SYNERGISING INTERNATIONAL LABOUR LAWS AND HUMAN RIGHTS FOR PROTECTION OF INDONESIAN MIGRANT WORKERS

Muhammad Abdul Azis, M. Syaprin Zahidi, David Pradhan International Relations Department, Faculty of Social and Political Sciences, Universitas Muhammadiyah Malang, Indonesia, Email: maaazis0150@gmail.com International Relations Department, Faculty of Social and Political Sciences, Universitas Muhammadiyah Malang, Indonesia Email: syaprin123@umm.ac.id School of International Studies, Jawaharlal Nehru University, India, Email: happy48_isa@jnu.ac.in


B. Discussion
This article is based on secondary sources and relies on existing data and reports of Government and Non-Government Organisations to analyse the issue. The article is meta-analytic and utilizes the case of TKI as a heuristic for proposing the reinterpretation of international labour norms through the human rights paradigm. It is divided into four parts, each of it contains arguments that support the conclusion and suggestion that is presented. The first part contains an introduction that is mapping the issues is identified by the writer (1&2. In the second part, it is aimed review of the Indonesia practice in its efforts of protection of human rights protection for Indonesia migrant workers (TKI) (3&4).

Review of Policy and Practices on Migrant Workers Protection
In overall, efforts that are undertaken by the Indonesian government to protect the migrant workers might be still ad hoc (tambal-sulam). 15 For instance, reactionary-emotional government attitude can be clearly seen, such as related to the termination of sending workers to Malaysia because of many human right violations. 16 This is showed by confusion and rejection of the emotional reaction of the government. 17 Because of this effectiveness in this such pressure, that will be counterproductive to the policy because it actually produces in increasing illegal migrant workers in Malaysia. Next, this policy can bring high human rights violation against migrant workers as a result of their migratory status. 18 This termination is intended to be pressure for Malaysia and make them revise Memorandum of Understanding (MoU) that previously they had agreed with. This MoU between the Government of Indonesia and Malaysia governs the Private contractual agreement that employers enter into with the TKI. Though a subject of Private International Contract, the involvement of the Sovereign States in the framing and negotiating the regulations of these Private contractual agreements, and possibly even taking over cases in which the citizens of Indonesia are adversely affected through Subrogation as parens patriae does bring it within the ambit of International Law especially since the protection of the rights of its citizens, even when they are outside the State is a duty of the Government. 19 Due to the extreme diversity in the provisions of the private contractual agreements encountered, this article focuses on the macro-legal aspect of State duty under International Law to protect its citizens from violations of their rights when they are employed outside its territorial jurisdiction and suggests the deployment of a human rights approach as a universal normative imperative to achieve it more effectively. 20 The purpose of revised MoU itself is to remove the provision which authorizes household to hold documents of Indonesian migrant workers. 21 If we get attention to the actual issue, in particular, it can be avoided when the planner of MoU, especially from Indonesia, understand the principles of international legal migration. 22 One of the functions of CMW ratification is to provide the understanding to the relevant officials regarding good practices in terms of immigration. In popular practice, the employer holds identity documents has seen as an obligation for the recipient country to ensure compliance with the national laws related to immigration is conducted. Thus, publishing of these provisions is a faux pas which affects the labour rights of the TKI and creates disproportionate power of the foreign employer over the TKI. In the next section, a review is done, of the extent towards how far Recourse to the utilization of international legal regimes (for protection of citizens under private international contract) by the Government of Indonesia.

