Asean’s efforts and limitations on protecting migrant workers’ rights: in search of solutions through the lens of regulatory regionalism

As can be seen in the Work Plan of ACMW, the Committee has four main activities: (i) Step up the protection and promotion of the rights of migrant workers against exploitation and mist[r]

ASEAN’S EFFORTS AND LIMITATIONS ON PROTECTING

MIGRANT WORKERS’ RIGHTS: IN SEARCH OF SOLUTIONS

THROUGH THE LENS OF REGULATORY REGIONALISM

Nguyen Thuy Duong

LLM, Lecturer, Hanoi Law University, Hanoi

Abstract

The issue of migrant workers’ rights has been a difficult challenge for ASEAN to address Many

commentators pointed out the inadequacies of ASEAN’s governance on this issue, such as the lack

of legally binding regional instruments which are compatible with international labour standards;

the absence of an enforcement mechanism; the poor protection of migrant labourers’ rights in its

member states These shortcomings are the consequences of the “ASEAN way” approach which

is based on the principles of sovereignty, non-interference on internal affairs and consensus on

decision-making, combined with the incompatibility innational interests amongdifferent member

states However, it is unrealistic to expect that ASEAN would change these norms which are meant

to guarantee the respect of member states’ sovereignty in order to improve the situation of migrant

workers within the region Hence, this paper focuses on the concept of regulatory regionalism as

a possible solution for ASEAN to deal with this issue Although it might be a long and challenging

process, this innovative approach not only allows ASEAN to play a more central role, but also eases

member states’ concern regarding their sovereignty Accordingly, it would promote and protect the

rights of migrant workers within the region in a truly comprehensive and integrated manner.

Keywords: migrant worker rights; regulatory regionalism; Southeast Asia

1 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 main intra-regional flows of migrants among ASEAN member countries The first one is within the Mekong sub regional areas, including the migrant labours from Myanmar, Cambodia, Lao PDR, and Vietnam who move to Thailand The other one comes from Indonesia and Philippines, heading to countries such as Brunei Darussalam, Malaysia and Singapore.1 pparently, regarding the intra-regional migrant

1 Laura Allison-Reumann, ‘Integrating ASEAN in Labor Migration Policy: From Disjointed to Complementary Actor’ (2017) 9 Asian Politics & Policy 427.

labours, ASEAN member states could be divided into two groups, namely sending and receiving countries, which means it is almost impossible to harmonize the conflict of interests between them on the issue of migrant workers.1

Given that most of Asian migrant workers are temporary and unskilled, they would usually be classified as undocumented and hence remain more vulnerable than other skilled and professional laborers However, the laws of member countries, home and host alike, do not provide adequate protection for migrant workers. 2 In the countries of destination, migrant workers often endure severe discrimination For instance, Singapore does not have a provision for migrant workers, and those who help them are also not protected under the country’s labor law Similarly, Malaysia does not mention medical care for migrants, their children are also not allowed to enroll public schools.3 In their home countries, the insufficiency of legal mechanism and institutional capacity to protect migrant workers force migrant workers to rely on private brokers rather than official recruitment process.4 Many of those workers end up being irregular migrants or even falling victims to human trafficking Consequently, they would stand a lower chance of being protected in the host states In other words, responsibilities over migrant workers are continuously unsettled between those countries

Researchers concur that regional integration process has driven countries into a homogeneous situation, which is called ‘regional boats’ that requires regional-level decisions and actions.5 In addition, scholars also agree that there are shared responsibilities among host and home countries in protecting the rights of migrant workers.6

ASEAN is the first regional organization to show efforts to protect and promote the rights of migrant workers, since it is the origin of the largest number of migrant workers in Asia Migration issue was acknowledged for the first time in 1999 in ASEAN Nevertheless, it seems that the Association has not done enough to properly address this issue It is notable that ASEAN member countries tend to consider migrant worker as an national security issue This approach is also reflected

in ASEAN documents on cooporation to reslove migrant worker issues It is possiblethat right-based approach has never been accepted seriously when it comes to migrant workers both of national level and regional level As a result, migrant workers within ASEAN countries are frequently exposed to high risk of being abused, working under inadequate conditions, lack of access to health care or even being treated as criminals in the host countries

