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Human rights focus on trafficked women: An international law and feminist perspective

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Abstract

Trafficking in women is regarded as both a cause and consequence of human rights violations. This article situates trafficking within different, intersecting analytical frameworks, including gender, migration, labour law, criminal law and human rights. It aims to contribute to the feminist project by highlighting the contested nature of the present discourse and, in particular, by paying attention to legal strategies of combating trafficking, exploitation and traditionally gendered labour division. This article examines relevant international treaties, such as the UN Trafficking Protocol, the Council of Europe Convention against Trafficking, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as well as the recent South African Law Reform Commission Discussion Paper and proposed Draft Bill on Trafficking in Persons. It makes specific reference to feminist contestations around the issue of consent in the definition of trafficking.
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Agenda: Empowering women for gender equity
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Human rights focus on trafficked women: An
international law and feminist perspective
Annette Lansink
a
a
School of Law and the Institute for Gender Studies at the University of Venda ,
South Africa E-mail:
Published online: 27 Apr 2011.
To cite this article: Annette Lansink (2006) Human rights focus on trafficked women: An international law and
feminist perspective, Agenda: Empowering women for gender equity, 20:70, 45-56
To link to this article: http://dx.doi.org/10.1080/10130950.2006.9674774
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Human rights focus on trafficked women: An international law and feminist perspective 45
Human rights focus on trafficked women:
An international law and feminist perspective
Annette Lansink
abstract
keywords
Trafficking in persons is a serious crime and
violation of human rights. In recent years, it has
been put on top of the international policy agenda
as a result of the apparent increase in trafficking,
the gross violation of human rights associated
with it, the involvement of organised crime
syndicates and the national and international
efforts to combat trafficking. Globalisation has
been regarded as one of the most important
factors in the sheer volume of international
migration (Boswell and Crisp, 2004:6). Resulting
skewed development patterns have created push
and pull factors of migration. According to the
Global Commission on International Migration,
Trafficking in women is regarded as both a cause and consequence of human rights violations. This article situates trafficking
within different, intersecting analytical frameworks, including gender, migration, labour law, criminal law and human rights. It
aims to contribute to the feminist project by highlighting the contested nature of the present discourse and, in particular, by
paying attention to legal strategies of combating trafficking, exploitation and traditionally gendered labour division. This article
examines relevant international treaties, such as the UN Trafficking Protocol, the Council of Europe Convention against
Trafficking, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as well as the recent
South African Law Reform Commission Discussion Paper and proposed Draft Bill on Trafficking in Persons. It makes specific
reference to feminist contestations around the issue of consent in the definition of trafficking.
human rights, women, international law, feminism
there are now between 189 and 193 million
international migrants worldwide, of which almost
50 percent are women (GCIM, 2005).
With the increase in migration across the
world and the continued restrictions on
movement of labour, irregular migration such as
trafficking and smuggling has increased
significantly. According to the International Labour
Organisation, ‘trafficking is also perhaps the most
flagrant of societal and labour market failures that
arise in the context of contemporary globalisation’
(ILO, 2005:69).
They estimate that 2.5 million women, men
and children are trafficked within and across
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borders at any point in time and that ‘at the very
least, one third of these are trafficked for
economic purposes other than sexual exploitation’
(ILO 2005:46). Transnational trafficking has been
estimated at 600,000 to 800,000 persons annually,
of which 80 percent are women and 50 percent
are minors (US Department of State, 2006), but
recent research has shown that most figures are
often no more than ‘guesstimates’ (Laczko,
2005:11, Piper, 2005:219).
Transnational trafficking is not only of concern
to the domestic (national) law of the countries
involved, but also to the international legal
community because international crime requires
international responses and cooperation between
states. Moreover, trafficking is not only an
international law and criminal law issue, but also a
human rights, labour law, migration, gender and
morality issue.
