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The ASEAN Convention Against Trafficking in Persons: A Preliminary Assessment

  • Ranyta YUSRAN (a1)
Abstract
Abstract

This paper offers a preliminary assessment of the ASEAN Convention against Trafficking in Persons [ACTIP] and the road leading to ACTIP’s adoption. It argues that ACTIP’s adoption and entry into force represent a growing trend in ASEAN treaty practice, especially on issues of international and regional concern, in which hard and soft obligations are combined to appeal to states’ ratification and thus the possible timely entry into force of certain binding instruments. However, more needs to be done to increase the effectiveness of ACTIP, including the prescription of a stronger compliance mechanism. To investigate whether ACTIP represents a growing trend in ASEAN treaty practice, and to study further measures to increase ACTIP’s effectiveness, the paper endeavours to assess the strength of ACTIP’s provisions, effective implementation, and compliance. It shall do this by comparing ACTIP to other relevant international and regional anti-TIP conventions.

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Research Fellow, Centre for International Law (CIL), National University of Singapore. The author would like to thank Michael Ewing-Chow, Hao Duy Phan, and Junianto James Losari for their invaluable comments on this paper. The views expressed in the paper are the author’s.

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1. ANDREAS Peter and NADELMAN Ethan, Policing the Globe: Criminalization and Crime Control in International Relations , (New York: Oxford University Press, 2008) at 34 ; WONG Diana, “The Rumour of Trafficking: Border Controls, Illegal Migration, and the Sovereignty of the Non-State” in Willem van SCHENDEL and Itty ABRAHAM, eds., Illicit Flows and Criminal Things: States, Borders, and the Other Side of Globalization (Bloomington, IN: Indiana University Press, 2005), at 7476 ; CALDWELL Gillian, “Crime and Servitude: An Exposé of the Traffic in Women for Prostitution from the Newly Independent States” (1998) Trends in Organized Crime 3 at 1011 ; MIERS Suzanne, Slavery in the Twentieth Century: The Evolution of a Global Problem (Walnut Creek, CA: AltaMira Press, 2003) at 429 .

2. PIPER Nicola, “A Problem with a Different Name? A Review of Research on Trafficking in South-East Asia and Oceania” (2005) International Migration 43 at 205 and 210–11; BLACKBURN Ahsley G., TAYLOR Robert W., and DAVIS Jennifer Elaine, “Understanding the Complexities of Human Trafficking and Child Sexual Exploitation: The Case of Southeast Asia” (2010) Women and Criminal Justice 20 at 111 ; and YAMANAKA Keiko, and PIPER Nicola, “Feminized Migration in East and Southeast Asia: Policies, Actions and Empowerment”, UN Research Institute for Social Development, Occasional Paper 11, 2005, at 7 .

3. Ralf EMMERS, “The Threat of Transnational Crime in Southeast Asia: Drug Trafficking, Human Smuggling and Trafficking, and Sea Piracy”, Research Unit on International Security and Cooperation (UNISCI), Compulente University of Madrid Department of International Studies, Discussion Papers, May 2003, at 5.

4. United States Committee for Refugees and Immigrants, “Trafficking in Women and Children: A Contemporary Manifestation of Slavery” (2000) 5 Refugee Reports 21 at 3; Barbara CROSSETTE, “UN Warns that Trafficking in Human Beings is Growing” The New York Times (25 June 2000), online: The New York Times <http://www.nytimes.com/2000/06/25/world/un-warns-that-trafficking-in-human-beings-is-growing.html>.

5. ASIS Maruja M.B., “Human Trafficking in East and Southeast Asia: Searching for Structural Factors” in Sally CAMERON and Edward NEWMAN, eds., Trafficking in Humans: Social, Cultural and Political Dimensions (Tokyo: United Nations University Press, 2008), at 189 ; FORD Michele, LYONS Lenore, and van SCHENDEL Willem, “Labour Migration and Human Trafficking—An Introduction” in Michele FORD, Lenore LYONS, and Willem van SCHENDEL, eds., Labour Migration and Human Trafficking in Southeast Asia—Critical Perspectives (New York: Routledge, 2012), at 1 ; Regional Thematic Working Group on International Migration Including Human Trafficking, “Situation Report on International Migration in East and Southeast Asia” (2008) at 114, online: IOM <http://www.iom.int/jahia/webdav/shared/shared/mainsite/published_docs/brochures_and_info_sheets/iom_situation_report.pdf>.

6. See, for instance, TIP reports from: United States Department of States, “Trafficking in Persons Report”, online: US Department of State <https://www.state.gov/j/tip/rls/tiprpt/>, and UNODC, “Global Report on Trafficking in Persons”, online: UNODC <http://www.unodc.org/unodc/data-and-analysis/glotip.html> [UNODC]. In general, the reports identify Singapore, Brunei, and Malaysia as transit and destination countries, with Cambodia, Indonesia, Myanmar, the Philippines, Lao PDR, and Vietnam as source and transit countries. Thailand is identified as both a source and destination country.

7. ASEAN Vision 2020, 15 December 1997, in “A Community of Caring Societies”, online: ASEAN <http://asean.org/?static_post=asean-vision-2020>.

8. United Nations Convention Against Transnational Organized Crime, 15 November 2000, 2225 U.N.T.S. 209, 40 I.L.M. 335 (entered into force 29 September 2003) [UNCTOC], and Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2237 U.N.T.S. 319, 40 I.L.M. 335 (entered into force 25 December 2003) [TIP Protocol].

9. S. PUSPANATHAN, “Fighting Trafficking in Women and Children in ASEAN” (23–26 November 1999), online: ASEAN <http://asean.org/?static_post=fighting-trafficking-in-women-and-children-in-asean-by-s-pushpanathan-assistant-director-asean-secretariat-2>.

10. ASEAN Declaration on Transnational Crime Manila, 20 December 1997, online: ASEAN <http://asean.org/?static_post=asean-declaration-on-transnational-crime-manila-20-december-1997>, and ASEAN Plan of Action to Combat Transnational Crime, 23 June 1999, online: Centre for International Law <https://cil.nus.edu.sg/rp/pdf/1999%20ASEAN%20Plan%20of%20Action%20to%20Combat%20Transnational%20Crime-pdf.pdf>.

11. ASEAN Declaration to Combat Transnational Crime, supra note 10, point 2, and ASEAN Plan of Action to Combat Transnational Crime, supra note 10, Objectives, (a) General Objectives.

12. As of 1 August 2016, all AMS are Parties to the UNCTOC. All AMS, except Brunei Darussalam, are Parties to the TIP Protocol. On national anti-TIP legislation, see: Asia Regional Trafficking in Persons Project, “Laws and Policies: National Legal and Policy Framework Around Trafficking in Persons”, online: ARTIP <http://www.aaptip.org/2006/artip-tip-cjs/laws-policies-national-ams.html>.

