All Quiet on the Eastern Front?—Temporary contract migration in Asia revisited from a development perspective

Abstract

Although as such not new, the revival or continuation as well as expansion of temporary contract schemes as the main method by which to regulate economic migration legally is part and parcel of a new discourse on migration policy making: ‘management of migration’. Furthermore, this discourse and concomitant policy descriptions are related to the current phase of the debate on the relationship between migration and development. The focus on managing migration in its link to development revolves around the idea that orderly, legal migration schemes can benefit sending and receiving countries’ developmental and labour market needs as well as individual migrants themselves. The welfare and rights of migrant workers, however, remain the neglected dimension in this equation. As preference is given to temporary or circular migration policies, while little attention is paid to migrants’ rights beyond the rhetorical level, the question which arises pertains to migrants’ actual capability to contribute to development. In the attempt to address this question, the normative starting point of this paper is a rights-based approach to migration and development. The argument advanced revolves around the need to re-politicize this discourse and policy prescriptions. Empirically, my discussion is based on the ‘political activist work’ carried out by the regional migrant rights network in Asia, the Migrant Forum in Asia (MFA).

1 Introduction

Regulating economic migration via temporary contract schemes has been the main feature of formal, legal migration policies in the Asian region for decades. Asia contrasts with Europe and traditional immigration countries in that governments of destination countries in Asia have persistently practiced temporary migration schemes only (with few exceptions). ‘Newcomer’¹ foreign workers migrating under these schemes are prevented from settling and reuniting with their families in the host countries. Asian governments have, thus, avoided having to deal with the issue of integration by circumventing the formation of significant (new) ethnic minorities.² In the absence of integration and family unification policies, the acquisition of permanent residence status, let alone citizenship, is out of reach for most migrants in Asia.

This instrumental approach to migration, premised on the idea of ‘flexibility’ used as a stop-gap to momentary labour or skill shortages and a short term solution to economic underdevelopment, is now spreading around the globe formalized by way of official migration policies at the unilateral and bilateral level. This is evident from the revival of ‘guest worker’ programmes in Europe,³ the introduction of temporary visas even in traditional countries of settlement such as the US and Australia (Boyd & Pikkov, 2008; Khoo, Ho, & Voigt-Graf, 2008; Kofman, 2008), and the controversial ‘trainee system’ practiced in much of East Asia⁴ (IOM, 2009). Migration has also entered into so-called EPAs (economic partnership agreements) as recently signed by Japan, which had for long avoided opening up legal channels for economic migration outside a narrow range of specialized professions, with a number of Southeast Asian neighbours (Onuki, 2009). Whilst most temporary labour migration flows are from developing to the developed OECD countries, significant regular movements also occur between developing countries, as particularly evident in Asia (IOM, 2009).

The revival, continuation or spreading of this instrumental approach globally (supported by most major destination and origin countries as well as international organisations) is part and parcel of a new discourse on migration policy making and concomitant policy prescriptions: that of ‘managed temporary labour migration’ (Chi, 2008). This paradigm shift revolves around the idea that orderly, legal migration schemes can benefit sending countries’ developmental needs (typically measured by way of monetary remittances) and receiving countries’ labour market needs as well as individual migrants themselves. In other words, being based on shared interests and common principles, the claim of the ‘managed migration’ paradigm is to allow both origin and destination countries the right to manage incoming and outgoing flows (according to their perceived needs) which in turn would reduce the risks entailed by irregular or undocumented movements, such as exposure to exploitative practices, for the individual migrants (Chi, 2008).

Furthermore, this discourse and pursuant policy approach is related to the renewed debate on the relationship between migration and development. Although as such not a novel concern on policymakers’ agendas or among academics, the positive spin taken in the current phase of this debate concerns migration's ability to boost economic development via remittances and ‘brain gain’ (as opposed to the focus on ‘brain drain’ in the 1970s and 1980s when migration was associated with development failure, Faist, 2008). This constitutes a new feature of the overall trend towards taking a more optimistic view on the ‘migration-development nexus’, as evident from the slogan ‘migration for development’.⁵ A link is, thus, established between ‘managed migration’ and ‘managing un- or underdevelopment’ in current policy making as manifested in the preference given to temporary or circular migration in the regulation of both skilled and lower skilled migrants (which constitutes a marked difference to the guest worker schemes practiced in Europe and the US during 1950s and 1960s which targeted lower skilled migrants only).

Individual migrants find themselves somewhat trapped between these policy concerns: on the one hand, they are celebrated as ‘agents for development’, the ‘unsung heroes’; at the same time half of the world's 200 million foreign workers are temporary migrants,⁶ the majority of whom are carrying out low paid jobs under highly insecure or precarious conditions. Many among them have limited capacity to break the vicious cycle of short term migration, return and the need to re-migrate: there is plenty of evidence showing that their migration rarely leads to sufficient (financial and other) means to start up a business or to the creation of local employment opportunities ‘at home’, nor does their overseas experience lead to the acquisition of qualifications (human capital) as most temporary migrants work in dead-end jobs.⁷ The much neglected, or downplayed, social and emotional costs are another source of hardship for migrants and those “left behind”, as temporary migrants are usually separated from their families while abroad.

Breaking this cycle requires more than individual agency. The multiple social costs and other adverse effects of labour migration that arise from the scenarios of temporary migrations are, in fact, increasingly vocalized by a migrant rights network that is expanding across Asia (Basok & Piper, in press; Grugel & Piper, in press).