This paper aims to analyze ASEAN’s efforts as a regional international organization in developing

a governance mechanism to protect the rights of migrant workers Simultaneously, it describes the

1 Ibid.

2 Ronald C Brown, ‘ASEAN: Harmonizing Labor Standards for Global Integration’ (2016) 33 Pacific Basin Law Journal

3 Jaya Ramji-Nogales, ‘Under the Canopy: Migration Governance in Southeast Asia’ (2017) 21 UCLA J Int’l L Foreign Aff 10.

4 Bassina and Nolan Farbenblum, Justine, ‘The Business of Migrant Worker Recruitment: Who Has the Responsibility and Leverage to Protect Rights?’ (2017) 52 Texas International Law Journa ; Susan Kneebone, ‘Introduction: Migrant Workers Between States: In Search of Exit and Integration Strategies in South East Asia’ (2012) 40 Asian Journal of Social Science 367.

5 Jenina Joy Chavez, Transnational Social Movements in ASEAN Policy Advocacy: The Case of Regional Migrants’ Rights Policy (UNRISD 2015).

6 Bassina Farbenblum and Justine Nolan(n 5); Susan Kneebone (n 5)

limitations (of the protection of migrant labours’ rights and reasons for the obstructions ASEAN frequently faces in building a model for managing migrant workers’ rights in accordance with regional countries The paper also suggests a relevant solution to this regionally convoluted issue Among the manifold solutions, regulatory regionalism is likely to prevail

2 Methodology

The paper considers migrant workers’ rights as a regional issue which requires mutual cooperation

of all ASEAN members to search for a reasonable solution Hence, the paper does not focus on migrant worker issues at national level Thus, it is impossible for the author to use research methods such as interview or observation which requires access to stakeholders who are directly related to migrant workers issues (for examples, brokers, recruitment agencies, migrant workers and their families) or policy – making bodies at national and regional level Instead, the author mainly uses documentary analysis as a cost-effective and efficient method to carry out this research The paper uses desk research based on the theory of regulatory regionalism

3 Results

3.1 ASEAN’s efforts in addressing migrant workers’ rights issues

Although regional agreements and initiatives play a determining role in the governance of migrant workers’ rights in ASEAN, they might not have obtained comprehensive results as the association expected

In 1997, ASEAN started implementing activities with respect to migrant workers issues ASEAN came up with some notable innovations to solve migrant labor problems as illustrated below

- The ASEAN Declaration on Transnational Crime 1997, aimed to commit to fight against the illegal immigration and human trafficking

- The ASEAN Vision 2020 (1997), aimed to motivate the establishment of regulations and cooperating actions for transitional issues, such as the trafficking of women and children

- The Hanoi Action Plan (1998), aimed to elaborate the detailed schedules to execute the ASEAN Vision 2020 of an integrated ASEAN community and to commit to the fundamental cooperation in the fight against the trafficking of women and children

- The Bangkok Declaration on irregular migration 1999, 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 irregular migration in a thorough and balanced way, and to strictly follow every step to fight against human trafficking in the ASEAN area

- The ASEAN Declaration Against Trafficking in Persons Particularly Women and Children

2014, aimed to commit to build a head-connection against human trafficking in the ASEAN area