This paper will situate trafficking within these
different but intersecting frameworks and
examine how the different lenses influence anti-
trafficking measures and, in turn, are influenced by
competing national and global discourses. As will
be illustrated, the focus on a criminal justice
framework has come at the expense of protecting
the human rights of women and ignoring the
reality of migration.
Viewing trafficking merely as a criminal
offence and a law and order matter tends to
relegate the related issue of demand for cheap
and exploitable labour within globalising markets
to the margins. This raises questions of what the
dominant anti-trafficking discourse is, whose
interests it serves and, more specifically, how it
informs the law. The issue of women’s consent to
work in the sex industry, for example, has been
highly contested and divided feminists into two –
strongly opposing – camps. Not surprisingly, it is
also the most controversial aspect of the
proposed Draft Bill Combating Trafficking in
Persons of the South African Law Reform
Commission (SALRC).
This paper will explore how ideological factors
shape the discourse and law around trafficking
and its impact on women’s rights. In doing so, it
examines international legal standards and, where
relevant, assesses the proposed South African
legislation against these standards.
Push and pull factors
The majority of trafficked women are migrants
who have made a conscious decision to migrate,
while only a small percentage of trafficked
persons are abducted or sold (Kaye, 2003). These
migrants enter into a new country with or without
legal permits or migrate within a country in search
for better economic opportunities. Poverty,
unemployment, lack of equal opportunity and
discrimination are causes of migration and
trafficking. The former Rapporteur on Violence
against Women, Radhika Coomeraswamy (2000),
puts it succinctly: ‘The lack of rights afforded to
women serves as the primary causative factor at
the root of both women’s migration and
trafficking.’
The United Nations Trafficking Protocol
requires that states parties address the root
causes of trafficking by alleviating poverty,
unemployment and other economic and social
shortcomings as well as the lack of rights.
Governments should also address the demand
that fosters all kinds of exploitation. Both the
Beijing Platform of Action (1995) and the Vienna
Declaration and Programme of Action of the World
Conference on Human Rights (1993) call upon
governments to deal with the root causes.
The Beijing Platform of Action appeals to
governments to address root causes that
encourage trafficking in women and girls for
prostitution and other forms of commercialised
AGENDA 70 200646
article
The majority of trafficked women are migrants
who have made a conscious decision to migrate
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Human rights focus on trafficked women: An international law and feminist perspective 47
article
sex, forced marriages and forced labour. The
Vienna Declaration similarly highlights the need to
eliminate international trafficking through
international cooperation in economic and social
development.
Trafficking intersects with other forms of
migration, including smuggling. The main
differences between trafficking and smuggling are
(i) that trafficking always contains a non-
consensual element, as traffickers use coercive,
deceptive or abusive means, (ii) trafficking is done
for the purpose of exploiting the labour or services
of the trafficked person, whereas in the case of
smuggling migrants are recruited with the consent
of the smuggled person, and the relationship
between the smuggler and the smuggled person
comes to an end after the illegal entry into the
state, and (iii) smuggling is always transnational.
But, in practice, the distinction is not always
easy to make, and there are instances when a
journey contains elements of both smuggling and
trafficking (Gallagher, 2001:1000). Often,
gendered perceptions play a role in the
categorisation – men are usually treated as being
smuggled, while women as being trafficked.
Trafficking as a gender-based harm
Trafficking is regarded a specific, gender-based
harm. The majority of trafficked persons are
women. Women are trafficked for the purposes of
exploitation in – most often – typical gender-
specific labour, such as forced prostitution, sex
The lack of women’s rights is the primary cause of both women's migration and trafficking.
MANOOCHER DEGHATI, IRIN
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tourism, domestic work or into commercial
marriages and suffer gender-specific harm, such as
rape and other forms of violence. Unequal access to
education, traditional practices, limited possibilities
for women to access or own land and property and
other forms of gender discrimination increase the
vulnerability of women and girls to trafficking.
It is acknowledged that trafficking is a form of
violence against women. Both the Vienna
Declaration and the Beijing Platform of Action
identify trafficking as a form of gender-based
violence. The Committee on Elimination of All
Forms of Discrimination against Women in General
Recommendation No 19 on Violence against
Women (CEDAW, 1993) refers to trafficking within
the context of violence against women.