1.1 This paper

Against this backdrop, the question which arises pertains to migrants’ actual capability to contribute to development. In the attempt to address this question, the normative starting point of this paper is a rights-based approach to migration and development, empirically derived from ‘rights work’ carried out by the expanding migrant rights movement in Asia in relation to the ‘migration-development nexus’ debate which has put temporary, or circular, migration firmly back on the agenda. This debate has been dominated by economic concerns treating monetary remittances as the predominant yardstick for measuring the ‘development impact’ of migration. Not surprisingly, the focus on ‘remittance-led’ development in the current phase of this debate has resulted in policy prescriptions which treat migrants primarily as economic, and to a lesser extent as political, agents leaving migrants voiceless in the process. A regional network of migrant rights organisations has taken up the role of representing migrants’ concerns at multiple levels of migration policy making (national, regional, global).

In this paper, I therefore shift the focus to the political, or activist, dimension involved in the ‘managed migration’ paradigm and its link to the relationship between migration and development, advancing the argument for the need to repoliticise this discourse and pursuant policies. This is based on the advocacy work carried out by the Migrant Forum in Asia (hereafter: MFA) in its attempt to address the rights deficit in current policy making practices and thereby to advance the overall understanding of what migrant rights are all about. Migrants are, thus, investigated here not only with regard to their in/capability to function as ‘agents of development’ but more importantly also as ‘political agents’ advocating for their own vision of development.⁸

This paper begins with a summary of two key theoretical frameworks pertaining to contemporary discussions of temporary migration and how this relates to regulation of migration and migrants’ rights. In the following section, I use the cases of agricultural and domestic workers to illustrate the kind of “rights” issues which arise and their implications for political activism. The analysis of temporary contract migration is then approached via a brief conceptual discussion of un/free labour from a global justice perspective, before turning to the final section on migrant worker activism. The case of intra-Asian migration serves as the empirical basis throughout this paper.

2 Temporary migration—regulation and rights

Recent debates on temporary migration have been shaped by scholars interested in (1) the implications of temporary migration for migrant rights (Carens, 2008; Basok, 2004; with specific reference to Asia, see Bell & Piper, 2005), and (2) by those situating the phenomenon of temporary migration within the debate on the relationship between development and migration (often referred to as the ‘migration-development-nexus’ debate) (Agunias & Newland, 2007; Chi, 2008; Vertovec, 2007). The former have rarely dealt with the causes of migration from a rights perspective (or mentioned those only in passing), i.e. neglected the origin country perspective, and the latter have rarely used a rights-based approach (with the exception of Briones, 2008). Moreover, as the renewed interest in the link between temporary or circular migration and development coincides with the gradual emergence of a global architecture of migration regulation, another strand of scholarship contributing to the latter debate has provided a global institutional analysis: global governance of migration (Betts, 2008; Tanner, 2006). Much of this literature is dominated by a state-centric, and thus “top–down”, approach. The two interests—migrant rights and the migration-development nexus—have rarely been brought together in the discussion of the emerging governance of migration that would establish a link between macro institutional and agential dynamics taking social justice organisations as the starting point (with the exception of Grugel & Piper, 2007; Grugel & Piper, in press). Given the sidelining of migrant rights issues, however, this is an important conceptual and empirical undertaking.

2.1 Managing migration, managing development

The rise in cross-border, intra- and inter-regional (also referred to as South-North and South-South) movements of individuals in the search for better opportunities has prompted changes in the global and national regulatory architecture of migration, also referred to as ‘governance of migration’. This has resulted in greater emphasis now being placed on the ‘management of migration’ through the design of formal policies by which states try to assert control over migratory flows and labour markets or jobs, that is over income and profit generation as well as the securing of livelihoods. Current migration policies are, thus, first and foremost an expression of the utilitarian and economic interests of sending and—arguably more so—receiving states (Grugel & Piper, 2007; Chi, 2008). Global and national institutions have turned their attention to the potential contributions labour migrants can make to the development of resource poor countries, as evident from the various programs aimed at capturing migrants’ remittances and tapping into migrants’ ‘brains’ (Meyer, 2010). Resource rich countries have not only engaged in the ‘hunt for talent’ in the development of their knowledge economies but also continue to experience labour shortages in many lower skilled sectors.

One of the outcomes of these trends has been the revived and increasing prioritization of temporary over permanent migration which is said to benefit countries of origin and destination: the former because it is generally believed that economic migrants admitted on a temporary basis are more likely to remit their earnings to their home countries; and the latter because temporary migration provides a convenient remedy for cyclical labour shortages by avoiding long-term social and political costs (Abella, 2006; UNDP, 2009). As a result of the push toward the creation of global governance structures under the frame of ‘management of migration’, we can thus witness the proliferation of rules and regulations directing the geographic mobility of workers, but rights issues are sidelined, if of concern at all, in this kind of rule making.

The lack of explicit concerns for rights is partly linked to the specific means by which ‘temporary’ migration schemes are typically governed: that is, by way of government-to-government or bilateral agreements, in addition to the more recent trend of Economic Partnership Agreements (as between Japan and the Philippines, for instance) which rarely contain rights provisions.⁹ The system that evolved in Asia, however, is distinct from Europe in that Asian governments as such have not been directly involved for long. Recruitment has largely been, and partly still is, left to a web of private agencies and brokers (Asis, 2005), a process replete with corruption and abusive practices to do with overcharging of fees and false promises as to type of job. It, thus, pertains at times to forced labour practices as per the ILO definition¹⁰ as argued by some (Verité, 2005; Piper, 2005). Formal agreements on temporary migration tie migrant workers to specific employers and to specific periods of time (subject to renewal), do not permit workers to reunite with their families nor endow them with secure residence rights. The governments of Malaysia and Singapore even go as far as prohibiting marriage between lower skilled foreign workers and locals (Huang & Yeoh, 2003), closing off one avenue to ‘proper’ immigration that increasingly occurs elsewhere in Asia (Yamanaka & Piper, 2006).

