts in managing the rights of migrant workers in the region Regulatory regionalism is a pertinent approach for Southeast Asia at the moment for a few reasons Firstly, establishment of regulatory governance project that not raise ASEAN member’s concern for ‘transfer of sovereignty’ in regional integration This would give rise to ASEAN countries’ willingness to implement regulatory project on national level regularly Secondly, regulatory regionalism places importance on actual participation of national agencies, particularly local authorities, especially in border areas This approach is consistent with the cross-border characteristics Finally, regulatory regionalism seizes multistakeholder approach which is proper in developing countries in Southeast Asia: deficiency in institutional capacity and implementation resources In regulatory regionalism project, albeit diverse combination of entities, the state always plays a fundamental role The emergence of regulatory regionalism in the Asia-Pacific region in general, in Southeast Asia in particular is not the political choice of member states’ representatives, but an evitable result which manifests transformations of states before the effects of globalizations when formal processes are decelerated and unproductive The question here is that, after defining the indispensability of regulatory regionalism, how will ASEAN determine their roles towards member states and the region? Will ASEAN continue to play a center role or step aside and become the guidance or intermediary who situates member states, specifically a wide range of stakeholders in national level in center of regional and national governance system? 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(ASETUC); - Southeast Asia Migrant Workers? ?? Initiative; - National Working Groups and Focal Points who coordinate national advocacy activities in ASEAN Countries: Cambodia, Indonesia, Laos, Malaysia,