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Global Alliance Against Traffic in Women

Human Rights
at home, abroad and on the way...

GAATW Logo

Global Alliance Against Traffic in Women

Human Rights
at home, abroad and on the way...

New EU Priorities on Trafficking in Human Beings: Time to recognise the contribution of sex worker rights organisations

listen to sex workersLast week the European Commission presented the EU’s new priority actions for addressing trafficking in human beings, broadly combined under three themes: stepping up the fight against organised criminal networks, providing trafficked persons with better access to their rights, and intensifying a coordinated and consolidated response, both within and outside the EU.

Although the priorities aim to treat human trafficking in all sectors equally, there is an underlying focus on the sex industry as a site of exploitation, particularly of women and girls. This is not surprising, as the latest data on identified victims of trafficking in the EU shows that 67% were trafficked in the sex industry and 95% of those were women and girls. Given this focus on trafficking in the sex industry, and the stated need for a broad range of stakeholders to tackle it, the EU needs to recognise the contribution of one stakeholder that has so far been excluded: sex worker rights organisations.

This year the Global Alliance Against Traffic in Women (GAATW) conducted research which documented the strategies that sex worker rights organisations employ to prevent and address violence, coercion, and exploitation in the sex industry, including instances of human trafficking. The research took place in seven countries around the world with at least one sex worker rights organisation participating from each country, and the final report will be published in February 2018.

While the organisations in the seven countries operate in different contexts, they fundamentally have the same approach to supporting women in the sex industry, including trafficked women. All of them respond to women’s needs by providing person-centred, holistic, and non-judgemental support. All of them run a place which serves as a low-threshold drop-in centre, a safe and discreet free space where women can come, establish friendships, and access a range of services, from language classes to support groups, counselling, legal advice, and health services. All organisations also provide information about prices, advertising, safety, allowed locations for sex work, immigration issues, and where to turn for help in case of violence and abuse.

In addition, the organisations conduct outreach to sex work sites, during which they listen, advise, intervene and refer women, as dictated by their individual needs. The research documented several instances where sex worker organisations noticed suspected victims of trafficking and assisted them in different ways – by calling the police, negotiating their release with the brothel owner/madam, or chasing the pimp away. What they all have in common, is that the solutions are not always obvious or conventional; in some cases sex workers or their organisations have to get creative in order to find the best, ‘first, do no harm’ response to the concrete situation.

We also documented how sex worker rights organisations do not attempt to keep women in sex work but, in fact, actively support those who wish to leave the industry for various reasons (including exploitative conditions). They do this by offering them English language classes or other skills courses and helping them navigate the available state social security and employment options.

Ultimately, sex worker rights organisations are not so different from anti-trafficking organisations. Just like anti-trafficking organisations, sex worker organisations provide information about rights and working conditions, and where to seek help in cases of rights violations. In anti-trafficking lingo this is called prevention of trafficking, awareness-raising, or empowerment. In cases of rights violations, like anti-trafficking organisations, sex worker organisations offer assistance with filing complaints and dealing with the police, courts and immigration authorities, meeting basic needs, psychosocial counselling, family mediation and return to the community, and help with finding a new job. In anti-trafficking programming all these are broadly referred to as reintegration or social inclusion services.

Despite this important work, sex worker rights organisations are largely unrecognised and even vilified by the anti-trafficking community. In some of the research countries, we found that the contribution of sex worker organisations for anti-trafficking work was recognised by at least certain individuals in the local police or anti-trafficking unit. However, we also documented several cases where sex worker organisations had tried to join their national anti-trafficking task force or NGO network, but were either not allowed to or had to withdraw due to hostility. 

We have seen the same exclusion and hostility at the EU level too. Several GAATW members and partners, who are either sex worker rights organisations or anti-trafficking organisations with a strong pro-sex worker rights position, were rejected from the EU Civil Society Platform against trafficking in human beings. Although the official grounds for the rejection had nothing to do with sex workers’ rights, this is most likely the reason, given the current climate in the EU and the vilification of sex worker rights supporters at the highest political level.

If the EU is serious about combating human trafficking, especially the trafficking of women and girls in the sex industry, as it claims, it can’t keep ignoring, and actively excluding, those organisations whose first and foremost priority is to ensure the safety and wellbeing of everyone involved in prostitution. On the contrary, it needs to recognise sex workers, and the organisations that represent them, and consult them in the development of policies and implementation of initiatives that may affect their lives, as recommended earlier this year by the EU-funded research project DemandAT.  After all, sex worker rights organisations have the most interest in keeping the industry free of coercion, violence, exploitation, and human trafficking.

The slogan of the European Commission’s anti-trafficking website is ‘Together against trafficking in human beings’. It is time to make ‘together’ a reality and start engaging meaningfully with sex worker rights organisations.

12 December 2017

Moving from Precarity to Rights Protections and Decent Work for All Migrants

Logo for use in Word and PDF format

Global Compact for safe, orderly and regular migration: Irregular migration and regular pathways, including decent work, labour mobility, recognition of skills and qualifications and other relevant measures

12 and 13 October 2017, Vienna

Position paper by the Global Alliance Against Traffic in Women (GAATW)

  1. THE RIGHTS OF MIGRANTS IN IRREGULAR STATUS

In the global compact, states should:

  • Protect and promote the human rights of all migrants, regardless of status, including the enjoyment of all economic, social and cultural rights.
  • Commit to provide easily accessible and affordable documentation for their nationals including regarding the acquisition, change or retention of their nationality and free birth registration.
  • Ensure that border governance, immigration control, and anti-trafficking initiatives are in line with states’ existing obligations under the international human rights framework and other relevant areas of international law.
  • Ensure that migrants are not criminalised solely on the basis of their migration status and that irregular entry and stay are never be considered criminal offences.
  • Commit to use appropriate and non-discriminatory language to reduce the negative populist representations of all migrants.
  • Implement and publicise clear and binding firewalls to ensure that all migrants can enjoy their rights regardless of the migratory status of the migrant or any members of their family.

Migrants may be in irregular status for many reasons. Some have no papers to begin with, such as when they have not had their birth registered, or are stateless, which prevents them securing documentation to travel through regular channels.[1] When a country struggles to issue adequate documentation to its citizens in the first place, individuals may have little option to migrate through regular channels.[2] Others cannot access or navigate the bureaucracy to obtain documentation, for reasons including language differences or discrimination within the process that favours a particular ethnic group.[3] Often the cost of such procedures is prohibitive and migrants choose to migrate through irregular channels to avoid debt. Such cost-based decision-making can favour men over women in the family.[4] An asylum seeker may decide they cannot wait any longer for their application to be processed, or knowing that the process can take years, may not apply for asylum and thus be in an irregular situation.[5] Regular channels for labour migration are often preferentially offered for jobs deemed by the government as more valuable to the economy, meaning that many individuals migrating to the “dirty, difficult and dangerous” jobs that nationals will not take at the low wages and poor working conditions on offer are excluded from the limited regular migration pathways available.[6] In GAATW’s research, women migrants have reported that they have chosen to be in an irregular situation because they assess it to be a better option for them. Even given some of the limitations on them as undocumented migrants such as the use of bribes, limits on their freedom of movement and other rights, they prefer to be in an irregular situation for reasons such as the ability to leave abusive work situations, and the ability to exercise their right to family life.[7] That some migrants choose to remain or to move into an irregular status shows that regularisation alone is not the answer.

Migrants’ status may change during the course of their migration – such as when migrants make decisions to move on in response to the particular situation, regardless of their initial plans or documentation; when the migrant leaves an abusive situation but their work or residence permits are tied to the employer or where the migrant worker requires an exit permit from the employer to leave; when a migrant’s asylum application is rejected but they cannot return to their country of origin for fear of being subjected to human rights violations; when children’s status is linked to that of their parents, who are in irregular status.[8] Regardless of the reason for their irregular status, it should not deprive migrants of their human rights: the international human rights treaties including the eight ILO Fundamental Conventions, apply to everyone, without discrimination. Yet in reality, states often deny or restrict the rights of migrants in an irregular situation, though undocumented status can make migrants more likely to face human rights abuses at all stages of their migration process, at the same time making them afraid or unable to seek protection and assistance from the authorities.[9]

Too often states approach the situation of undocumented migrants through immigration control and law enforcement, invoking their sovereign prerogative to control their borders and in doing so, informing discriminatory attitudes to migrants.[10] However international law is clear that these concerns are subordinate to states’ obligations to respect, protect and fulfil the rights of all persons, regardless of their migration status, and states need to better incorporate the protection of migrants’ rights into their border governance and immigration enforcement measures.[11] As such, the criminalisation of irregular migration exceeds the legitimate interests of states in protecting its territories and regulating irregular migration flows.[12] The use by politicians, media, and others of inaccurate and hostile language against migrants, or misrepresenting the impact of migration on the domestic economy, labour market and social services, and often focusing on those in irregular status, creates a situation where migrants of any status – or anyone who is judged to be from a different country – can face discrimination and verbal or physical attack.[13] This anti-migrant rhetoric, combined with a lack of firewalls between essential services and immigration enforcement, denies migrants the opportunity to realise their rights or integrate into their countries of destination/residence.[14] There are numerous examples of non-discriminatory language in relation to migrants and migration, including undocumented migrations – the global compact provides a new opportunity to urge states to lead.[15]

  1. REGULAR PATHWAYS AND PATHWAYS TO REGULARISATION

In the global compact, states should:

  • Make available more regular, long-term or permanent pathways available to all migrants without discrimination, for migration for decent work across sectors and skills/pay-levels as well as other migrations.
  • Recognise that regular pathways are not necessarily safe for migrants and ensure that those available to migrants are in full compliance with human and labour rights including the principle of non-discrimination.
  • Provide equity of opportunity, within a reasonable period of time, to access affordable and simple procedures for the regularisation of undocumented migrants at all skills levels.

The focus on regular pathways can obscure the fact that many of these labour migration schemes facilitate abuse, restrict labour rights, and reinforce gender, racial, class, caste and other discriminations in workplaces and communities. Regular channels of migration do not necessarily constitute safe migration and may create conditions for forced labour or trafficking of migrant workers, especially women migrant workers in sectors that are not covered by labour laws.[16] The work available to women migrant workers through regular migration channels typically replicates gendered divisions of labour and is often only temporary. Temporary migration programmes often exclude workers from some human rights protections, including access to economic and social rights and the right to family life, and as such constitute decent work deficits. Temporary, guest-worker, or circular migration programmes often contain inherent risk factors for exploitation, such as worker-paid recruitment fees, substandard living and working conditions allowed under such schemes, sponsorship schemes tying visas to a specific employer.[17] Where migrant workers are reliant on employers for their visa – as sponsors or for repeated annual seasonal work, for example – this serves as a strong disincentive to reporting labour and other human rights abuses, denying migrants access to assistance, justice and redress. The obligatory live-in policy for domestic workers in some countries and favoured by some employers puts migrant workers, who are mostly women, at a higher risk of violence while also severely restricting their access to justice. The immunity afforded diplomatic households denies justice for migrant domestic workers who cannot sue their employer for unpaid wages or seek justice for other abuses including labour exploitation or violence.[18] Options such as multi-year work visas, with family reunification for those who want it, and visas that permit a period of job-searching so that leaving an abusive employer does not need to mean losing regular status, are better options for migrants and would help reduce undocumented migration and stay.

Migrants who are themselves or have a family member in an irregular situation, live with the threat of detention and deportation. Rather than disrupting the lives of individuals and communities when a migrant has been building their and their family’s ties with the state, including through working and paying taxes, regularisation offers a way to strengthen social cohesion. Regularising the situation of migrants in irregular status can be the most effective measure to address the needs and protect the rights of migrants, including those in vulnerable situations.[19] The procedure needs to be accessible, affordable, simple, implemented within a reasonable period of time, and publicised to migrant workers.[20] The processes should be gender-responsive: current requirements for regularisation programmes can be discriminatory against women, requiring a level of income  or credentials that women are less likely to have, for example by not taking the gender pay gap into account. Migrants should be able to initiate their regularisation process without permission from employer or fear of reprisal.[21] Though many migrants view their work in the country of destination as a temporary livelihood strategy and would not want or see the benefit of securing citizenship, it should be an option, without discrimination, after an agreed period of time.