In Asia, it was the oil-rich countries of West Asia, or the Greater Gulf Cooperation Countries, which were among the first to opt for an official policy of admitting temporary migrants from the 1970s onwards. This opportunity was seized by the Philippine government which institutionalised export of labour by setting up the Overseas Employment Programme in 1972. Destinations for temporary migration included the newly developed countries in East Asia from the early 1980s. Since 1985, temporary migration to East and West Asia is said to have increased by a steady 2.5 per cent per year (Agunias & Newland, 2007). In the early days, those workers moving to West Asia came mainly from South, Southeast and also East Asia (before its own rapid development), soon turning Gulf states into destination countries with unusually high proportions of foreign workers employed at all skill levels ranging from the health and education sectors to the construction and garment sectors as well as domestic service: approximately two-thirds of the labour force were ‘imported’ by Kuwait, Qatar, Bahrain, the United Arab Emirates and Oman (Weiner, 1990, p. 141). While in the past the majority of Asian workers went to the Gulf countries, Asians migrate today all across Asia. Singapore, Malaysia, Thailand, Taiwan and Hong Kong have become the main migrant receiving destinations in East and Southeast Asia with a sizeable population of lower skilled temporary foreign workers, whereas Korea and Japan have kept the number of legally admitted lower skilled migrants comparatively low.

Migration in Asia has been facilitated by an expanding ‘migration industry’ (comprising a web of brokers and recruitment agents) which on the one hand has allowed the migration of less well-off strata, and on the other hand led to the incurring of debts by migrants and their families. As the majority of migrants carry out lower skilled jobs at the destination—the classic three D jobs (dirty, dangerous, difficult)—their capacity to earn good wages is limited. Thus, the paying-off of recruitment fees can take up to two years and obstruct, if not totally prevent, the saving of significant amounts of money to make a long-term impact on their economic situation ‘at home’. Moreover, many of these jobs—such as domestic work, the most important source of legal employment for migrant women—are dead-end jobs with no prospects for skill training or personal development. Hence, migrants’ ability to contribute to sustained development at whichever level (national, local, community, personal) is severely constrained. As temporary migrants, these workers are typically separated from their families¹¹ which has given rise to studies on ‘transnationally split families’, ‘transnational motherhood’ or ‘absentee parenting’, highlighting the considerable social costs borne by migrants and the left behind, especially in the context of prolongation of their stay abroad as shown in a study by Fresnoza-Flot (2009).

Despite the absence of official settlement policies, prolonged duration of employment and residence is a phenomenon one can observe among legal temporary migrants, such as domestic workers. Lan (2003) has found in her research numerous cases of women who stayed up to six years in Taiwan, renewing their contracts several times over. Wee and Sim found that some Filipinas had stayed up to 15 years in Hong Kong (2005) and Hsia (2009) has remarked upon the “practically limitless time” at least foreign domestic workers¹² can remain in Hong Kong. In this sense, although the official policies by Gulf and other Asian destination countries are more consistent with the goal of favouring temporary migration than in Europe and seem more ruthless in implementing these, they have not been entirely successful in preventing migrants from turning into longer term residents.

The assumption that migration is temporary is, thus, not holding true in two main regards: it is not only a myth on an individual or micro level, but also on the structural level as most destination countries in Asia (as elsewhere) have become dependent on foreign labour supply (even if not always addressed by providing legal migration schemes) (Athukorala & Manning, 1999; Weiner, 1982). This means that even when individual migrants eventually return (or are made to return) at the end of a short-term contract, they are then replaced by the next cohort. As far as the more skilled foreign workers are concerned, a high turnover rate is often considered costly and inefficient, hence preferably avoided. In the case of domestic workers, one reason for contract renewal might be the fact that they engage in reproductive and ‘emotional’ labour by taking care of children or the elderly, hence continuity is often desired by the employers. This said, a major difference to Europe is that ‘integration’ is still a fairly unheard of concept in most Asian destination countries (except in the context of international marriage and the birth of children with mixed parents, a rising phenomenon in East Asia).

The myth of temporariness (or ‘illusion of impermanence’, to use Weiner's words, 1982, p. 3), however, has not been addressed in Asia, neither by policymakers nor by academics despite migrants finding ways to defy temporary constraints on their ability to remain in overseas employment by deploying a variety of strategies—contract renewal, exchanging ‘legality’ for ‘illegality’ by overstaying or deserting/absconding employer-tied arrangements for ‘free work’—and international marriage. The manner by which individual migrants circumvent these stringent policies, however, comes with a price: high social costs¹³ and few rights that are properly implemented, monitored and backed-up with channels for redress.

Viewed from the origin country perspective, individual migrants are positioned within this ‘managed’ migration-development nexus by being celebrated as ‘agents of development’, which seems laudable as the focus is shifted to migrant's agency and away from a perspective of migrants as pure victims of structural inequalities.¹⁴ However, when taking a closer look, all that has really changed in agential terms, as argued by Dannecker (2009), is that increasing burden is being placed on individual migrants, while the role of the state and the market remain unchallenged. This shift reminds one of the widely observed ‘privatization and individualization of responsibility’ drive characteristic of neoliberal economic policy prescriptions (Brodie, 2007).