General Recommendation No 19 emphasises that
traditional attitudes that regard women as
subordinate to men or as having stereotyped roles
perpetuate widespread practices involving
violence and coercion. It also links poverty and
unemployment to increased vulnerability to
trafficking, forcing women into prostitution,
domestic work and organised marriages.
Prostitutes are especially vulnerable to violence
due to their marginalised status in society.
Article 6 of CEDAW imposes an obligation on
states: ‘States parties shall take all appropriate
measures, including legislation, to suppress all
forms of traffic in women and exploitation of
prostitution of women.’ Trafficking is incompatible
with the equal enjoyment of rights by women and
puts women at special risk of violence and abuse.
Article 4 of the Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of
Women in Africa
1
obliges states to take
appropriate and effective measures to prevent and
condemn trafficking in women, prosecute the
perpetrators and protect women most at risk. The
heads of state and government of the African
Union, agreed on a Solemn Declaration on Gender
Equality in Africa (2004)
‘to initiate, launch and engage within two years
sustained public campaigns against gender-
based violence as well as the problem of
trafficking in women and girls [and] reinforce
legal mechanisms that will protect women at
the national level and end impunity of crimes
committed against women in a manner that will
change and positively alter the attitude and
behaviour of the African society’.
UN definition of trafficking
Trafficking is not a new phenomenon. Yet, only
recently international consensus was reached on a
precise and unambiguous definition of trafficking.
The four early international treaties on trafficking
(1904, 1910, 1921 and 1933) were consolidated in
1949 by the Convention for the Suppression of the
Traffic in Persons and of the Exploitation of the
Prostitution of Others. This treaty connects
trafficking to prostitution across borders and
within a country.
The preamble of the 1949 convention states
that
‘prostitution and the accompanying evil of the
traffic in persons for the purpose of prostitution
are incompatible with the dignity and worth of
the human person and endanger the welfare of
the individual, the family and the community’.
It aims at punishing those who procure, entice,
lead away or exploit a person for the purposes of
prostitution ‘even with the consent of that person’
as well as those keeping or financing brothels.
However, the treaty has not been widely
accepted and, after half a century, only 74 of the
(now) 191 member states of the United Nations
have ratified the 1949 convention. According to
AGENDA 70 200648
article
Only recently international consensus was reached on
a precise and unambiguous definition of trafficking
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Wijers and Lap-Chew (1999:26), reasons
for non-ratification varied from
‘constitutional incompatibility to criticism
of the basic assumptions of the text’,
more specifically the fact that ‘many
national governments permit highly
regulated forms of prostitution and are
not willing to sign a treaty that requires
its elimination’.
In the 1980s, trafficking was put
back on the international agenda and, at
the end of 2000, the United Nations
Convention against Transnational
Organised Crime and its three Optional
Protocols were adopted by the UN
General Assembly. The main focus of
the convention and the Protocol to
Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and
Children is crime prevention and
combating transnational organised
crime. The protocol entered into force on
25 December 2003.
In just a few years, 103 states have
ratified the trafficking protocol, which
goes beyond trafficking for the
purposes of forced prostitution by
criminalising the recruitment,
transportation and exploitation of
persons for all forms of forced labour. Article 3 of
the United Nations Trafficking Protocol, or
Palermo Protocol, defines trafficking as follows:
‘Trafficking in persons shall mean the
recruitment, transportation, transfer,
harbouring or receipt of persons, by means of
the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception,
of the abuse of power or of a position of
vulnerability or of the giving or receiving of
payments or benefits to achieve the consent
of a person having control over another person
for the purposes of exploitation. Exploitation
shall include, at a minimum, the exploitation of
the prostitution of others or other forms of
sexual exploitation, forced labour or services,
slavery or practices similar to slavery,
servitude or the removal of organs.’
