Human trafficking is a day-to-day reality in many parts of the world, with women and children the primary victims.
There are four Asean bodies currently dealing with human trafficking. One thing is common among them: they don’t talk to each other.
The four bodies are:
– The Asean Inter-Governmental Commission on Human Rights, which has included human trafficking as one of the priority issues in its five-year working plan;
– The Asean Commission on the Promotion and Protection of the Rights of Women and Children, which included the trafficking of women as part of its plan for the elimination of violence against women;
– The Asean Committee on the Protection and Promotion of the Rights of Migrant Workers, which has touched on the issue in its four-years-and-still-ongoing debate about the instruments needed to protect migrant workers in the region;
– The Senior Official Meeting on Transnational Organised Crime, which discussed human trafficking in the draft of the Asean Convention on Anti-Trafficking in Persons (ACTIP).
Discussions on the ACTIP have been now been stalled for more than two years since it was firstly proposed by the Philippines in 2011.
Content-wise, the draft is problematic for two reasons.
First, it focuses heavily on organised crime while largely overlooking the human rights element of human trafficking. Secondly, it includes a “non-interference” clause.
Within the human rights framework, trafficking in persons represents the situation of someone being held under another’s control due to a lack of economic choice and/or access.
Moreover, the lack of status and rights guaranteed by international human rights laws increases people’s vulnerability to trafficking. In effect, human rights violations are both a cause and a result of trafficking in people.
Framing the treaty with such a heavy focus on organised crime will further isolate victims from the structure that is supposed to protect them. It makes prevention, protection and the promotion of state cooperation more important than individual human rights.
Ignoring human rights and focusing on organised crime essentially renders the value of victims as mere “evidence” in criminal cases.
The level of protection offered to victims will be dependent on their usefulness to an investigation or prosecution.
Instead, the ACTIP should widen its focus to provide a legal framework to protect trafficked persons and individuals at risk of being trafficked, while still targeting individuals accused or convicted of trafficking-related offences, defining their entitlements and holding duty-bearers to account.
It should also not miss the opportunity to set up mechanisms to receive complaints and to supervise the implementation of the convention at the national level.
Often, governments are reluctant to accept legal responsibility for human trafficking and for corresponding human rights violations because they claim criminals groups committed the crime, not the government itself.
Some governments simply argue that they have done everything to prevent the harm, and they are therefore not responsible.
In this respect, the ACTIP should apply a standard of due diligence which holds governments responsible for failures to prevent, investigate, prosecute or compensate for human trafficking offences.
Each government has an obligation to prevent and respond to acts by private entities that hinder human rights.
As human trafficking is a transborder issue that naturally involves more than one country, does the principle of non-interference really serve as a better measure to combat human trafficking?
Non-interference is a key principle of many inter-governmental relationships worldwide.
The problem here is that non-interference is the only “institutional principle” to which Asean has been effectively, and to some extent religiously, committed.
The 1967 Bangkok Declaration stated that member states were determined to prevent external interference in order to ensure domestic and regional stability.
External interference has been interpreted as involvement in the domestic affairs of states that ranges from even the softest political commentary to coercive military intervention that would undermine national sovereignty.
But in many situations, the principle has not been absolute in its practice.
In 2005, for instance, Asean heads of state called for the release of political prisoners under detention.
In 2007, Asean urged the military junta in Myanmar to continue working with the UN in order to open up a meaningful dialogue with now-opposition leader Aung San Suu Kyi.
The strict application of the principle in combating human trafficking in the region would do significant harm to women and children.
The ACTIP should expand, rather than limit, rights protection by including positive obligations for member states such as legislative reform instead of the negative obligation of non-interference.
As Asean moves towards a more people-oriented community and is increasingly interdependent among its member states, the principle of non-interference will not only make the region more susceptible to human trafficking, but will make the association fail to achieve ongoing relevance and credibility among its own citizens and on the broader global scene.
Yuyun Wahyuningrum works as a senior adviser on Asean and human rights at the Human Rights Working Group, a Jakarta-based coalition of NGOs working on human rights issues.
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