In sum, temporary migration is a phenomenon and topic that has found a firm place on the agenda of the slowly emerging governance structure of migration that has begun to evolve on the global level (Chi, 2008; Grugel & Piper, in press). Agendas of such migration policy making fora are predominantly shaped by state preferences which are characterized by utilitarian, macro-economic concerns while sidelining the social costs for, and rights of, migrants. This means that the two major policy concerns that dominate the global agenda—management of migration and the migration-development nexus—have the same core element in common, that is a focus on controlling migration and extracting economic benefits of migration without sufficient efforts to ease the many hardships experienced by individual migrants, such as the exploitative practices by recruitment agencies, the employer-tied nature of temporary migration schemes and the separation from their families, thus turning migrants into something akin to unfree labour. The following section introduces two classic examples of temporary employment categories dominated by lower skilled migrants in Asia and the specific rights issues involved, before returning to the issue of un/freedom in a global and transnational context in the section thereafter.

3 Epitomes of temporary migrant labour: the case of agricultural and domestic workers

The bulk of temporary migration schemes revolve around supplying workers for seasonal, industry-specific (typically those involved in complex sub-contracting systems, such as construction and manufacturing) and care work at the lower skill end. Domestic work constitutes the most significant source of legal employment for migrant women worldwide, while most male migrants work in the agricultural and construction sectors. These three sectors are incidentally also deemed the most precarious¹⁵ by the ILO (2004). The main problems encountered by migrants are substandard working and living conditions, no social benefits, excessive fees charged by official recruitment agencies, and separation from spouses and children.

Agriculture and domestic work are both classified as ‘unskilled’ and regulated under employer-tied migration schemes. (In the case of domestic work, this involves mostly live-in arrangements, although some countries give the option of live-out, such as Italy and Spain, but in Asia the norm is live-in). Work in both sectors is not recognized in many countries as ‘proper work’ and thus is subject to little or no coverage by national employment laws.¹⁶ Concrete labour rights’ issues at stake for both types of temporary workers are: unpaid overtime, having to work “trial” periods for no pay, no days-off, unlawful wage deductions, poor accommodation with little or no privacy, and isolation (domestic workers from other workers by virtue of labouring in private households, and agricultural workers geographically by being located in rural areas). Although both types of workers are regulated under temporary contract schemes, being classified as ‘seasonal’, agricultural workers’ stints are usually shorter than those of domestic workers who tend to be given two-year contracts subject to renewal (which also means that the social costs incurred by separation from family members are more severe for domestic workers). The combined effects of these and other¹⁷ issues result in these workers’ inability (or serious obstacles posed to their ability) to defend their interests.

3.1 ‘Familial’ protection or rights?

Both agricultural and domestic workers have in common that employers tend to treat them as “part of the family”, with the understanding that they are somewhat removed from the need for legal protection and monitoring by public authorities. In the past or in the case of subsistence farming, the work used to be or is carried out by family members, where around-the-clock availability during harvesting and other crucial periods could be expected and was in fact in the interest of everyone—and thus subject to “self-exploitation” as in the words of Luechtford (2007). In modern days, along with raising standards in many places, children of farmers often obtain higher education and as a result harbour (and often realize) the desire to move into non-farming jobs, mostly in urban areas. The demographic trend of the overall number of children decreasing has also affected farming households. To fill the shortage of ‘hands’,the hiring of ‘external’ wage labour is therefore resorted to (Basok, 2002; Luechtford, 2007). Often, it is only foreigners who are prepared to put up with the difficult working conditions in agriculture.

Being treated as part of the ‘family’ comes with domestic work also, often based on the cultural or historical practice of bringing domestic workers into the home through fictive adoption or through drawing on kin relationships. One example of this practice is in contemporary Indonesian village society, where young women are recruited into households to do unpaid domestic work (Robinson, 1991). Similar practices also exist in Thailand, India and elsewhere (in the context of internal or domestic, typically rural to urban, migration). The household is obliged to provide for these women's sustenance, and it is expected that young unmarried women's honour is safeguarded, and with this not only the reputation of the ‘maid’ but also of the householder. In urban settings, domestic service has become a representation of the contradictory nature of social relations: “it is contractual like wage labour relations with personal services being performed in return for a wage. However other aspects of the relation reflect familial assumptions not usually associated with waged work—held by both householder and servant, replicating some assumptions underlying relations in village society” (Robinson, 1991, p. 38).

Domestic servants live in the house under conditions similar to those experienced by children: their movements outside of the home are restricted. As for conditions of work, servants ‘live in’ which means they have duties around the clock and are ‘on call’ at all times. And although they are formally free, assumptions about the familial nature of the relationship, combined with their low status, mean they are largely confined to the house. This aspect of control over their labour power reflects the cultural assumption that they are part of the household (which somewhat reflects Basok's argument made in the case of seasonal agricultural workers also, 1999), and as unmarried women they are not free to go out and about in the ‘public’ world (a gender specific type of ‘unfreedom’, an issue returned to below).

When women migrate for domestic work internationally, they no longer have access to certain resources, in particular their own families and their social networks which would give them a limited degree of power in negotiating work relations and work conditions. As Robinson (1991) reports, in the Middle East, foreign domestic workers (hereafter FDWs) are regarded as ‘other’ and outside the protection afforded to women in Saudi households. This means “cultural credos about male responsibility to protect female honour are not adhered to in the case of the Indonesian domestic workers abroad” (1991, p. 50).