This definition of trafficking in persons has three
elements: action, means and purpose. All three
have to be present to constitute trafficking.
However, with regard to children, only action and
purpose are sufficient, even if this does not
involve any of the means listed above. Thus, the
recruitment of a child for the purpose of
exploitation is considered trafficking.
Human rights focus on trafficked women: An international law and feminist perspective 49
Marjorie Maleka, 'This is my story', Etching & Oil Pastel, Paper: 592 x 423mm,
Print: 424 x 371mm, Art for Humanity, 'Women for Children' project.
article
ART FOR HUMANITY
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Article 3(b) provides that the ‘consent of a
victim of trafficking in persons to the intended
exploitation set forth in subparagraph (a) of this
article shall be irrelevant where any of the means
set forth in subparagraph (a) have been used’. This
means that even if the victim initially consented to
migrate and work for a low wage or work in the
sex industry, it becomes irrelevant if the victim has
been forced, coerced or deceived.
It is clear, that there is no consent when one is
forced, coerced or deceived into prostitution,
domestic work or marriage, but when is there an
abuse of vulnerability? According to the trafficking
protocol, consent is irrelevant if coercion,
deception, fraud or the other listed means are
used. In all other instances, consent is relevant.
However, in the case of children, all consent is
irrelevant. Thus, the UN trafficking protocol, and
rightly so, clearly distinguishes between children
and adults.
Deviating from the UN trafficking protocol, the
SARLC proposes, in Discussion Paper 111 and the
Draft Bill Combating Trafficking in Persons, that all
consent is irrelevant for adults and children alike and
requires only action (such as transport, receipt) and
purpose (exploitation) by any means. This is
particularly relevant in the context of linking
trafficking with prostitution. The proposed South
African Trafficking Bill opens the door to including
voluntary adult sex work in the scope of trafficking.
According to the United Nations Interpretative
Note, the terms ‘exploitation of the prostitution of
others’ and ‘sexual exploitation’ were intentionally
left undefined so that each state can decide for
itself how to deal with laws regulating adult
voluntary sex work or prostitution. Unfortunately,
the SALRC (2006) has proposed a broad definition
of sexual exploitation.
Although the SALRC has indicated it would not
anticipate the outcome of the discussion around
prostitution in general, the proposed legislation
increases the probability of including voluntary
adult sex work into the definition of sexual
exploitation and thereby trafficking. It would have
been better if the SALRC had made use of
unambiguous terms only – terms which are
defined or accepted in international law, such as
forced labour or services, slavery or practices
similar to slavery and not included the
controversial term sexual exploitation. Forced
prostitution would already be covered by forced
labour or services or practices similar to slavery.
Feminist versus feminist on consent
During the Vienna process, which led up to the UN
trafficking protocol, agreement was reached on a
coercion-based definition of trafficking that
excludes consensual migration for prostitution
(Chuang, 2006:437; Gallagher, 2001: 986; Simms,
2004). This reinforces the distinction between
migrant smuggling and trafficking, as smuggling
happens with the consent of the person involved.
According to the UN trafficking protocol, the alleged
consent of a victim cannot be used as a defence by
traffickers if coercion, deception, abuse of power or
other listed means have been used.
During the negotiating process, states and
non-governmental organisations (human rights
and women’s NGOs) were divided broadly into
two camps: those who oppose all forms of
prostitution (abolitionist) and others who sought to
exclude voluntary migrant sex work from the
definition of trafficking. The first group intends to
preserve the abolitionist nature of the 1949
Convention on the Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution
of Others by linking trafficking to all forms of
prostitution including voluntary or consensual
adult sex work.
Those who oppose all forms of prostitution,
such as the Coalition against Trafficking in Women
AGENDA 70 200650
article
According to the trafficking protocol, consent
is irrelevant if coercion, deception, fraud
or the other listed means are used
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(CATW), came together under the umbrella of the
International Human Rights Network, and those
NGOs and UN agencies that excluded voluntary
sex work from the definition of trafficking under
the Human Rights Caucus.