All these initiatives and programs didnot directly intend to solve the migrant worker issues at regional level They mostly focused on the issues of human trafficking or protecting vulnerable groups like woman and children, while the whole picture of migrant workers’ problem wasstill 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 urge ASEAN members to sign 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 measures specifically aimed 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 momentous achievement as ASEAN gave a general statement to protect and promote the rights of migrant workers for the first time The Cebu Declaration sets the general principles for the protection and promotion of migrant workers’ rights for ASEAN members Accordingly, member countries will need to cooperate closely with each other and promote the values and potentials of migrant workers in an environment of freedom, justice, stability in accordance with the national laws and policies Furthermore, the Cebu Declaration stipulates obligations of both home and host countries in promoting and protecting the rights of migrant workers in ASEAN Specifically, the host countries have to intensify efforts to protect fundamental rights, promote 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 accordance with the legislation of the host states; 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 5 to Article 10) For home countries, their policies and legislations need to ensure their citizens’ access to employment and livelihood opportunities as well as sustainable alternatives to migration for workers; set up policies and procedures to facilitate aspects of migration workers, including recruitment, preparation for overseas deployment and protection of migrant workers 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 shows 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 to the ASEAN Summit through the ASEAN Foreign Ministers’ Meeting(from Article 15 to Article 22 of the Declaration) However, one of the biggest drawbacks of this document is that the Declaration is politically binding instead legally binding.1 Hence, Article 22 in this document 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 lay the foundation for future developments of an effective mechanism in protecting migrant workers’ rights in ASEAN It is likely that ASEAN would start a loose or even non-legal binding frameworks, often for a political purpose, and then gradually upgrade them to formal instruments that have stronger binding effect

1 Jaya Ramji-Nogales (n 4).

After the Cebu Declaration was signed in 2007, ASEAN has taken specific actions to bring the commitments in the Declaration into reality, which trigger some future progresses of the Association

in the governance of the migrant workers’ rights

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 This institution was established with the main task of developing a legally binding instrument to protect and promote rights of migrant laborers with the first meeting was held on 15 – 16 September 2008 in Singapore, in which its Terms of Reference and Work Plan were adopted ACMW has the responsibility to ensure that 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 the protection and promotion of the rights of migrant workers against exploitation and mistreatment; (ii) Strengthen the protection and promotion of the rights

of migrant workers by enhancing labour migration governance in ASEAN countries;(iii) Increase regional cooperation to fight human trafficking in ASEAN; (iv) Develop an ASEAN Instrument on the Protection and Promotion of the Rights of Migrant Workers

Secondly, ASEAN has established a group of experts to support the implementation of the Declaration– the Task Force on ASEAN Migrant Workers (TF-AMW) It 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 concerning this issue

Thirdly, ASEAN established the ASEAN Forum on Migrant Workers (AFML) Its objectives

of the AFML are three folds: (i) To share stakeholder experiences, challenges and good practices

in the implementation of the Recommendations at past AFML meetings This is undertaken during the Review Session in each of the AFML meetings; (ii)To examine in detail the 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; (iii)To draft and agree on the 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 concerning migrant workers in Southeast Asia, including the participation

of governments of the ASEAN member countries, organizations of workers, employers and civil

society organizations (CSOs) 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” This document is prepared 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) This is considered as a step forward

of ASEAN in the protection of the rights of migrant workers in the region Although it took ASEAN

a decade to adopt the Consensus, this document is morally binding rather than legally binding as expected in the Cebu Declaration (Rother 2018).1 However,this document increases and expands the obligations of ASEAN member states in the promotion and protecting of migrant labours’ rights After the Consensus was signed, ASEAN members also decided to adopt the Action Plan (2018 – 2015) to implement the Consensus which is developed by the ACMW

It is necessary to refer to the adoption of the ASEAN Declaration on Human Rights in 2012 (ADHR) Although the ADHR is also a non-legally binding agreement, this document clearly shows stronger commitments in addressing the migrant workers’ rights issues For instance, Article 4 of the ADHR expresses that the rights of migrant “are an inalienable, integral and indivisible part for human rights and fundamental freedoms” It is an important evidence of the commitments of ASEAN member states in the protection of migrant workers’ rights

Overall, it is supposed that ASEAN has a tendency to use “soft law” tools in the governance of migrant worker issues Most of the regional documents regarding to migrant workers are non-legally binding.2

