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Point of View - 2004-02-06


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    Written Submissions to be included in the Recommendations of the Asia Pacific Experts' Seminar

    Written Submissions to be included in the Recommendations of the Asia Pacific Experts' Seminar (Bangkok, Thailand)

    Migration as a human rights issue

    It is the observation of the Asian Human Rights Commission that the over-all focus on Migration at the experts meeting was from the Western Governments' perspective rather than from a human rights perspective. However, it must be said at the very outset, a few experts and almost all NGO representatives who made submissions did try to bring in the humanitarian and human rights issues involved in Migration. As the subject was discussed on the basis of inputs by the experts, some very strong positions based on Government Western perspectives were more prominently heard.

    The main aspect of these inputs which cause us concern is the de-linking of the issues of migration and poverty which was achieved in the following ways:

    (a). Treating all forms and contexts of migration as similar : for example professional migrants and other privileged migrants together with those who migrate for very low paid jobs such as laborers, domestic helpers. And other work usually considered as menial.

    (b). Characterizing even migration of the poor, as a middle class migration.

    (c). De-linking poverty factor from greater awareness factor: According to this view people migrate because they are more aware of opportunities now, than due to poverty.

    (d). Creating a dichotomy between "victims" and people having greater opportunities. For example positions like " Even poor migrant women are not victims; they are people who have gained greater opportunity." This can said of any one, including slaves. They may be better off, than those who could not become slaves, as their masters gave them food, drink and shelter. This approach ignores human rights issues and the issues of discrimination.

    (e). Failure to distinguish trafficking in persons, including children, as a separate issue from the general issue of illegal migration, in all its complexities, needing very specific and rights-sensitive measures in order to avoid re-victimizing victims, especially women and children.

    (f). Failure to discuss restrictive migration policies of richer countries as a cause of illegal migration.

    (g). Failure to consider structural issues of relationships between richer nations and poorer nations and the impact of this on migration, legal or illegal

    (i). Dealing with illegal migration almost like an issue of terrorism or of drug trafficking

    The policy implications of this approach from the World Conference point of view will be to seek endorsement of very harsh punishments on illegal migrants in order to deter them and as for legal migrants to treat them as already fortunate category compared to others in their countries and therefore needing no special measures to protect them.

    The Asian Reality and Migration

    Migration in Asia is very much linked to issues of poverty. The following factors are linked: the poor are increasingly becoming wage laborers while in the past more people may have had their livelihood in agriculture or other forms of traditional employment such as fishing etc. As people move from rural forms of employment there is greater unemployment. Under-developed economies do not expand fast enough to absorb the new mass of people who seek jobs. Meanwhile, depending on money for everything, rural safeguards which the poor had in the past also disappear. Unlike in rural economy the poor become more mobile. Meanwhile globalization reduces social safeguards, such as health and education, which now have to be purchased. The pressure to make more money for survival becomes urgent. The poor also begin to learn of the other possibilities for employment, outside their impoverished communities. Added to this due to greater mobility and exposure to modernity, the poor also lose, to a greater or lesser degree, the age-old habits of fatalism and resignation, and become de-rooted in some degree from their traditional social milieu and culture.

    All this does not make the poorer "richer". In fact the poor are now more dependant on money which they do not have, and become more dependant on employment. If they can not find such employment at home or what they find at home is not sufficient to meet the requirements of themselves and their families, migration becomes imperative. Thus the impulse for migration becomes quite common among the poor. The stories of persons migrating form poorer sections of society clearly show their needs. Payments of debts, needing money for health issues of family members, feeding of older or younger members of their families are among the more common motives for migrations. Rather than becoming richer, surviving at levels they had in the less complex societies with traditional safeguards becomes motivation for migration.

    The assimilation of persons seeking migration depends on available opportunities outside. However, there are vast numbers who can not find such employment legally or can not find the means for legal migration immediately. These are the basic causes of illegal migration. Some of those seeking help in migration may become victimised by "traffickers", who employ coercive and deceptive means in order to profit from the desperation of others.