Except for the UN Working Group on
Contemporary Forms of Slavery of the Sub-
Commission on the Promotion and Protection of
Human Rights, all other UN agencies, such as the
UN High Commissioner on Human Rights, UN
High Commissioner on Refugees and UNICEF,
argued that it was necessary to distinguish
between voluntary and forced prostitution
(Gallagher, 2001:1002).
This does not mean that all groups and
individuals associated with the latter hold a
monolithic position or are supporters of
prostitution or the sex industry. But what unites
those opposing the ‘abolitionist’ group is
recognition of the agency of women to make
choices in life and, above all, that conflating
trafficking and prostitution would divert attention
from combating trafficking effectively.
Libertarians, who subscribe to the idea of
individual liberty of a person, and other feminists
(including those who recognise that many
women’s free choice is limited due to economic
and other circumstances) do not want to
criminalise (migrant) adult prostitution. With it
comes the reality of police harassment through
arrest and raids on brothels and corruption –
factors that make sex workers’ lives even harder.
The ‘abolitionists’, on the other hand, argue
that no distinction can be made between forced
and voluntary prostitution because prostitution
does not exist as a free choice: it is always a form
of violence against women. Prostitution reduces
women to sex objects and is morally
unacceptable. Leidholdt (2000:419) maintains that
sex trafficking and organised prostitution are
‘inextricably connected’. Women are regarded as
victims of male oppression and patriarchy.
This argument is linked to theories of
domination and made visible by radical feminists,
such as Catherine MacKinnon and Andrea Dworkin.
MacKinnon (1993:28) states that ‘if prostitution is a
free choice, why are women with the fewest
choices the ones most often found doing it’?
But in more recent years, this approach has
been challenged by postmodernist feminists who
have become circumspect of modernist and
‘grand’ theoretical explanations of dominance and
victimisation. They embrace what Sandra Harding
has called ‘the fractured identities of modern life’
and emphasise the local and the specific context
of women’s real life experiences (Harding in
Charlesworth and Chinkin, 2000:44).
Together with liberal and libertarian feminists, they
emphasise individual choice, agency and freedom
to choose work (including sex work). Ratna Kapur
(2002:6) questions the hegemonic victim subject
with its focus on violence against women, which
reinforces the depiction of women ‘in the Third
World as perpetually marginalised and
underprivileged’ and enforces gender and cultural
stereotypes.
Giving voice to the individual experience has
added new dimensions of understanding to
feminist theories by recognising the agency,
autonomy and resilience of individual women.
Abusing the vulnerability of women should be
confined to situations where there is ‘no real and
acceptable alternative but to submit to the abuse
involved’ (Travaux préparatoires, 2000). Do adult
migrant sex workers who consent to engage in
this work really want to be treated as trafficked
and be rehabilitated?
The ‘rescue and rehabilitation’ strategy
promotes a gender essentialism that fails to take
into account multiple and contradictory subject
positions. Such strategies do not empower
Human rights focus on trafficked women: An international law and feminist perspective 51
article
‘If prostitution is a free choice, why are
women with the fewest choices the
ones most often found doing it?’
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women but actually add to controlling women and
policing their bodies. While patriarchy and
contemporary discourses have produced a
dominant masculinity, rescuing women does not
present a solution but becomes just another
technique of power, contributing to the production
of the helpless victim.
A more empowering solution would be to
acknowledge consent, protect women’s labour
rights in the sex industry and reduce exploitative
practices in the work environment. In the end, the
UN trafficking protocol adopted a coercion-based
definition of trafficking. Even ‘abuse of vulnerability’
should be interpreted as a psychological and non-
physical form of coercion or threat.
Notwithstanding the UN Protocol, the SALRC
(2006) takes a different approach. It proposes to
make action and purpose by any means or by
abusing vulnerability sufficient to fulfil the
elements of trafficking. If the SALRC proposal in
the present format goes to parliament, South
Africa will be turning back the clock to the position
of the – not very effective – 1949 Convention.