Utilizing of International Law by Indonesia Government
Existing secondary literature and data regarding the utilizing of International law by the Indonesia government in its efforts to protect migrant workers can still be seen far from satisfactory. Indonesia government actions clearly demonstrate this situation merely signed a cooperation agreement with recipient state to migrant workers (host state), namely Malaysia in Jordan andKuwait in 1999. 23 This article focuses on these countries as a majority of labour disputes relating to a violation of Private contract of International employment are reported from these countries. To be fair, Indonesia has also drawn up agreements with other States to protect the rights of the TKI, but they are not being considered here for the sake of focussing on the topic.
The exaggerated expectation of this MoU is misplaced because MoU is not an international agreement, treaty or convention that is contemplated by Article 2 (1) Vienna Convention 1969. 24 MoU is more appropriate as a commitment that makes the breaching party is hard to ask a responsibility. This is shown by using of ambiguous terms such as "will" rather than "shall" which is common in the legal documents. Generally, MoU is intended to set regulations on issues such as the confidential defence of the country. 25 Excessive attention to MoU results in inefficiency if we consider that the number of the host country will continue to increase over time. For example, Indonesia until now cannot make MoU with Saudi Arabia, which is a destination country that is many Indonesia migrant workers Migrate to for employment. 26 Participation of Indonesia in multilateral treaties that is related to the promotion of the interests of migrant workers can be said far from satisfactory. Until now, Indonesia has successfully ratified convention that is classified by the International Labour Organization (ILO) as a basic instrument. 27 However, Indonesia does not sign any ILO conventions that are specifically intended to migrant workers yet. 28 Likewise, signatory against CMW itself, Indonesia has not signed it. It further shows Indonesia does not seem real to look for international law as relevancy for the protection of migrant workers.
Similarly, it can be seen in the optimization of ASEAN's role in this case. 29 Instead, ASEAN in designing its charter tends to be busy with its acquisition status law which is already not a problem anymore. But, what we need to concern is what ASEAN can do for the citizens of its member states. Until now, ASEAN is only capable of publishing the ASEAN Declaration for promoting and protecting the human right of migrant workers on January 13, 2007, in Cebu, Philippines, which does not have binding force. 30 Similarly, the establishment of a regional human rights mechanism is still a mere expectation. One of them is the establishment of the Human Rights Commission that is composed of representatives of the government. After that, the commission also only has a role as a consultative organ just for member states. In addition, the commission is not given the authority of receiving complaints. In fact, in the Commission's Terms of Reference (ToR) has the commission's objectives that not only promote but also engaged in the protection sector. 31 Focusing on promotion aspects, according to Sihasak Phuangketkeow, Chairman of the high s a planner of the ToR, Terms of Reference can be separated from realistic attitude. 32 This situation shows that Indonesia leadership in ASEAN has diminished Whereas, in ASEAN, besides Indonesia, there are Philippines and Vietnam that are also countries that are sending many migrant workers in the world.
Meanwhile, from statement on its official website, BNP2TKI explained various achievement that they had done. 33 Two examples that to be noted here are: (i) signing MoU with ILO on May 30 2007 in order to streamline and utilizing ILO's helps in Capacity Building sector and training for staffs BNP2TKI; (ii) Exploring the cooperation network with a various international institution such as USIS, ASEAN, ECOSOC, AANZ (ASEAN, Australia, and New Zealand), GFMD (Global Forum on Migration and Development), ACILS (American Center for International Labor Solidarity), IOM (International Organization for Migration), WTO (World Trade Organization), and UNIFEM (United Nations Development Funds for Migration), that is intended as an effort to strengthen Indonesia bargaining position in protecting migrant workers in the placement countries. Unfortunately, various forms of that cooperation are hard to know by the public, in particular, regarding concrete benefits that they produce. Nicola Piper and Robyn Iredale, in their study, examine obstacle in the ratification of CMW, as follows; 34 Indonesia has a weakness in governance structures and bureaucratic problems that make Indonesia does not have a strategic policy that focuses on long-term development. 35 Additionally, it is related to policies that are connected to the issue of immigration that only becomes an issue in ministerial level and the worst thing is a major consideration of planning the policy formation more emphasis on efforts to reduce unemployment rather than questioning the establishment of expensive protection mechanisms. 36 Circumstances are exacerbated by the emphasis on policy for creating political stability and national integration.
Another reason that is an underlying refusal of the government to ratify CWM cannot be divided from a belief that is in the decline of interest in countries that have been receiving Indonesia migrant workers. In addition, they do not want to open confrontation with that recipient countries. CMW, in their perception, is seen to be not necessary to get action because that recipient countries is not their state members. Because of it, if we ratify CMW, it is just left benefit for foreign workers that work in Indonesia. Generally, they have better condition than Indonesia migrant workers. Another reason is related to confidence of loss of livelihood as a result of the exposure that is forced by CMW. Absence of pressure has become a driving force for CWM waiver.
The last is limited human resources and finance for funding the complex processes, such as obligations to providing a report. 37 This situation is upside down with the Philippines and Mexico that are very active to employ International law for promoting the rights of their migrant workers. Philippine is not only active in International law but also consistently apply at the domestic level. As for its proactive policy, along with Mexico, become countries that are succeeding in making issue migrant workers' rights as part of the International community agenda. 38 One of its phenomenal achievements is the birth of Advisory Opinion number 18 related to strengthening the application of the non-discrimination principle against migrant workers who do not a valid immigration document. 39 In that decision, the Inter-America court insists the principle of non-discrimination must be treated to all people without looking at their immigration status. 40 Related with that, Sarah Cleveland considers that decision that has been discussed in detail, so it can provide important contribute associated with the development of undocumented migrant workers in America and other places in the world. 41