13. ASEAN Convention Against Trafficking in Persons, Especially Women and Children, 21 November 2015, (entered into force 8 March 2016) [ACTIP].

14. ACTIP entered into force in March 2017, only slightly more than a year after its adoption, after the Philippines deposited its instrument of ratification on 6 February 2017. According to art. 29 of ACTIP, the Convention needs six ratifications before it can enter into force. As of 16 May 2017, ACTIP has been ratified by seven AMS, exceeding the number needed for its entry into force. See Treaty Division, “ASEAN Legal Instruments”, ASEAN Secretariat, 16 May 2017, online: ASEAN Secretariat <http://agreement.asean.org/agreement/detail/330.html>, and ASEAN Secretariat, “ASEAN Welcomes Entry into Force of ACTIP” ASEAN Secretariat News (3 July 2017), online: ASEAN <http://asean.org/asean-welcomes-entry-into-force-of-actip/>.

15. Council of Europe Convention on Action Against Trafficking in Human Beings, 16 May 2005, C.E.T.S. 197 (entered into force 1 February 2008) [CoE Convention].

16. United States Department of State (US Department of State), “Trafficking in Persons Report 2013” (19 June 2013), at 7, 29–32, online: US Department of State <http://www.state.gov/documents/organization/210737.pdf>, and US Department of State, “Trafficking in Persons Report 2014” (June 2014), at 2, online: US Department of State <https://www.state.gov/documents/organization/226844.pdf>.

17. US Department of State, “Trafficking in Persons Report 2010” (June 2010), at 34, online: US Department of State <http://www.state.gov/documents/organization/142979.pdf>.

18. UNODC, supra note 6 at 5.

19. International Labour Organization (ILO), “A Global Alliance against Forced Labour” (2005), at 55, online: ILO <http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_081882.pdf>, and UNODC, “Transnational Organized Crime—the Globalized Illegal Economy”, online: UNODC <https://www.unodc.org/documents/toc/factsheets/TOC12_fs_general_EN_HIRES.pdf>.

20. See, for instance, general estimates on men, women, and minors falling victim to TIP in a number of reports such as: UNGIFT, “Human Trafficking: An Overview” (2008), at 6; ILO, “ILO Action Against Trafficking in Human Beings” (2008), at 3, online: ILO <http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_090356.pdf>; UNODC, “The Globalization of Crime: A Transnational Organized Crime Threat Assessment” (2010), at 49, online: UNODC <https://www.unodc.org/documents/data-and-analysis/tocta/TOCTA_Report_2010_low_res.pdf>; and BELSER Patrick, DE COCK Michelle, and MEHRAN Farhad, ILO Minimum Estimate of Forced Labour in the World (Geneva: ILO, 2005), at 45 .

21. The United Nations Development Fund for Women, “Trafficking in Persons—A Gender and Rights Perspective: Briefing Kit” (2003), at 3, online: United Nations <https://www.un.org/ruleoflaw/files/traffkit_eng.pdf>.

22. DERKS Annuska, Combating Trafficking in Southeast Asia: A Review of Policy and Programme Responses (Geneva: International Organization for Migration, 2000), at 16 .

The IOM’s estimate is one of the most cited estimates on TIP victims in Southeast Asia. This estimate has been cited by various institutions and papers, such as: Asis, supra note 5 at 192; Francis T. MIKO and Grace (Jea Hyun) PARK, “Trafficking in Women and Children: The US and International Response”, The Library of Congress, CRS Report for Congress, March 2002, at 2; and United States Committee for Refugees and Immigrants, “Trafficking in Women and Children: A Contemporary Manifestation of Slavery” (2000) 5 Refugee Reports 21, at 2–3.

23. Crossette, supra note 4.

24. This estimate has been cited by various institutions and papers over the years, such as: Asis, supra note 5 at 192; Miko and Park, supra note 22 at 2; United States Committee for Refugees and Immigrants, supra note 22 at 2–3; and Ralf EMMERS, “Globalization and Non-Traditional Security Issues: A Study of Human and Drug Trafficking in East Asia”, Institute of Defence and Strategic Studies, Working Paper Series, March 2004, at 18.

25. For instance, the UNODC estimates trafficking in women and children for sexual exploitation and forced labour in the Greater Mekong Sub-Region [GMS] generated up to US$214 million. UNODC, “Transnational Organized Crime in East Asia and the Pacific: A Threat Assessment” (April 2013), at 15, online: UNODC <https://www.unodc.org/documents/data-and-analysis/Studies/TOCTA_EAP_web.pdf>.

26. UNODC, “Transnational Organized Crime Worth at Least USD $100 Billion per Year Poses Challenges to Asian Integration” (31 October 2014), online: UNODC <http://www.unodc.org/unodc/en/frontpage/2014/October/Transnational-organized-crime-worth-at-least-100-billion-per-year-poses-challenges-to-Asian-integration.html>.

27. Miko and Park, supra note 22 at 4–5; IOM, “Counter Trafficking and Assistance to Vulnerable Migrants: Annual Report of Activities 2011” (2012), at 29–30, online: IOM <http://www.iom.int/files/live/sites/iom/files/What-We-Do/docs/Annual_Report_2011_Counter_Trafficking.pdf>; Phil MARSHALL, “Globalization, Migration and Trafficking: Some Thoughts from the Southeast Asian Region”, UN Interagency Project on Trafficking in Women and Children in the Mekong Sub-Region, Occasional Paper 1, September 2001, at 7; Derks, supra note 22 at 16–19.

28. PIPER Nicola, “A Problem by a Different Name? A Review of Research on Trafficking in Southeast Asia and Oceania” (2005) International Migration 43 at 205207 , 210–12.

29. See, for instance, UNODC, “Global Report on Trafficking in Persons 2009” (February 2009), at 166–71, 174–5, 178, 181, 183–6, 188, online: UNODC <http://www.unodc.org/documents/human-trafficking/Global_Report_on_TIP.pdf>.

30. Piper, supra note 28 at 208; Asis, supra note 5 at 189; and IOM, “‘Marriage Migration’ Significant Factor in Trafficking in Viet Nam: IOM” (30 July 2014), online: IOM <http://www.iom.int/news/marriage-migration-significant-factor-trafficking-viet-nam-iom>.

31. Piper, supra note 28 at 208; Asis, supra note 5 at 189; IOM, supra note 30; and Kritaya ARCHAVANITKUL, “Combating the Trafficking in Children and Their Exploitation in Prostitution and Other Intolerable Forms of Child Labor in Mekong Basin Countries” (June 1998), online: SEAMEO <http://www.seameo.org/vl/combat/frame.htm>; Marshall, supra note 27.