 

  1. DECENT WORK AND LABOUR MOBILITY

In the global compact, states should:

  • Reaffirm the right to work and the right to just and favourable conditions of work for all migrants.[22]
  • Guarantee decent work for all migrant workers and ensure equality of treatment and non-discrimination of migrants with nationals and among all workers without distinction in respect of the terms and conditions of employment, and commit to closing the gender pay gap.
  • Protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment.[23]
  • Commit to bringing all forms of work, for all workers including migrants regardless of status, under the equal protection of labour laws.
  • Call on states who have not yet done so to ratify and implement ILO Convention 189 on decent work for domestic workers.
  • Ensure that migrants, regardless of status, labour sector or length/type of contract, can enjoy their rights to freedom of association and collective bargaining.
  • Ensure policy coherence between all areas that affect the lives of migrants, regardless of status, and all stages of migration, coordinating across government and other stakeholders to ensure that the policies are migrant-centric and gender-responsive.
  • Eliminate any gender discriminatory restrictions on migration in law, policy or practice that limit opportunities for women’s labour migration and ensure gender equity and respect for women’s autonomy in relevant policies including those regarding access to visas, residence permits, work permits and other documentation for migration.
  • Ensure that any pre-departure trainings and skills trainings have a rights-based, decent work agenda and do not reinforce gendered power dynamics; trainings should be accessible for the migrant and not contribute to their debt burden.
  • End discriminatory conditionalities in recruitment, including the practice of making the migration status of migrant workers conditional on the sponsorship or guardianship of a specific employer.
  • End employment practices and procedures that discriminate against women in their intent or impact, including those that require women provide information related to their reproductive health.
  • Eliminate abuses and fraudulent practices by labour recruiters and employment agencies and institutionalised risks of exploitation in labour migration programmes.
  • Regulate, license and monitor labour recruiters and employment agencies and commit to moving to ethical recruitment measures
  • Eliminate in law and practice the charging of recruitment fees to workers and other forms of economic coercion.
  • Ensure the meaningful participation of migrant worker representatives in interventions on recruitment practice throughout all stages of the recruitment process from the sub-agent to the employer.
  • Facilitate access to social protection for migrant workers and their families, including access to national social protection systems, including social protection floors, which aim to ensure among other things, access to quality public services, and work to ensure the portability of migrants’ benefits.
  • Institute clear and binding firewalls and implement and publicise them to ensure migrants, including those who are in irregular status, are able to report human and labour rights abuses including occupational safety and health risks to labour inspectors or other authorities without the fear of expulsion.
  • Cooperate with independent human rights based monitoring of implementation of bilateral agreements.
  • Prevent and eliminate labour exploitation, forced labour and trafficking in persons, provide protection to the affected workers as well as access to appropriate remedies, and bring the perpetrators to justice.

International labour law is founded on the principle that labour is not a commodity.[24] However, the reality is that labour exploitation is embedded in our economic model that has created a system of precarious, low-wage labour such that abuses including those that constitute human trafficking are often not aberrations but the logical outcome of this model.[25] In this model, migrant workers are often instrumentalised as an easily available and disposable labour supply that can be controlled by the constant threat of deportation. Migrants face restrictions on their rights at work with labour migration policies sometimes increasing migrant workers’ risk of exploitation.[26]

Human rights, including the right to work, are not dependent on documentation. International human rights law makes clear that all migrants, including those in an irregular situation and in all forms of work, have the right to work and the right to just and favourable conditions of work.[27] The aim of “decent work for all” has received the full backing of states, most recently in the 2030 Agenda for Sustainable Development.[28] Creating decent work opportunities – in countries of origin, transit, and destination – will address some of the drivers of migration as well as supporting the rights of migrants. Working in unfair conditions constitutes a violation of migrants’ right to work: migrant workers are entitled to treatment that is no less favourable than that which applies to national workers in relation to remuneration and other conditions of work.[29] Migrants, like all workers, should be paid at least the living wage.[30] The right to work encompasses several interdependent rights including the right to freedom of association. This, which includes collective bargaining, is a crucial enabling right and essential to progress and the elimination of forced labour, but it is often denied to migrants.[31] Realising the full spectrum of migrants’ right to work promotes social inclusion and sustainable development.[32]

A lot of the work that is open to migrants is described as low-skilled, although this does not reflect the skills and qualities that are needed and devalues the work and the worker.[33] This devaluing also limits access to training and skills recognition for these workers.[34] A shortage in the domestic workforce willing to take on roles offering lower wages, difficult or unpleasant working conditions drives a lot of the demand for migrant labour although there is often a lack of coherence with immigration policy.[35] Many migrants find work in zones where rights are effectively denied where governments offer corporations an agreed special legal regime favouring business activity and investment. The agreements that found these Special Economic Zones (SEZs) often violate residents’ rights by destroying traditional livelihoods and causing displacement, as well as permitting companies to abuse workers’ rights.[36] Such conditions are not in compliance with the global compact goal of facilitating safer migration: as the UN Secretary General observed, safe migration cannot be limited to the global elite.[37] Moreover, policies that deny or severely restrict migration through regular channels to foreign workers, especially when combined with xenophobic discourses, fuel the idea that it is acceptable to exploit migrant workers. This creates the preconditions for labour abuses including human trafficking, if employers or criminal actors seize the chance to make sizeable profits by meeting the resulting demand for cheap labour.[38] Perversely, such abuses can also fuel anti-migrant sentiment when individuals identify and locate the blame for the harm – the labour violations – with migrants. This in turn can fuel nationalism as well as further abuses of migrants’ rights, including in the context of detention and returns.[39]

Socially prescribed gender roles persist in the workplace, contributing to occupational segregation and a gendered division of labour.[40] Across the globe, women earn less than men for the same work.[41] Many migrants, especially women migrants, are restricted to work in the informal economy – that encompasses more than half or the global workforce with women making up the majority of informal workers in all regions outside of the Middle East and North Africa – and are often excluded from legal protection, with little or no recourse to justice or redress for rights abuses at work.[42] The care economy – largely low-paying, precarious and informal work and characterised by an absence of decent work and labour rights – is the largest driver and beneficiary of women’s labour migration. Women also, simultaneously, subsidise the economy with a disproportionate responsibility for unpaid care work.[43] The lack of value given to this gendered work informs the undervaluing of women’s migrant labour in the transnational care economy. To be meaningful for women migrant workers, any labour mobility agreements or policies need to be undertaken in conjunction with efforts to value, reduce and redistribute unpaid care work by prioritising social protection policies, including accessible and affordable social services.[44]

Other options for women migrant workers can be based on a clear feminisation and racialisation of the labour market, where women migrant workers of particular countries of origin are favoured on the basis of reductive and discriminatory claims to tradition, culture and gendered aptitude.[45] Often, and particularly for women, employers dictate conditionality on aspects of the migrant worker’s private life, for example demanding that women have the permission of their husband, male guardian or head of family to migrate and work, or allowing only women with a particular marital status.[46] This is discrimination and functions as a form of social control for the employer and the state, including providing an assurance that a worker separated from their family will return home at the end of the contract. Women workers face gender-based forms of oppression when they are subject to mandatory pregnancy tests or having their employment terminated if they are pregnant.[47] Other times women migrant workers face gendered bans on some migrations or gendered restrictions in MOUs.[48] Women migrant workers are sometimes unable to benefit from family reunification schemes, which may not extend to workers in women-dominated sectors, such as domestic work or the entertainment sector.[49]

Pre-departure trainings can provide migrants with valuable training and information to support their migration and life in the country of destination if they follow a rights-based, decent work agenda. Trainings promoting knowledge of labour laws and regulations can help to prevent trafficking by informing workers of their rights and how to exercise them, and can provide additional routes for those who are trafficked to access justice.[50] However too often they do not, instead requiring individuals to attend sessions, often far from their home districts, that are not relevant to equip migrants for the work they will be doing and the situations in which they will be living. These add to the costs of migration – in the cost of the training, travel and stay in the city where it is delivered, and the loss of working days – in some cases increasing migrants’ debt burden. Labour law requires states to eliminate the charging of recruitment fees to workers, recognising this as a risk factor for forced labour.[51] It is critical that states and private actors do not look to recoup these charges through other means such as mandatory pre-departure trainings, to prevent economic coercion. In some cases, pre-departure trainings add a layer of corruption to the migration process where migrants pay to secure the certificate of attendance without participating in the training. Sometimes these trainings are mandated by the state only for women migrating into the domestic work sector, making this a gendered burden. The responsibility for delivering these trainings is often outsourced to private companies, and respond to short-term needs. GAATW’s members have reported that some pre-departure trainings which women are obligated to attend lack basic, up-to-date necessary information for potential migrants, are stocked with out-of-date, inoperative, sometimes still plastic-wrapped equipment, and facilitated by trainers who are not qualified in the languages and skills they are supposed to be teaching and who are themselves in a precarious labour situation working on short-term contracts. As well as not supporting migrants’ in their work, the emphasis on pre-departure trainings put the onus on the individual migrant rather than state responsibility for protection from human rights abuses. Moreover, poor quality trainings can increase the risk of human rights abuses against migrant workers where training sessions focus more on pressuring women to be obedient and submissive in the supposed interest of maintaining family and national so-called honour than on imparting useful information about potential abuses.[52] Whilst they could support safer migrations, pre-departure trainings are also part of the apparatus that normalises a culture of large-scale labour migration in countries of origin.[53]

The emphasis on temporary or circular labour migration schemes creates a distinction between “good” (documented and temporary) and “bad” (undocumented) migrants, a distinction that is constantly reinforced and reiterated through policy, and media and political discourse.[54] Moreover, with their decent work deficits,[55] they often do not meet the safe migration criteria of the global compact and cannot be the only option for regular migration. The right to work gives all migrants the right to work that is decent, not precarious. The global compact must not become a means of facilitating such temporary or circular migration schemes in countries of destination. These create a tiered labour market, entrenching precarity and substituting the creation of longer term migration options for workers to fulfil permanent labour needs.[56] The global compact should not enable employers to secure a precarious, low-wage workforce in place of secure workers whose human rights are realised.

Protecting migrant workers from possible abusive and fraudulent practices during the recruitment and placement process is essential to preventing labour abuses including forced labour and trafficking in persons.[57] Promoting recruitment can be counter-productive in some contexts. Where prevailing working conditions are egregiously poor, such as in the women-dominated sectors of domestic and garment sector work, the promotion of recruitment combined with poor regulation of recruitment risks institutionalising labour abuses including human trafficking. It is very important that the global compact only promotes recruitment that ensures good working conditions and promotes decent work – as part of the understanding of safe migration.[58] There is increasing attention to fair or ethical recruitment from international organisations and migrant rights’ organisations, transnational corporations, and large recruitment and employment agencies.[59] However much recruitment, like the labour sectors in which migrants work, is informal and such good practices are not easily applied or monitored there. Addressing poor recruitment practices requires regulatory incentives that involve worker representatives, including representatives of migrant workers, in the design, implementation, and monitoring of recruitment practices. Special measures are necessary to ensure that recruitment practices are not only accountable to employers, labour recruiters and regulators, but also importantly to workers.

Where workers cannot leave employers without losing their regular status they face the added risk of criminalisation if they leave an abusive situation.[60] At the same time, migrant workers face barriers to reporting dangerous working conditions or rights abuses if they fear doing so will bring them to the attention of immigration enforcement actors. Mechanisms to ensure labour rights and occupational safety and health – including complaints mechanisms and labour inspection services – should be separated by clear and binding firewalls from immigration enforcement authorities to ensure they are not used to check the migration status of workers so that migrant workers can safely report labour issues without fear of arrest, detention and expulsion.[61] Investigations into reports of labour abuses must respect the rights of workers, including migrant workers regardless of status.[62]

Fulfilling migrants’ rights to social security by providing access to social protection for them and their families is an important step to creating equity between national and migrant workers and realising sustainable development.[63] However migrants are often deliberately excluded from welfare systems and social protection initiatives.[64] Being able to move with the benefits to which they have contributed is critical to migrants’ benefiting from their labour and to realising the development potential of migration.