3.2 The inadequacies of ASEAN concerning the governance of migrant workers’ rights

Although ASEAN made an attempt to establish a governance regime on the issues of migrant workers’ rights within its member states, such regime still suffers from limitations and deadlocks Notwithstanding the strong language expressed in its non-binding agreements, ASEAN is still struggling with the issues of migrant labour rights

Firstly, provisions included in ASEAN non-binding documents are relatively vague, which diminishes the effectiveness of the regional mechanisms On the one hand, these documents show the imbalance between sending and receiving member states, which is commented by Kneebonethat it reflects the status of “weak” and “strong” states in the ASEAN countries’ relationship with respect

to migrant workers.3 Kneebone claimed that although both sending and receiving countries gain benefits from migrant workers, these two partners do not share the same level of responsibilities in protecting these workers.4For example, Article 13 of the Cebu Declaration imposes the responsibilities

1 Stefan Rother, ‘ASEAN Forum on Migrant Labour: A space for civil society in migration governance at the regional level?’ (2018) 59 Asia Pacific Viewpoint 107.

2 Susan Kneebone, ‘ASEAN: setting the agenda for the rights of migrant workers?: Susan Kneebone’, Human Rights in the Asia-Pacific Region (Routledge 2011).

3 Ibid.

4 Susan Kneebone, ‘Introduction migrant workers between states: in search of exit and integration strategies in South East Asia’ (2012) 40 Asian Journal of Social Science 367.

on the sending countries for the protection of migrant workers, not only in the progress of recruitment, preparation for overseas deployment but also for their actual overseas deployment, as well as repatriation and reintegration However, it does not mention any corresponding obligations of the receiving ones

Secondly, when it comes to migrant workers, ASEAN pays more attention to the security aspects than to human rights ones It is true that the issue of migrant workers’ rights has not received proper attention at regional agendas in Southeast Asia Instead, ASEAN member states concentrate

on the negative aspects of migrants to national security, for example, irregular immigration, human trafficking, and smuggling, which subsequently affects regional cooperation activities.1

An example of this approach is the situation of undocumented migrant workers which account for

a large percentage of all migrant workers within the region They are more vulnerable to be exposed

to abuse, working under insufficient conditions, suffering from illness without primary healthcare

or even being treated as criminals in the host states However, ASEAN seems to be silent on the protection of these people in its regional instruments To specify,ASEAN has raised its attention for irregular migrants since 1999 with the adoption of The Bangkok Declaration on irregular migration This document prescribes that “regular and irregular migration should not be considered in isolation from each other” Nevertheless,the next documents of the Association states otherwise Both of the Cebu Declaration and the Consensus stipulate that undocumented migrant workers’ rights are only considered when it comes to “humanitarian reasons” (Article 2 of the Declaration and Article 56 of the Consensus) Furthermore,clauses 49 and 59 also show that ASEAN still focuses on preventing the influx of irregular immigrants rather than protecting their rights when they have already worked

at the host states Apparently, this humanitarian approach excludes responsibilities of governments

in protecting undocumented migrant workers’ rights, which evidently originated from some ASEAN receiving countries When analyzing the stituation of migrant workers in Singapore, Cheah criticizes that the humanitarian approach is emphasized in Singapore which could allow it consider the problems of undocumented migrant workers’ rights from the lens of the lack of kindness in the society Therefore, it is simple for the goverment and elitism class in Singapore that they only need protect migrant worker’s rights as a way to show their kindness rather than taking their social responsibiltity.2 Thirdly, it is apparent that initial attempts to build 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 Clearly, there has been the deadlock of the Association in reaching the consensus between member states on the common approach of migrant workers issues One of the main reasons for the delay in signing a legal binding instrument regarding to the rights of migrant workers is the contradicting interests between sending and receiving member countries These conflicts have come from the priority of ASEAN member states on sovereignty, which is expressed by the principles of non-interference and consensus on decision making.3 In the progress of drafting the

1 Wui Ling Cheah, ‘Migrant Workers as Citizens within the ASEAN Landscape: International Law and the Singapore Experiment’ (2009) 8 Chinese Journal of International Law 205; Susan Kneebone (n 12).