32. Statement of Dr. Saissuree Chutikul, made during her lecture at the 2011 Summer Institute for International Humanitarian Law and Human Rights—the Rights of Women and Children, Singapore, July 2011; see also Derrick VINESH, “Adoptive Parents in Child Trafficking Case Remanded” The Star (17 April 2013), online: The Star <http://www.thestar.com.my/News/Nation/2013/02/24/Adoptive-parents-in-child-trafficking-case-remanded.aspx>.

33. The Walk Free Foundation, “The Global Slavery Index 2014”, at 34, online: Global Slavery Index <https://assets.globalslaveryindex.org/content/uploads/2016/08/30110259/2014-Global-Slavery-Index.pdf>.

34. US Department of State, “Trafficking in Persons Report 2015” (19 July 2015), at 104, 187, 216, 234, 279, 330, 363; US Department of State, “Trafficking in Persons Report 2013” (19 June 2013) at 112, 119, 199, 229, 249; and US Department of State, “Trafficking in Persons Report 2012” (June 2012), at 285, 338.

35. Asis, supra note 5 at 193, and IOM, supra note 27 at 30. There are also studies and reports that consider and divulge the trafficking in men for the purpose of forced labour and, to a much lesser extent, sexual exploitation; unfortunately these studies and reports are limited to national situations. See, for instance, International Council on Social Welfare, “Trafficking and Related Labour Exploitation in the ASEAN Region” (November 2007), online: ICSW <http://www.icsw.org/images/docs/Regions/seasia/pub/2007_Trafficking%20Labour%20Exploitation%20in%20ASEAN%2007.pdf>; Elliot GLOTFELTY, “Boys, Too: The Forgotten Stories of Human Trafficking” Fair Observer (2 October 2013), online: Fair Observer <http://www.fairobserver.com/article/boys-too-forgotten-stories-human-trafficking>; and International Catholic Migration Commission (ICMC), When they were Sold: Trafficking of Women and Girls in 15 Provinces of Indonesia (Jakarta: The United States Agency for International Development, 2006) at 27 .

36. Kate HODAL, Chris KELLY, and Felicity LAWRENCE, “Revealed: Asian Slave Labour Producing Prawns for Supermarkets in US, UK” The Guardian (10 June 2014), online: The Guardian <http://www.theguardian.com/global-development/2014/jun/10/supermarket-prawns-thailand-produced-slave-labour>; Robin MCDOWELL, Margie MASON, and Martha MENDOZA, “AP Investigation: Are Slaves Catching the Fish You Buy?” Associated Press (25 March 2015), online: AP <http://bigstory.ap.org/article/b9e0fc7155014ba78e07f1a022d90389/ap-investigation-are-slaves-catching-fish-you-buy>; Ian URBINA, “Sea Slaves: The Human Misery that Feeds Pets and Livestock” The New York Times (27 July 2015), online: NY Times <http://www.nytimes.com/2015/07/27/world/outlaw-ocean-thailand-fishing-sea-slaves-pets.html?_r=0>; and Ian URBINA, “Tricked and Indebted on Land, Abused or Abandoned at Sea” The New York Times (9 November 2015), online: NY Times <http://www.nytimes.com/2015/11/09/world/asia/philippines-fishing-ships-illegal-manning-agencies.html>.

37. Overfishing in past decades has reduced the fish stock in Thai waters significantly. This forced Thai fishing boats to fish illegally in, among others, the eastern part of Indonesian waters. Many of the victims are abandoned and being held in cages in Benjina by an Indonesian fishing company owned by a Thai man. The traffickers took away the victims’ personal documents and gave them fake seafarer books, making the identification process difficult. Mcdowell et al., supra note 36, and “4,000 Foreign Fishermen Stranded on Remote Indonesian Islands” The Guardian (28 March 2015), online: The Guardian <http://www.theguardian.com/world/2015/mar/28/4000-foreign-fishermen-stranded-on-remote-indonesian-islands>.

38. “4,000 Foreign Fishermen Stranded on Remote Indonesian Islands”, supra note 37.

39. Mcdowell et al., supra note 36, and Kate HODAL, “Slavery and Trafficking Continue in Thai Fishing Industry, Claim Activists” The Guardian (25 February 2016), online: The Guardian <http://www.theguardian.com/global-development/2016/feb/25/slavery-trafficking-thai-fishing-industry-environmental-justice-foundation>.

40. “Cambodia: Men Being Exploited, Trafficked Too” IRIN News (15 September 2009), online: IRIN News <http://www.irinnews.org/fr/report/86155/cambodia-men-being-exploited-trafficked-too>.

41. Simon LEWIS, “Mass Graves of Suspected Trafficking Victims Found in Malaysia” The Guardian (24 May 2015), online: The Guardian <http://www.theguardian.com/world/2015/may/24/mass-graves-trafficking-malaysia-perlis>, and Amy Sawitta LEFEVRE and Andrew R.C. MARSHALL, “Inside Thailand’s Hunt for Human Traffickers” Reuters (9 July 2015), online: Thomson Reuters <http://graphics.thomsonreuters.com/15/07/THAILAND-TRAFFICKING.pdf>.

42. “Thailand Turning a Blind Eye to Human Trafficking” Deutsche Welle (6 May 2015), online: DW <http://www.dw.com/en/thailand-turning-a-blind-eye-to-human-trafficking/a-18431748>; “Malaysia Finds 139 Grave Sites in Migrant Trafficking Camps” The Express Tribune (25 May 2015), online: The Express Tribune <http://tribune.com.pk/story/892111/malaysia-finds-139-grave-sites-in-migrant-trafficking-camps/>; and Eddie HOO and Keith LONG, “Joint Efforts Needed to Curb Human Trafficking” The Heat Malaysia (28 May 2015). Other Malaysian officials estimate that these camps can hold up to 500 people at any given time and at least one newspaper report estimates that at least one camp can hold up to 1,000 persons. See BEH Lih Yi, “Cages, Watchtower and 37 Graves: Inside an Abandoned Migrant Camp in Malaysia” The Guardian (26 May 2015), online: The Guardian <https://www.theguardian.com/world/2015/may/26/inside-abandoned-migrant-camp-malaysia>, and Ambiga SREENEVASAN, “Malaysia’s Deadly Connection” New Mandala (24 July 2015), online: New Mandala <http://www.newmandala.org/malaysias-deadly-connection/>.