The best employers are sometimes seen to be those who treat FDWs as valued members of the family, with mutual concern and caring, not simply fairness and respect. Good treatment, however, can also be seen to mean paying beyond minimum wage, giving free time to the employee, and affection might not be so important to the women. In fact, in the international context, FDWs prefer to call their employer “madam/sir” to keep a certain distance to remind them that this is a contractual relationship and they should not be exploited or taken advantage of (Bell & Piper, 2005). The idea that the FDW is part of the family can be used as an excuse by the employer to put extra burdens on the worker, and as a result, the lines between economic activity and family duties may become blurred (Bell & Piper, 2005). The paternalistic treatment these workers receive from their employers can, thus, be an important mechanism of control in that both farm and domestic workers are subject to treatment as ‘part of the family’, but with the expectation that they work hard and are docile.

Both these cases, agricultural and domestic work, clearly show that contemporary temporary migration regulation should provide at least minimum rights standards. As the expanding literature on migrant activism has shown, especially in the well researched case of FDWs, migrants’ heightened politicized consciousness works in fact increasingly against the notion of being ‘part of the family’ (arguably this is most advanced among Filipinas, with Indonesians catching up though, Hsia, 2009). The shift from pure ‘familial’ labour relations to commodified and marketized working arrangements (as in the case of hired farm workers and paid domestic workers) can, thus, be seen as creating opportunities for political organizing of workers in these un- or underregulated, and historically under-organised, sectors.¹⁸ The following section will situate the issue of political activism and migrant rights within the debate on unfree labour from a global justice perspective to highlight the role of sending and receiving societies in improving the situation of (especially temporary) migrants.

4 Global (in)justice and (un)free labour

As alluded to above, the opportunities and obstacles to the promotion and advancement of migrant rights are linked to structural issues as well as the politics of managing migration in origin and destination countries. The emerging global governance of migration has placed temporary migration firmly on the global policy agenda. But by underplaying the costs for individual migrants, inequalities between origin and destination countries are ignored. It is, therefore, paramount to analyse migrant rights from an integrated approach bringing the right to development and social justice into the discussion.

Nussbaum (2004) has criticized theories on liberal democracy and justice for failing to take the unjust global economy into consideration and as a result, for ignoring the situation in the Global South (with the exception of Pogge, 2001). For her, the problem of justice between nation states, has to be addressed set against the backdrop of the increasing gap between richer and poorer countries, the power of the global market and of multinational corporations. Taking the nation-state as the basic unit of analysis and focusing on the political culture of a people, as done by conventional theorists of justice such as Rawls, ignores the fact “that the international economic system creates severe, disproportionate burdens for poorer nations” which cannot solve their problems internally alone (2004:4). The approach she suggests as more appropriate in dealing with global injustices (which offers a more concrete and less vague take on global justice than Pogge's) is the capabilities approach with its set of basic human entitlements, similar to human rights, as a minimum of what justice requires for all (1999 and 2004).

Her proposed list of central human capabilities refers directly to economic and political dimensions of justice—the latter including the ability to participate effectively in political choices that govern one's life, the protection of free speech and association (1999, pp. 235–36). Nussbaum further describes human capabilities as a ‘collective action problem’ which, in her mind, should be delegated to global governance institutions which would produce global labour standards for both formal and informal sectors (2004, p. 15). What Nussbaum has not addressed, however, are the unique obstacles involved in governing migration globally from a standard-setting or rights perspective (Grugel & Piper, 2007; Grugel & Piper, in press). This is compounded by the preference given to temporary migration which raises a number of challenges for the safeguarding of migrant rights and the political organizing of migrants—an issue taken up by a few scholars approaching the debate on ‘justice for migrant workers’ from the concept of ‘unfree labour’.

An important element in the unfree labour debate is the notion of choice which takes its origins from Marx's comparison of capitalist and non-capitalist relations of production. Under capitalism, workers are viewed as free in the sense that they can dispose of their labour power as their own commodity. Unfree workers are distinct from free workers in terms of the restrictions placed on their rights to sell their labour power. In addition, unfree workers are also distinguished from free workers in relations to the forms of control used by capital to exploit them. In other words, as argued by Basok (1999), freedom/unfreedom is defined by the absence/presence of politico-legal and extra-economic constraints which limit the circulation of labour power within the labour market.

Temporary migrants are seen as unfree in a number of ways: they cannot change employer, renewal of contract is either not possible or depends on positive evaluation by the one employer; they might have to repay a bond or the recruitment/travel fee. Nevertheless, in principle they are free to enter recruitment and are at liberty to resign (which however most of the time results in the requirement to return home). Accommodation is usually provided at no cost, and so is food (although cases of unlawful deduction of these costs from wages have been reported). In this sense, the migrant workers are not ‘indentured servants’ because they can return at a moment's notice. However, this decision is rendered difficult, given the debts accumulated in the recruitment process by many and the widespread occurrence of passports being withheld by the employers. Based on the empirical case of FDWs in Asia it has been argued that unequal rights for FDWs may be justified given that they accept these terms before they go abroad (Bell & Piper, 2005). With a choice between low-paying jobs or unemployment at home and higher paying jobs as FDWs is what drives many to consent to temporary migration.