Many of these temporary labour migration schemes are governed by bilateral agreements or memoranda of understanding that are not adequately rights-based or gender-responsive and lack independent monitoring of their implementation.[65] These agreements between states, whether bilateral or multilateral, must never undermine states’ existing obligations under international human rights and labour law, including by ensuring a human rights due diligence process to identify, prevent, mitigate and account for how the activities of businesses address their impacts on human rights.[66] There can be a race to the bottom as countries of origin in a weaker bargaining position agree to undermine the rights of their citizens, including in relation to wages and workplace protections, gender equality, economic and social rights, in order to make their citizens more attractive to countries of destination as workers and maintain the flow of remittances, regardless of how this increases their risks of exploitation and other rights abuses.[67] For women migrant workers, these agreements can restrict their opportunities to gendered occupations and create risks of exploitation and other human rights abuses. There is some evidence that gendered restrictions on migrations for example through bans on women’s migration in certain corridors, to particular sectors, or below a specific age, increase the power of those setting labour market conditions allowing them to lower working conditions for all. Furthermore, states have reported that restrictions on women’s migration can strain diplomatic relations reportedly making bilateral relations and negotiation more difficult.[68] Efforts to monitor inter-state agreements or corporate activity must include attention to workers’ agency and their freedom of association, including for migrant workers and women migrant workers specifically.[69]

Migrant workers who have been trafficked should be identified and provided with appropriate assistance and protection.[70] However, all migrant workers who have experienced labour rights abuses, including forced or compulsory labour or trafficking in persons, irrespective of their migratory or residence status or labour sector, should have access to appropriate and effective remedies, such as compensation, that are not conditional on their willingness to cooperate in criminal or other proceedings.[71] Consular services are a critical resource for migrants in providing assistance, legal aid, and access to justice, but are often under-resourced and lack adequate training to meet migrants’ needs.[72]

 

[1] Human Rights Council, The right to a nationality: women and children, A/HRC/RES/20/4, 16 July 2012; Human Rights Council, Report on discrimination against women on nationality-related matters, including the impact on children: Report of the Office of the United Nations High Commissioner for Human Rights, A/HRC/23/23, 15 March 2013, for example at paras.25, 39. Nationality acquisition and statelessness are gendered issues, see CEDAW, General recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women, CEDAW/C/GC/32, 14 November 2014; Working Group on the issue of discrimination against women in law and in practice, Discrimination against women in nationality, Position paper,  May 2017, available at http://www.ohchr.org/Documents/Issues/Women/WG/DiscriminationAgainstWomenNationality.docx

[2] Chou Bun Eng, Secretary of State of Ministry of Interior, Cambodia, Cambodia’s Efforts to Contribute to Safe Migration, presentation at Safe from the Start: Panel Discussion on Migrants’ Protection in Countries of Origin, 23 September 2017, SEA Junction, Bangkok, information available at https://www.facebook.com/events/1638769922841996/

[3] For example, where one ethnic group is more likely to have the documentation required to access regular migration options. See R. Napier-Moore and K. Sheill, High rise, low pay: experiences of migrant women in the Thai construction sector, International Labour Organization, Bangkok, 2016, at p.19.

[4] Napier-Moore and Sheill, High rise, low pay, p.20

[5] OHCHR, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation, HR/PUB/14/1, 2014

[7] GAATW research in the ILO’s Work in Freedom Programme project in South Asia and the Middle East (unpublished).

[8] See Committee on the Elimination of Discrimination against Women, General Recommendation No. 26 on women migrant workers, CEDAW/C/2009/WP.1/R, 5 December 2008, para.19; OHCHR, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants: Labour exploitation of migrants, A/HRC/26/35, 3 April 2014, para.48; V. Mantouvalou, ‘Am I Free Now?’ Overseas Domestic Workers in Slavery, Journal of Law and Society, 42(3), 329–357, September 2015; H. Crawley, F. Düvell, K. Jones, S. McMahon, N. Sigona, Destination Europe? Understanding the dynamics and drivers of Mediterranean migration in 2015, Unravelling the Mediterranean Migration Crisis (MEDMIG), Final Report November 2016.

[9] Global Migration Group, Statement on the Human Rights of Migrants in Irregular Situation, Geneva, 30 September 2010; Global Migration Group, Exploitation and abuse of international migrants, particularly those in an irregular situation: a human rights approach, 2013

[10] Discriminatory attitudes to citizens/nationals migrating, which may be informed by legislation to prevent migration, may also obtain in countries of origin.

[11] Committee on Economic, Social and Cultural Rights, Duties of States towards refugees and migrants under the International Covenant on Economic, Social and Cultural Rights, E/C.12/2017/1, 13 March 2017; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General Comment No. 2 on the rights of migrant workers in an irregular situation and members of their families, CMW/C/GC/2, 28 August 2013; Global Migration Group, International Migration and Human Rights, 2008; Global Migration Group, Statement on the Human Rights of Migrants in Irregular Situation.

[12] Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/13/30, 18 January 2010, para.58; Report of the UN Secretary-General, In Safety and Dignity: Addressing large movements of refugees and migrants, A/70/59, 21 April 2016, paras.37, 56; Special Representative of the Secretary-General for International Migration and Secretary-General for the Intergovernmental Conference, Ms. Louise Arbour, Statement to the Latin American and Caribbean Expert Meeting on International Migration Preparatory to the Global Compact for Safe, Orderly and Regular Migration, 30-31 August 2017, Santiago; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, A/HRC/7/12, 25 February 2008; General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/65/222, 3 August 2010; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, A/HRC/20/24, 2 April 2012.

[13] General Assembly, Measures to ensure the human rights and dignity of all migrant workers, Resolution 30/3449 (1975); Committee on Migrant Workers , General Comment No. 2, para.4; Report of the Special Rapporteur on migrants, A/65/222, paras.28-30; General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/71/40767, 20 July 2016, paras.19, 31-34, 59, 60; Special Representative of the Secretary-General for International Migration, Statement to the Latin American and Caribbean Preparatory Meeting, Santiago.

[14] Committee on Economic, Social and Cultural Rights, General Comment No. 23 on the Right to just and favourable conditions of work (article 7 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/23, 8 March 2016, para.54; Committee on Migrant Workers, General Comment No. 2, paras.63, 64, 74, 77; CMW, Concluding observations on the initial report of Turkey, CMW/C/TUR/CO/1, 31 May 2016, paras.58(c),(d); ILO Labour Inspection Convention, 1947 (No. 81), Article 3(2); ILO Labour Inspection (Agriculture) Convention, 1969 (No. 129), Article 6(3); ILO Committee of Experts, 2006 General Survey on the labour inspection instruments, paras.78 and 161; ILO Committee of Experts, Promoting fair migration: General Survey concerning the migrant workers instruments, ILC.105/III(1B), 2016, paras.480-482; OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP. 1, 23 July 2014, Guideline 10.11

[15] See references at note 13, and United Nations Alliance of Civilizations (UNAOC) and Panos Europe Institute (IPE), Media-Friendly Glossary on Migration (August 2014); Human Rights Watch, Guidelines for Describing Migrants, 24 June 2014; PICUM, Why ‘Undocumented’ or ‘Irregular’ - Terminology 'Words Matter' Campaign, June 2014; Define American, #WordsMatter factsheet and media/journalist pledge campaign – see Human Rights Council, Report on the compendium of principles, good practices and policies on safe, orderly and regular migration  in line with international human rights law, A/HRC/36/42, 4 September 2017, p.23.

[16] Protocol to the Forced Labour Convention, 1930, Article 2(c)(i); Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.5. See also, S. Molland, Safe Migration, Dilettante Brokers and the Appropriation of Legality: Lao-Thai “Trafficking” in the Context of Regulating Labour Migration. Pacific Affairs, 85(1), 117–136 (2012); Mekong Migration Network, Safe from the Start: The roles of countries of origin in protecting migrants, MMN July 2017; Humanitarian Organisation for Migration Economics (HOME) and Transient Workers Count Too (TWC2), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): Shadow Report for Singapore, October 2017, available at http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/SGP/INT_CEDAW_NGO_SGP_29089_E.pdf

[17] General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, A/71/385, 14 September 2016, paras.29-33; Report of the Special Rapporteur on migrants, A/HRC/26/35, para.49; SDG indicator 10.7.1 addresses recruitment costs, which the World Bank has found can be exorbitant: World Bank Group, Migration and Development Brief 28, October 2017; Global Alliance Against Traffic in Women, Beyond Borders: Exploring Links between Trafficking and Labour, GAATW Working Papers Series 2010; Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States, SPLC 2013 edition; Amnesty International, Abusive Labour Migration Policies: Submission to the UN Committee on Migrant Workers’ Day of General Discussion on Workplace Exploitation and Workplace Protection, 7 April 2014, AI Index: IOR 42/002/2014; Mantouvalou, ‘Am I Free Now?’; D. Demetriou, ‘Tied Visas’ and Inadequate Labour Protections: A formula for abuse and exploitation of migrant domestic workers in the United Kingdom, Anti-Trafficking Review, 5: 69-88, 2015; L. Palumbo and A. Sciurba, Vulnerability to Forced Labour and Trafficking: The case of Romanian women in the agricultural sector in Sicily, Anti-Trafficking Review, 5: 89-108, 2015; HOME and TWC2, CEDAW Shadow Report for Singapore.

[18] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.21; Ban Ying et al., Joint NGO Submission to the CEDAW Committee prior to the General Discussion on “Access to Justice” on the Situation of Domestic Workers1 who Work for Diplomats, February 2013, Ban Ying (Berlin), BliNN (Amsterdam), CCEM (Paris) Kalayaan (London), Lefö (Vienna) Migrants Rights Centre Ireland (Dublin) and PAG-ASA (Brussels).

[19] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 69; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General comment No. 1 on migrant domestic workers, CMW/C/GC/1, 23 February 2011, paras.51-53; CMW, General comment No. 2, para.16; General Assembly, New York Declaration for Refugees and Migrants, Outcome document of the high-level plenary meeting of the General Assembly on addressing large movements of refugees and migrants, A/71/L.1, 13 September 2016, Annex II para.8(p).

[20] See for example, Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, Concluding observations on the initial report of Peru, CMW/C/PER/CO/1, 13 May 2015, para.57; CMW, Concluding observations on the combined second and third periodic reports of Senegal, CMW/C/SEN/CO/2-3, 20 May 2016, para.61; CMW, Concluding observations: Turkey, CMW/C/TUR/CO/1, para.86; CMW, Concluding observations on the initial report of Honduras, CMW/C/HND/CO/1, 3 October 2016, para.43; Committee on Economic, Social and Cultural Rights, Concluding Observations: Russian Federation, E/C.12/RUS/CO/5, 20 May 2011, para. 17(a).

[21] Amnesty International, Italy: Exploited Labour – Migrant Workers in Italy’s Agricultural Sector, AI Index: EUR 30/020/2012.

[22] In accordance with international human rights and labour law incluidng: International Covenant on Economic, Social and Cultural Rights Articles 6 to 8; Committee on Economic, Social and Cultural Rights, General Comments 18 and 23; ILO Declaration on Fundamental Principles and Rights at Work (1998) and ILO Decent Work Agenda and relevant standards.

[23] This is SDG target 8.8

[24] Declaration concerning the aims and purposes of the International Labour Organisation (Declaration of Philadelphia), 1944, Article 1(a)

[25] B. Pattanaik, Global Alliance Against Traffic in Women (GAATW), Presentation for Panel 3: Appropriate Identification, protection, and assistance to migrants and trafficking victims, at the Global Compact for Safe, Orderly and Regular Migration thematic consultation on smuggling of migrants, trafficking in persons and contemporary forms of slavery, including appropriate identification, protection and assistance to migrants and trafficking victims, 5 September 2017, available at https://refugeesmigrants.un.org/sites/default/files/ts5_bandana_pattanaik.pdf.

[26] On labour policies putting migrants’ rights at risk see, Committee on Economic, Social and Cultural Rights, General comment No. 23, para.78; Focus on Labour Exploitation, Statement on the impact of immigration control measures on vulnerability to exploitation to the fifth thematic consultation on the global compact for safe, orderly and regular migration on smuggling of migrants, trafficking in persons and contemporary forms of slavery, including appropriate identification, protection and assistance to migrants and trafficking victims, FLEX 2017, available at https://refugeesmigrants.un.org/sites/default/files/ts5_flex.pdf; Mantouvalou, ‘Am I Free Now?’; V. Mantouvalou, The right to work: Whose work, what work?, in K. Murray (ed), Fair and Free: Labour, liberty and human rights, The Fabian Society 2017, pp.62-67.

[27] International Covenant on Economic, Social and Cultural Rights, Articles 6, 7 and 8 set out the interdependent elements of the right to work. See also the ILO Decent Work Agenda, in Declaration on Social Justice for a Fair Globalization, adopted by the International Labour Conference at its 99th Session, Geneva, 10 June 2008; Committee on Economic, Social and Cultural Rights, General Comment No. 18 (2005) on the right to work, E/C.12/GC/18, 6 February 2006; Committee on Economic, Social and Cultural Rights, General comment No. 23, on migrants specifically see paras.5, 11, 47(e),(f), 54, 56, 57, 73, 78; see also, General Assembly, Transforming our world: 2030 Agenda for Sustainable Development, A/RES/70/1, SDG Target 8.8

[28] 2030 Agenda for Sustainable Development, A/RES/70/1, paras.3, 9 and 27 and Goal 8.

[29] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Article 25; Committee on Economic, Social and Cultural Rights, General comment No. 23, para.11; ILO Convention No. 143, Migrant Workers (Supplementary Provisions) Convention, para.14(b).

[30] Committee on Economic, Social and Cultural Right, General Comment No. 23; APWLD, What is a Living Wage and why do need one?, Briefing, 13 March 2017, available at http://apwld.org/wp-content/uploads/2017/03/2017_Living_Wage_briefer.pdf

[31] International Covenant on Economic, Social and Cultural Rights, Article 8; Declaration of Philadelphia, Article 1(b); ILO Declaration on Fundamental Principles and Rights at Work (1998); ILO Forced Labour (Supplementary Measures) Recommendation, 2014 (No. 203), Article 3(b); General Assembly, Protection of migrants,  A/RES/68/179, 28 January 2014, para.4(i); Report of the Special Rapporteur on freedom of peaceful assembly and of association, A/71/385; Report of the Special Rapporteur on migrants, A/HRC/26/35, paras.19, 45; E. Marks and A. Olsen, The Role of Trade Unions in Reducing Migrant Workers’ Vulnerability to Forced Labour and Human Trafficking in the Greater Mekong Subregion, Anti-Trafficking Review, issue 5, 2015, pp. 111–128. In working to realise SDG target 8.8 (Protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment), states are asked to measure and report specifically on the level of compliance on freedom of association and collective bargaining (SDG indicator 8.8.2), disaggregated by sex and migrant status.