A counter-trafficking discourse that brings
voluntary sex work in the scope of trafficking
impacts on the development of anti-trafficking
measures. This is likely to impact negatively on
the possibility of effective strategies, as resources
would be diverted to combating prostitution rather
than the very serious crime of trafficking. Within
the context of trafficking, prostitution is always
unacceptable, because it is done under coercive
circumstances for the purposes of exploitation.
But this should be separated from including all
(adult) consensual recruitment or migration for sex
work as trafficking.
For example, the European Court of Justice in
Jany and Others v Staatssecretaris van Justitie
2
held that the Netherlands could not refuse to give
residence permits to migrant prostitutes from
Poland and the Czech Republic who were self-
employed. This conforms with the argument
brought forward in this paper that the debate on
regulating and (de)criminalising prostitution should
be separated from and held outside of the context
of trafficking.
A genuine concern for women engaged in
prostitution might have motivated the SALRC.
Another motivating factor to link trafficking and
prostitution is the blend of gender and morality
arguments that has become institutionalised and
internationalised through the United States’
sanctions system. The American Trafficking
Victims Protection Act of 2000 (TVPA, as
supplemented by the 2003 and 2005 TVPR Acts)
establishes a sanctions regime that authorises the
US president to withdraw United States non-trade-
related, non-humanitarian financial aid from
countries who are not sufficiently compliant with
the minimum standards for the elimination of
trafficking as determined by the US.
Thus, as Chuang (2006:437) states, ‘in
assuming such extraterritorial reach, the United
States has proclaimed itself global sheriff on
trafficking’. South Africa is listed on the Tier 2 watch
list because it does not fully comply with the
minimum standards and has failed to provide
evidence of increasing efforts to combat trafficking
in persons (US Department of State, 2006).
To assist foreign governments to become
compliant, the US Trafficking in Persons (TIP) office
provides countries with a draft plan of action and a
document that employs a ‘trafficking definition that
mirrors the Palermo Trafficking Protocol but for one
critical difference – how it defines the term
“exploitation”’(Chuang, 2006:437). The Bush
Administration is taking a strong stance against
legalised and tolerated prostitution and, by American
law, no US grants are awarded to foreign, non-
governmental organisations that promote, support
or advocate the legalisation of prostitution.
AGENDA 70 200652
article
Rescuing women does not present a solution
but becomes just another technique of power
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The US government, through
assistance in drafting domestic anti-
trafficking legislation and the funding
requirements, is advocating for an
abolitionist view in the context of
trafficking (Chuang, 2006:437). Although
the US’ efforts have propelled many
governments into action against
trafficking, imposing – by the threat of
sanctions – its own ideological
understanding on other states
undermines the international law
standards set out in the UN trafficking
protocol.
Forced labour
The conditions of work, the absence of
legal protection and ways to eradicate
forced labour or services, instead of the
nature of work should be at the centre
of efforts to combat trafficking. Men
and women are trafficked for purposes
of exploitation in domestic work,
agriculture, sweatshops, construction
work, for sexual services and marriage.
Even the US Department of State
(2006) has admitted that, if domestic
trafficking is taken into account,
trafficking for forced labour or ‘slave
labour’ purposes might be much greater in size
than trafficking for sexual exploitation.
The SALRC (2006) and others have argued
that the tolerance of prostitution in society leads
to trafficking. However, this line of reasoning is
never extended to other sectors in which
trafficking occurs. Why is it that no one suggests
the abolition of domestic work, marriage,
agricultural or factory work because of abuse and
exploitation in these sectors? Why should a
distinction be made between forced economic
exploitation and forced sexual exploitation as end
purposes of trafficking? Issues of consent and
abuse of power and vulnerability should be
explored in all forced labour situations and not be
confined to sexual exploitation.