Efforts in Foreign Country
Migrants are one of a group that is very vulnerable to all forms of Human Rights abuse in a foreign country. This situation cannot be separated from a negative view of migrants themselves. 42 This is clearly shown by a survey that is conducted by Pew Global Research on perspectives of the world community towards immigrants. 43  spending public and low salaries for the local community 44 . Here we review steps that have been done by the Indonesia government in the recipient countries.
For protecting migrant workers, the government has taken the following steps; (i) minister issued decree no. 157/MEN/2003 on Protection Insurance for Indonesia migrant workers overseas; (ii) providing guidance for migrant workers in some countries (Saudi Arabia, Kuwait, and Malaysia) by advocacy team that is composed students and civil servants that are working in the related country and local attorneys from that country. This team must record, monitor, and defend migrant workers in a foreign country.
First policy related to a procurement insurance program for migrant workers does not have a clear positive effect. Not less, Jumhur Hidayat as Chair of Board Placement and Protection of Indonesia Migrant Workers (BNP2TKI) states that all consortiums that are existed are "shoddy'. 45 It can be that money 400.000 IDR become new corruption area. It connects to Indonesia migrant workers do not want to get along with that problem. 46 Interestingly, Jumhur instead will force the migrant workers to pay the insurance in the future. 47 Even more ridiculous is the desire of Minister of Manpower, Erman Shepard, recently wanted to form a new consortium which holds monopoly that he considers it can resolve the problem that had been haunting him. Rather than solving that problem, it causes a confrontation with Business Competition Supervisory (KPPU) because it may violate act no. 5 1999 of Anti-Monopoly. 48 The second policy that is most attractive policy-establishing is cooperation with local parties and forms advocacy team that is composed of local lawyers, students, and civil servants. This policy also cannot be felt significantly by Indonesia migrant workers. Research indicates that most of the TKI is not aware of the existence of this initiative in the country that they work in. A common institution such as Retrievedto the embassy, according to Indonesia migrant workers, is suggested to become more complicated.
For example, in countries of East Asia such as Hong Kong and South Korea that become the main destination for Indonesia migrant workers, is classified as a democratic country, so that, presence and role of civil community is strong enough. In countries like that, migrant workers are likely to get help from the International Non-Governmental Organization (INGO), which is referred to as "shelter" for Indonesia migrant workers. 49 Therefore, it is appropriate if a study is aimed at improving the ability of workers, Filipino migrants recommend programs such as education and organization that has a purpose at improving awareness of labour rights and its human rights respectively. 50 Correspondingly, law for Filipino migrant workers is clearly based on the recognition of the important role of NGOs in the struggle for human rights and welfare of migrant workers. 51 That situation is very different from destination countries in Middle East Asia, generally, still, adhere to Monarchy absolute systems such as Saudi Arabia or Bahrain where existence and position of civil society are very weak. 52 In fact, Bahrain has occurred criminalization of domestic migrant workers by local law enforcement, in this case, police. 53 In such countries, the role of the embassy and local law enforcement agencies are really vital.
As a consequence, in the future, designing a system of legal protection For the labour rights (under Private International Law in a foreign country must include the specific need for the Government of Indonesia to use International Law principles for ensuring that its citizens are not left helpless and prone to exploitation, which in the absence of specific bilateral or multilateral Treaties can be done by resorting to the universal Human Rights as a means of ensuring compliance with international labour law norms. These considerations are extremely important because the deployment of migrant workers are not only limited in certain countries or region but it has widespread. Moreover, in the future, BNP2TKI will send Indonesia migrant workers to Australia in a sizeable numbers. 54 In connection with that, it needs to mention the approach that is initiated by Professor Jennifer Gordon, a prominent migrants' human rights, which is based on transnational political citizenship theory. This proposal cannot be separated from disbelief on the effectiveness of traditional methods that emphasize on tightening the border as a result of the increased market demand at the global level. As a consequence, he proposed a merger between civic workers with citizenship against a country. This is evidenced by the emphasis on the importance of local labour organization so it must get more attention since they can receive membership of migrant workers 55 . In addition, a more significantly important feature in this proposal is to Utilize the rights discourse as an enabling instrument for the achievement of policy goals. In other words, Retrieved of migrants to maintain or defend its own interest, either in the recipient country or origin will become the main focus. This approach is intended to be able to move profits from "pander" to the migrant workers. 56

