Regulating Foreign Labor in Emerging Economies: Between National Objectives and International Commitments

Abstract

The dialectics of the regulation of foreign workers, is a problematic indication as a legal problem in Indonesian legislation. This article aims to describe the urgency of critical studies concerning the regulation of foreign workers by exploring existing legal problems with national commitments to ratify international agreements regarding free trade, with a case study in Indonesia. By using normative and juridical approach with a variety of approaches both the law approach, conceptual approach, case approach and comparative approach, the study found that the regulation there is an inconsistency clause regarding special competencies that must be owned by foreign workers, including the selection and use of terminology in Act No. 13 of 2003 concerning Manpower. Thus, this study offers a constitutional solution due to the regulation of the subordinate foreign workers on international trade commitments which in turn negate the constitutional goals of creating the welfare of domestic workers. The normative consequences that immediately bind Indonesia after integrating itself in the World Trade Organization (WTO) membership are services trade agreements that are contained in the regulations of the General Agreement on Trade in Services (GATS). Based on the GATT/WTO rules, national legislation or labor regulations that are too protective are considered to violate WTO provisions because the WTO substantially requires the creation of policies without discrimination in all matters including equalizing the position of foreign workers and domestic workers. The final finding of this study offers to draft the concept of future regulation regarding the regulation of foreign workers who are loaded with elements of the objectives of constitutional-based law.