Marjan Wijers and Lin Lap-Chew (1999:39)
state that the nature of labour is confused with
the conditions of labour. They point out that
‘the abolition of slavery did not deal with the
abolishment of a certain type of work but with
the abolition of a certain type of power
relationship – namely ownership of one
individual over another individual – which is
considered a violation of human rights. After
the abolition of slavery, people still work in the
cotton-fields, and domestic work is still being
Human rights focus on trafficked women: An international law and feminist perspective 53
The South African constitution ensures people’s right to freedom from
slavery, servitude and forced labour.
KRISTIN PALITZA
article
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done. It is only when prostitution is discussed
that the aim becomes the abolishment of the
activity as such, rather than the abolishment of
certain power relations’.
With increasingly restrictive migration policies in
many countries, criminal elements seize
opportunities by facilitating migration by demanding
large sums of money for border-crossing with
promises of employment. They extract further
profits by exploiting the labour of the ‘migrated’
person at the place of destination. Trafficked forced
labourers generate huge profits, according to ILO
(2005:55) estimates more than $30 billion annually.
The recent case of Siliadin v France
3
, in which the
European Court of Human Rights (ECHR) held that
France had violated the European Convention on
Human Rights, is illustrative of an approach that
focuses on the exploitation suffered by a trafficked
person. The state has obligations to provide adequate
criminal legislation to afford the applicant practical and
effective protection against being subjected to
servitude and treatment contrary to Article 4 of the
European Convention on Human Rights (prohibition
of slavery, servitude and forced labour).
The applicant, a minor of 15 years, had arrived in
France from Togo under false promises. She was
held in debt bondage and servitude and forced to
work without freedom of movement or free time.
Her passport was confiscated, and she was
required to perform forced labour as a domestic
worker in the house of her employers for 15 hours
per day, seven days a week. The court case
centred around the forced labour or slavery-like
outcomes of trafficking, exploitation, working and
living conditions and the level of constraint
imposed on the victim, rather than on the
technicalities of the trafficking process.
Even regular migrant workers are in vulnerable
positions and face multiple forms of discrimination
in the country of employment on the basis of race,
gender, religion, ethnic or social origin, nationality
and economic position. Those in irregular
situations, such as persons trafficked into
exploitative labour situations and held in debt
bondage or servitude, are worse off. Women, in
particular, are vulnerable to labour exploitation in
the sectors they are typically employed in,
including domestic work, child care, looking after
the elderly and sex work.
Protecting and assisting
trafficked women
Both the Special Rapporteur on Violence against
Women and Children, Radhika Coomeraswamy, and
the Office of the High Commissioner for Human
Rights’ Recommended Principles and Guidelines on
Human Rights and Human Trafficking declare that
trafficking in persons is a cause as well as a
consequence of violations of human rights. It is
therefore essential to place the protection of all
human rights at the centre of any measures taken to
prevent and end trafficking (Coomeraswamy, 2000;
OHCHR, 2002; Kaye, 2003; Lansink, 2004). Anti-
trafficking measures should not adversely impact on
trafficked persons and address the issue of gender
discrimination systematically.
States parties to the United Nations trafficking
protocol are obliged to consider measures to provide
for the physical, psychological and social recovery of
victims of trafficking in persons, such as appropriate
housing, counselling and information, in particular
with regards to their legal rights, medical,
psychological and material assistance, employment,
education and training opportunities.
The Recommended Principles and Guidelines
on Human Rights and Human Trafficking advocate
for even greater protection: trafficked persons
should be protected from further exploitation and
harm and should have access to adequate physical
and psychological care. Such protection should
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Her passport was confiscated, and she was required
to perform forced labour as a domestic worker
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not be conditional on the willingness of the
trafficked person to cooperate in legal
proceedings (OHCHR, 2002).
The Council of Europe Convention on Action
against Trafficking in Human Beings (2005) provides
for the mandatory protection of a broad range of
rights for trafficked persons. They are entitled to
standards of living that can ensure their subsistence,
through appropriate and secure accommodation,
psychological and material assistance, translation,
legal assistance to have their rights and interest
presented at criminal trials against their offenders
and access to education for children. The SALRC
(2006) proposed Bill Combating Trafficking in
Persons is not following suit.
