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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.
Recommendations:
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
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