The issue of choice and consent is, however, complex. According to Basok (1999), migrants are both free and unfree due to the fact that they live and work in more than one social space. She argues that the unfree labour concept fails to recognize that the worker has a degree of choice to enter and remain in the circumstances that render him/her unfree (Basok, 1999). Workers are at legal liberty to break a contract with or without penalty (Bell & Piper, 2005). However, the issue of consent is further complicated given that this consent can be manufactured (Basok, 1999) or not fully informed due to unavailability or deliberate withholding of all information necessary. Furthermore, from a political philosophical viewpoint, as Caren's (2008) argues, normative standards of fairness and justice go beyond actual consent.

Another question raised by Skeldon (2010) which arises in the specific context of foreign workers (and often not clearly distinguished by political theorists) is what kind of unfreedom we are talking about: unfree migration or unfree labour. A migrant worker might be tied to his/her employer initially, but upon absconding and opting for irregular work (in terms of visa status), he or she can in fact gain more freedom with regard to work (free worker but unfree migrant; free migrant but unfree worker); or through marriage, the unfree migrant can become a free resident. Skeldon (2010) argues that migrant labour has to be contextualized with “what was there before”, i.e. the kind of freedom/unfreedom prior to migration, to which I would add the “what is after” and in this sense, a processual perspective. Although without directly engaging with the ‘unfree labour’ concept, Gibson, Law, and McKay (2001) use a fluid conception of class which mirrors this processual dynamic: they argue that the class processes temporary migrants find themselves in are not all capitalist, nor are they static but instead subject to processes of change, linked for instance to specific stages in the life-cycle.

An additional aspect of temporary migration is the concrete link to the origin country. In Basok's words, “by confining their analysis to the national space, most analysts of unfree labour fail to recognize that within the transnational world the same worker could be free and unfree” (1999, p. 197); and as temporary migrants, the conditions of unfreedom they are subjected to are time-limited. However, what Basok has not considered, is the fact that returned migrants are only free from the constraints of their employment—and in fact only temporarily, as evident from the fact that many of her Mexican respondents who are seasonal agricultural workers in Canada re-migrate year after year. They are not free from the condition that provoked them to migrate in the first place. There is a dimension of unfreedom, therefore, which ties the concept to the issue of development and, thus, to global justice (with responsibility, in a sense, lying beyond either the origin or destination state only).

What could be the way forward? Skeldon (2010) argues that the discussion of free/unfree labour needs to be linked to a discussion of development more broadly.¹⁹ He does so by drawing on Sen's (1999) five instrumental freedoms in development, among which are listed political freedom, social opportunities and economic facilities. Nussbaum (1999) has built on Sen's notion by developing a list of functional capabilities, equally comprising not only economic but also political dimensions, among which are the capability to participate effectively in political choices, protection of free speech and association and, thus, the right of political participation. Freedom of association and expression are vital for collective organizing by way of union or non-union organizing and, thus, for the voicing and advancing of rights for marginalized people (Grugel & Piper, 2007). Basok (1999) has argued that this unfree labour concept lacks explicit recognition of the agency workers have. Through specific collective action politico-juridical coercion for unfree workers is undermined (Rao, 1999). As social movement and transnational activist scholarship has shown, it is the role of civil society actors to further a normative agenda aimed at social justice for marginalized groups across space and place (Tarrow, 1994; Keck & Sikkink, 1998).

5 All Quiet at the Eastern Front? The rise of the migrant rights’ movement(s)

Being temporary and, thus, unable to stay for a long or unlimited period of time in the country of destination legally could lead to the assumption that migrants are ‘docile’ (in the sense of refraining from political activity, being a-political or politically inactive) and interested in economic gains only (especially when they have accumulated substantial debts in order to finance the act of migrating internationally). This is precisely what temporary migration schemes are criticized for by trade unionists and other social commentators who are interested in furthering migrants’ ability to be political agents. There is evidence that temporary migrants do not join trade unions because they fear the consequences of being dismissed or of not being granted a renewal of their current contracts.²⁰ However, the reasons for not joining unions are more complex, partly related to the political culture in the countries of origin (where migrants were ‘socialized’) and the preparedness of political organisations to include migrant workers in the countries of destination. Also, in many migrant receiving countries in the Global South labour standards are by comparison low not only for migrant workers but also citizens, and labour movements have historically remained weak (or absent as in much of West Asia). Labour NGOs, human rights and women rights organisations, migrant associations and migrant rights organisations have filled this gap as non-union forms of representing marginalized workers’ (migrant and non-migrants’) interests. Participation in transnational advocacy networks helps to integrate small NGOs which have to operate within a confined political space in countries like Singapore to become part of a broader migrant rights network (Ford & Piper, 2007).

In fact, there are incidences emerging from Asia of temporary migrants beginning to voice their grievances openly, as evident from recent demonstrations staged by South Asian migrant workers in some Middle Eastern countries,²¹ and longstanding weekly demonstrations of migrant workers (primarily, but not exclusively, domestic workers) in Hong Kong. Where the political space exists, the expanding literature on migrant rights advocacy and organizing has shown that migrants rights are increasingly being voiced by way of collective organizing across borders and coalition forming between NGOs and unions (across ethnicities).²² The rights claims are thereby directed toward countries of origin and destination with issues spanning from under- or non-payment of wages (‘right to be paid’ campaign by Tenaganita, Malaysia), one-day off and opposition to impending wage cuts (as e.g. in Hong Kong), the regulation of recruitment agencies (in the origin countries) to rights of the left behind in the Philippines. There are context- and place-specific differences as to the size and force of local organisations and national networks. At this moment in time, it is at regional and global level where the link between a rights-based approach to migration and development is articulated the most explicitly.

