Rise of Human Trafficking in the Third World Countries

THIS ARTICLE WAS WRITTEN BY DIVYA ANAND, A STUDENT OF SYMBIOSIS LAW SCHOOL, PUNE

Literature review –

This paper is an attempt to present the trends and dimensions of trafficking from a human rights paradigm and demystify several issues surrounding it. It will also shed some light on the role of NGOs, the civil society and the family. The paper is based amply on the secondary literature and primary experiences.  I’ll also attempt to discuss the roles of Human rights organizations in curbing the practice of modern day slavery and also talk about the rights and remedies available to the survivors of human trafficking for both adults and minors.

Abstract –

Slavery is no longer an existing issue as it has been abolished worldwide but however some forms of enslavement still persists in our so called  “modern” society. The transnational operation that is human trafficking, slavery remains alive and thriving and is the new form of slavery, which we thought had perished. Trafficking of children is a global issue and is estimated to be a huge business. Human trafficking is actually now second only to the drug trafficking business in relation to international organized crime. Trafficking of children and women is the most common forms of trafficking and is the most despicable violation of human rights. This being such a a complex issue hasn’t been given much attention from the academia, the law enforcement and the civil society. This paper is an attempt to present the dimensions and the trends of human trafficking from a human rights paradigm and demystify several issues such as the increasing rate of this human rights issue in the third world countries.

Introduction –

What is Human Trafficking? Human trafficking is a human rights violation, a business of taking people’s freedom for profit. It usually refers to the process through which people are placed and maintained deprived of rights in an exploitative situation for the economic gain. In most cases, traffickers trick, defraud or physically force victims into selling sex. In others, victims are lied to, assaulted, threatened or manipulated into working under inhumane, illegal or otherwise unacceptable conditions.[1] This often includes forced labor, prostitution, forceful marriage, and organ harvesting. It is a billion dollar business with no efforts to curb it. International efforts to address it can be traced back to the nineteenth century. By defining trafficking, the Trafficking in Persons Protocol laid down a normative framework to curb human trafficking at the international levels and national levels. The complication of the international definition has meant that States have executed the Protocol in distinctive ways. Ever since the implementation of the Protocol, 90 percent of countries now have laws outlawing human trafficking. However, the number of convictions is disturbingly low, and it is still awfully rare for victims to approach and get efficient remedies for the exploitation they have suffered, pointing to a substantial gap between enactment and implementation of laws.

It’s estimated that there are 20 million to 40 million individuals stuck in this modern enslavement internationally.[2] Only about .04 percent of the survivors of human trafficking are identified internationally. The full scope of human trafficking is hard to assess as many cases go undetected or unreported, the United Nations refers to thus as the – hidden figure of crime.[3]

Elements of Human Trafficking –

According to the definition of human trafficking given in trafficking in persons protocol, it is evident that trafficking in persons had three elements

The action  – it includes recruiting, transporting, harboring or receipt of persons.

The means – it includes the use of force or threat, coercion, fraud, abduction, abuse of power or vulnerability, giving payments or benefits to a person in control of the victim.

The purpose – the purpose includes the question of why it is done, for exploitation which includes exploiting the prostitution of others, sexual exploitation, forced labor,  slavery or similar practices and harvesting of organs.

The Action – Means – purpose (AMP) model can be helpful in understanding this Human Rights violation.[4]

How do the third world countries contribute to trafficking?

There are several ways in which different countries contribute to the market and these methods are classified into origin (source), transit, destination countries.[5]

Origin countries– supply trafficking

Origin countries are those countries, which provide the supply of trafficked people. Victims of trafficking are either trafficked in their home countries or they are taken from their home countries and sent to another country to provide trafficking services. Usually origin countries are the less developed countries (third world countries) making it easier for traffickers to take advantage of individual’s poverty and lack of education and the country’s backwardness in social, political and legal areas. In some cases parents sell their children for money, or sometimes they are made to believe by the traffickers that they will be given better opportunities. Whatever the case, poverty seems to bring forth corruption because of the vulnerable community. Presently, Asia holds the largest number of victims of trafficking and thus is a major origin area.