[32] International Labour Conference, Resolution concerning fair and effective labour migration governance, 106th Session, ILO Geneva, 2017, para.3; Mantouvalou, The right to work: Whose work, what work?

[33] All-Party Parliamentary Group on Migration, Brexit: beyond the highly skilled – the needs of other economic stakeholders, APPG (UK) September 2017

[34] International Labour Conference, Resolution concerning fair and effective labour migration governance, 106th Session, para.8

[35] Report of the Special Rapporteur on migrants, A/68/283, para.91; Report of the Special Rapporteur on  migrants, A/HRC/26/35, paras.16, 67, 70; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants on a 2035 agenda for facilitating human mobility, A/HRC/35/25, 28 April 2017, paras.21, 27, 44; GAATW, Beyond Borders.

[36] See for example, Tavoyan Women’s Union, Our lives are not for sale: Tavoyan women speak out against the Dawei Special Economic Zone project, December 2014, available at http://womenofburma.org/wp-content/uploads/2015/02/Our-Lives-Not-for-Sale_English.pdf; H. Crawley, Why Jobs in Special Economic Zones Won’t Solve the Problems Facing the World’s Refugees, The Conversation, 6 April 2017, available at https://theconversation.com/why-jobs-in-special-economic-zones-wont-solve-the-problems-facing-the-worlds-refugees-75249; International Commission of Jurists, Special Economic Zones in Myanmar and the State Duty to Protect Human Rights, February 2017; C. Thame, SEZs and Value Extraction from the Mekong: A Case Study on the Control and Exploitation of Land and Labour in Cambodia and Myanmar’s Special Economic Zones, Focus on the Global South, July 2017.

[37] Secretary-General's Address to the General Assembly, 19 September 2017, available at https://www.un.org/sg/en/content/sg/statement/2017-09-19/secretary-generals-address-general-assembly

[38] GAATW, Beyond Borders.

[39] A. Szörényi, Expelling Slavery from the Nation: Representations of labour exploitation in Australia’s supply chain, Anti-Trafficking Review, 7: 79-96, 2016.

[40] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.13.

[41] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.15.

[42] Committee on Economic, Social and Cultural Right, General Comment No. 23, paras.4, 5, 26, 47(d), 54, 56, 59, 62, 64; Beijing Platform for Action, adopted at the Fourth World Conference on Women, 4-15 September 1995, A/CONF.177/20 and A/CONF.177/20/Add.1 (1995), paras.153, 158, 160, 164, 250; Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.14; Commission on the Status of Women, Women’s economic empowerment in the changing world of work: Report of the Secretary-General, E/CN.6/2017/3, 30 December 2016, generally and at para.29 on informal work numbers.

[43] The Women’s Major Group describe how the unpaid domestic and care work performed by women equals 60 per cent of the value produced in the world, commenting that “there is not enough money in the world to pay for the value generated by the work of women.” Women’s Major Group, Women’s “8 Red Flags” following the conclusion of the Open Working Group on Sustainable Development Goals (SDGs), Women’s Major Group Final Statement - 21 July 2014 (red flag 4). Unpaid care and domestic work has been valued at between 10 to 39 per cent of GDP globally: Report of the Secretary-General, E/CN.6/2017/3, paras.25, 26.

[44] Commission on the Status of Women, 58th Session (2014), Agreed Conclusions: Challenges and achievements in the implementation of the millennium development goals for women and girls, para.42(gg)

[45] Global Alliance Against Traffic in Women, Female Temporary Circular Migration and Rights’ Protection in the Strawberry Sector in Huelva, Spain, GAATW 2009.

[46] GAATW, Female Temporary Circular Migration and Rights’ Protection in the Strawberry Sector in Huelva, Spain; Napier-Moore and Sheill, High rise, low pay; K. Wee, Recruitment Costs Brief: Indonesia, Transient Workers Count Too (TWC2), June 2016. This discrimination can lead to further human rights abuses, see for example: UN-ACT, Human Trafficking Vulnerabilities in Asia: A Study on Forced Marriage between Cambodia and China. Bangkok: UNDP 2016.

[47] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.18; Human Rights Watch, A Job or Your Rights: Continued Sex Discrimination in Mexico’s Maquiladora Sector, HRW 1998; Napier-Moore and Sheill, High rise, low pay; Report of the Special Rapporteur on the human rights of migrants, A/HRC/26/35, paras.54, 94.

[48] Global Alliance Against Traffic in Women, Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World, GAATW 2007, in particular the chapters on Nepal and Nigeria; ILO and GAATW, No easy exit: Migration bans affecting women from Nepal, ILO, Geneva, 2015; Napier-Moore and Sheill, High rise, low pay, p.20; R. Napier-Moore, Protected or put in harm’s way? Bans and restrictions on women’s labour migration in ASEAN countries, International Labour Organization and UN Women, Bangkok, 2017.

[49] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.19

[50] GAATW, Beyond Borders

[51] ILO Private Employment Agencies Convention, 1997 (No. 181), Article 7; Protocol to the Forced Labour Convention, Article 8(a).

[52] GAATW research in the ILO’s Work in Freedom Programme project in South Asia and the Middle East (unpublished).

[53] Maria Asis, Scalabrini Migration Center, Philippines: Pre-Departure Protection Policies in the Philippines, presentation at Safe from the Start: Panel Discussion on Migrants’ Protection in Countries of Origin, 23 September 2017, SEA Junction, Bangkok.

[54] GAATW, Female Temporary Circular Migration and Rights’ Protection in the Strawberry Sector in Huelva, Spain, p.30

[55] See discussion in section 2 of this paper

[56] The migrants who can be found in such precarious labour may be in an irregular situation, but they may also be in a regular situation on a range of different visa options and temporary labour programmes, not all of which are defined as work visas. In some contexts, the migrants are international students working casually and part- time in low-paid service jobs alongside their studies on student visas, or working holiday makers on tourist visas – see, A. Szörényi, Expelling Slavery from the Nation.

[57] Protocol to the Forced Labour Convention, Article 2(d).

[58] Based on lessons learned from GAATW’s research in the ILO’s Work in Freedom Programme project in South Asia and the Middle East (unpublished). See ILO, Policy Brief on Practices and Regulations of Recruitment to Domestic Work, 2017; ILO, Policy Brief on Practices and Regulations of Recruitment to Garment Work, 2017.

[59] International Labour Conference, Resolution concerning fair and effective labour migration governance, 106th Session, para.9; ILO, General principles and operational guidelines for fair recruitment, Geneva: ILO, 2016; Verité, Fair Hiring Toolkit, 2011.

[60] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.19; Report of the Special Rapporteur on migrants, A/HRC/26/35, paras.38-39; Mantouvalou, ‘Am I Free Now?’. It is worth noting that restrictions on the movement of migrant workers which can be detrimental to the work and employers as well as to the migrants, see Napier-Moore and Sheill, High rise, low pay, p.21

[61] Committee on Economic, Social and Cultural Rights, General Comment No. 23, para.54; Committee on Migrant Workers, General Comment No. 2, para.63; CMW, Concluding observations: Turkey, CMW/C/TUR/CO/1, paras.58(c),(d); OHCHR, Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations within large and/or mixed movements, on the basis of existing legal norms, A/HRC/34/CRP.1, 23 February 2017, para.95; ILO Labour Inspection Convention (No. 81), Article 3(2); ILO Labour Inspection (Agriculture) Convention (No. 129), Article 6(3); ILO Committee of Experts, 2006 General Survey on the labour inspection instruments, paras.78, 161; ILO Committee of Experts, Promoting fair migration, ILC.105/III(1B), 2016, paras.480-482; European Commission against Racism and Intolerance (ECRI), General Policy Recommendation No. 16 on Safeguarding Irregularly Present Migrants from Discrimination, adopted on 16 March 2016, Council of Europe, Strasbourg, CRI(2016)16, Recommendations 2, 3, 11, 15, 29, 30

[62] GAATW, Collateral Damage; GAATW, Beyond Borders

[63] International Labour Conference, Resolution concerning fair and effective labour migration governance, 106th Session, para.10; 2030 Agenda for Sustainable Development, A/RES/70/1, SDG targets 1.3 and 10.4; Committee on Economic, Social and Cultural Rights, Concluding Observations: Russian Federation, E/C.12/RUS/CO/6, 16 October 2017, para.37.

[64] K. Long and R. Sabates-Wheeler, Migration, Forced Displacement and Social Protection. GSDRC Rapid Literature Review, Birmingham, UK: University of Birmingham, 2017; J. Hagen-Zanker, E. Mosler Vidal and G. Sturge, Social protection, migration and the 2030 Agenda for Sustainable Development, ODI Briefing.

[65] ILO, Bilateral Agreements and Memoranda of Understanding on Migration of Low Skilled Workers: A Review, 2015; Mekong Migration Network, Safe from the Start.

[66] OHCHR, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UN 2011, HR/PUB/11/04, specifically Principle 15.

[67] General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/70/310, 11 August 2015, para.42.

[68] R. Napier-Moore, Protected or put in harm’s way?

[69] GAATW, Beyond Borders

[70] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, on identification see Guideline 2; GAATW, Beyond Borders

[71] Protocol to the Forced Labour Convention, Article 4; Forced Labour Recommendation (No. 203), Articles 5(2) and 12; International Covenant on Civil and Political Rights, Article 2(3); International Convention on the Elimination of All Forms of Racial Discrimination, Article 6; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 14; Declaration on the Elimination of Violence against Women, Article 4(d); Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, Article 6(6); Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, Principle 17, Guideline 9; General Assembly, Report of the Special Rapporteur on trafficking in persons, especially women and children, A/69/269, 6 August 2014, Annex: Basic principles on the right to an effective remedy for victims of trafficking in persons; Report of the Special Rapporteur on migrants, A/HRC/26/35, para.59.

[72] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.24(j); Committee on Migrant Workers, General comment No. 1, paras.62-64; Report of the Special Rapporteur on migrants: A/71/40767, para.98.

Recommendations for Alliance 8.7 and the Achievement of SDG 8

IV Global Conference on the Sustained Eradiation of Child Labour

14-16 November 2017, Buenos Aires

Position paper by the Global Alliance Against Traffic in Women (GAATW)

versión en español

In 2015, world leaders adopted the 2030 Sustainable Development Goals. In target 8.7, they pledged totake immediate and effective measures to eradicate forced labor, end contemporary forms of slavery and trafficking in human beings, and ensure prohibition and elimination of the worst forms of child labor, including the recruitment and use of child soldiers, and, by 2025, ending child labor in all its forms.”


Alliance 8.7 was created a year later to help states achieve this goal. While we appreciate the importance of the present effort to eradicate child labour, we are concerned that in seeking to address target 8.7, the other aspects of this target will be overlooked.


This document seeks to outline issues that must be addressed without delay if we are thinking seriously about eradicating forced labour. What we present here is the result of the work of many people and entities involved with GAATW and the knowledge and experience of migrants and trafficked persons.

States should implement the protections of labour rights for all workers[1] without any distinctions

The trend in global labour markets is toward precarious, informal and risky work. ‘Acceptable’ poor working conditions are being normalised because they do not meet the criteria for extreme exploitation, and therefore, do not merit the government to intervene and demand from employers and companies the labour rights of their employees. The trend towards precarious work is even more obvious in sectors with low status, little protection, considerable control, and low wages in which women and migrants predominate.

States should implement a framework for action that addresses the economic and labour dimensions of forced labour and human trafficking, including those which place a disproportionate burden on women

The eradication of forced labour and fulfilment of rights at work are intrinsically linked to States’ broader development commitments and rights obligations, including the right to adequate housing and the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.[2] It is important to address the lack of investment in social protection, poverty wages and forced overtime. A lack of social protection supports the dependence of the development model on the unpaid social reproductive work of women. States must put in place policies and provide adequate public services that promote a more equitable exchange of unpaid care responsibilities.

 

The tightening of migration restrictions creates opportunities and incentives to abuse the rights of migrants and workers, and states should address migration policies accordingly

Migrants are human beings and entitled to all human rights, regardless of status.[3] A lack of access to regular migration channels and legislation and policies that do not respect, protect and fulfil the rights of migrants means that migrants must depend on alternative routes through which they can run the risk of human rights abuses, including trafficking. The incidence of abuses arising from inadequate access to migration channels need to be reduced. States, and other actors, also need to recognise the agency of migrants, promote their autonomy and leadership, and stop treating them as victims or criminals.