    The Issue of "trafficking in persons"

    The fact that trafficking in persons was not defined as a specific issue, which takes place within the migration continuum, but is not concomitant with either "illegal migration" or "smuggling of persons" the boundaries of the issues remain vague and confusing,. Such a policy line naturally will not a human rights based one. In fact, it runs in the opposite direction. Besides this conference, which is against Racism, Xenophobia and related intolerance, can not accept a policy line as described above, which is itself racist in content. If dislike of migrants, and even hatred of them, as prevalent in some countries, is echoed at this world conference, that will certainly defeat the purpose expressed in the theme of this conference.

    Therefore AHRC suggest, the world conference adopts the definition made by the Special Rapporteur on Violence Against Women, which was unanimously accepted by the UN Commission on Human Rights, (E/CN.4/32000/68) in which she gave a comprehensive and rights- based definition of "trafficking in persons" :

    "Trafficking in persons means the recruitment, transportation, purchase, sale, transfer, harbouring or receipt of persons:

    (i) by threat or use of violence, abduction, force, fraud, deception or coercion (including the abuse of authority), or debt bondage, for the purpose of:

    (ii) placing or holding such person, whether for pay or not, in forced labour or slavery-like practices, in a community other than the one in which such person lived at the time of the original act described in (i)."

    More attention must be paid to trafficking in persons from the point of view of the human rights issues involved, and it must be considered separately in order to evolve the most suitable means to deal with these issues more urgently and comprehensively. While the general issues of migration, , must be dealt with through economic policies for solving root causes in both sending and receiving countries, the specific crime of trafficking in persons must be dealt with through an effective legal mechanism against the perpetrators on the one hand and assistance to victims on the other. If this is dealt with merely as an issue of the illegal migration, it is unlikely to receive the proper attention it requires. Besides sensitivities needed in both areas are very different.

    Human Rights approach to migration

    A human rights approach regarding migration must be based on right to life and right to work. Right to life is not just a right to live an animal life, but a life with dignity. Right to work must therefore guarantee proper conditions of work and `an adequate standard of living' for workers and their families. Can it be said, those who migrate from among the poor are those who have achieved such standards in their own countries? In fact it is the failure to find work and failure to achieve an adequate standard of living that drive the poor out of their lands to other countries. But do they then find work, the conditions of work and adequate living as prescribed by the Covenant on Economic, Social and Cultural rights in these countries of destination? If the World Conference is to be based on human rights considerations, these are unavoidable issues that need to be faced. The international obligations to defend the right to life, right to work and an adequate standard of living must be the stand-point from which the issue of migration is approached.

    The issue of "trafficking in persons" should be dealt with as morally heinous and inhumane. From that point of view legal and other measures need to developed to eradicate it and to help the victims.

    For strategic purposes, trafficking of persons , which is a crime based on coercion and deception, and results in violations of multiple human rights of the victims, should be clearly defined, as suggested above, if it is to be successfully investigated and prosecuted, while the necessary legal and social protection and support is made available to the victims.





    The following recommendations made by the Special Rapporteur on Violence Against Women in her Report to the 56th Session of the UN Commission on Human Rights on "Trafficking in Persons", E/CN.4/2000/68, deserves special attention.

    A. At the international level

    107. The protocol on trafficking to the draft international convention against transnational organized crime should ensure an unequivocal human rights standard on trafficking in women, since it is impossible to combat trafficking without providing protection to victims of trafficking.

    108. States should seek to adopt bilateral and multilateral agreements providing for the legal labour migration of women.

    109. States should ensure support for the institutionalization of the rule of law in countries currently in transition, in situations of armed conflict or under military regimes.

    110. Non-governmental organizations should be granted observer status at the meetings of Heads of State of regional forums, such as SAARC, ASEAN, OAU and OAS.

    B. At the national level

    111. Measures designed to limit women’s legal entry into countries of destination should be carefully weighed against their disadvantages as they pertain to potential immigrants and women. In particular, measures that are designed to protect women by limiting their access to legal migration or increasing the requirements associated with such migration should be assessed in terms of the potential for discriminatory impact and the potential for increasing the likelihood that women consequently may be subjected to trafficking.

    112. Government programmes and international efforts relating to trafficking should be developed in cooperation with non-governmental organizations. Further, governmental organizations and international donor institutions should provide financial support to non-governmental organizations working on the issue of trafficking.

    113. Governmental measures and international efforts to address trafficking must focus on the human rights abuses and labour rights abuses of the women involved, rather than treating trafficking victims as criminals or as illegal migrants.