Third world countries like India, Pakistan, Mexico, Philippines are some of the major origin countries.[6]

Transit countries– countries creating specific trafficking routes

Transit countries are those countries, which make specific routes for the victims of trafficking to pass through. The locations of these countries are convenient as they are located between the continents, many of the Pacific islands are considered to be huge transit locations for trafficking. Hawaii is one such example of a transit country, which had trafficking as its second largest industry after drug trading. Most victims of transported to Hawaii come from japan, the Philippines and other eastern Asian countries and from here the victims are sent to countries like America, Canada, Australia.

Destination countries– countries where the victims are bought

Countries where human trafficking is in demand are considered destination countries. These countries tend to be more developed than origin countries which are mostly third world countries, this is because of the fact that population in developed regions have more economic power with them to access and purchase the services of such victims of this crime.

Europe is presently the largest region of destination within the trafficking market.

Most of the times victims are made to believe that there exists a better life for them and their families in these developed countries. These victims remain in such oppressive situations as they have no way out and even if they do manage to escape they fear their deportation because of their illegality and prosecution under trafficking offences. The victims often resort to petty crimes like selling drugs, stealing to survive in such situations as they fear returning to their home country and being re trafficked. No country fit into one of these labels. While it is factual that destination countries are more developed, second and third world countries can also be destination countries. In such cases, victims are predominantly coming from bordering countries rather than from overseas. America is a massive origin and destination country. Asia, identified for being the biggest area of origin, also serves as a region of transit, with underground passages weaving through the connections of countries such as Thailand, Myanmar, Bangladesh, & India.[7]

The concept of sexual tourism has also contributed to the trafficking market-

Sexual tourism takes place when people travel across countries to have sexual relations or seek sexual services from prostitutes or victims of the trafficking market. The reason behind such travel is that some countries have a very relaxed view on trafficking and their laws have turned a blind eye to it altogether. Countries like Thailand, Kenya, Japan, Cambodia, Brazil, Indonesia, Philippines, japan, Costa Rica, Spain, Jamaica, Haiti are explicitly known for sexual tourism.

Human Trafficking: A Human Rights Violation

Violations of human rights are both a cause and a consequence of trafficking in people, making protection of human rights of victims mainly important to the fight against it.[8] Several human rights violations happen at distinctive stages of the trafficking cycle, including incontestable rights like the right to life, liberty, and security, the right to freedom of movement, and the right not to be exposed to torture and/or cruel, inhuman, undignified treatment or punishment.

Challenges for the victims of Human Trafficking

Victims of trafficking are also often subject to severe human rights violations at the hands of governments of their respective countries. Survivors experience complete isolation from the apparent support systems & are under perpetual control from their trafficker.[9] Thus, when a victim is able to leave or escape the oppressive situation, many complicated factors can bump and make it extremely hard for survivors to meet their own basic needs. Such factors include-

1. Distrust in systems
2. Trauma
3. Language or cultural barriers
4. Physical safety.

Mostly government policies give priority to detention, prosecution and deportation of trafficked persons for offenses related to their status, including violation of immigration laws, prostitution or begging. These policies further ‘victimize the victim,’ leading to even more human rights violations and vulnerabilities that in the end may result in re-trafficking.[10]

An International Human Rights Perspective

A remedy is an effort to right a wrong, to correct an injustice. Victims of trafficking are entitled to remedies. Most international human rights organizations and instruments claim the principle that survivors of human rights violations as grave as trafficking have a right to an efficient remedy. It is widely known that this right has 2 elements: procedural & substantive.

The right to a remedy remains unavailable to most of the victims of trafficking, sometimes because weak national laws provide insufficient remedies but often because victims lack awareness about the processes and procedures for retrieving them. Struggles to provide effective remedies must then include efforts to eradicate legal and procedural barriers by making sure these trafficked victims get the information, support and assistance they need to access the remedies available to them.

While efforts to advance access to remedies for the victims mostly focus on compensation, the word ‘reparation’ explains a wide range of remedial methods including restitution, compensation, rehabilitation, satisfaction and assurances of non-repetition.