43. Sreenevasan, supra note 42, and Lewis, supra note 41.

44. While the Rohingyas see migration to other countries as a way out from the persecution that they experience in Myanmar, for the Bangladeshis, migrating to other countries is recognized as a “livelihood strategy” to free themselves from widespread poverty at home and to meet the demands for cheap labour in more developed countries, such as Malaysia. Persecution and economic hardships at home serve as strong “pull” factors to lure the Rohingyas and Bangladeshis into the hands of traffickers. See Syeda Rozana RASHID and ASM Ali ASHRAF, “Asian Boat People and the Challenges of Migration Governance: A Source Country Perspective” (21 April 2016), online: Middle East Institute <http://www.mei.edu/content/map/asian-boat-people-and-challenges-migration-governance-source-country-perspective>, and David BERGMAN, “In Bangladesh, Human Traffickers Rely on Silence and Extortion” Al Jazeera (10 June 2015), online: Al Jazeera <http://america.aljazeera.com/articles/2015/6/10/In-Bangladesh-human-traffickers-rely-on-silence-and-extortion.html>.

45. Freeland Foundation, “New Details on Rohingya Case Reveal Hope and Horrors on Thailand’s Counter-Trafficking Front” (5 May 2015), online: Freeland Foundation <http://freeland.org/wp-content/uploads/2015/05/PRESS-RELEASE_New-Details-on-Rohingya-Case-Reveal-Hope-and-Horrors-on-Thailand%E2%80%99s-Counter-Trafficking-Front.pdf>, and Emran HOSSAIN and Mohammad Ali ZINAT, “Slave Trade Booms in Dark Triangle” The Daily Star (4 May 2015), online: The Daily Star <http://www.thedailystar.net/frontpage/slave-trade-booms-dark-triangle-80354>.

46. Those who fall under category one would then be held in the Thai part of the borders and told to contact their families or friends to ask for the equivalent of between US$2,000–3,000 in exchange for their freedom. Those in category two are usually sold in Malaysia and Thailand for US$1,000/person. See Freeland Foundation, supra note 45; Emanuel STOAKES and Chris KELLY, “Revealed: How the Thai Fishing Industry Traffics, Imprisons and Enslaves” The Guardian (20 July 2015), online: The Guardian <http://www.theguardian.com/global-development/2015/jul/20/thai-fishing-industry-implicated-enslavement-deaths-rohingya>; and Hossain and Zinat, supra note 45.

47. The UN High Commissioner for Refugees [UNHCR], “Mixed Maritime Movements in Southeast Asia 2015” (January 2016), online: UNHCR <https://unhcr.atavist.com/mmm2015>.

48. Neil THOMPSON, “Human Trafficking: Thailand’s Porous Borders” The Diplomat (23 June 2015), online: The Diplomat <http://thediplomat.com/2015/06/human-trafficking-thailands-porous-borderlands/>; Lefevre and Marshall, supra note 41; and UNHCR, supra note 47.

49. Stoakes and Kelly, supra note 46.

50. “Thailand Threatened with Possible EU Fish Trade Ban” BBC News (22 April 2015), online: BBC <http://www.bbc.com/news/business-32408453>.

51. Hodal, supra note 39.

52. Chris KELLY, Annie KELLY, Claudine SPERA, Irene BAQUE, Mustafa KHALILI, and Lucy LABLE, “Thai Fishing Industry Turns to Trafficking: We Witnessed Girls Being Raped Again and Again” The Guardian (20 July 2015), online: The Guardian <https://www.theguardian.com/global-development/video/2015/jul/20/thailand-fishing-industry-rohingya-trafficking-slavery-rape-video>.

53. The existence of organized criminal groups and their link to transnational crime (or cross-border crime, as it was earlier termed) can be traced back to the 1950s in the Shan states of Myanmar operating primarily in the trafficking of drugs. The said criminal group was headed by Olive Yang of Kokang, reportedly responsible for the movement of drugs in the Golden Triangle. See Bertil LINTNER, “The Golden Opium Trade: An Overview” Asia Pacific Media Service (March 2000), at 7–8, online: Asia Pacific MS <http://asiapacificms.com/papers/pdf/gt_opium_trade.pdf>.

54. Sabrina ADAMOLI, Andrea DI NICOLA, Ernesto U. SAVONA, and Paola ZOFFI, “Organized Crime Around the World”, European Institute for Crime Prevention and Control, Publication Series 31, 1998, at 86–7.

55. Marshall, supra note 27 at 9–10.

56. SURTEES Rebecca, “Traffickers and Trafficking in Southern and Eastern Europe: Considering the Other Side of Human Trafficking” (2008) 5 European Journal of Criminology 39 at 4647 , and PEARSON Elaine, The Mekong Challenge, Human Trafficking: Redefining Demand (Bangkok: International Labour Organization, 2005) at 21 .

57. Surtees, supra note 56 at 46–7 and Pearson, supra note 56 at 21.

58. Freeland Foundation, supra note 45, and KARA Siddharth, Sex Trafficking: Inside the Business of Modern Slavery (New York: Columbia University Press, 2010) at 168169 .

59. ASEAN Vision 2020, supra note 7, para. 7. Apart from intra-ASEAN counter-TIP efforts, ASEAN also engages in international co-operation with its dialogue partners to combat transnational crime, notably through forums such as the AMMTC+3, the AMMTC+China, the ASEAN Defence Ministers’ Meeting-Plus, and the ASEAN Regional Forum.

60. ASEAN Declaration on Transnational Crime, supra note 10, preamble, para. 3.

61. ASEAN Plan of Action to Combat Transnational Crime, supra note 10, Objectives, (a) General Objectives and Programme of Action/Priorities.

62. Ibid., Institutional Framework for ASEAN Cooperation on Combating Transnational Crime. Despite its crucial role in implementing measures to combat transnational crime, the SOMTC’s Members’ role and operation have never been made clear.

63. Ibid., Background.

64. Work Programme to Implement the Plan of Action to Combat Transnational Crime, 17 May 2002.

65. Ibid., Part 2: Trafficking in Persons.

66. Ibid.

67. ASEAN Plan of Action to Combat Transnational Crime, supra note 10, Objectives, (a) General Objectives.

68. ASEAN Plan of Action for Cooperation on Immigration Matters, 18 October 2000.

69. Ibid., II.B. Specific Objectives, pt. 1, III.F. Extra-Regional Cooperation, pt. b, and III.B. Information Exchange, pt. a.

70. Ibid., see for instance, II.B. Specific Objectives, pt. 1; III.B. Information Exchange, pt. a; and III.F. Extra-Regional Cooperation.

71. AMMTC, “Joint Communique of the Third ASEAN Ministerial Meeting on Transnational Crime”, 11 October 2011, para. 3, online: ASEAN <http://asean.org/?static_post=joint-communique-of-the-third-asean-ministerial-meeting-on-transnational-crime-ammtc-singapore-11-october-2001>, and Joint Declaration of the ASEAN and China on Cooperation in the Field of Non-Traditional Security Issue, 4 November 2002, II. Priority and Form of Cooperation, para. 1, online: ASEAN <http://asean.org/?static_post=joint-declaration-of-asean-and-china-on-cooperation-in-the-field-of-non-traditional-security-issues-6th-asean-china-summit-phnom-penh-4-november-2002-2>.