The prevention of trafficking cannot be a justification for limiting the human rights of migrants

The need to prevent trafficking in persons is often cited by states as ideological cover to justify increased border restrictions and other anti-migration initiatives, including gendered restrictions on women’s migrations.[4]
The implementation of the UNTOC Protocols against human trafficking and the smuggling of migrants have focused disproportionately on prosecutions and criminalisation – a ‘Crime Control Approach’ - while inadequate resources and energy have been allocated to the restitution of the rights of trafficked persons and abused migrants. Success in anti-trafficking is measured not by the numbers of prosecutions or by border restrictions, but by the experience of trafficked persons in the restitution of their human rights.

Freedom of association and collective bargaining are essential to reduce vulnerability to forced labour

It is necessary to strengthen the knowledge of workers, migrants and nationals alike, of their rights and defend them, ensuring administrative measures that allow them to seek justice in cases of exploitation.

We urge Alliance 8.7 to:

  1. Incorporate civil society organisations, especially those of migrants or working children and adolescents, in forums and conferences such as this one to ensure that these people participate actively and are recognised in the political spaces that affect their lives.
  2. Focus efforts to ensure that the labour rights of migrants are upheld throughout the UN architecture, seeking complementarity with and including in the negotiation of the Global Compact for Migration.

We further urge States to:

  1. Reaffirm, in policy and practice, the protection of the human rights of all migrants, regardless of their immigration status
  2. Remove barriers to access to justice that exist for migrants who have been exploited or trafficked
  3. Eliminate all forms of detention of irregular migrants whose only fault is having entered or remained in a country without official authorisation.
  4. Implement firewalls by keeping public services and the criminal justice system separate from the application of migratory laws, allowing migrants who are in an irregular situation to report situations of exploitation and access the necessary social services.

 

[1] Objective 8.8 of the Sustainable Development Goals

[2] Article 25, Universal Declaration of Human Rights and Article 12, International Covenant on Economic, Social and Cultural Rights.

[3] The Charter of International Rights - Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights - includes nationals and non-nationals. There are only exceptions with respect to two rights, and only in limited circumstances: The ICCPR, in Article 25, reserves to the citizens the right to vote and participate in public affairs, and in Article 12 reserves the right to freedom of circulation within a country to foreigners who are legally present in the country. However, in its General Comment No. 15, the Human Rights Committee has indicated that a foreign person can enjoy the protection of Article 12, including in relation to entry or residence, for example, when considerations of non-discrimination arise, prohibition of inhumane treatment and respect for family life.

[4] GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011; ILO, No easy exit: Migration bans affecting women from Nepal, ILO, Geneva, 2015; R. Napier-Moore, Protected or put in harm’s way? Bans and restrictions on women’s labour migration in ASEAN countries, International Labour Organization and UN Women, Bangkok, 2017; Khoo Choon Yen and Kellynn Wee, Do Indonesian women want to be ‘rescued’ from ‘trafficking’? Migrating Out of Poverty, 12 July 2017.

Facilitating migration and fulfilling rights

Logo

FACILITATING MIGRATION AND FULFILLING RIGHTS – TO REDUCE SMUGGLING OF MIGRANTS AND PREVENT TRAFFICKING IN PERSONS

Global Compact for safe, orderly and regular migration: Thematic consultation on smuggling of migrants, trafficking in persons and contemporary forms of slavery, including appropriate identification, protection and assistance to migrants and trafficking victims

4 and 5 September 2017, Vienna

Position paper by the Global Alliance Against Traffic in Women (GAATW)


The global compact for migration seeks to realise safe migration. Too often, anti-trafficking legislation, policy and practice are used more to justify and rationalise deterrence policies and strengthen border policing than for addressing human trafficking and providing assistance to trafficked persons. Ensuring that migrants’ rights are respected, protected and fulfilled is the basis of preventing such crimes and human rights violations against migrants as trafficking in persons. An approach that respects, protects, and fulfils the human rights of migrants is also the basis of ensuring the identification of individuals who have been trafficked, the provision of assistance and protection, and access to justice including the right to remedy.

Trafficking and smuggling are legally distinct, however the reality is they may overlap in some instances, where persons trafficked may also have been smuggled. It is critical to distinguish the two issues that are too often used interchangeably. One result of this is that authorities do not always screen migrants to assess whether they have been trafficked, but detain them as criminals, as having been smuggled, or as irregular migrants, deporting them before they have a chance to realise their rights and the assistance to which they are entitled.

Conflating smuggling and human trafficking leads to criminalisation or stigmatisation of migrants and all people who assist with the migration process, and the denial of migrants’ human rights. The conflation makes plain the anti-migration agenda that underlies such efforts, making it is increasingly difficult to enter states through regular channels, it is also next to impossible to enter without someone’s help. It undermines efforts to prevent trafficking in persons and assist those who have been trafficked if the emphasis on stopping irregular migration or smuggling results in processes that do not provide for the identification of people who have been trafficked. States and non-state actors should provide rights-based responses and protection which apply under the specific protocols as well as under human rights law.

The global compact offers an excellent opportunity to de-link smuggling and trafficking and GAATW urges states to ensure this clarity in the compact and its implementation. In particular, the global compact is an opportunity to strengthen the understanding of and rights-based responses to smuggling of migrants and thus reduce the need for migrants to rely on smugglers, whereas trafficking in persons is not wholly tied to migration and the work is better established, with practical guidance on a rights-based approach to anti-trafficking.[1]

  1. SMUGGLING OF MIGRANTS

In the Global Compact, states should:

  • Distinguish and delink smuggling of migrants from trafficking in persons.
  • Develop a rights-based approach to the smuggling of migrants.
  • Commit to opening more regular migration channels that are accessible to all migrants and do not perpetuate underlying gender and other discriminations, to reduce migrants’ need to rely on the services of smugglers.
  • Commit not to criminalise migration or migrants, including where migrants have used the services of smugglers.
  • Ensure that laws and policies on smuggling of migrants do not criminalise or target those who are providing assistance to migrants or supporting migrants for humanitarian or familial reasons, in line with the Smuggling of Migrants Protocol.
  • Prioritise rights-based responses to aggravated smuggling.
  • Ensure that measures aimed at addressing smuggling of migrants shall not adversely affect the enjoyment of the human rights of migrants and facilitate and cooperate with independent human rights monitoring.[2]

The global compact on migration needs to work in the real world, where for migrants to find safety there might still be need for some to seek recourse to smuggling.[3] The involvement of third party facilitators arises from state policies, which have seen insufficient safe and accessible regular pathways for migration and admission across different types of migration and the increased border securitisation including the externalisation of borders.[4] Limiting the number of regular migration channels has gendered effect given the systemic discrimination against women. This includes women migrants often having limited access to finances and resources compared to men in their country of origin to pay for the documentation required or because the main labour sectors to which women migrate, such as the care economy, are not adequately valued to be covered by regular migration options. In harmful situations, such as armed conflicts, at home or that emerge during the migration, smuggling may be an essential route to safety – thus efforts focused on preventing or combatting the smuggling of migrants can deny individuals their human rights, including the right of all persons to leave any country including their own and the right to seek asylum.[5] As such this is one point of intersection of the global compact on migration with that for refugees.

Although the UN Smuggling of Migrants Protocol makes clear that smuggling in the context of organised crime should be criminalised, not all smuggling is organised by criminal networks.[6] Smuggling is often organised via kinship or social and community networks making use of family or wider diaspora connections.[7] Moreover, counter-smuggling operations often focus on easier targets such as women, migrants, and the elderly, rather than organised crime – which is unjust and counterproductive to the goal of prohibiting smuggling, and a waste of the state’s resources.[8] Attempting to address smuggling only through a criminal justice lens cannot work: the Smuggling of Migrants Protocol identifies the need to address “socio-economic measures, at the national, regional and international levels” in its first paragraph.[9] The global compact offers an opportunity to build a consensus towards a rights-based approach to the smuggling of migrants.[10]

In large movements of migrants, research shows that migrants’ plans frequently evolve during the migration in response to new information and changing circumstances.[11] In such situations, migrants may have to rely on local actors rather than their own contacts. By emphasising the connection with transnational organized crime, states are able to represent the smuggling of migrants as a threat to their sovereignty and national security.[12] This drives a circular pattern of responses: limited regular channels for migration and increased securitisation of borders provides a role for smugglers; in response, states increase border controls, including through militarisation and the externalisation of borders, increasing migrants’ reliance on smugglers – at the same time failing to address the underlying structural forces driving these migrations. Moreover, this framing of smuggling of migrants as a threat feeds into wider anti-migrant sentiment currently fuelled by populist politics, driving discrimination and undermining efforts to ensure social inclusion and cohesion.[13] This focus on stopping the smuggling of migrants also encourages an expansion of the understanding of who is a smuggler beyond the intent of the international law on the issue to family members, or individuals and organisations who work to assist migrants, including those in large movements, with the result that they are erroneously criminalised as smugglers.[14]

Although irregular entry constitutes a violation of a country’s border and immigration laws, it is an administrative offence and people should not be criminalised for irregular entry, stay, or work;[15] further, international criminal law calls on states not to criminalise migrants for using the services of a smuggler.[16] The relevant international legal framework around the smuggling of migrants also encompasses the separate legal obligations under the law of the sea, human rights law, and refugee law, meaning that counter-smuggling initiatives must not adversely affect migrants’ enjoyment of their human rights.[17] Customary international law including the prohibition on racial discrimination, the prohibition on torture, and the right to a remedy, is binding on all states including in the context of the smuggling of migrants. Smuggling is not necessarily a violation of a migrant’s human rights and many migrants experience no difficulties and express gratitude to the facilitators.[18] A human rights-based response would be to realise states’ commitment to facilitate migration by opening more accessible regular migration channels, address the corruption that facilitates smuggling and worsens conditions for migrants, and focus the response on cases of aggravated smuggling where the smuggler abuses the rights of migrants or endangers their lives or safety.[19] This is also in line with the international law on the smuggling of migrants where states are “convinced of the need to provide migrants with humane treatment and full protection of their rights”.[20]

a. APPROPRIATE IDENTIFICATION, PROTECTION, AND ASSISTANCE TO MIGRANTS, INCLUDING IN THE CONTEXT OF SMUGGLING

In the Global Compact, states should:

  • Promote and protect the rights of migrants under international law, including for migrants who have been smuggled.[21]
  • Ensure anti-smuggling measures, including interdiction at sea, do not breach human rights obligations including the principle of non-refoulement.
  • Commit to providing gender-responsive protection and assistance, in line with women migrants’ self-defined best interests.
  • Establish, publicise, and monitor the implementation of binding firewalls in order to facilitate migrants’ access to justice, complaints mechanisms including labour inspection services, and social services.

As smuggling is taken to involve some level of consent by the migrant – although the agreed definition does not mention consent – migrants in situations of smuggling are not viewed as victims of crime or human rights abuses in the way that trafficked persons are and consequently there has been less attention to their assistance and protection needs.[22] Moreover, states’ focus on criminalisation of smuggling and of irregular migration can supersede implementation of their existing commitments including to ensure an individualised assessment of protection needs and identification process to identify migrants who have been subjected to human rights abuses, including trafficking, or have an asylum claim which may be missed in mixed migration flows. The anti-migrant rhetoric often labels migrants as criminals feeding a view that they do not have or deserve rights.[23]

A result of this focus on the means of migration rather than the individual who is migrating is that there are serious protection gaps for migrants who experience abuses within the smuggling paradigm and who do not fit existing state protection criteria.[24]

In addition to the protection of ensuring that migrants are not liable to criminal prosecution for having being smuggled,[25] states have agreed to the protection of the rights of persons who have been the object of smuggling,[26] and to implement their existing obligations and responsibilities of under international law, including international humanitarian law, refugee law, international human rights law.[27] These provide substantive sources of legal obligation with respect to protection and assistance owed to and guidance for the treatment of all migrants in situations of smuggling, including essential human rights principles of non-discrimination and non-refoulement.[28] All migrants, regardless of status or whether they used the services of a third party, have the right not to be returned or extradited to their country of origin or to another state where there are substantial grounds for believing that the individual would risk being subject to serious violations of their human rights.[29] This is also relevant to anti-smuggling operations such as interdictions at sea.[30] In operations at sea, states are required to ensure the safety and humane treatment of all persons on board.[31]

