ASEAN has made efforts to address the problem of human trafficking in the region. However, the current mechanisms fail in two areas. First, the ASEAN Declaration Against Trafficking tends towards a law enforcement paradigm and does not adequately address preventive measures to mitigate trafficking. Second, ASEAN Intergovernmental Commission on Human Rights ("AICHR") and ASEAN Commission on the Promotion and Protection of Women and Children Rights ("ACWC") are only “consultative” bodies. They are not given the mandate to help member states prevent human trafficking and protect victims.
By Jerry Lewis Ong
Human trafficking is one of the gravest human rights abuses confronting the international community today. In Southeast Asia, the International Organization for Migration conservatively estimates that at least 200,000 women and children are trafficked annually, with most being transported from one point to another within the Southeast Asia region. In response to the problem, the Association of Southeast Asian Nations (“ASEAN”) has taken active steps to combat human trafficking. Most notably, the ASEAN member states have adopted a regional Declaration Against Trafficking in Persons Particularly Women and Children (“ASEAN Declaration Against Trafficking”), and the ASEAN Intergovernmental Commission on Human Rights (“AICHR”) and the ASEAN Commission on the Promotion and Protection of Women and Children Rights (“ACWC”) have been tasked to lead actions against human trafficking.
While ASEAN has made efforts to address this regional problem, the current mechanisms fail in two areas. First, the ASEAN Declaration Against Trafficking tends towards a law enforcement paradigm and does not adequately address preventive measures to mitigate trafficking. Furthermore, the document has no legal effect and unable to legally bind member countries to the commitments. Second, as AICHR and ACWC are only “consultative” bodies, they are not given the mandate to help member states prevent human trafficking and protect victims. In order to strengthen existing structures, ASEAN ought to pass a new, legally binding and victim-centred agreement on the prevention of human trafficking, and strengthen the role of AICHR and ACWC to include the monitoring of member states’ implementation of national anti-trafficking strategies and compliance with a regional anti-trafficking convention.
The adoption of the ASEAN Declaration Against Trafficking in Persons in 2004 was said to be a tremendous improvement from the 2000 Action Plan for Cooperation on Immigration Matters, which merely aims to “develop a strong network among immigration authorities to promote and facilitate economic cooperation and combat transnational crime, especially trafficking in persons”. Although the Declaration was made more comprehensive to include wider protection for women and children, the agreement still relies heavily on immigration measures in combating trafficking. For instance, it focuses on the repatriation of the victims to their respective counties of origin and it stays silent on the prevention measures that have to be taken to prevent the victims to be re-trafficked once they have been repatriated. In addition, the Declaration is largely aspirational, non-binding rather than a firm political commitment to prevent human trafficking from happening. The non-binding nature of this Declaration means that member countries do not have legal obligations and they can choose whether to implement the stated provisions.
At the time of writing, ASEAN is going through the process of drafting a new ASEAN Convention on Trafficking in Persons and the Regional Plan of Action. This is a significant step forward given that the agreement, if adopted, will be legally binding. As such, member countries will then be obliged to enforce their commitments. However the forthcoming Convention needs to adopt more a victim-centred approach, focusing on identifying trafficking victims and providing them with individually tailored support, to ensure assistance to and protection of victims.
The AICHR and ACWC are the two main bodies responsible for the promotion and protection of human rights, including the rights of trafficked victims. Under the AIHRC Work Plan 2016-2020 and ACWC Work Plan 2012-2016, there are initiatives on anti-human trafficking to be implemented i.e. conduct a regional-based study on trafficking in persons and review existing practices on the treatment of trafficked victims with the aim of strengthening the assistance mechanism. While these are efforts to fight trafficking, both AICHR and ACWC only serve as consultative bodies. In other words, they are mandated to provide advisory services and technical assistance upon request but lack the authority to enforce advice and recommendations in member countries. Given that AICHR and ACWC focus on the promotion rather than the protection of human rights, this hampers the protective responsibility of the Commissions.
To address these shortcomings, the role of AICHR and ACWC should be enhanced, to include monitoring, recommendatory and enforcement functions which would ensure that member countries’ comply with regional treaties especially the forthcoming ASEAN anti-human trafficking convention and its corresponding regional plan of action. With such capacity, AICHR and ACWC could play a vital role by assisting member countries’ with the implementation of the agreed regional action plan and the operationalization of national anti-human trafficking policies. Without it, there can be no effective prevention, protection and prosecution of trafficking in persons.
Although it has been argued that the establishment of an ASEAN human rights court to receive inter-state and/or individual complaint will strengthen criminal justice responses to human trafficking, one has to bear in mind that AICHR and ACWA are founded on the principle of “non-confrontational” which underpins the ASEAN way of working. With the potential risk that an ASEAN human rights court could create tension between and among member states, setting up such mechanism would be a challenge.
To conclude, I have highlighted two areas where ASEAN anti-human trafficking mechanisms have failed, and provided suggestions to address these weaknesses. First, the ASEAN Declaration Against Trafficking in Persons Particularly Women and Children tends towards a law-enforcement paradigm instead of a victim-centred, victim-welfare approach, placing victims at risks. In addition, the Declaration is a non-binding agreement which does not place legal obligations on member states. A suggestion to this is for ASEAN to adopt a new, legally binding convention against trafficking, with a strong emphasis on the assistance to and protection of victims. Second, the AICHR and ACWC are only consultative bodies that provide advisory services on anti-trafficking issues upon request. It is suggested that the roles of both Commissions be enhanced to include monitoring, recommendatory and enforcement functions so as to ensure that member countries comply with the regional anti-trafficking convention and enforce the corresponding action plan.