73. Declaration of ASEAN Concord II, 7 October 2003, A. ASEAN Security Community, para. 10, online: ASEAN <http://asean.org/?static_post=declaration-of-asean-concord-ii-bali-concord-ii>.

74. ASEAN Declaration against Trafficking in Persons Particularly Women and Children, 29 November 2004. The Declaration is the first instrument to address TIP challenges in Southeast Asia.

75. Ibid., paras. 5–6.

76. Ibid., para. 5.

77. Treaty on Mutual Legal Assistance in Criminal Matters, 29 November 2004, 2336 U.N.T.S. 273 (entered into force on multiple dates) [MLAT]. All AMS had ratified the MLAT by 2013.

78. Ibid., arts. 1(1), 1(2). Although the MLAT is yet to be elevated to the status of an ASEAN instrument, the ALAWMM, assisted by the Senior Law Official Meeting [ASLOM], is the de facto ASEAN body responsible for implementing the MLAT. See ASEAN, “ASEAN Law Ministers Meeting—Agreements and Declarations”, online: ASEAN <http://asean.org/asean-political-security-community/asean-law-ministers-meeting-alawmm/agreements-declarations/>.

79. MLAT, supra note 77, art. 4(1).

80. ASEAN, “Joint Communique of 24th ASEANAPOL Conference” (16–20 August 2004), paras. 8.3, 8.10, online: ASEAN <http://asean.org/?static_post=joint-communique-of-the-24th-asean-chiefs-of-police-conference-chiang-mai-thailand-16-20-august-2004>.

81. Gerard SMITH, “The Criminal Justice Response to Human Trafficking: Recent Developments in the Greater Mekong Sub-Region”, Strategic Information Response Network [SIREN], May 2010, at 4.

82. ASEAN, “Criminal Justice Reponses to Trafficking in Persons: ASEAN Practitioner Guidelines”, online: AATIP <http://www.aaptip.org/2006/artip-tip-cjs/resources/guides_standards/ASEAN-PG_Web_English_Final.pdf>.

83. ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, 13 January 2007, para. 17.

84. Cha-Am Hua Hin Declaration on the Roadmap for the ASEAN Community (2009–2015), 1 March 2009, Annex I: Blueprint on the ASEAN Political-Security Community, B.4. Non-Traditional Security Issues, online: ASEAN <http://asean.org/wp-content/uploads/images/archive/5187-18.pdf>.

85. Master Plan on ASEAN Connectivity: One Vision, One Identity, One Community, 28 October 2010, para. 84.

86. Kuala Lumpur Declaration in Combating Transnational Crime, 30 September 2015.

87. During this period there were about 120,000 Rohingyas fleeing persecution from Myanmar. In January to March 2015, according to the UN, there were about 25,000 Rohingyas and Bangladeshis crossing the Andaman Sea to seek refuge in neighbouring ASEAN states. See Simon TISDALL, “Southeast Asia Faces its Own Migrant Crisis as States Play ‘Human Ping-Pong’” The Guardian (14 May 2015), online: The Guardian <http://www.theguardian.com/world/2015/may/14/migrant-crisis-south-east-asia-rohingya-malaysia-thailand>, and BEH Lih Yi, “Malaysia Tells Thousands of Rohingya Refugees to ‘Go Back to Your Country’” The Guardian (13 May 2015), online: The Guardian <http://www.theguardian.com/world/2015/may/13/malaysia-tells-thousands-of-rohingya-refugees-to-go-back-to-your-country>.

88. Kuala Lumpur Declaration in Combating Transnational Crime, supra note 86, paras. 2–3.

89. Ibid., paras. 18–19.

90. Among the ASEAN Community Pillars, protection of the rights of women, children, and migrant workers are under the auspices of ASEAN Socio-Cultural Community and generally are not covered under the ASEAN Political Security Community. Cha-Am Hua Hin Declaration on the Roadmap for an ASEAN Community, 1 March 2009, Annex 3: Blueprint on the ASEAN Socio-Cultural Community, paras. 27–8, online: ASEAN <http://asean.org/wp-content/uploads/archive/5187-19.pdf>.

91. Kuala Lumpur Declaration in Combating Transnational Crime, supra note 86, para. 4.

92. Ibid., para. 14. See ASEAN Plan of Action to Combat Transnational Crime, supra note 10, and Work Programme to Implement the Plan of Action to Combat Transnational Crime, supra note 64.

93. Kuala Lumpur Declaration on ASEAN 2025: Forging Ahead Together, 22 November 2015, ASEAN Political-Security Community Blueprint 2025, online: ASEAN <http:/www.asean.org/storage/2015/12/ASEAN-2025-Forging-Ahead-Together-final.pdf>. For the previous version of the Blueprint, see Cha-Am Hua Hin Declaration, supra note 84.

94. Anecdotal accounts provided by local residents living on the Thai–Malay borders where the TIP jungle camps were found stated that the presence of the camps and TIP victims there had been known and reported by the resident to the local authorities in at least the past decade. See Sreenevasan, supra note 42, and Lewis, supra note 41.

95. ASEAN Plan of Action to Combat Transnational Crime, supra note 10, D. (b). 2, and ASEAN, “6th Senior Official Meeting on Transnational Crime”, 10 June 2006, at 2.

96. AMMTC, “Joint Communique of the 6th AMMTC”, 6 November 2007, para. 7, online: ASEAN <http://asean.org/?static_post=joint-communique-of-the-6th-ammtc-bandar-seri-begawan-6-november-2007>.

97. Department of the Interior and Local Government, “PHL Government, DILG Instrumental in Signing of ASEAN Convention against Trafficking in Persons” (22 February 2016), online: Department of the Interior and Local Government <http://www.dilg.gov.ph/news/PHL-governmentDILG-instrumental-in-signing-of-ASEAN-Convention-Against-Trafficking-in-Persons-/NC-2016-1022>.

98. ASEAN Foreign Ministers’ Meeting, “Joint Communique of the 47th ASEAN Foreign Ministers’ Meeting”, 8 August 2014, para. 33.

99. AMMTC, “Emergency ASEAN Ministerial Meeting on Transnational Crime Concerning Irregular Movement of Persons in Southeast Asia”, 2 July 2015, para. 6(ix). Although ACTIP was adopted in November 2015, the final draft of the Convention and its Regional Plan of Action were endorsed by AMS in October 2015. See also: AMMTC, “Press Statement of the 10th AMMTC and Special ASEAN Ministerial Meeting on the Rise of Radicalization and Violent Extremism”, 2 October 2015, online: ASEAN <http://asean.org/wp-content/uploads/images/2015/October/ammtc/Press%20Statement.pdf>.