Conclusion
It is imperative that victims of trafficking receive
protection and assistance in accordance with
generally accepted standards of international
human rights law. In South Africa, these standards
are found in the Constitution, other laws and the
core human rights treaties. Included are the right
to life, right to equality and non-discrimination,
right not to be subjected to torture, cruel and/or
degrading treatment and punishment, freedom
from slavery, servitude and forced labour, right to
be free from physical violence, right to security,
freedom to choose residence and freedom of
movement, right to health, right to work, right to
safe and healthy working conditions, just and
favourable remuneration, right to an adequate
standard of living and right to marry with free and
full consent and not to be sold in marriage.
Human rights should protect people against
violations. The state must respect human rights
and ensure compliance with human rights. It is
liable for wrongs committed by private individuals
if it fails to prevent, investigate or punish those
who have violated human rights.
A human rights approach to trafficking needs
to focus on the trafficked person, pay particular
attention to the protection of the victim and
safeguard his or her rights. Men and women are
differently situated when accessing human rights.
They are also trafficked in different ways and for
different reasons. Trafficking violates the right to
dignity and integrity of the trafficked person but is
also a specific gender-based harm. Advocating for
a human rights approach to trafficking does not
diminish the importance of a criminal justice
approach to human trafficking but rather
integrates human rights into prevention,
protection and prosecution.
There is another relevant layer: Since
trafficking predominantly involves migrants in
search of employment, it cannot be isolated from
the broader migration framework and the violation
of the rights of migrant workers. At the heart of
the matter is the exploitation suffered by the
trafficked person, whether for sexual or other
economic exploitation.
This
article has focused on the forced labour
environment many trafficked victims find
themselves in rather than on whether a person was
performing sexual services or other kinds of work
under coercive and exploitative conditions. It has
been argued that effective anti-trafficking strategies
start with the lived experiences of the trafficked
person and acknowledge the coercion-based
definition of trafficking that separates consensual
migration for sex work from trafficking.
Notes
1 The Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa was
adopted in Maputo by the African Union in July 2003 and
entered into force in October 2005.
2 European Court of Justice Reports, Aldona Malgorzata
Jany and Others v Staatssecretaris van Justitie 1-08615,
judgment 20 November 2001.
3 European Court of Human Rigths, ECHR 73316/01,
judgment 26 July 2005.
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AGENDA 70 200656
article
ANNETTE LANSINK holds law degrees, including two Masters degrees, from universities
in the Netherlands and South Africa. She is a senior lecturer in the School of Law and the
Institute for Gender Studies at the University of Venda, South Africa. Her research interests
are in areas of international human rights law, gender, social justice and transformation of
higher education. Lansink is Rapporteur of the Committee on Feminism and International
Law of the London-based International Law Association and a consultant on trafficking and
related topics for United Nations agencies. Email: lansinka@mweb.co.za
Downloaded by [218.108.149.34] at 14:26 21 March 2014
... In most Ethiopian cases, the initial migration decision is made by the migrants' own free will Addis Ababa University, 2015;Sharma, 2005). They are often given misinformation regarding the positions and circumstances awaiting them in the host countries by brokers, agencies, smugglers and traffickers (Lansink, 2006;UN, 2000;Marina & Medareshaw, 2015). Misleading information by traffickers shapes the knowledge and beliefs of migrants. ...
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Explains how the concept of forced labor is defined in international law and discusses some parameters for identifying contemporary forced labor situations in practice. Provides the first minimum global estimate of the numbers of people in forced labor by an international organization, broken down by geographical region and by form of forced labor. Gives a global picture of contemporary patterns of forced labor, and of action to eradicate it. Reviews the ILO’s assistance to member States for the eradication of forced labor, in view of the creation of a Special Action Programme to Combat Forced Labour. Lastly, it makes recommendations for future action.
The Sexual Exploitation of Women and Girls: A Violation of Human Rights
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