REGIONAL FRAMEWORK
2. Regional human trafficking instruments
2.4 ASEAN developments
The Association of Southeast Asian Nations (ASEAN) was established during August 1967 when the ASEAN Declaration was signed by Indonesia, Malaysia, Philippines, Singapore and Thailand. Cambodia joined during 1999, Myanmar and Laos in 1997, Vietnam during July 1995 and Brunei Darussalam in January 1984. ASEAN can be categorised as an increasingly pivotal actor in the global economy as its combined GDP came to USD 1.5 trillion during 2011 and if deemed as a single political entity, would rank as the ninth largest economy globally.686 The establishment of the ASEAN human
683 ECOWAS Declaration on the Fight against Trafficking in Persons available online at http://www.unodc.org/pdf/crime/trafficking/Minimum_Plano_CEDEAO.pdf (22-09-2016).
684 UNODC ECOWAS Training Manual (2006) available online at https://www.unodc.org/documents/human- trafficking/ecowas_training_manual_2006.pdf (26-09-2016).
685 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 15 at para 76.
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rights system secured the fourth regional human rights system in the world, following the establishment of the European, Inter-American and the African systems.687
The purposes of ASEAN as set out in the ASEAN Declaration includes the following:
1. “To accelerate the economic growth, social progress and cultural development in the region through joint endeavours in the spirit of equality and partnership in order to strengthen the foundation for a prosperous and peaceful community of Southeast Asian Nations;
2. To promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter;
3. To promote active collaboration and mutual assistance on matters of common interest in the economic, social, cultural, technical, scientific and administrative fields;
4. To provide assistance to each other in the form of training and research facilities in the educational, professional, technical and administrative spheres;
5. To collaborate more effectively for the greater utilization of their agriculture and industries, the expansion of their trade, including the study of the problems of the international commodity trade, the improvement of their transportation and communications facilities and the raising of the living standards of their peoples;
6. To promote Southeast Asian studies; and
7. To maintain close and beneficial cooperation with existing international and regional organisations with similar aims and purposes, and explore all avenues for even closer cooperation among themselves.”688
The ASEAN Charter was adopted during 2007 by member states and serves as a—
“firm foundation in achieving the ASEAN Community by providing legal status and institutional framework for ASEAN. It also codifies ASEAN norms, rules and values; sets clear targets for ASEAN; and presents accountability and compliance.”689
The entry into force of the ASEAN Charter, announced the establishment of a “new legal framework” establishing “a number of new organs to boost its community-building process. In effect, the ASEAN Charter has become a legally binding agreement among the 10 ASEAN Member States.”690
687 Clarke “The evolving ASEAN human rights system: The ASEAN Human Rights Declaration of 2012” 2012 Nw.
J. Int'l Hum. Rts. 22.
688 ASEAN About ASEAN available online at http://asean.org/asean/about-asean/overview/ (24-09-2016). 689 ASEAN Charter available online at http://asean.org/asean/asean-charter/ (24-09-2016).
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The ASEAN Human Rights Declaration was adopted on 18 November 2012, consists of norms and institutions and provides a cognitive and structural dimension to the ASEAN human rights system.691
The Declaration aims to contribute to the “process of norm generation, especially in the political-security pillar, which promotes democracy, human rights, and good governance in ASEAN.”692
The East Asia Summit was established in 2005 by 18 countries in the Asia-Pacific region in order to “further the objectives of regional peace, security and prosperity” as well as to allow “the principal players in the Asia-Pacific region to discuss issues of social interest and concern in an open and transparent manner at the highest level”.693 Member states include the ten ASEAN member states as well as Australia, China, India, Japan, New Zealand, the Republic of Korea, the Russian Federation and the USA.694 The ASEAN Convention Against Trafficking in Persons, Especially Women and Children was adopted by ASEAN members in November 2015. This Convention recognises trafficking in persons as a violation against human rights, an offence to the dignity of human beings and recalls the—
“purpose and principles of the Charter of the United Nations, the Universal Declaration on Human Rights, the Charter of the Association of Southeast Asian Nations, the United Nations Convention against Transnational Organized Crime, and where applicable, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and other international agreements and resolutions of the United Nations on the eradication of trafficking in persons, in the promotion and protection of human rights fundamental freedoms, fair treatment, rule of law and due process;”695
The Convention reaffirms ASEAN member states commitment to the ASEAN Charter when it comes to an effective response in accordance with “comprehensive security, to all forms of transnational crimes and transboundary challenges”.696 The Convention furthermore reflects the Palermo Protocol in defining
trafficking in persons and following the three P’s approach in order to combat trafficking.697
691 Clarke “The evolving ASEAN human rights system: The ASEAN Human Rights Declaration of 2012” 2012 Nw.
J. Int'l Hum. Rts.
692 Clarke “The evolving ASEAN human rights system: The ASEAN Human Rights Declaration of 2012” 2012 Nw.
J. Int'l Hum. Rts.
693 MEA About EAS available online at http://www.mea.gov.in/aseanindia/about-eas.htm (06-12-2016). 694 MEA About EAS available online at http://www.mea.gov.in/aseanindia/about-eas.htm (24-09-2016). 695 ASEAN Convention Against Trafficking in Persons, Especially Women and Children available online at
http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 1.