100. The ASEAN Plan of Action Against Trafficking in Persons was adopted to supplement ACTIP in providing specific guidelines on the prevention of TIP, protection of victims, law enforcement and prosecution of TIP, and regional and international legal co-operation. See ASEAN Plan of Action Against Trafficking in Persons, Especially Women and Children, 2 October 2015, Introduction.

101. ACTIP, supra note 13, art. 1(1). See also TIP Protocol, supra note 8, art. 2.

102. ACTIP, supra note 13, art. 1(2).

103. Ibid., art. 3. This is wider than the scope of the TIP Protocol that requires the involvement of an organized criminal group in the commission of TIP.

104. Philippines Department of Foreign Affairs, “Philippines Promotes Human Rights-Based Approach to Combat Trafficking in Persons, Especially Women and Children, in ASEAN” (29 November 2013), online: DFA <https://www.dfa.gov.ph/index.php/2013-06-27-21-50-36/dfa-releases/1501-philippines-promotes-humanrights-based-approach-to-combat-trafficking-in-persons-especially-women-and-children-in-asean>.

105. Treaty of Amity and Cooperation in Southeast Asia, 24 February 1976, 1025 U.N.T.S. 297 (entered into force 21 June 1976) [TAC], art. 2, and Final Declaration of the Regional Meeting of the World Conference on Human Rights, 2 April 1993 [Bangkok Declaration], paras. 5, 8. These two documents lay down the foundation for the inclusion of the said caveats in ASEAN binding and human rights instruments.

106. See for instance, the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, supra note 83.

107. ACTIP, supra note 13, Preamble, para. 8, and TIP Protocol, supra note 8, Preamble, para. 5.

108. The Protocol was signed by 117 countries and ratified or acceded to by 169 countries. Nearly 100 States Parties have put in place more than 300 anti-trafficking laws and regulations to implement the UNCTOC and its TIP Protocol. See UN Treaty Collection, “Status of Treaties—the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Conventions against Transnational Organized Crime” (as of 22 March 2016), online: UNTC <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-a&chapter=18&lang=en>, and UNODC, “Human Trafficking Knowledge Portal—Database of Legislation” (as of 26 March 2016), online: UNODC <https://www.unodc.org/cld/search-sherloc-leg.jspx?f=en%23__el.legislation.crimeTypes_s%3ATrafficking%5C+in%5C+persons>.

109. These treaties and instruments include the Council Framework Decision 2002/629 on Combating Trafficking in Human Beings, Council of the European Union, 2002/629/JHA (2002), art. 1(1), online: EU Law <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002F0629:EN:NOT>; CoE Convention, supra note 15, art. 4; and South Asia Association for Regional Cooperation Convention on the Preventing and Combating Trafficking in Women and Children for Prostitution, 5 January 2002 (entered into force on 15 November 2005) [SAARC Convention], art. 1(3).

110. All of these components are recognized in the previous international conventions and agreements relating to the traffic of persons, such as the: International Convention for the Suppression of the White Slave Traffic, 4 May 1910, 30 U.N.T.S. 23 (entered into force 21 June 1951), arts. 1–2; International Convention for the Suppression of the Traffic in Women of Full Age, 11 October 1933 (entered into force 24 August 1934), art. 1; and the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 2 December 1949, A/RES/317 (entered into force 25 July 1951), arts. 1–2.

111. TIP Protocol, supra note 8, art. 3(b), and see also UNODC, “The Role of ‘Consent’ in the Trafficking in Persons Protocol”, Issue Paper, 2014, at 6–8.

112. In the definition, exploitation shall include, at a minimum: “the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” The inclusion of forced labour as a form of exploitation vis-à-vis TIP is crucial in expanding the coverage of the definition beyond the conventional sexual exploitation and prostitution of others, and includes seriously exploitative forms of work. The drafters intentionally left out the definition of “exploitation for the prostitution of others” to ensure that the TIP Protocol is without prejudice to “how states parties address prostitution in their respective domestic laws”. See UNODC, Travaux Preparatoires of the Negotiations for the Elaboration of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto (Vienna: United Nations Publication, 2006) at 347 .

113. TIP Protocol, supra note 8, art. 3(c).

114. GALLAGHER Anne T., The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010) at 49 .

115. The Protocol and its travaux preparatoires are silent on the issue of the sale of children for the purpose of adoption, except in the case of an (illegal) adoption that amounts to “a practice similar to slavery as defined in article 1, paragraph (d), of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery”. UNODC, supra note 112 at 347.

116. See for instance, Catherine A. MACKINNON, “Pornography as Trafficking” (2004) Michigan Journal of International Law 26 at 1004.

117. Mayeda JAMAL, “Children at Risk: Child Trafficking Through Adoption Agencies” (2005), online: Child Rights International Network <https://childhub.org/sh/system/tdf/library/attachments/jamal_05_child_adop_agen_0108.pdf? file=1&type=node&id=18099>; Human Rights Resource Centre, “Violence, Exploitation, and Abuse and Discrimination Affecting Women and Children in ASEAN: a Baseline Study” (December 2012), online: HRRCA <http://hrrca.org/violence-exploitation-and-abuse-and-discrimination-migration-affecting-women-and-children-asean/>; SURTEES Rebecca, Other Forms of Trafficking in Minors: Articulating Victim Profiles and Conceptualising Interventions (Vienna: International Labour Organization, 2005) at 14 ; Samantha LYNEHAM, “Forced and Servile Marriage in the Context of Human Trafficking”, Research in Practice 32, March 2013; Farrah BOKHARI, “Child Trafficking for Forced Marriage” (2008), online: ECPAT UK <http://www.ecpat.org.uk/sites/default/files/forced_marriage_ecpat_uk_wise.pdf>.

118. TIP Protocol, supra note 8, art. 4. However, although this restricts the applicability of the TIP Protocol, this lacuna may be filled by the adoption of regional or national arrangements.

119. See for instance, Irina DO CARMO, “Trafficking Victims Often Treated as Illegal Immigrants First, Human Beings Last” The Guardian (30 July 2015), online: The Guardian <http://www.theguardian.com/global-development/2015/jul/30/trafficking-victims-treated-illegal-immigrants-modern-slavery-act>; Severin CARRELL, “Trafficked People Being Treated as Criminals by Officials, Inquiry Says” The Guardian (27 November 2011), online: The Guardian <http://www.theguardian.com/law/2011/nov/27/human-trafficking-crime-victims>; Office to Monitor and Combat Trafficking in Persons, “Topic of Special Interest” (2014), online: US Department of State <http://www.state.gov/j/tip/rls/tiprpt/2014/226646.htm>; and UNODC, “Toolkit to Combat Trafficking in Persons” (2008), at 253, online: UNODC <https://www.unodc.org/documents/human-trafficking/HT_Toolkit08_English.pdf>.

120. ACTIP, supra note 13, art. 2(a)–(c). The adoption of the definition presumably also includes the TIP Protocol’s understanding on the exception of underage victims and the irrelevance of consent in the fulfilment of the TIP elements.

