Pascale McLean
At the end of 2000, the UN Convention against Transnational Organised crimes and two of its supplementary Protocols; the Protocol against the smuggling of Migrants by land, air and sea (which refers to the practice of helping people cross the border illegally in exchange of remuneration) and the Protocol to Prevent, Suppress, Punish trafficking in Persons, especially in women and children (hereafter the UN trafficking Protocol) were signed. The article 3 of this Protocol defines trafficking in persons which refers to three distinct elements:
1. Some actions that involve “recruitment, transportation, transfer,” etc.;
2. The means of those actions more precisely “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power”;
3. And a purpose, that is forms of exploitation for which people are recruited or moved including “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 focus of the UN trafficking Protocol is based on bringing to justice those responsible for this crime. It refers to anti-trafficking measures that can be taken by the States:
1. Law enforcement measures to detect, prosecute and punish traffickers.
2. Preventive measures to reduce the likelihood that trafficking occurs in the first place.
3. Protection measures, along with various forms of assistance, for individuals who have been trafficked.
The influence of this approach is present throughout most, if not all, the national plans that were concluded since 2000 (Flynn, 2008) and the anti-trafficking measures have grown up in number at the international level.
A few years later, the Global Alliance Against Trafficking of Women (hereinafter referred as GAATW) wanted to study the impact of anti-trafficking interventions. Therefore, in 2007, a report called Collateral Damage: The impact of Anti-Trafficking Measures on Human Rights around the World was published. It provides us an overview of the experience of eight countries: Australia, Bosnia and Herzegovina, Brazil, India, Nigeria, Thailand, the United Kingdom and the United States. More specifically, it attempts to assess the impact of anti-trafficking measures for people living and working there, or migrating into or out of these countries. On August 6-9, 2008, the GAATW organised a forum to that effect.
In the Collateral Damage report, GAATW mentions that there are laws and policies that have negative consequences on the people they want to protect and there are three groups who are affected. Firstly, when the assistance for trafficked persons is made conditional on cooperation with law enforcement officials. Secondly, the anti-trafficking measures affect the migrants specially labourers and workers, and thirdly the concept of ‘trafficking’ has been appropriated to further the political agendas of governments, which refers also to the impact of a prevention campaign, conducted since 2001 in countries throughout the world by the United States government.
The Collateral Damage report also points out that trafficking is a multi-dimensional phenomenon including issues such as social, economical and criminological ones linked with issues like gender, health, migration, development and economic, more specifically in the informal sector.
Concerning India, the anti-trafficking measures came mostly around the debates on the question of legality or illegality of prostitution. In fact, two years after the adoption of the UN trafficking protocol, a regional convention was adopted by the South Asian Association for Regional Cooperation (SAARC), the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution which restricted the application of trafficking to the purposes of prostitution. The SAARC Convention, to which India is a signatory, defines trafficking as “the moving, selling or buying of women and children for prostitution within and outside a country for monetary or other considerations with or without the consent of the person subjected to trafficking” (Article 1(3)).
Ratna Kapur wrote an article concerning the anti-trafficking framework in the country and reviews the legal aspects of trafficking which focuses more on the method of rescue and rehabilitation of women and girls who have been trafficked for the purpose of prostitution (GAATW, 2007). She mentions that the primary response to victims of trafficking is detention, whether in a protective home or a corrective institution which would drive those women and girls back into sex work. Concerning the brothel raids, she affirms that they could be politically motivated by anti-migrant groups since most sex workers are from lower casts, tribal groups or neighbouring countries. The laws and policies do not address the issues of trafficking within the framework of migration. She mentions that under the name of protection for women, particularly unskilled women, India has imposed some restrictions on their emigration, which have pushed the ones who are really seeking to migrate to do so through clandestine forms. Ratna Kapur points out the issues of inter-state migration in India and refers to the Inter-State Migrant Workmen Act (ISMWA) that is there to protect the rights and safeguard the interests of the migrant workers inside the country. The National Commission for Women suggested some changes in the interest of women including that a women recruited in another state could be accompanied by a family member to their place of work at the employer’s expenses.
As a strategy for anti-trafficking prevention, Kapur suggests to address the underlying causes of trafficking and to make a distinction between facilitating the migration for more wealthy people and those who are less well off, for whom a migration policy is needed to ensure safe and legal passage. She states (GAATW, 2007:137):
The anti-trafficking laws in India display a profound misunderstanding of the phenomenon of human trafficking. Failing to make a distinction between human smuggling, irregular movement, illegal migration and trafficking, denies the agency of those who choose to migrate for better life opportunities and undermines the gravity of the abuses suffered by trafficked persons. Criminalising various aspects of prostitution in order to prevent trafficking, as is the case with the existing law or criminalising the purchase of sexual services, as is being proposed by the government penalises those trafficked for sexual exploitation rather than their traffickers. It renders persons trafficked for sexual exploitation more vulnerable to their traffickers, their clients and the police. Finally, failing to expand the application of anti-trafficking legislation beyond cases of trafficking for sexual exploitation has the effect of denying the harm done to persons who experience similar abuses but who are trafficked for other purposes.