2 Wui Ling Cheah(n 13).

3 Jenina Joy Chavez, Transnational Social Movements in ASEAN Policy Advocacy: The Case of Regional Migrants’ Rights Policy (UNRISD 2015); Ruji Auethavornpipat, ‘Assessing regional cooperation: ASEAN states, migrant worker rights and norm socialization in Southeast Asia’ (2017) 29 Global Change, Peace & Security 129.

regional framework instrument, there are three points that revealed major conflicts between ASEAN members The first one is the degree of binding of ASEAN’s legal document The second one is the irregular migrant workers issue, and the final one concerns about the protection of family members of migrant workers.1 This is also evident in the case of Malaysia which requires full sovereignty in the migrant policies.2

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

This part will examine the emergence of regulatory regionalism as an efficient way to tackle transboundary issue in Asia in general and the case of South East Asia in particular

The concept of “regulatory regionalism” was initially developed by Jayasuriya.3 The author uses the term “regulatory regionalism” to refer 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 The emergence of globalization has contributed to cross-border interactions among different actors in various countries, which in turn creates the so called “political and ideological boundaries”.4 This new border system was created under complex transnational economic and political relations between countries, leading to many transboundary issues that need to be controlled

In order tominimize these new transboundary risks effectively, it is necessary to build new spaces

of governance From this lens, Jayasuriya and Hameiri pointed out that these 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.5

It is noted that this approach of regulatory regionalism is clearly distinct from the theory of nationalism Unlike nationalism methodology, regulatory regionalism does not express state sovereignty within the national territory in regional integrations Scholarly opinions seem to reach a consensus on the disadvantages of the nationalism approach in international and regional integration.6 To effectively address transboundary issues, concerned nations need to have a cross-border governance system through the engagement with international or regional institutions However, from the lens of nationalism approach, the fact that some functions of states are able

to be replaced by the establishment of such institutions could be viewed as the limitation of state power in internal affairs.7 As a result, countries are not willing to engage into regional integration to address cross-border problems, especially in “sensitive” issues which are closely related to national

1 Laura Allison-Reumann (n 1)

2 Jaya Ramji-Nogales (n 4)

3 Kanishka Jayasuriya, ‘Regulatory regionalism in the Asia-Pacific: drivers, instruments and actors’ (2009) 63 Australian Journal of International Affairs 335.

4 Ibid.

5 Shahar Hameiri and Kanishka Jayasuriya, ‘Regulatory regionalism and the dynamics of territorial politics: The case

of the Asia-Pacific region’ (2011) 59 Political Studies 20; See also Ome Chattranond, ‘Battery of Asia? The Rise of Regulatory Regionalism and Transboundary Hydropower Development in Laos’ (2018)

6 Kanishka Jayasuriya (n 18)

7 Ibid.

sovereignty such as money laundering, migration, terrorist, etc In contrast, regulatory regionalism as the new mode of governance which is not based on the idea that the cooperation of intergovernmental organizations or the establishment of regional institutions potentially replace national sovereignty

of its member countries, which create opportunities for conservative countries to seek for a more effective governance forms to resolve transboundary issues

Jayasuriya also concluded that regulatory regionalism is a new mode of regional governance which emphasizes the actual activities of local or national institutions of member states rather than relying on formal regional cooperation mechanism or official international agreements.1 In other words,

it is an internal transformation process of states when they enable the implementation of regional projects in the national and even local level.2 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 This project reflects the engagement of local authorities of Yunnan and Guangxia provinces in the National Coordination Group which were established by the Chinese government in 2006 The institution was the combination of the central government and local authorities including the Ministry of Trade, the Ministry of Finance, the Ministry of Foreign Affairs, the General Department of Customs and local authorities of Yunnan and Guangxi.3