Jerry is a Programme Officer at Save the Children Asia Regional Office. The opinions expressed in this article are the author's own and do not reflect the view of the organisation.
Human trafficking is one of the gravest human rights abuses confronting the international community today. In Southeast Asia, the International Organization for Migration conservatively estimates that at least 200,000 women and children are trafficked annually, with most being transported from one point to another within the Southeast Asia region. In response to the problem, the Association of Southeast Asian Nations (“ASEAN”) has taken active steps to combat human trafficking. Most notably, the ASEAN member states have adopted a regional Declaration Against Trafficking in Persons Particularly Women and Children (“ASEAN Declaration Against Trafficking”), and the ASEAN Intergovernmental Commission on Human Rights (“AICHR”) and the ASEAN Commission on the Promotion and Protection of Women and Children Rights (“ACWC”) have been tasked to lead actions against human trafficking.
While ASEAN has made efforts to address this regional problem, the current mechanisms fail in two areas. First, the ASEAN Declaration Against Trafficking tends towards a law enforcement paradigm and does not adequately address preventive measures to mitigate trafficking. Furthermore, the document has no legal effect and unable to legally bind member countries to the commitments. Second, as AICHR and ACWC are only “consultative” bodies, they are not given the mandate to help member states prevent human trafficking and protect victims. In order to strengthen existing structures, ASEAN ought to pass a new, legally binding and victim-centred agreement on the prevention of human trafficking, and strengthen the role of AICHR and ACWC to include the monitoring of member states’ implementation of national anti-trafficking strategies and compliance with a regional anti-trafficking convention.
The adoption of the ASEAN Declaration Against Trafficking in Persons in 2004 was said to be a tremendous improvement from the 2000 Action Plan for Cooperation on Immigration Matters, which merely aims to “develop a strong network among immigration authorities to promote and facilitate economic cooperation and combat transnational crime, especially trafficking in persons”. Although the Declaration was made more comprehensive to include wider protection for women and children, the agreement still relies heavily on immigration measures in combating trafficking. For instance, it focuses on the repatriation of the victims to their respective counties of origin and it stays silent on the prevention measures that have to be taken to prevent the victims to be re-trafficked once they have been repatriated. In addition, the Declaration is largely aspirational, non-binding rather than a firm political commitment to prevent human trafficking from happening. The non-binding nature of this Declaration means that member countries do not have legal obligations and they can choose whether to implement the stated provisions.
At the time of writing, ASEAN is going through the process of drafting a new ASEAN Convention on Trafficking in Persons and the Regional Plan of Action. This is a significant step forward given that the agreement, if adopted, will be legally binding. As such, member countries will then be obliged to enforce their commitments. However the forthcoming Convention needs to adopt more a victim-centred approach, focusing on identifying trafficking victims and providing them with individually tailored support, to ensure assistance to and protection of victims.
The AICHR and ACWC are the two main bodies responsible for the promotion and protection of human rights, including the rights of trafficked victims. Under the AIHRC Work Plan 2016-2020 and ACWC Work Plan 2012-2016, there are initiatives on anti-human trafficking to be implemented i.e. conduct a regional-based study on trafficking in persons and review existing practices on the treatment of trafficked victims with the aim of strengthening the assistance mechanism. While these are efforts to fight trafficking, both AICHR and ACWC only serve as consultative bodies. In other words, they are mandated to provide advisory services and technical assistance upon request but lack the authority to enforce advice and recommendations in member countries. Given that AICHR and ACWC focus on the promotion rather than the protection of human rights, this hampers the protective responsibility of the Commissions.
To address these shortcomings, the role of AICHR and ACWC should be enhanced, to include monitoring, recommendatory and enforcement functions which would ensure that member countries’ comply with regional treaties especially the forthcoming ASEAN anti-human trafficking convention and its corresponding regional plan of action. With such capacity, AICHR and ACWC could play a vital role by assisting member countries’ with the implementation of the agreed regional action plan and the operationalization of national anti-human trafficking policies. Without it, there can be no effective prevention, protection and prosecution of trafficking in persons.
Although it has been argued that the establishment of an ASEAN human rights court to receive inter-state and/or individual complaint will strengthen criminal justice responses to human trafficking, one has to bear in mind that AICHR and ACWA are founded on the principle of “non-confrontational” which underpins the ASEAN way of working. With the potential risk that an ASEAN human rights court could create tension between and among member states, setting up such mechanism would be a challenge.
To conclude, I have highlighted two areas where ASEAN anti-human trafficking mechanisms have failed, and provided suggestions to address these weaknesses. First, the ASEAN Declaration Against Trafficking in Persons Particularly Women and Children tends towards a law-enforcement paradigm instead of a victim-centred, victim-welfare approach, placing victims at risks. In addition, the Declaration is a non-binding agreement which does not place legal obligations on member states. A suggestion to this is for ASEAN to adopt a new, legally binding convention against trafficking, with a strong emphasis on the assistance to and protection of victims. Second, the AICHR and ACWC are only consultative bodies that provide advisory services on anti-trafficking issues upon request. It is suggested that the roles of both Commissions be enhanced to include monitoring, recommendatory and enforcement functions so as to ensure that member countries comply with the regional anti-trafficking convention and enforce the corresponding action plan.
Jerry is a Programme Officer at Save the Children Asia Regional Office. The opinions expressed in this article are the author's own and do not reflect the view of the organisation.