5.1 The MFA as global and regional node of rights advocacy

Reflecting the transnational nature of (especially temporary) migration and the persisting obstacles to a rights-based approach to migration policy making, global network activities have been launched to channel advocacy to multi-state and international fora (Grugel & Piper, in press). Concerns of foreign domestic workers have been prevalent within regional and global networks of migrant organisations for quite some time, partly in response to the sheer enormity of domestic work carried out by foreigners today and partly in response to political opportunity structures that have opened up at the global level, such as the International Labour Organisation's congress in June 2010 at which the drafting of a new domestic worker convention was decided (Basok & Piper, in press).

The main facilitator as far as migrant worker advocacy in Asia is concerned at the regional and global level is the MFA. It was conceived in 1990 at a meeting of migrant worker advocates in Hong Kong and formally organised in 1994. It is a regional network of NGOs, migrant associations and trade unions of migrant workers as well as individual advocates in Asia who engage in “migrant rights work”. It functions as coordination point between the various member-organisations in their attempt to forge concerted action. Their ‘multi-strategy response framework’ operates on macro (society), meso (organisations, sector) and and micro level (individuals). Its key objectives include: addressing causes of migration, promoting a rights-based approach to policies and building organised capacity among migrants and advocates. Over the years, their network and membership base have expanded considerably.

The MFA is also the driving force behind, and provides leadership of, the Peoples Global Action on Migration, Development and Human Rights (hereafter: PGA) which was established at the first global meeting on migration at the UN level, the UN High Level Dialogue on Migration and Development which was held in 2006. The PGA is the first truly global network of migrant associations which has since its inception organised parallel events at various global fora on migration. Following the UN High Level Dialogue, the Global Forum on Migration and Development has taken place since 2007 as an informal, non-binding event for governments to discuss pressing issues and policies. The PGA has been highly critical of the GFMD for its efforts to institutionalise migration as a development program. Migrant advocates, by contrast, do not believe that migration will solve the economic problems that beset the many countries of origin, forcing their people to seek work overseas. They demand that decent work is created in countries of origin instead (Basok & Piper, in press).

At the regional level, migrant rights organisations have been able to channel their concerns to the ASEAN Forum on Migrant Labour (institutionalised by ASEAN Labour Ministers) of which there have been three so far (the 3rd ASEAN Forum was held in Ha Noi between 19 and 20 July 2010) via the Task Force of ASEAN Migrant Workers (TRF-AMW) which is comprised of individuals who are also active in the MFA. The ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers from 2007 outlines obligations for receiving and sending states in Asia. It makes indirect reference to development aspects by asking sending states to “ensure access to employment and livelihood opportunities for their citizens as sustainable alternatives to migration of workers” (clause 12). The concept of migrant rights, therefore, goes clearly beyond that of ensuring fair labour rights at the destination, with the understanding of what entails migrant rights having evolved to include the right to not have to migrate in the first place or to have more choice. Such declarations are fairly novel in the context of migration governance (especially at the regional level), hence it is not entirely surprising that they remain at this moment in time purely at the rhetorical level, with little concrete action on the ground.

Migrant rights advocates’ structural analysis fully encapsulates the pressing problem of poverty as the result of unemployment and working poverty in the Global South and thus the realisation that the most urgent need for migrants (women and men) is to secure and decent livelihoods (Briones, 2009). To this end, migrant rights activists advocate for fair and equal working conditions, the regulation of recruitment agencies (especially their excessive charging of fees resulting in debt bondage) and the broadening of choices with regard to the current practice of highly restrictive, or unavailable, legal migration schemes put in place by receiving countries (see http://www.gfmd2009.org/discussionChapters.aspx). At the same time they remain strategically silent on targeting the temporary migration schemes directly and, thus, on the broader issue of citizenship rights in destination countries (an issue so important for liberal scholars). The issues they campaign for are thus all issues that would make their labour freer but do not address their freedom as migrants. By targeting the policies, or lack thereof, in origin countries, however, citizenship rights at “home” are gradually beginning to turn into a political issue and, thus, the right to greater freedom as migrants.

6 Concluding remarks

The tendency of the managed migration paradigm to depict migration and development as a positive and inevitable relationship with the effect of rendering these processes a-political (Chi, 2008) is being increasingly contradicted by migrant rights advocates who articulate the many hardships migrants experience in the form of rights abuses; and they do so via organisational networks which span across the region and beyond. For individual temporary migrants this means that paid work abroad renders them not only capable of securing their livelihoods as economic agents, but also allows them to become political agents. They do so in a variety of forms: simply by joining demonstrations, meetings or by taking on a formal role in migrant advocacy organisations. The articulation of migrant rights thereby occurs at the intersection of un- or underdevelopment ‘at home’ (right to development, right not to have to migrate in the first place) and economic exploitation at the country of destination (campaigns for better labour rights).

This rising activism on behalf of and by migrant workers should, however, not cloud our view of the enormous structural and political obstacles that remain and hamper the actual claiming and realization of rights. The further harnessing of migrants’ capability to act as political agents is required. In other words, much more attention needs to be devoted to political development in general, and, more specifically, to capacity building at the meso level of migrant associations and their network activities (e.g. resource allocation in the form of financial and political capital). Only by treating migrant rights as an issue of transnational and global justice can the lack of choice and high levels of unfreedom temporary migrants are currently subjected to be addressed. To further a rights-based approach to migration and development, concerted efforts are required on the part of the various activist ‘communities’ across space and place.