    114. Government measures to address trafficking must focus on the promotion of the human rights of the women concerned and must not further marginalize, criminalize, stigmatize or isolate them, thus making them more vulnerable to violence and abuse.

    115. Relevant governmental bodies must collect and publish data on:

    (a) Government efforts to address instances of trafficking into, out of, and within their countries;

    (b) The successes or difficulties experienced in promoting inter-agency cooperation, cooperation between local and national authorities, and cooperation with non-governmental organizations;

    (c) The treatment and services provided to trafficking victims;

    (d) The disposition of trafficking cases in the criminal justice system;

    (e) The effects of governmental legal and administrative measures on the victims of trafficking and on the reduction of trafficking.

    116. Trafficking victims must be guaranteed:

    (a) Freedom from persecution or harassment by those in positions of authority;

    (b) Adequate, confidential and affordable medical and psychological care by the State or, if no adequate State agency exists, by a private agency funded by the State;

    (c) Strictly confidential HIV testing services should be provided only if requested by the person concerned, and any and all HIV testing must be accompanied by appropriate pre- and post-test counselling;

    (d) Access to a competent, qualified translator during all proceedings, and provision of all documents and records pursuant to having been victims of trafficking and/or forced labour or slavery-like practices;

    (e) Free legal assistance;

    (f) Legal possibilities of compensation and redress for economic, physical and psychological damage caused to them by trafficking and related offences.

    117. The personal history, the alleged "character" or the current or previous occupation of the victim must not be used against the victim, nor serve as a reason to disqualify the victim’s complaint or to decide not to prosecute the offenders. For example, the offenders must be prohibited from using as a defence the fact that the person is, or was at any time, a sex worker or a domestic worker.

    118. The victim’s history of being trafficked and/or being subjected to forced labour and slavery-like practices must not be a matter of public or private record and must not be used against the victim, their family or friends in any way whatsoever, particularly with regard to the right to freedom of travel, marriage and seeking gainful employment.

    119. States under whose jurisdiction the trafficking and/or forced labour and slavery-like practices took place must take all necessary steps to ensure that victims may press criminal charges and/or take civil action for compensation against the perpetrators, if they choose to do so.

    120. Governments must implement stays of deportation and provide an opportunity to apply for permanent residency, witness protection and relocation assistance for trafficking victims.

    121. Governments should implement assessed forfeiture from criminal operations that profit from trafficking, setting aside funds to provide compensation due to victims of trafficking.

    122. In consultation with relevant non-governmental organizations, relevant government bodies must:

    (a) Develop curricula and conduct training for relevant government authorities, including officials of immigration and consular affairs offices, customs services, border guard and migration services, and representatives of the Ministry of Foreign Affairs, regarding the prevalence and risks of being trafficked, and the rights of victims. The training of such officials must not result in the creation of "profiles" which prevent women from receiving visas to go abroad;

    (b) Develop awareness and education campaigns regarding trafficking to be conducted through the mass media and community education programmes;

    (c) Distribute materials describing the potential risks of being trafficked, including: information on the rights of victims in foreign countries, including legal and civil rights in the areas of labour and marriage and for crime victims, and the names of support and advocacy organizations in the countries of origin, destination and transit;

    (d) Take measures to ensure that women have viable economic opportunities to support themselves and their dependent families in their home countries;

    (e) Abide by the United Nations General Assembly resolution 49/165 on violence against women migrant workers, of 23 December 1994, and should sign, ratify and enforce the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

    (f) Adopt and implement guidelines recognizing gender-related persecution as a basis for women to claim refugee status, in addition to signing and ratifying the 1951 Convention on the Status of Refugees and the 1967 Protocol thereto, and implement the 1991 UNHCR Guidelines on the Protection of Refugee Women;

    (g) Ensure that all trafficking legislation is gender sensitive and provides protection for the human rights of women and against the particular abuses committed against women;

    (h) Provide training for diplomats and foreign service employees about trafficking and the human rights abuses committed in the course of trafficking;

    (i) Establish labour information centres to provide up-to-date, practical information on all aspects of labour migration.

    Posted on 2001-07-13
    World Conference Against Racism @ Asian Legal Recources Centre
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