696 Asean Convention Against Trafficking in Persons, Especially Women and Children available online at
http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 1.
697 Article 1 of the Asean Convention Against Trafficking in Persons, Especially Women and Children available online at http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 3.
152 It commits to:
“a. Prevent and combat trafficking in persons, especially against women and children, and to ensure just and effective punishment of traffickers;
b. Protect and assist victims of trafficking in persons, with full respect for their human rights; and c. Promote cooperation among the Parties in order to meet these objectives.”698
The Convention calls for higher penalties in cases where aggravating circumstances are present such as where the offence “exposed the victim to a life threatening illness, including HIV/AIDS”699 as well as
where the offence involves multiple victims,700 if the crime involves “serious injury or death of the victim or another person, including death as a result of suicide;”701 and also aggravating penalties in cases where the offence “involves a victim who is particularly vulnerable such as a child or a person who is unable to fully take care of or protect himself or herself because of a physical or mental disability or condition”702 as well as an offender who committed a trafficking crime “in the performance of his or her public duties.”703
The Convention also urges states to criminalise the laundering of proceeds of crime,704 corruption,705 and obstruction of justice.706 Other aspects touched on is cross-border cooperation, the control and validity
of documents, preventative measures, victim protection, repatriation of victims, law enforcement and prosecution, confiscation and seizure, international cooperation, exchange of information by states, extradition and international cooperation for purposes of confiscation.707 The Convention also makes
698 Article 1 of the Asean Convention Against Trafficking in Persons, Especially Women and Children available online at http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 3.
699 Article 3(c) of the Asean Convention Against Trafficking in Persons, Especially Women and Children available online at http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 8.
700 Article 3(d) of the Asean Convention Against Trafficking in Persons, Especially Women and Children available online at http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 8.
701 Article 1(a) of the Asean Convention Against Trafficking in Persons, Especially Women and Children available online at http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 8.
702 Article 3(b) of the Asean Convention Against Trafficking in Persons, Especially Women and Children available online at http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 8.
703 Article 3(g) of the Asean Convention Against Trafficking in Persons, Especially Women and Children available online at http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 8.
704 Article 7 of the Asean Convention Against Trafficking in Persons, Especially Women and Children available online at http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 10.
705 Article 8 of the Asean Convention Against Trafficking in Persons, Especially Women and Children available online at http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 11.
706 Article 9 of the Asean Convention Against Trafficking in Persons, Especially Women and Children available online at http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016) 11.
707 Articles 11 - 21 of the Asean Convention Against Trafficking in Persons, Especially Women and Children available online at http://www.asean.org/storage/2015/12/ACTIP.pdf (24-09-2016).
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specific provision in article 14(13) for member states to ensure that their domestic legal systems “contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered” and article 14(14) that such member states shall “make provisions for appropriate funds to be allocated, including where applicable, establishing national trust funds, for the care and support of victims of trafficking in persons.”
The ASEAN member states recently issued a declaration after its 11th Summit in Vientiane in September 2016, upping its coordinated efforts in their pursuit against trafficking in persons and as a response to migrants in crisis. Concern was expressed by leaders with regard to the—
“large global displacements of people caused by conflict and crises, including the high numbers of displaced women and children as well as the tragic loss of life at sea and the abuse and exploitation of people. Of particular concern are those who are in vulnerable situations, at the hands of people smugglers, perpetrators and accomplices of human traffickers.”708
The ASEAN leaders furthermore agreed at the summit to adopt the 2014 Protocol to the Forced Labor Convention of the International Labor Conference which “seeks to look into human trafficking cases for sexual exploitation citing the growing international concern that requires urgent action”.709 Another paramount declaration, the Vientiane Declaration on Transition from Informal Employment to Formal Employment towards Decent Work Promotion in ASEAN was issued by the ASEAN leaders after its 28th and 29th summits held during September 2016 in order to more effectively regulate employment and to combat labour exploitation. The Minister of Foreign Affairs Saleumxay Kommasith of Laos confirmed that these two declarations would be
3. Conclusion
In concluding her report, the UN Special Rapporteur on trafficking put forward several recommendations and suggests a more coordinated approach by the various regions when it comes to the fight against trafficking in persons.710 It is of great importance that regional organisations make great effort in the area
of data collection in order to establish the magnitude of trafficking and to develop efficient policies and
708 Asia News EAS Countries Escalate Fight Against Human Trafficking available online at
http://asianews.world/content/eas-countries-escalate-fight-against-human-trafficking-28166 (24-09-2016). 709 Global Nation EAS Leaders Intensify Fight Against Human Trafficking available online at
http://globalnation.inquirer.net/144670/eas-leaders-intensify-fight-human-trafficking (24-09-2016).