Though many migrants  who use the services of smugglers are able to complete their journeys without harm[32], the clandestine nature and power imbalance inherent to smuggling creates opportunities for unscrupulous and corrupt state and non-state actors to resort to ill-treatment, violence, and other human rights abuses against migrants, and states have obligations to protect and assist migrants in these situations.[33] The criminalisation of migration and of migrants in irregular status creates a barrier to individuals who have been smuggled reporting and seeking assistance for human rights abuses. States need to implement binding firewalls to eliminate migrants’ fear that their personal data will be shared with immigration enforcement authorities leading to arrest, detention and deportation denies migrants access to justice, complaint procedures, and social services.[34] For child migrants in situations of smuggling, states are obligated to take into account their special needs, in line with the wider international legal framework around the rights of the child.[35] In addition, the Smuggling of Migrants Protocol requires states to provide gender-responsive protection and assistance, however there is little guidance available on how best to achieve this and the global compact could provide an opportunity to develop this, in line with women migrants’ self-defined best interests.[36]

  1. TRAFFICKING IN PERSONS

In the Global Compact, states should:

  • Ensure the human rights of trafficked persons are at the centre of all efforts to prevent and end trafficking and that programmes to protect, assist and provide redress to them are adequately resourced.[37]
  • Facilitate and cooperate with independent human rights monitoring to ensure that anti-trafficking measures do not adversely affect the human rights and dignity of persons, in particular the rights of those who have been trafficked, and of migrants, internally displaced persons, refugees and asylum-seekers, and others.[38]
  • Review national and regional legal and policy frameworks to ensure that anti-trafficking frameworks are responsive to all genders and types of trafficking and do not rely on profiling or reinforce stereotypes based on gender, nationality, age, or other factors.
  • Recognise that regular channels of migration may create conditions for trafficking of migrant workers, especially women migrant workers in sectors that are not covered by labour laws, and reform programmes such as temporary, guest-worker, or circular migration programmes to eliminate institutionalised risks such as worker-paid recruitment fees, substandard working conditions allowed under such schemes, and sponsorship schemes tying visas to a specific employer.
  • Keep the collection and storage of trafficked persons’ personal data to the absolute minimum, ensuring the right to privacy and data protection standards to protect the personal data of trafficked persons, including by not transferring trafficked persons’ personal data across national borders.
  • Ensure the development and implementation of a credible and rights-based oversight mechanism for the Trafficking in Persons Protocol.

States’ agreement in 2000 of the international definition of trafficking in persons was a significant development in addressing this crime and human rights abuse. However, in the years since the adoption of the Trafficking in Persons Protocol, many states still vary in their approach – with some taking a narrow or increasingly broad interpretation of that definition and a move to using made-up concepts that lack the rigour of the legal definition.[39] Particularly for work on international cases, the use of a common agreed definition is central to collecting and sharing data and coordinating policy and assistance, as well as to criminal justice measures such as extraditing criminal suspects. The move to vague framings risks undermining the work to identify trafficked persons, provide them protection and assistance including redress, and prosecute perpetrators.[40]

The need to prevent trafficking in persons is often cited by states as ideological cover to justify increased border restrictions and other anti-migration initiatives, including gendered restrictions on women’s migrations.[41] However, trafficking is not simply a function of irregular migration: many regular migration schemes that would not be affected by border controls, including those for temporary seasonal work or tied visa schemes including the kafala system, lead to the migrant being in a situation of trafficking.[42] Bilateral agreements, pre-departure trainings, and other information provided to migrants and workers about their working conditions should promote the human rights of migrants and states’ obligations to migrants, workers, or trafficked persons.[43]

Moreover, evidence shows that restrictive immigration policies push migrants to use more dangerous routes, necessitating them to pay higher fees to facilitators or as bribes to state actors for documentation or passage, and reducing their time and opportunities to find decent work to pay the exploitative debt they have incurred, all of which can increase the risk of being trafficked.[44] Together with empowering immigration enforcement officials to raid work establishments in the name of finding trafficked persons, such measures serve to expand criminalisation and detention, often for profit,[45] and make it more difficult for individuals who experience human rights abuses, including trafficking, to seek assistance and access justice. Research by GAATW and others have repeatedly demonstrated that anti-trafficking initiatives have resulted in human rights abuses against trafficked persons, migrants, and other workers.[46]

Implementing a rights-based approach that facilitates, and does not criminalise, migrations and decent work is the most constructive approach to preventing trafficking in persons, as it reduces opportunities for exploitation and enables individuals to report crimes and seek assistance without fear of detention and deportation. Trafficking and indeed migration cannot be looked at in isolation from development and economic policies that are creating an increasingly unequal world. Without addressing the structural drivers in the global economy that fuel the demand for the cheap goods and services made possible by poor pay and working conditions with little or no labour regulation, the conditions for labour exploitation, including of migrant workers and that may constitute trafficking in persons, will continue.

Although there is increasing focus on data and indicators, including an indicator under the 2030 Agenda for Sustainable Development, and a multiplicity of estimates, indices and rankings, there is currently no sound methodological basis for constructing a global estimate of trafficking.[47] While several of these studies describe the context within which the data should be understood or the limitations of the data, these are not as widely publicised as the headline numbers. This is one area where the diversity of definitions of trafficking, in law or in practice, creates problems. The data can only account for what is counted, therefore if the legislation or policy is limited or biased towards certain forms of trafficking over others the data will mirror those differences, giving a misleading impression of the level or types of trafficking in persons and making comparison impossible.[48] Given the sensitive nature of trafficking as a human rights abuse, it is particularly important that data gathering and storage is undertaken in line with confidentiality obligations to trafficked persons and their right to privacy and the highest standards of data protection. This means that collection and storage of trafficked persons’ personal data should be reduced to the absolute minimum and only for a clearly defined purpose and with the informed consent of the trafficked person. To protect the trafficked person and their family, any transfer of trafficked persons’ personal data across national borders should be avoided and their data should always be anonymised, secured such that their identities cannot be traced during and after return and reintegration procedures.[49]

The international law on trafficking in persons, along with several regional laws as well as at the national level, draws particular attention to women and children who are trafficked.[50] This gendered focus can have the effect of positioning women’s migrations as well as women themselves as inherently vulnerable, infantilising them through the connection with children, positioning them overwhelmingly as actual or potential victims of a crime and human rights abuses and questioning the appropriateness of women working outside the home. These normative perceptions have resulted in bans on women’s migration or in profiling women travellers or migrant workers as trafficked persons. Measures taken to address irregular migration, or to counter human trafficking (or smuggling of migrants), should not be discriminatory in purpose or effect, including by subjecting migrants to profiling on the basis of prohibited grounds of discrimination, and regardless of whether or not they have been smuggled or trafficked.[51] Instead we need a fully gendered response: the focus on women has led to services for and the identification of men who have been trafficked being neglected or underdeveloped.

The international human rights treaties and the anti-trafficking convention of the Council of Europe have credible monitoring mechanisms to support states’ implementation and offer authoritative guidance, offering a model of participation, transparency and accountability that the global compact should follow.[52] However, the international law on trafficking in persons has no credible accountability mechanism, nearly two decades after its adoption. Given the complexity of human trafficking, its interrelations with a range of other crimes and human rights abuses, the wide latitude given to states in interpreting and applying their obligations, and the documented abuses arising from some actions undertaken in the name of anti-trafficking, there is urgent need for a credible, independent, transparent and rights-based oversight mechanism, open to all actors engaged in anti-trafficking efforts including NGOs, and inclusive of the experiences and analyses of survivors of trafficking.[53]

a. APPROPRIATE IDENTIFICATION, PROTECTION, AND ASSISTANCE TO TRAFFICKED PERSONS

In the Global Compact, states should:

  • Improve processes to ensure the rapid and accurate identification of trafficked persons by actors with appropriate training involved in the reception, processing and detention of migrants.[54]
  • Commit to providing individualised support and assistance to trafficked persons, that is not contingent on their cooperation with the criminal justice system, in the country in which they are identified and if they return to their country of origin or to a third country, for as long as they need it, and ensure that trafficked persons have an enforceable right to fair and adequate remedies, including the means for as full a recovery as possible.[55]
  • Commit to adopting legislative or other appropriate measures that permit trafficked persons to remain in the territory, temporarily or permanently, considering humanitarian and compassionate factors.[56]
  • Ensure that trafficked persons are not, in any circumstances, held in immigration detention or other forms of custody and will not be detained, charged or prosecuted for irregular entry or stay in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.[57]
  • Provide adequate, prompt and effective remedies, including reparations, to for trafficked persons for the harm they have suffered.

States should accord trafficked persons all human rights, including those to which they are entitled as victims of crime and victims of human rights violations. These include the rights to receive protection from further harm including special consideration and care to avoid his or her re-traumatisation in the course of any legal and administrative procedures, be treated with compassion and respect for their dignity and human rights, be provided with access to justice and prompt and effective remedies including reparation, regardless of the individual’s immigration status, presence in the country of jurisdiction, criminal case against or identification of the trafficker.[58] To realise this, states need to ensure they develop a proactive and systematic approach to the identification of victims of trafficking in persons and the provision of assistance.[59] The frequent conflation of trafficking with smuggling and the reality of mixed migrationsecessitates an individualised identification process.

Trafficking in persons is distinguished from smuggling of migrants by the use of force, coercion and/or deception throughout or at some stage of the process, for the purpose of exploitation. That final element of the definition makes it is difficult to identify or prove trafficking during the movement phase of migrations and it is important not to rely on profiling which can be discriminatory (see above). Relevant state actors need clear guidelines, procedures and training in the identification of trafficked persons.[60] This includes border guards, immigration officials and others dealing with the reception and processing of migrants, including in large movements, or who work in immigration detention, and actors such as police and labour inspectors who may encounter trafficking situations. Civil society organisations are critical partners in developing and implementing activities to prevent and end trafficking in persons and, in particular, to protect and assist trafficked persons.[61]

Trafficking is not determined by an individual’s migratory or residency status but like any migrants, where trafficked persons are in irregular status they should not be prosecuted for violations of immigration laws.[62] Trafficked persons should not be prosecuted for the activities they are involved in as a direct consequence of their being in a situation of trafficking.[63]

Responses to trafficking should be centred on the needs and human rights of trafficked persons.[64] State authorities should offer trafficked persons temporary residence permits at least for an adequate time to allow for the start of their recovery (reflection period) and during any legal proceedings.[65] Although states are obligated to facilitate safe returns to trafficked persons’ countries of origin or residency and not insist that they remain in the country in which the exploitation took place for example for what are often a lengthy criminal proceedings, this needs to be understood in the context of creating a safe environment for trafficking persons to support their recovery.[66] As such, this must not be a summary return and trafficked persons should be offered legal alternatives to repatriation, such as option of residency in the country of destination or third-country resettlement, where returns would pose a serious risk to their safety or that of their families.[67] However, given the principle of non-refoulement, and in the case of inability to guarantee a secure return, or where there is a risk of re-trafficking, states should provide permanent residency. The global compact should affirm that any returns of all migrants including trafficked persons should be voluntary, and carried out with due regard for the rights, safety and dignity of the individual, following an individualised pre-return risk assessment.[68]

 

[1]       The crossing of an international border is not an element of the definition of trafficking in persons (Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Trafficking in Persons Protocol). The UN Office of the High Commissioner for Human Rights has set out practical, rights-based policy guidance on addressing trafficking in persons: OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking: Commentary, 2010, HR/PUB/10/2

[2]       OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP.1, 23 July 2014, Principle 5

[3]        New York Declaration for Refugees and Migrants (A/RES/71/1), para. 9

[4]       F. Crépeau, UN Special Rapporteur on the Human Rights of Migrants, Fighting Violence against Migrants Through Protecting the Rights of Irregular Migrants: Presentation to the Commission on Crime Prevention and Criminal Justice, UNODC, Vienna, 24 April 2012; General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/71/40767, 20 July 2016, paras.14, 15, 21, 37; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants on a 2035 agenda for facilitating human mobility, A/HRC/35/25, 28 April 2017, paras.30, 31, 44, 45, 50; H. Crawley, F. Düvell, K. Jones, S. McMahon, N. Sigona, Destination Europe? Understanding the dynamics and drivers of Mediterranean migration in 2015, Unravelling the Mediterranean Migration Crisis (MEDMIG), Final Report November 2016

[5]       F. Crépeau, The fight against migrant smuggling: migrant containment over refugee protection, in J. Van Selm et al. (eds) The Convention at 50: A View from Forced Migration Studies, Lanham: Lexington Books, 2003; J.C. Hathaway, Why Human Smuggling is Vital, National Post (Canada), 13 September 2010; T. Reitano, L. Adal and M. Shaw, Smuggled Futures: The Dangerous Path of the Migrant from Africa to Europe, Geneva, Global Initiative against Transnational Organized Crime, 2014; Crawley et al., Destination Europe? The Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (Smuggling of Migrants Protocol) references in its saving clause (Article 19) the 1951 Refugee Convention and its 1967 Protocol, acknowledging that refugees and asylum seekers may be smuggled into a state in search of international protection.

[6]       Smuggling of Migrants Protocol, Article 6; on the delinking of smuggling of migrants with organised crime and other smuggling operations see, UNODC, Migrant Smuggling in Asia: Current Trends and Related Challenges, UNODC: Bangkok 2015, p.91; OHCHR, Situation of migrants in transit, A/HRC/31/35,2016, at note 66.