121. Ibid., art. 2(e). In ACTIP, “victim” is defined as “any natural person who is subject to an act of trafficking in persons as defined in this convention”. CoE Convention, supra note 15, art. 4(e). The CoE Convention defines “victim” as “… any natural person who is subject to trafficking in human beings as defined in this article”.

122. ACTIP, supra note 13, art. 14(1).

123. Ibid., art. 4(1), and CoE Convention, supra note 15, arts. 10(1), (2).

124. ACTIP, supra note 13, arts. 4(4), (7), (8).

125. These detailed measures include, for instance: (1) states’ obligations to raise awareness and educate professionals who are concerned with TIP problems, and to provide their competent authorities with trained and qualified individuals to identify and assist victims of TIP; and (2) if the competent authorities have reasons to believe that an individual is a TIP victim, such person shall not be removed from their territory until the identification process is completed. CoE Convention, supra note 15, arts. 5, 10.

126. Ibid., art. 5.

127. The establishment of liability for legal persons has gained international support since the 1980s to counter the growing global trend of committing transnational crime and corruption under the cover of legal persons. See UNODC, “Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto”, 2004, at 115–19, and UNCTOC, supra note 8, art. 10.

128. ACTIP, supra note 13, arts. 6–9. See UNCTOC, supra note 8, arts. 5–6, 8, 23. The provisions in UNCTOC apply to transnational organized crime in general, while ACTIP has a specific focus on TIP.

129. ACTIP, supra note 13, arts. 6–9.

130. UNCTOC, supra note 8, arts. 8(2), 9.

131. ACTIP, supra note 13, Preamble, para. 8, and “Malaysia Arrests 12 Cops over Alleged Links to Mass Graves” The Straits Times (27 May 2015), online: The Straits Times <http://www.straitstimes.com/asia/se-asia/malaysia-arrests-12-cops-over-alleged-links-to-mass-graves>.

132. The CoE Convention, on the other hand, prescribes more detailed guidelines, for instance, on the standards for the imposition of penalties and types of penalties. In the CoE Convention, all of the offences are to be punished by “effective, proportionate and dissuasive criminal or non-criminal sanctions”, including “deprivation of liberty which gives rise to extradition” and “monetary sanction”. See CoE Convention, supra note 15, art. 23.

133. ACTIP, supra note 13, art. 5(3).

134. Ibid.

135. Ibid., arts. 11(2), (3).

136. Ibid., arts. 11(4), (5).

137. UNODC, 2004, supra note 127 at 296–7, and UNCTOC, supra note 8, arts. 31(5), (6).

138. CoE Convention, supra note 15, art. 5(4), and Explanatory Report on the Council of Europe Convention on Action Against Trafficking in Human Beings, Council of Europe, 16.V.2005 (2005), para. 105.

139. CoE Convention, supra note 15, art. 6, and Explanatory Report on the Council of Europe Convention on Action Against Trafficking in Human Beings, supra note 138, para. 110.

140. ACTIP, supra note 13, art.11.

141. Ibid., art. 12.

142. Ibid., art. 11.

143. Ibid., art. 20(1).

144. Ibid., art. 13(2).

145. See for instance, TIP Protocol, supra note 8, art. 11, and CoE Convention, supra note 15, art. 7.

146. UNODC, Model Law Against Trafficking in Persons (Vienna: United Nations, 2009) at 3940 .

147. Ibid., at 40–1.

148. ACTIP, supra note 13, arts. 14(5), (6), (10), (12), (13). Some of these obligations are adopted from the TIP Protocol. See TIP Protocol, supra note 8, art. 6.

149. ACTIP, supra note 13, arts. 14(2), (3). In this regard, the receiving state has an obligation to notify the country of origin without undue delay.

150. Ibid., art. 14(4).

151. Ibid., art. 14(7).

152. TIP Protocol, supra note 8, art. 6(3). The Article was heavily criticized by the UN Special Rapporteur on Violence against Women as restrictive and allowing States Parties to retain wide discretion to impose prerequisites in exchange of services for recovery. See UNODC, supra note 112 at 368.

153. ACTIP, supra note 13, art. 14(10).

154. Ibid., art. 15(1).

155. Ibid., art. 15(2).

156. Ibid., art. 15(3–5).

157. Ibid., art. 9.

158. UNCTOC, supra note 8, arts. 11, 19, 20, 21, 22, 24–28, and CoE Convention, supra note 15, chapter V. These provisions consist of specific obligations concerning the protection of witnesses and victims, and investigation, prosecution, and adjudication of TIP.

159. This is because all AMS have already become Parties to the UNCTOC, and nine AMS have ratified/acceded to the TIP Protocol that obliges AMS to follow the minimum standards vis-à-vis investigating, prosecuting, and punishing traffickers. See United Nations Treaty Collection, “Status of Treaties: Chapter XVIII Penal Matters—United Nations Convention against Transnational Organized Crime” (as of 11 July 2016), online: UNTC <https://treaties.un.org/pages/Treaties.aspx?id=18&subid=A&clang=_en>, and United Nations Treaty Collection, “Status of Treaties: Chapter XVIII Penal Matters—Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime” (as of 11 July 2016), online: UNTC <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-a&chapter=18&clang=_en>

160. MLAT, supra note 77, art. 1.

161. UNCTOC, supra note 8, art. 18.

162. Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Singapore, Thailand, and Vietnam have national legislation pertaining to mutual legal assistance on criminal matters. In the case of the Philippines, although it does not have any national legislation on mutual legal assistance, it has been actively requesting and granting legal assistance to other countries. Additionally, the Philippines had already entered into numerous bilateral agreements with other countries on mutual legal assistance. See UNODC, “Workshop on Extradition and MLA in East Asia and the Pacific” (2013), Annex 5, online: UNODC <https://www.unodc.org/southeastasiaandpacific/en/2013/07/mla-workshop/story.html>.

163. ACTIP, supra note 13, art. 10. Such obligation has gained wide acceptance in international conventions dealing with penal matters, including the UNCTOC. See UNCTOC, supra note 8, art. 16.

164. ACTIP, supra note 13, art. 19(4). The obligation to extradite or prosecute (aut dedere aut ajudicare) kicks in in cases where the State Party in which an alleged offender is found does not wish to extradite him/her to another State Party requesting extradition. The ACCT, on the other hand, does not prescribe such an obligation. See also ASEAN Convention on Counter Terrorism, 13 January 2007 (entered into force on 28 May 2011) [ACCT], art. XIII.