Efforts in Domestic Level
His urging can show the dissatisfaction of President as the top management executive in Indonesia on the issue of migrant workers for the formation of "early warning system" that is expected to respond all Indonesia migrant workers' problem faster. 57 In other words, this pressure should be seen as confirmation of dissatisfaction on a system that has been existed. One of the problems on the protection of migrant workers that exists today can be said not in overlap authority which will lead to complexity. This overlap seems increasing over time. It considers there any possibility that each Manpower and Transmigration Office in each district will have a task force team (SATGAS) such as policeman that is guarding against making Indonesia migrant workers can go to a foreign country. 58 Because of irregularities construction of protection system for Indonesia migrant workers, it starts with BNP2TKI formation itself.
Instead of protecting, this regulation even is a scary monster that is increasingly encouraging Indonesia migrant workers to abstain. In addition, the paternalistic approach that has been adopted towards Indonesian migrant workers are not only detrimental for Indonesia migrant workers economically, but also it has claimed their dignity as human beings. Furthermore, this situation has been pushing to create side effects that are quite serious such as, sexual harassment, violence, extortion, heist, and fraud. In short, the right proverb that can describe this relationship with Indonesia migrant workers is "backstabber". In the beginning, BNP2TKI initially intended to be a coordinating institution between agencies or related department. Still, in progress, the institution is more active a role in the governing institution for the employment of Indonesia migrant workers. 59 Moreover, BNP2TKI has to get conflict with the Department of Manpower and Transmigration. In addition, common understanding of the notion of migrant workers also vary, the Ministry of Social Affairs is covering the Indonesia migrant workers who work outside home areas that are still under the jurisdiction of Indonesia government. 60 It has been confirmed by Businessman's Association Migrant Workers Placement Service (Himsataki) which requested that the Ministry of Manpower, BNP2TKI, and Department of Foreign Affairs cooperate. 61 From that statement, we can conclude that the first issue is the issue of inter-agency coordination, and obviously, it is not resolved by the presence of BNP2TKI. Maze of authority has resulted in the implementation of ministerial coordination meeting for Indonesia migrant workers that are problematic and conduct: This formulation is actually correct if we say as an affirmation of the commitment because the tasks have been there on their own. The thing to be noted is the possibility to emerge a tension between the Department of Labour and BNP2TKI related to authority over aspects of the placement of the Law no. 39 of 2004 (hereinafter: Law of Indonesia migrant workers) very "wet" from financial terms.
Other efforts that deserve to get serious attention is the adoption of the act which is currently can be regarded as a basic formulation national protection of migrant workers are also quite controversial. 64 This Act of Indonesia Migrant Workers has been amended several times, the judicial review by the Constitutional Court either are filed by the sender (sponsor) or their parties 65 . In addition, the members of Parliament also urged for the amendment to the act which deems migrant workers is less clear in services and protection for Indonesia migrant workers. In the other hand, most of the human rights' activists rejected the amendment without ratification CMW and references to it. During this confusion, we need to clarify related to the Indonesia migrant workers' act. The act is intended to be regulations on the placement and protection of migrant workers outside the country. This act also imposes a duty on the state to "provide protection to Indonesia migrant workers during the prior period to departure, the placement period, and the period after placement. 66 In addition, the act also stipulates the administrative, practical aspects that are comprehensive enough on departure stage of Indonesia migrant workers. 67 Unlike, the previous issue that is the issue of protection of migrant workers in the act is not done elaborative. The issue of protection is only given by not in deep discussion -not by using terms imperative. 68 From all the facts above, it shows the actual understanding of protection for workers itself is still unclear. As a result, it is no wonder if, in practice, it happens confusion in it. The only effort that most rational to face standoff is to open opportunities that exist at the international level to get a complete picture on best practices in the management of migration.

C. Conclusion
The problem that has always plagued the migrant workers cannot be separated from the chaotic policies and mechanism the protection that plague the domestic Indonesian legal regime for the protection of TKI. It is clear, for example, indicated by the absence of a long-term policy that has coherence and logical. All settlement adopted very ad hoc and unstructured with existing systems. From that one, one of the best ways is to try to ensure labour participation and benefits of globalisation in order to attain the economic development for the nation. Exploiting opportunities outside does not mean our sovereignty diminished but rather as an effort to achieve more substantive effort. This can be interpreted as a political commitment from the government -by learning and cooperating with the globalizing world -to be more pragmatic by prioritizing the interests of the people as a form of democracy.
In addition, an important finding that needs to be strengthened is related to issues of cultural relativism ever higher with Asian values. It merely exists in the imagination of the elite. The problems are obstacles that sometimes in the form of rejection in the field of promotion of human rights in Indonesia are more related to lack of Retrieved it. In other words, the issue of ignorance rather than to religious values or culture is more instrumental in the creation of grassroots rejection.
The legal basis of the Human Rights Act which explicitly recognizes the existence of a right to legal efforts at the international level has been duly made the parties concerned to no doubt take advantage of the international law. In short, the use of international forums on the issue, especially for the Indonesia migrant workers, is one of the main features in the formation of a new national migration management paradigm that is based on human rights. The failure of the state adopt this approach will lead to open up possibilities for international accountability which is requested by the international community and by the citizens of Indonesia.