The preliminary research findings of Lyons and Ford (2008) presented at the Forum of 6-8 August 2008 on the impact of the anti-trafficking measures on policy making and civil society organisation activism concerned with labour in Indonesia, Malaysia and Singapore they argue that most States have responded to the trafficking Protocol by establishing a legal framework that restrict immigration and prosecute illegal entries when they have to deal with unskilled or semi-skilled labour migrants because it is difficult to make a clear distinction between smuggling, trafficking and temporary labour migration. The authors also point out that trafficking and smuggling are linked with measures to combat terrorism. Governments are then encouraged to be tough on irregular migration through tighter border controls. On the other hand, many NGOs in this region are attracted to the anti-trafficking framework because of the positive outcomes for the migrant workers in the absence of effective national labour laws. In fact, the migrant women working mostly in domestic services sector or sex industry, face problems in relation to labour laws and citizenship rights. This includes low wages, high debts repayments to employment brokers, difficult working conditions which are worse if the migrant’s status is not regular. Lyons and Ford come to the conclusion that what is needed is an approach that focuses on addressing the human rights violations and abuses perpetrated amongst all migrants, without equating all forms of exploitation with trafficking.
In a briefing paper presented at the forum of August 2008, Rebecca Napier-Moore from GAATW states that if you combine labour and migrants rights you can see globalized structures. She refers to the fact that when an economy has a large need for labour, usually cheap labour, and does not have enough national capacity to fulfill that, the market needs the migrant’s labour. The findings show that there is a large mismatch between immigration laws and economic and migrant realities. The industrialised countries develop with attracting permanent or temporary migrants whom are divided into several categories to establish some control over their number and their characteristics. It follows that the official demand criteria for labour migrants for instance, do not always fully reflect the real demand of national economic agents (Tyuryukanova 2008). Less people are then able to migrate by official, legal and safe channels. Therefore, the migrants unwanted by the official immigration system, but attracted by the real demand for their work and skill, try to enter in the receiving country without the chance to be legalised. The more restrictive immigration control renders more migrants to stay in a vulnerable position where they are subject to exploitation, human rights violations and what can lead to trafficking.
One of the ways to respond to the trafficking issues is to move to the migration framework. It would put emphasis on the fact that people have the right to migrate. It would move away from a crime focus and show stronger empowerment for women. But in the Asian context, the legal migration does not guaranty safe working and living conditions for migrants. Also, to put the focus on transborder movements might overshadow internal movements.
It is also suggested that if we move to the labour rights framework it would improve labour conditions and proceed towards labour rights for all migrant workers. This argument locates trafficking through a labour framework situates the migrant as the victim of labour rights violations. The problem with this framework could be that unions might be reluctant to engage with migrant labour, women are less likely to be involved in unions and there are problems around the informal sector in which many migrants are employed. Also some sectors into which people are trafficked are not called “work” by society.
For all the above reasons, the link between gender, migration, labour and trafficking needs to be established. We have to ask ourselves if the anti-trafficking framework meets the needs of trafficked women and to wonder on the impact on human rights on other groups. From the GAATW interventions, it seems that the UN Protocol respond to trafficking by criminalizing traffickers rather than by ensuring migrant’s rights.
GAATW suggests that gender, migration, labour and trafficking should not be separated because migrant women are not seeing all their rights met by the state; and restrictions on their movement, on the sector they can work, as well as obstacles to their access to justice are not making it easy for migrant women to fully realise their rights. It should not be forgotten that many migrants initiated this movement with the hope to find better living conditions and to find solutions to problems.
Under these circumstances, GAATW is looking for a new combination of women’s rights, rights for trafficked people, migrant’s rights and labour rights and also legal, cultural and social assistance structures to support them.
References
FLYNN, D. (2008) “Managing (ir)regularity: trafficked persons and undocumented migrants on the spectrum of global migration”. Discussion paper prepared for the GAATW Roundtable on Gender-Migration-Labour-Trafficking Linkages, Bangkok, 6-8 August 2008, unpublished.
GAATW, (2007). Collateral Damage: The impact of Anti-Trafficking Measures on Human Rights around the World. http://www.gaatw.net/
LYONS, L., FORD, M. (2008). “Anti-trafficking Programs and their gendered implications for Temporary Labour Migrants”. Paper prepared for the GAATW Roundtable on Gender-Migration-Labour-Trafficking Linkages, Bangkok, 6-8 August 2008, unpublished.
NAPIER-MOORE, R. (2008). “Briefing paper: GAATW Roundtable Linking Gender-Migration-Labour-Trafficking”. Bangkok, 6-8 August 2008, unpublished.
TYURYUKANOVA, E. (2008). “Faces and interfaces of Migration, Labour and Trafficking in Human Beings (THB)”. Paper prepared for the GAATW Roundtable on Gender-Migration-Labour-Trafficking Linkages, Bangkok, 6-8 August 2008, unpublished.
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