165. ACTIP, supra note 13, art. 20(1).

166. Ibid., art. 20(2).

167. The high priority placed on the exchange of information as the most, if not the only, acceptable form of legal co-operation among AMS dates back to 1986 in the Ministerial Understanding on the Organization Arrangement Cooperation in the Legal Field. Since then, it has been constantly repeated in numerous ASEAN political-security instruments, most notably in all of ASEAN’s instruments pertaining to the fight against transnational crime and TIP (discussed above). In 2002, Indonesia, Malaysia, and the Philippines adopted a more comprehensive and, for the first time, binding agreement on Information Exchange and Establishment of Communication Procedures. It is yet to be elevated to the status of an ASEAN instrument, but it has been ratified by more than half of ASEAN Member States.

168. ACTIP, supra note 13, art. 27. The UNCTOC prescribes for negotiation as the default means to resolve disputes among States Parties arising from the interpretation and application of the Convention. If negotiation cannot resolve the dispute, any party to the dispute can submit the dispute to arbitration or adjudication. A State Party may declare that it is not bound by this provision at the time of its signature, ratification, or acceptance. See UNCTOC, supra note 8, art. 35(2).

169. Protocol to the ASEAN Charter on Dispute Settlement, 8 April 2010 [DSMP].

170. VOGEL David and KESSLER Timothy, “How Compliance Happens and Doesn’t Happen Domestically” in Edith Brown WEISS and Harold K. JACOBSON, eds., Engaging Countries: Strengthening Compliance with International Environmental Accords (Cambridge, MA: The MIT Press, 1998), at 24 .

171. UNCTOC, supra note 8, arts. 32(1), (3), (4), and CoE Convention, supra note 15, arts. 36(1), 38.

172. UNCTOC, supra note 8, art. 32(5), and CoE Convention, supra note 15, art. 38(2).

173. For instance, see the discussion on the CoE Convention’s provisions on the prevention of TIP, the protection and assistance of victims, law enforcement, and compliance mechanism above.

174. ACTIP, supra note 13, preamble, para. 3.

175. ILC Study Group, “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law”, UN Doc. A/CN.4/L.682 (13 April 2006), paras. 27–31, and Case Concerning Southern Bluefin Tuna (Australia v. New Zealand/Japan), Award of 4 August 2000 on Jurisdiction and Admissibility, [2004] XXIII U.N.R.I.A.A. at 23. In its award, the tribunal contended:

It recognizes that there is support in international law and in the legal systems of states for the application of a lex specialis that governs general provisions of an antecedent treaty or statute. But the Tribunal recognizes as well that it is a commonplace of international law and State practice for more than one treaty to bear upon a particular dispute. There is no reason why a given act of a State may not violate its obligations under more than one treaty. There is frequently a parallelism of treaties, both in their substantive content and in their provisions for settlement of disputes arising thereunder. The current range of international legal obligations benefits from a process of accretion and cumulation; in the practice of States, the conclusion of an implementing convention does not necessarily vacate the obligations imposed by the framework convention upon the parties to the implementing convention.

176. ASEAN Agreement on the Conservation of Nature and Natural Resources, 9 July 1985, arts. 2–5.

177. Ibid., arts. 18(3), 21, 28.

178. Ibid., art. 33(1).

179. This question was posed during the 7th and 8th Meeting of ASEAN Senior Officials on Environment in 1996 and 1997. See Kheng-Lian KOH, “ASEAN Environmental Protection in Natural Resources and Sustainable Development: Convergence versus Divergence?” (2007) Macquarie Journal of International and Comparative Law 4 at 5152 .

180. ASEAN is well known for its “ASEAN Way” of diplomacy to manage disputes, which mainly consists of three revered principles of ASEAN: reliance on consultation and consensus in decision-making, non-confrontation, and non-interference in the internal affairs of one another. See Charter of the Association of Southeast Asian Nations, 20 November 2007, 2624 U.N.T.S. (entered into force 15 December 2008) [ASEAN Charter], arts. 2(2)(e), 20.

181. DSMP, supra note 169 and ASEAN Charter, supra note 180, art. 25. As of July 2016, ten years after its adoption, there are only five countries that have ratified the Protocol, and the Protocol requires ten ratifications to enter into force. The DSMP prescribes clear and detailed dispute settlement procedures for disputes arising from the interpretation and application of the ASEAN Charter and other ASEAN instruments, which do not have any specific means of resolving disputes and do not fall within the ambit of the 1976 Treaty of Amity and Cooperation and the 2004 Protocol on Enhanced Dispute Settlement Mechanism. It may be the case that the DSMP’s lack of ratification is due to its highly political nature vis-à-vis its compulsory dispute settlement requirement.

182. Examples of such instruments include the Treaty of Amity and Cooperation in Southeast Asia, supra note 105, and the Treaty on Southeast Asia Nuclear Weapon-Free Zone, 15 December 1995 (entered into force 27 March 1997).

183. The three ASEAN legal instruments are the only instruments that deal with transnational issues, with the ACCT and ACTIP being the only two legal instruments that deal with transnational crime.

184. The countries that have ratified ACTIP are Cambodia, Myanmar, Lao PDR, the Philippines, Singapore, Thailand, and Vietnam. ACTIP entered into force in March 2017 with the Philippines’ ratification of the Convention. Treaty Division, supra note 14.

185. On the status of ASEAN countries’ ratification or accession to the UNCTOC and the TIP Protocol, see United Nations Treaty Collection, “Multilateral Treaties Deposited with the Secretary-General—Chapter XVIII: Penal Matters”, as of 3 February 2017, online: UNTC <https://treaties.un.org/Pages/Treaties.aspx?id=18&subid=A&clang=_en>.

186. It is slightly different with the ASEAN Agreement on Transboundary Haze Pollution. While most AMS are parties to international conventions related to transboundary pollution, the issue is still highly political to Indonesia, the biggest air polluter in the region. Despite its early entry into force, the Agreement can only be effectively implemented once Indonesia ratifies the Agreement. In this regard, apart from a common alignment of views and interests via membership in specific international treaties, diplomacy may also play a crucial role to depoliticize an issue of regional concern.

187. Liza YOSEPHINE, “Indonesia to Ratify ASEAN Convention Against Human Trafficking” The Jakarta Post (29 September 2016), online: The Jakarta Post <http://www.thejakartapost.com/news/2016/09/29/indonesia-to-ratify-asean-convention-against-human-trafficking-1475161284.html>.

188. ACTIP, supra note 13, art. 29(c).

189. On ASEAN’s policy of “enhanced interaction”, see Jurgen HAACKE, “Enhanced Interaction with Myanmar and the Project of a Security Community: Is ASEAN Refining or Breaking with its Diplomatic and Security Culture?” (2005) 2 Contemporary Southeast Asia 27.

* Research Fellow, Centre for International Law (CIL), National University of Singapore. The author would like to thank Michael Ewing-Chow, Hao Duy Phan, and Junianto James Losari for their invaluable comments on this paper. The views expressed in the paper are the author’s.

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