The human rights framework for trafficking take up international human rights standards, which have been regularized in several of international treaties, covenants and protocols since the Universal Declaration of Human Rights in 1948.[11]  Other significant international treaties comprise the International Covenant on Civil and Political Rights (1966) that broadcasted “no-one shall be held in slavery and servitude;” as well as the International Covenant on Economic, Social and Cultural Rights (1966), which comprehends the right to work as well as to just and favorable working conditions.[12]

Subsequently December 2000, the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children extending the United Nations Convention against Transnational Organized Crime served as a legal framework for nation-state legislation  globally[13]. The Protocol serves the purpose of making sure that the trafficked victims are not treated as criminals but as survivors, and therefore are entitled to certain human rights protections. These include temporary resident status and temporary shelter, medical and psychological services, access to justice as well as compensation or restitution.

Some of the Treaties in place and other instruments to help curb to trafficking are –

1. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2000 (Trafficking Protocol)
2. Convention on the Elimination of All Forms of Discrimination against Women, 1979
3. Convention on the Rights of the Child, 1989
4. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, 2000[14]

A Human Rights-Based Approach to Fight Human Trafficking-

The Human Rights-Based approach requires that human rights are at the underlying of any and all anti-trafficking strategies, it seeks to categorize and restore the discriminatory practices and unequal distribution of power that underlie trafficking. Human rights should ideally be the priority as the anti-trafficking community accelerates the fundamental shift from the working paradigm of criminal authorization and immigration problems to human rights advancement. Empowerment, self-representation and participation of those disturbed by trafficking are essential principles for a human rights-based approach. The involvement of survivors should be active, free, and meaningful, empowering them to reflect their views in significant policies and programs. The significance of the participation of ‘rights holders’ is acknowledged in most the of international instruments.[15]

In the discussion on human trafficking, it’s easy to feel overwhelmed by the statistics, the issues, and the politics. The difficulty is complicated and widespread, and there are way more modern-day slaves internationally than at any other point in history.

However, there are also more individuals working to curb human trafficking and this modern-day slavery globally than ever before. Many of these organizations are established or well-known—rather, they work from the base level, endorsing awareness and advocating for change in the communities they’re needed the most. These organizations confront traffickers, criminal gangs, and broken systems in order to make a change. They use their resources to take a stand and serve as a voice for those who are oppressed and are forced or held against their will.

Each organization has a distinctive strategy, but all of them, gradually, are making major advances in curbing human trafficking. Some of the important ones are-

Trafficking Policy and Advocacy: Polaris Project- One of the most prominent organizations working on the issue in the United States, the Polaris Project takes a wide-ranging approach to ending this modern-day slavery. The organization advocates for sturdier federal and state laws, operates the National Human Trafficking Resource Center hotline, offers services and support for trafficking victims, and works with the survivors to develop lasting strategies to ending human trafficking.

Child Labor: GoodWeave- The handmade rug industry has one of the utmost child labor rates in the world. When GoodWeave began its work in 1994, there were nearly one million children ,many kidnapped or trafficked, forced to work on the looms in South Asia, mos of the times for up to 18 hours a day. Through its efforts, the organization has not only helped bring child labor in the rug industry down 75%, it has built affiliations with retail outlets all over the U.S. to ensure that all carpets sold are free from child labor

Recommendations –

1. States should be encouraged to take measures and put in effort to ensure that the survivors of trafficking gave access to effective remedies such as compensation for material and personal damages, regardless of their immigration status in that country by
   • Establishment of at least one legal framework and mechanism to ensure compensation to the victims.
   • States with accordance and balance with the national laws should ensure that all the victims of trafficking, by themselves or through their representatives have access to courts, tribunals and other effective resolutions mechanisms to claim their remedies.
2. States should make sure that all the survivors review information and are aware that they can get advice about the legal remedies and services available in language or form they are capable of understanding.
3. States should make sure that they establish effective national laws and policies that make sure that legal persons can be held liable for such a crime and such laws should enable authorities to confiscate the proceeds of such crimes and use such assists to compensate the victims.
4. States should provide a sensitization training to the public officials who have or are likely to have direct contact with potential or actual victims of trafficking, they should be taught on how they can assist these people.
5. States should make sure that the victims who have breached national laws and are in their country illegally as a consequence of being trafficked shouldn’t face any problem or legal restrictions to access their remedies including the state funds for compensation schemes.
6. States should be encouraged to collect accurate data of the number of victims of trafficking and the further assess how to obtain compensation, grant asylum and option other forms of remedy. These reports should be assessed on the regular to find out the patterns of the crime.
7. States should encourage training of judicial institutes and person such as prosecutors, lawyers, judges, law enforcement authorities and other authorities on how to handle and investigate the proceeds of such crimes. There should be a uniform guidelines on the right to remedy, which pays closer attention to ensure that there’s a gender sensitive approach to the compensation claims, avoiding trauma and Re-victimization and stigmatization to protect the privacy and dignity of victims.
8. International co-operation should be toughened between and among States and with appropriate international and regional organizations, which should help and assist each other in accomplishing the effective and sustained provision of effective remedies to victims of such crimes.