710 Report to the UN General Assembly submitted by the Spepcial Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 20 at para 107.
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design effective measures to combat the trafficking of humans.711 It is advised that a “solid foundation
to build from, such as a Convention, an MOU or a declaration, followed by a comprehensive regional workplan”.712 The special rapporteur also recommends that a regional monitoring body should be
established to review implementing actions by states with regards to normative instruments and anti- trafficking workplans and that such body should also make recommendations to states.713 Other aspects touched upon is data collection and it is recommended that—
“Regional organisations, because of their broader perspective, could take a leading role in collecting data in order to gain a clearer understanding of the root causes, factors in countries of destination facilitating trafficking, current trends with regard to victims, traffickers and criminal networks, their modi operandi, travel routes and different forms of exploitation.”714
The lack of funding, regional institutions and regional mechanisms often fall short of legal and technical support which makes it challenging for countries to “mainstream international human rights standards into their anti-trafficking laws”.715 The UN special rapporteur recommends that national governments should provide for sufficient budget allocations in order to implement national anti – trafficking plans that stems from the regional anti-trafficking mechanisms. She also highlights that the international community should support regional institutions and mechanisms by means of providing financial assistance to countries whom are in the process of developing human rights-based anti-trafficking strategies.716 Other important recommendations include the promotion of an “effective prosecutorial and judicial response, with a victim centered approach”717 providing “specialized training to law enforcement officials (particularly police, prosecutors and judges)”,718 the facilitation of regional training courses and
711 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 19 at para 104.
712 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 20 at para 110.
713 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 20 at para 111.
714 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 20 at para 105.
715 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 20 at para 105.
716 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 23 at para (g).
717 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 22 at para (e).
718 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 22 at para 132
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the development and improving existing curricula for training on a national level, training assessments,719
the promotion of gender sensitive responses in order to “adequately address the needs of both women and men as victims”720 and the establishment of contacts and partnership with the tourism sector in order to create ways and means to raise awareness on trafficking for the purposes of sex tourism.721 Research is also needed with regards to the increasing use of communications technologies by traffickers when recruiting victims and recommendations should be made, based on studies, of how states can respond to these challenges.722 It is paramount that financial and technical support be provided to states to enable them to advance public awareness with regards to trafficking in persons. Public awareness campaigns must be pursued by regional mechanisms and this should be done by means of partnerships with the media, civil society and international organisations.723 It is further recommended that school curriculums should be adapted to integrate human trafficking information to raise awareness.724 Regional guidelines should also be developed on recruitment methods of migrant workers and bilateral cooperation between sending and receiving countries be enhanced so that the working conditions of migrants can be improved725 and migrant and vulnerabilities be reduced in source areas.726 The development of protective guidelines with regards to victim identification, medial and psychosocial assistance to victims, rehabilitation, access to shelter and repatriation is also recommended and it is reiterated that such guidelines be designed “in line with the standards set out in international instruments and guidelines”.727
Victims’ rights to redress and victim compensation is furthermore discussed in the report and it is advised that regional mechanisms be put in place that will make it possible and safe for victims to exercise their
719 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 21 at para 119.
720 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 21 at para 120.
721 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 21 at para 123.
722 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 21 at para 122.
723 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 21 at para 124.
724 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 22 at para 125.
725 Report to the UN General Assmbly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 22 at para 126
726 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 22 at para 127.
727 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 22 at para 129.
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right to legal remedies.728 Victims should be ensured of full protection729 and mechanisms should be
implemented to provide compensation to victims by means of the confiscation of perpetrators assets or by means of any other possible mechanisms.730 Regional anti-trafficking mechanisms should, at all times, follow a human rights-based approach and it is paramount that the fight against trafficking in persons on a regional level should be done by means of a coordinated approach, based on good practices, complementaries and synergies for joint work between regions.731
In this chapter an overview was provided on trafficking related regional legal instruments. Past successes were discussed and the need for a combined regional response and bilateral cooperation to effectively combat trafficking was highligted. The next chapter aims to analyse the current national legal framework with regards to human trafficking, discuss remedies available to trafficking victims as well as provide a brief overview of steps taken as a national response to the challenge of human trafficking.
728 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo GE.10-13211(E) (2010) 23 at para 135.
729 Report to the UN General Assembly submitted by the Special Rapporteur on trafficking in persons, especially