Acknowledgements

I would like to thank the two anonymous referees and the guest-editors for their useful comments which assisted me greatly in shaping this paper. Many thanks also to my colleague Dr. Ryszard Cholewinski for supplying me with some needed information during the revision stage when out of office conducting fieldwork, and to Imogen Howells for her editorial assistance.

Notes

1 I use the phrase ‘newcomer’ migration here to distinguish post-second World War migration from previous waves of migration, especially those movements which occurred under colonialism and contributed to the multi-ethnic composition of countries like Malaysia, Singapore and Japan (its ethnic Korean and oldcomer Chinese communities).

2 It has to be noted that this comment refers to temporary migration schemes only. There are other forms of population movements as a result of which parts of Malaysia e.g. host a significant population of Indonesians and Filipinos (most of whom undocumented and many children stateless) due to the geographic closeness and the historical shift of territories. Borders between South Asian countries (such as India and Bangladesh) are also subject to frequent crossings and conflict ridden places like Afghanistan have experienced large scale out-migration of refugees.

3 The most recent policy development in Europe is the introduction of so-called “mobility packages” geared to allow the implementation of circular migration schemes in cooperation with third countries, especially Africa (Cassarino, 2009).

4 It has to be noted, though, that Korea (largely as the result of pressure by trade unions and civil society organisations) converted its trainee system into an employment permit system (IOM, 2009).

5 Critical observers, however, would refer to this as ‘migration instead of development’ (see Matsas, 2008).

6 See GCIM, 2005, and ILO, 2004.

7 An additional factor, as argued by Chi (2008) is the climate of poor governance and distrust of institutions which deters returned migrants from investing ‘at home’.

8 This also goes against the argument made by some along the lines of Hirschman's exit idea, such as Chi (2008) who argues that international migration serves to ‘export’ political problems and protest and that remittances perpetuate the system back home.

9 In fact, the language of bilateral agreements such as EPAs follows the language of the WTO GATS Mode 4 in that migration is reduced to quotas and technicalities.

10 See for the ILO's latest forced labour report: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_106230.pdf (accessed 10.04.2010).

11 Legal (that is, formally sanctioned) family migration tends to occur only in the context of newcomer migrants’ real or perceived ethnic proximity to the indigenous majority population, such as the Nikkeijin in Japan and ethnic Chinese-Koreans in Korea (Yamanaka and Piper, 2006), or in the context of class with higher skilled migrants being the only category of migrants given this option (as e.g. in the Middle East, see Birks, Seccombe, & Sinclair, 1986; Shah, 1986; and in Southeast Asia, see Piper, 2008). There are also accounts of undocumented migrants in whose case family migration unofficially does occur (such as Mongolians in Korea for instance or the few Indonesian families in Japan as described by Tirtorsudarmo, 2005).

12 I use the phrase “foreign” instead of “migrant” to distinguish international from domestic (or internal) migrants.

13 Pratt (2008) has rightly critiqued the usually cost/benefit analysis for revolving around economic criteria by neglecting the effects of family separation on children left behind and marriage break-ups. This also resonates with some of the contributions made to the Special Issue on “Rethinking the Migration-Development Nexus – Bringing marginalized visions and actors to the fore” (vol. 15, no. 2, 2009).

14 Or as ‘traitors’ (as it can be perceived a blow to national dignity that people would want to leave, Nett, 1971; see Lee, 2005 on Korea).

15 The notion of “precarious employment” is not a defined category and remains controversial. More common are terms such as atypical, non-standard and flexible employment arrangements. In this sense, precarious is the opposite of what constitutes standard employment relationships (full-time work, unlimited contracts, integration into social protection schemes).

16 With regard to domestic work, progress has been made in the case of Jordan and the implementation of unified contracts and the regulation of recruitment agencies but not coverage by national employment laws.

17 Additional issues such as political space also play an important role and explain why there is less migrant worker activism in Singapore, Malaysia and West Asia where even local workers have their freedom of association seriously violated or curtailed (Piper, 2006). Furthermore, there are context- and place-specific nuances to domestic worker activism. Hsia has shown (2009) that, when domestic workers tend to stay beyond the length of one, or even two, contracts (as e.g. often the case in Hong Kong), their collective organizing can be easier sustained and consolidated than in places where temporary contract migration is dealt with in a stricter, and more ruthless, manner.

18 I use the phrase “under-organized” here rather than “unorganized” to acknowledge the fact that there are historical examples of domestic workers engaging in collective organizing with varying degrees of success, as well demonstrated by Ally (2005).

19 I have arrived at a similar conclusion in the specific context of trafficking (Piper, 2005).

20 ICFTU-APRO, Migration Issues Concern Trade Unions (Singapore, ICFTU-APRO, 2003). From the US context, there is evidence that it is the undocumented migrants who are joining trade unions but not temporary contract migrants.

21 Independent, the, ‘Migrants and the Middle East: Welcome to the other side of Dubai, 28 March 2006.

22 Nicole Constable, Maid to Order in Hong Kong (Ithaca/London: Cornell University Press, 1997); Lisa Law, ‘Sites of transnational activism – Filipino non-governmental organizations in Hong Kong’, in: Brenda Yeoh, Peggy Teo, and Shirlena Huang (eds.), Gender Politics in the Asia Pacific Region (London: Routledge, 2002); Nicola Piper (2009), ‘Migration and Social Development: Organizational and Political Dimensions’, Social Policy and Development Programme Paper No. 39, Geneva: UNRISD.