Conclusion –

Remedies seem meaningless if they aren’t accessible and enforceable. Rights which are procedural such, as the right to information about remedies available and free legal assistance must be talked about and protected at all costs.

The exact content of that obligation to give out effective remedies to the survivors of trafficking varies depending upon 2 things, the facts of a case and the treaty based rights at stake. However, the trafficking in persons protocol has established a certain minimum standard to follow- states must establish a formal legal mechanism to provide opportunities to claim compensation. International compliance mechanisms have been and should continue to play a large role in promoting and spreading awareness the right to effective remedies for victims of trafficking. Treaty bodies of the United Nations such as the UN human rights committee should play a greater role in Providing guidance about the provisions of remedies available for violations of treaty based rights to the victims of trafficking. The new ILO protocol on forced labor has been adopted which requires the states to ensure that the victims of trafficking (in the case victims is forced labor) to have access to all the remedies and even extends opportunities for its supervisory bodies to promote state compliance with the international law and have a uniform code globally against trafficking and related abuse.

State practice on the other hand varies widely, legal possibilities to claim remedies are there in place but there’s no way to access them easily, they’re practically useless and complicated. Victims are often excluded because of such complications and end up increasing their trauma. Not all cases of crimes committed around this topic be classified as trafficking, but strengthening the laws in position for the legal protection will improve the ability of survivors of such a heinous crime to obtain and claim their remedies.

Bibliography

Books:

1. Trafficking – Modern Day Slavery by Nadia Okamoto
2. It’s Only Blood: Shattering the myths by Anna Dahlqvist
3. The Slavery Confusion – Slavery Across Cultures: A Historical Perspective by Nidhin Sridhar

Websites:

1. Oxford Press
2. SCC online

[1] UNICEF, Guidelines on the Protection of Child Victims of Trafficking, September 2006

[2] OHCHRRecommended Principles and Guidelines on Human Rights and Human Trafficking, 20 May

2002, E/2002/68/Add.1

[3] UNTOC, arts. 12-14; European Trafficking Convention, art. 23(3).

[4] Anne T. Gallagher, International Law of Human Trafficking (Cambridge University Press, 2010), p.273-275.

[5] UNODC, 2004, Legislative Guide for the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, p 286, para 60.

[6] UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked, 7 April 2006, HCR/GIP/06/07

[7] European Union: European Agency for Fundamental Rights, Guardianship for children deprived of parental care: A handbook to reinforce guardianship systems to cater for the specific needs of child victims of trafficking, June 2014, ISBN 978-92-9239-464-6

[8] Martin, Philip, and Mark Miller. 2000. “Smuggling and Trafficking: A Conference Report.” International Migration Review 34 (3):969-975.

[9] Gallagher A 2010, The International Law of Human Trafficking, New York: Cambridge Press, p 323 – 336.

[10] COMP.ACT – European Action for Compensation for Trafficked Persons, ‘Findings and Results of the European Action for Compensation for Trafficked Persons’, 2012

[11] United Nations, Commentary on the Recommended Principles and Guidelines on Human Rights and Human Trafficking, November 2010, HR/PUB/10/2, p.224.

[12] OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking (Principle 10 and Guideline 8).

[13] UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked, 7 April 2006, HCR/GIP/06/07

[14] The accompanying Domestic Workers Recommendation, 2011 (No. 201), Para. 21(1)(f) proposes measures to ensure that domestic workers have access to information on complaint mechanisms and legal remedies.

[15] E Marks & 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