3.3.2 The emergence of regulatory regionalism governance in Asia Pacific

As mentioned above, compared with other regions, ASEAN shows a weak regionalization due

to member states’ persistence on absolute national sovereignty of country members, which results

in an generally conservative view on innovative governance modes.4 However, Asia has witnessed

a broad spectrum of new governing forms – regulatory regionalism governance, starting at financial surveillance sectors, then expanding to a variety of other issues such as water management.5

There are several main reasons for the emergence of a new regulatory form of regional governance

in the highly conservative Asian countries 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 globalization on national governance of many countries in Asia This alternative governance form is not a political choice of parties in a state6, but their responds to the strong demands for an effective governance system which could be capable of resolving 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, trans-nationalization of markets

1 Ibid.

2 Shahar Hameiri and Kanishka Jayasuriya (n 20); See also Ome Chattranond (n 20)

3 Kanishka Jayasuriya, ‘Regulatory Regionalism, Political Projects, and State Transformation in the Asia-Pacific’ (2015) 7 Asian Politics & Policy 517.

4 John Ravenhill, ‘East Asian regionalism: Much Ado about Nothing?’ (2009) 35 Review of International Studies 215; Xavier Fernández-i-Marín and Jacint Jordana, ‘The emergence of regulatory regionalism: transnational networks and the diffusion of regulatory agencies within regions’ (2015) 21 Contemporary Politics 417.

5 Shahar Hameiri and Kanishka Jayasuriya (n 20).

6 Kanishka Jayasuriya (n 18).

in the region allows countries to access economic resources and enables them to achieve economic development instantaneously On the other hand, cross-border trade and investment flows create novel problems within the states such as financial crises, climate changes, environmental degradations, infectious diseases, migrant, human trafficking, money laundry crimes, and so on In this context,

it is difficult to ensure the stability of markets and address transboundary issues without a regional governance regime including evolving countries However, it is likely that states would demonstrate their central roles in policy making and market management to serve public interests Thus, it leads

to conflicts between requirements for effective governance and the demand of keeping the power

of national states regarding transboundary issues Chattranond gave example of the overlapping systems of different countries along the Mekong rivers to manage the hydro power market efficently

in this region.1 There were ongoing conflicts between requirements for effective governance and the demand of keeping the power of national states regarding hydro power along the Mekong river Chattranond argued that regulatory projects have appeared as a toolto to help states ensure the stability

of transnational hydro power market in the Mekong sub-region without concerning over the transfer

of power for a regional institution.2

Secondly, scholars also suggest that new generation FTAs which have been signed recently

TPP (and now CPTPP) indicate that, apart from stipulating traditional provisions related to trade ar-rangements among countries, these agreements also set the rules and principles for dealing with social issues in country members such as environmental protections, food safety and labour standards in national policies This approach creates new political relations and compels governments to participate

in political and social regulatory projects, which brings more reactions and communications among member states’ national agencies In other words, Jayasuriya (2015) suggests that new generation of

As mentioned above, Jayasuriya stresses the importance of the active participation of national agencies in the implementation of regulations over international treaties and formal regional cooperation.5 Unlike Jayasuriya, Fernández-i-Marín and Jordana argue that when participating on international and regional initiatives, member states’ national agencies can communicate, learn experiences and exchange views from each other.6 These interactions gradually form an internal transformation in the level of national agencies and later in the whole governance system of these countries In other words, it is likely that the emergence of regulatory regional governance has its roots in the actual interrelations between these representatives of countries

Thirdly, scholars also point out that due to inflexibility and structural rigidity of the prevailing regional governance system in Southeast Asia, a new form of regulatory regional governance have

a chance to appear Indeed, there are various issues arising from globalizations in the region which

1 Ome Chattranond(n 20).

2 Ome Chattranond(n 20).

3 Kanishka Jayasuriya (n 18).

4 OKanishka Jayasuriya (n 25)

5 Kanishka Jayasuriya (n 18).

6 Xavier Fernández-i-Marín and Jacint Jordana, ‘The emergence of regulatory regionalism: transnational networks and the diffusion of regulatory agencies within regions’ (2015) 21 Contemporary Politics 417.