[7]       S.X. Zhang and K. Chin, The Social Organization of Chinese Human Smuggling-A Cross National Study. San Diego, CA: San Diego State University, 2002; Global Alliance Against Traffic In Women (GAATW) in collaboration with the UN Office of the High Commissioner for Human Rights (OHCHR), Smuggling Roundtable Meeting Report, 20-22 June 2011, Bangkok, Thailand; T. Reitano, L. Adal and M. Shaw, Smuggled Futures: The Dangerous Path of the Migrant from Africa to Europe, Geneva, Global Initiative against Transnational Organized Crime, 2014; Crawley et al., Destination Europe?.

[8]       D.M. Provine and G. Sanchez, Suspecting immigrants: exploring links between racialised anxieties and expanded police powers in Arizona, Policing and Society: An International Journal of Research and Policy, 21(4), 468-479.

[9]       Smuggling of Migrants Protocol, Preamble. The preamble continues, in its second paragraph, with states recalling their commitment “to strengthen international cooperation in the area of international migration and development in order to address the root causes of migration, especially those related to poverty, and to maximize the benefits of international migration to those concerned.”

[10]     In adopting the New York Declaration, states have agreed to consider reviewing their migration policies including policies that criminalise cross-border movements (para.33), with a view to examining their possible unintended negative consequences (para.45). Although they have also committed to review their laws and policy on smuggling of migrants, in line with the international criminal law in this area (para.36), the saving clauses of those laws taken with these other possible reviews offers an opportunity for a more rights-based approach to the smuggling of migrants.

[11]     Crawley et al., Destination Europe?

[12]     General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/68/283, 7 August 2013, para.91; General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/71/40767, 20 July 2016, paras.13, 111; A.T. Gallagher, Migrant Smuggling, in N. Boister and R.J. Currie (eds), Routledge Handbook on Transnational Criminal Law (2015), available at: http://works.bepress.com/anne_gallagher/32/

[13]     Member States have signalled the importance of addressing social inclusion and integration in the global compact process: see Global compact for safe, orderly and regular migration: First informal thematic session on “Human rights of all migrants, social inclusion, cohesion, and all forms of discrimination, including racism, xenophobia and intolerance” – Co-facilitators’ summary, 8-9 May 2017, United Nations Office at Geneva. See also, GAATW, Migrants’ rights are human rights: the basis of the Global Compact on migration, Paper for the Global Compact for safe, orderly and regular migration: Thematic consultation on the human rights of all migrants, social inclusion, cohesion, and all forms of discrimination, including racism, xenophobia and intolerance, 8 and 9 May 2017, Geneva

[14]     The definition of smuggling of migrants in Article 3(a) of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (Smuggling of Migrants Protocol) refers to the element of “financial or other benefit”. This was intended “to exclude the activities of those who provided support to migrants for humanitarian reasons or on the basis of close family ties. It was not the intention of the Protocol to criminalize the activities of family members or support groups such as religious or non-governmental organizations.” See, General Assembly, Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, A/55/383/Add.1, 3 November 2000, para. 88; UNODC, The Concept of “Financial or Other Material Benefit” in the Smuggling of Migrants Protocol: Issue Paper, 2017.

[15]     In the context of smuggling, the Smuggling of Migrants Protocol does not require the criminalisation of irregular entry or stay: the drafters’ intention was to apply the sanctions of the Protocol to “the smuggling of migrants by organised criminal groups and not to mere migration or migrants, even in cases where it involves entry or residence that is illegal under the laws of the State concerned”: UNODC, Legislative Guide for the Implementation of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the UN Convention Against Transnational Organized Crime, para.28

[16]     Smuggling of Migrants Protocol, Article 5

[17]     Smuggling of Migrants Protocol, Article 19 (Saving clause); OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP.1, 23 July 2014, Principle 5

[18]     OHCHR, Situation of migrants in transit, A/HRC/31/35,2016, para.56; migrants reported requiring the services of smugglers for their expertise and mostly regarded them as a necessity even if the experience was not a positive one, see Crawley et al., Destination Europe?, p.56

[19]     Smuggling of Migrants Protocol, Article 6(3); see also, General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/71/40767, 20 July 2016, para.15. Such abuses are well documented – see for example, in GAATW, Smuggling and Trafficking; Crawley et al., Destination Europe?; United Nations Support Mission in Libya and OHCHR, Detained and dehumanised: Report on human rights abuses against migrants in Libya, 13 December 2016

[20]     Smuggling of Migrants Protocol, preamble; see also, Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on the Smuggling of Migrants held in Vienna from 30 May to 1 June 2012, CTOC/COP/WG.7/2012/6, 27 June 2012, para.21

[21]     Smuggling of Migrants Protocol, Articles 4 and 16(1)

[22]     T. Obokata, Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and State Actors under International Human Rights Law, International Journal of Refugee Law (2005), 17(2), 394-415; GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011; A.T. Gallagher, Migrant Smuggling, in N. Boister and R.J. Currie (eds), Routledge Handbook on Transnational Criminal Law (2015), pp.197, 203; see Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna on 19 October 2010, CTOC/COP/WG.4/2010/7, Annex

[23]     GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011

[24]     Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, A/HRC/7/12, 25 February 2008, para.51; Global Alliance Against Traffic In Women (GAATW) in collaboration with the UN Office of the High Commissioner for Human Rights (OHCHR), Smuggling Roundtable Meeting Report, 20-22 June 2011, Bangkok, Thailand.

[25]     Smuggling of Migrants Protocol, Article 5

[26]     Smuggling of Migrants Protocol, Article 4; see discussion in GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011

[27]     In ratifying the Smuggling of Migrants Protocol, given Articles 16 and 19.

[28]     Smuggling of Migrants Protocol, Article 19(2) requires states to interpret and apply the Protocol in a way that is not discriminatory to migrants who have been smuggled and “application of those measures shall be consistent with internationally recognized principles of non-discrimination.” This would prohibit discrimination against a particular group of migrants who have used the services of smugglers, for example on the basis of their national origin. Anne Gallagher suggests it could also “extend to prohibit discriminatory treatment of different groups of smuggled migrants, reflecting their different modes of arrival.” (Gallagher, Migrant Smuggling, p.204) The international bill of rights makes only two exceptions between nationals and non-nationals, in relation to Articles 12 and 25 of the International Covenant on Civil and Political Rights, and only in limited circumstances (on Article 12, see Human Rights Committee, General Comment No. 15: The Position of Aliens Under the Covenant, 11 April 1986). The fundamental principle of non-discrimination that lies at the heart of the international human rights law is essential to the exercise and enjoyment of human rights for everyone, including migrants and across the migration experience.

[29]     Under international human rights law, see the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3, amongst others. In the context of smuggling: Smuggling of Migrants Protocol, Article 16.1.

[30]     Smuggling of Migrants Protocol, Article 16(1); Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on the Smuggling of Migrants held in Vienna from 18 to 20 November 2015, CTOC/COP/WG.7/2015/6, 4 December 2015, para.18.

[31]     Smuggling of Migrants Protocol, Article 9(1)(a)

[32]    GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011

[33]     As well as states’ existing obligations under international human rights treaties, the Smuggling of Migrants Protocol obligates states to protect the rights of individuals who have been smuggled (Article 4), and specifically to protect them from smuggling-related violence by individuals or groups (Article 16(2)) and to provide assistance to migrants whose lives or safety are endangered through smuggling (Article 16(3)). Where migrants who have been smuggled are detained they have the right to be informed of consular access (Article 16(5)). There are some further rights protections such as witness protection, compensation and restitution, in the UNTOC parent convention.

[34]     See for example, Committee on Economic, Social and Cultural Rights, General Comment No. 23 on the Right to just and favourable conditions of work (article 7 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/23, 8 March 2016, para.54; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General Comment No. 2 on the rights of migrant workers in an irregular situation and members of their families, CMW/C/GC/2, 28 August 2013, paras.63, 64, 74, 77; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants on a 2035 agenda for facilitating human mobility, A/HRC/35/25, 28 April 2017, para.68, Targets 6.1, 8.1 and indicator 6(a); General Assembly, Report of the Special Rapporteur on the human rights of migrants: Developing the Global Compact on Migration, A/71/40767, 20 July 2016, paras.36, 83, 123; ILO Committee of Experts, 2006 General Survey on the labour inspection instruments, paras.78 and 161; ILO Committee of Experts, Promoting fair migration: General Survey concerning the migrant workers instruments, ILC.105/III(1B), 2016, paras.480-482; OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP. 1, 23 July 2014, Guideline 10.11 specifically calls for firewalls and many others cannot be realised without them; OHCHR, Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations within large and/or mixed movements, on the basis of existing legal norms, A/HRC/34/CRP.1, 23 February 2017, paras.17, 50, 86, 91, 95, 99, 110; European Commission against Racism and Intolerance (ECRI), General Policy Recommendation No. 16 on Safeguarding Irregularly Present Migrants from Discrimination, adopted on 16 March 2016, Council of Europe, Strasbourg, CRI(2016)16, Recommendations 2, 3, 11, 15, 29, 30.

[35]     Smuggling of Migrants Protocol, Article 16(4).

[36]     Smuggling of Migrants Protocol, Article 16(4). On the lack of development of gender-responsive measures see T. Gallagher, Migrant Smuggling, in N. Boister and R.J. Currie (eds), Routledge Handbook on Transnational Criminal Law (2015), p.204 including at note 118; Louise Arbour, Special Representative of the Secretary-General for International Migration: Opening Plenary of the GFMD Common Space, Berlin, 30 June 2017: “the global compact must reflect throughout the best interests of women – as they themselves define their best interests.”

[37] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principle 1

[38] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principle 3; OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP.1, 23 July 2014, Principle 5

[39]     For example, at the regional level, the member states of the South Asian Association for Regional Cooperation (SAARC) adopted the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution in 2002, two years after the adoption of the UN Trafficking in Persons Protocol which understands trafficking occurs across genders and sectors/types of trafficking; several states and other bodies are using a broader framework of modern slavery which has no agreed definition, see J. Chuang, Exploitation Creep and the Unmaking of Human Trafficking Law, The American Journal of International Law, 2014, 108, 609-649.

[40]     J. Chuang, The challenges and perils of reframing trafficking as ‘modern-day slavery’, Anti-Trafficking Review, 2015, 5, 146-149. In 2014, the ILO noted: “There has been some concern, in both academic and legal circles, that the phrase [modern slavery] represents a trend to label certain practices as more extreme than is legally accurate. There is no question that slavery, in all its forms, is unacceptable and must be eradicated. However, not all children exposed to hazardous work are “slaves”, and not all labour that is not compensated with a fair wage is necessarily forced.” ILO, Profits and poverty: the economics of forced labour, International Labour Office 2014, p.3

[41]     GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011; ILO, No easy exit: Migration bans affecting women from Nepal, ILO, Geneva, 2015; R. Napier-Moore, Protected or put in harm’s way? Bans and restrictions on women’s labour migration in ASEAN countries, International Labour Organization and UN Women, Bangkok, 2017; Khoo Choon Yen and Kellynn Wee, Do Indonesian women want to be ‘rescued’ from ‘trafficking’? Migrating Out of Poverty, 12 July 2017, available at migratingoutofpovertysg.org/2017/07/12/do-indonesian-women-want-to-be-rescued-from-trafficking/

[42]     See for example, International Labor Recruitment Working Group, The American Dream Up for Sale: A Blueprint for Ending International Labor Recruitment Abuse, ILRWG 2013, available at https://fairlaborrecruitment.files.wordpress.com/2013/01/final-e-version-ilrwg-report.pdf

[43]     Trafficking requires all three elements of its act-means-purpose definition to be present (Trafficking in Persons Protocol, Article 3)

[44]     Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, A/HRC/7/12, 25 February 2008, para.53; Human Rights Council, Report submitted by the Special Rapporteur on trafficking in persons, especially women and children, A/HRC/10/16, 20 February 2009, para.49; GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series 2011.

[45]     Given the use of private contractors in the administration of using criminal sanctions to enforce civil immigration law. See for example, M.Fan, The Case for Crimmigration Reform, North Carolina Law Review (2013), 92, 101-169; M. Flynn, Bureaucratic Capitalism and the Immigration Detention Complex, Global Detention Project Working Paper No.9, June 2015.

[46]     GAATW, Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World, 2007; Empower Foundation, Hit and Run: Sex Workers’ Research on Anti-trafficking in Thailand, 2012

[47]     J. Quirk and J. O’Connell Davidson, Moving beyond popular representations of trafficking and slavery, Popular and Political Representations, in J. Quirk and J. O’Connell Davidson (eds), Popular and Political Representations, Beyond Trafficking and Slavery Short Course: Volume 1, 2015, pp.11-12. The different anti-trafficking and related estimates, indices, and rankings include the US Trafficking in Persons Report, the UNODC Global Report on Trafficking in Persons, the ILO Global Estimate of Forced Labour, and the Global Slavery Index. Under the 2030 Agenda, indicator 16.2.2 looks to count the number of victims of human trafficking per 100,000 population, by sex, age and form of exploitation.

[48]     On this and other data challenges see, P. Buckley, The bias in counter-trafficking data and need for improved data collection: reflections on trafficking onto fishing boats, The Trafficking Research Project, 10 May 2013, available at https://thetraffickingresearchproject.wordpress.com/2013/05/10/the-bias-in-counter-trafficking-data-and-need-for-improved-data-collection-reflections-on-trafficking-onto-fishing-boats/

[49]     Data protection anti-trafficking action (datACT), Data protection standards for NGO service providers, datACT and project partners KOK e.V. and La Strada International, available at http://www.datact-project.org/en/materials/standards.html; see also datACT, Data Protection Challenges in Anti-Trafficking Policies: A Practical Guide, 2015.

[50]     For example, the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children; SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002); ASEAN Convention Against Trafficking in Persons, Especially Women and Children (2015). The UN General Assembly has a recurring resolution on the trafficking in women and girls.

[51]     OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP.1, 23 July 2014, Principle 8.

[52]     The international human rights treaties each have an independent committee to monitor states parties’ implementation of the convention and make authoritative recommendations. The Council of Europe Convention on Action against Trafficking in Human Beings is monitored through the Group of Experts on Action against Trafficking in Human Beings (GRETA).

[53]     A.T. Gallagher, Two Cheers for the Trafficking Protocol, Anti-Trafficking Review, 2015, 4, 14-32; states have been negotiating for a review mechanism to the United Nations Convention against Transnational Organized Crime and its Protocols since 2008.GAATW, Joint Statement to the seventh session of the Conference of the Parties to the United Nations Convention against Transnational Organized Crime and the Protocols Thereto, Delivered 8 October 2014, http://www.gaatw.org/resources/statements?start=5

[54] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, see Guidelines 2(1),(2)

[55] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Guidelines 6(7), 9(1); Surtees, R. 2013. After Trafficking: Experiences and Challenges in the (Re)integration of Trafficked Persons in the Greater Mekong Sub-region. Bangkok: UNIAP/NEXUS Institute

[56]     From Trafficking in Persons Protocol Article 7

[57] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, based on Principle 7, see also Guidelines 2(5),(6); Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna on 14 and 15 April 2009, CTOC/COP/WG.4/2009/2, para.12; Council of Europe Convention on Action against Trafficking in Human Beings, Article 26.

[58]     Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Article 4; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law; see also Basic principles on the right to an effective remedy for victims of trafficking in persons, in A/HRC/26/18; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principles 8 and 17

[59]     Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna from 10 to 12 October 2011, CTOC/COP/WG.4/2011/8, 15 November 2011, para.24

[60] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Guideline 2; Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna on 19 October 2010, CTOC/COP/WG.4/2010/7, Annex, paras.(h),(i)

[61]     Trafficking in Persons Protocol Articles 6.3, 9.3, 10.2; Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna from 6 to 8 November 2013, CTOC/COP/WG.4/2013/5, 26 November 2013, para.5.

[62] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principle 7 and Guideline 2(5)

[63]     Council of Europe Convention on Action against Trafficking in Human Beings, Article 26; EU directive on preventing and combating trafficking in human beings and protecting its victims (Directive 2011/36/EU), Article 8; ILO Protocol of 2014 to the Forced Labour Convention, 1930 (No.29), Article 4(2); Trafficking in Persons Protocol Article 7; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Guideline 2(5)

[64]     UNODC, Salvador Declaration on Comprehensive Strategies for Global Challenges: Crime Prevention and Criminal Justice Systems and Their Development in a Changing World (2010), para.36. See also Surtees, After Trafficking, and B. Pattanaik, Statement to Panel 3: Appropriate Identification, protection, and assistance to migrants and trafficking victims of the 5th global compact thematic consultation.

[65]     Trafficking in Persons Protocol, Article 7; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principle 9

[66]     Trafficking in Persons Protocol, Article 8(2); Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna from 10 to 12 October 2011, CTOC/COP/WG.4/2011/8, 15 November 2011, para.28:

[67] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principle 11 and Guidelines 4.6, 6.7

[68]     See UNODC, The Travaux Préparatoires of the negotiations for the elaboration of the UN Convention against Transnational Organized Crime and the Protocols thereto, UN 2006, pp.387-389; Council of Europe Convention on Action against Trafficking in Human Beings, Article 16; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Guideline 6.7; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking: Commentary, 2010, HR/PUB/10/2, pp.177-178.

Speech by Bandana Pattanaik at the fifth Global Compact thematic consultation

Speech delivered by Bandana Pattanaik, International Coordinator of the Global Alliance Against Traffic in Women (GAATW), at the fifth thematic consultation ‘Smuggling of migrants, trafficking in persons and contemporary forms of slavery, including appropriate identification, protection and assistance to migrants and trafficking victims’

5-7 September 2017, Vienna, Austria

Panel 3: Appropriate identification, protection, and assistance to migrants and trafficking victims

Bandana speech gcmFirst, I want to acknowledge the debt I owe to the many survivors of trafficking and migrant workers, some of whom have organised themselves to advocate for their rights, and whose lived experiences, struggles, extraordinary courage and resilience have taught me what I know about the realities of migration and work in today’s world.

Before I talk about the issue of rights protection and assistance, I’d like to say a few words about the context in which we currently live and work. The international community has undertaken an extremely ambitious task by deciding to work on a Global Compact for Safe, Orderly and Regular Migration. The world we live in today looks anything but safe and orderly and human security is at an all-time low. Rising income and wealth disparity have polarised people within the same society and the many layers of discrimination and social inequalities have not gone away despite the efforts at several levels in all parts of the world. As the 2017 Oxfam report An Economy for the 99% points out, just eight men have the same wealth as the poorest half of the world. At the World Economic Forum this year, even those who were the most eloquent proponents of economic globalisation a decade ago, called for a fundamental rethinking of the current economic model. The Oxfam report called for a more humane economy, an economy for the 99%! To this worrying data on rising inequality, if we add just two of the more obvious threats to human security - climate change and the crises in democracy in many parts of the world - the bleak picture is almost complete.

As we set out to talk about identification of and assistance to trafficked persons and exploited migrants, we need to remind ourselves that exploitation is embedded in our economic model; that trafficking is not an aberration but often a logical outcome of this model. As we set out to prepare a global compact for safe, orderly and regular migration, we must try to understand the vulnerabilities that are created for a very large number of people and the ensuing precariousness in migration and at work places. It is therefore imperative that the Global Compact keep the rights of migrant workers, both internal and cross-border, at its core, for without a human rights and labour rights approach, irregularities and chaos will continue and migration will never become safe and fair for people.

Providing assistance to trafficked persons and exploited migrants is the key focus of many civil society organisations. We have lobbied with states for stronger rights protection and worked closely with them to implement assistance provisions. Notwithstanding the weak rights protection measures in the UN Trafficking Protocol, over the years states have indeed taken many strong steps in this direction. Unlike two decades ago, today there are procedures for assistance in place: shelter homes, psycho-social care and legal assistance are available.

However, much still needs to be done. Members and partners of GAATW have pointed to the following lacunae:

  • While it is important to define concepts and crimes in law, reality often blurs those distinctions. Indeed, I would go a step further and say that distinctions sometimes create undesirable hierarchies. Maintaining a rigid distinction between trafficked persons and exploited migrant workers (whose rights have been violated but who are not trafficked) often results in the latter not receiving any assistance.
  • Most assistance provisions, unfortunately, are still just promises on paper. Many countries still have not made budget allocations for assistance to trafficked persons and are dependent on donors. So when external funds are no longer available, assistance provisions stop.
  • Assistance, when it reaches trafficked persons and exploited migrant workers, is often short-term. Long-term assistance for social and economic integration and rebuilding of lives is not available. As neither jobs nor legal avenues for labour migration are available, there are many instances of trafficked persons and severely abused migrant workers taking risky and unsafe channels to migrate to work again.
  • When it comes to women migrant workers, assistance measures are often protectionist rather than rights protective. For example, in order to ‘protect’ women from harm and trafficking, some states, for example, in South and Southeast Asia have imposed bans for women of a certain age to migrate into certain sectors in certain countries. This does not deter women from migrating; it only forces them to take unsafe routes.
  • Assistance in countries and sites of destination, often aims to send the trafficked person back home, without paying any heed to the fact that the person had left home in the first place to earn a living. And indeed, there are instances of women deciding to migrate to flee domestic violence and abuse. Because of the often mandatory repatriation or return provisions, many migrant workers do not want to be identified as trafficked.
  • Similarly, our research in South and Southeast Asia and the Middle East showed that procedural barriers to access the justice system are far too many, and many exploited migrants and trafficked persons choose to seek informal support from communities or NGOs and even decide to stay in irregular situations rather than contact the authorities or take legal measures. The same research also showed that sometimes corrupt embassy officials in countries of destination have caused more harm to trafficked persons and abused migrants and in collusion with agents extorted money from them.

So what are the ways forward?

In the short term:

States need to guarantee non-conditional assistance to trafficked persons and exploited migrant workers, as well as smuggled migrants. A decade ago, we had appealed to states to not make assistance to trafficked persons conditional on their cooperation with law enforcement officials. We had maintained that trafficked persons have a right to assistance regardless of their decision to press charges against the traffickers. Today, we are reminding states of their human rights obligations and requesting them to extend non-conditional assistance to trafficked persons, exploited migrant workers and smuggled migrants in need of assistance. Definitional distinctions are important in the legal sphere and efficient procedures for identification must be put in place by law enforcement, but assistance must precede identification.

I also call upon all states to follow the example of those that have provisions for granting temporary or permanent residence permits to trafficked persons.

Finally, I urge states to protect the rights of trafficked women and women migrant workers and not take protectionist measures, such as migration bans.

I endorse the recommendations made in the Issue Paper #5. For clarity around the terminologies used in the UN protocols on Trafficking and Smuggling, I strongly recommend that all stakeholders refer to the issue papers published by the UNODC, namely the ones on consent, the concept of exploitation, abuse of a position of vulnerability and the most recent one on smuggling.

In the long term assistance measures for trafficked persons and migrant workers must address vulnerabilities and look for sustainable solutions. This would involve addressing exploitation by reframing our current economic paradigm. States need to look for ways to create decent work for their citizens, look into sectors which are dependent on the labour of migrant workers and open legal and non-complicated avenues for migration and accord the workers living wages and decent working conditions.

As someone working in the field of anti-trafficking for nearly two decades, I am disturbed by the anti-trafficking community’s desperate search for ‘new and innovative’ solutions to the problem of human trafficking rather than addressing the root causes. At the expense of sounding old fashioned, let me say that instead of buying into the agenda of a few philanthrocapitalists and some powerful states who are pushing for an umbrella term like modern day slavery, which has no basis in international law, and advising us to deploy drones and satellites to identify ‘modern day slaves’, state and non-state actors need to expend energy to understand various sectors of work, especially the so-called informal work, and address the specific rights violations in those sectors. Allowing workers to understand their labour rights and enabling them to organise are key to address exploitation, including trafficking. Modern day slavery as a legal framework may work for certain countries. But pushing for its acceptance by the international community only creates further confusion, distracts us from the real problems and may undo the progress made in the arena of anti-trafficking in many countries.

Almost two decades ago, states came together to negotiate a convention against transnational organised crime and its two protocols on trafficking and smuggling. Civil society, including women’s rights groups from the global South such as GAATW, joined in and called for inclusion of human rights protection for trafficked persons, in what is essentially a crime control instrument. In the years that followed, many states have risen to the challenge and demonstrated that criminal justice and human rights are not incompatible with each other. The call of civil society at that time was for a broader legal framework that would address the realities of increasing informalisation of work and escalated labour migration.

In the intervening years, CSOs have analysed the human rights impact of anti-trafficking initiatives and pointed out that too often, anti-trafficking legislation, policy and practices are used more to justify and rationalise deterrence policies and strengthen border policing than for addressing the crime of trafficking and providing assistance to trafficked persons. CSOs have continued to hold states and themselves accountable to the rights of trafficked persons. 

Today when we are negotiating a Global Compact on Migration, as a representative of a CSO, I urge states to renew their human rights commitments towards all human beings and to meet their legal obligations under international law to specific groups of people. States must also rethink their current economic paradigms which are blatantly creating inequalities among people and fuelling exploitation. We have enough proof today to know that markets are not always right and leaving businesses and market to govern our world just does not work in the interest of the 99%. We must therefore renew our faith in democracy and human rights and centre the rights to work and mobility in our commitments and action. That is my fond hope for the GCM. I just hope that it does not turn out to be a foolish one!