International Law and Regional Initiatives for Combating Human Trafficking in South Asia – By Mahmudul Hasan

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For the last few days, our attention has been fixed at newspaper headlines that read the news about human trafficking from South Asiadistained to Southeast Asian countries – especially to Malaysia and Thailand – through the sea. Evidently, most of the identified trafficked victims, for the last few weeks, are Rohingya Muslims – who are persecuted from their own country, Myanmar – and rest of them are Bangladeshi. There are some organized mafia-groups, connected throughout Bangladesh, India, Nepal, Myanmar, Thailand, and Malaysia, involved with human trafficking in this region.

The most common contributing factors to labor and sex trafficking in the South Asian region are economic insecurity and poverty. Most of the South Asian people are trafficked abroad as physical laborers or domestic servants. Increased demand for cheap labor and migration of people across national borders as a consequence of Globalization is multiplying the problem. According to the Global Slavery Index, India tops, Pakistan ranks third and Bangladesh ninth on the list of countries with the highest number of enslaved people. The U.S. State Department’s 2014 Trafficking in Persons Report ranks most of the South Asian nations as Tier 2 states, except for Pakistan and Sri Lanka, which are ranked as Tier Two Watch List.

Many South Asian governments have little incentive to address human trafficking because they often rely on remittances for revenue. Reliance on remittances has created an unending cycle of abuse in which the governments in South Asia often refuse to intervene in trafficking.

Bangladesh is primarily a source country for forced labor and sex trafficking. In Bangladesh, parliament passed the 2012 Prevention and Suppression of Human Trafficking Act that called for establishing a tribunal for human trafficking offenses to speed up processing of cases. Since then Bangladesh has prosecuted an increased number of human trafficking cases but conviction rates remain unsatisfactory.

Recent cases involving the discovery of mass graveyards and the rescue of over thousands of Bangladeshi and Rohingya people who were trafficked to Thailand has highlighted the scourge of human trafficking, which usually remained hidden from the public’s view and received little attention for several years. The traffickers lure the Bangladeshi men with promises of employment, but once in custody, the men are drugged and taken to camps in Thailand, where they are regularly beaten, abused, and deprived of food. Local police and human rights groups say there has been a recent surge in human trafficking along Bangladesh’s southeastern coast.

The South Asia Association of Regional Cooperation (SAARC) Trafficking Convention – which was passed in 2002 – has been hailed as a landmark effort to combine regional countries’ efforts to eradicate trafficking but the practical implication to redress the problem is yet to come.

Being an international crime under Article 7(1) of the Rome Statute of the International Criminal Court (1998), human trafficking proves to be a concerning issue for the global community and, to some extent, is beyond the reach of a country alone to fight with.UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000)[ UNAnti-trafficking Protocol] was the major international action against human trafficking by UN. UN Office on Drugs and Crime (UNODC) defines human trafficking to be the acquisition of people by improper means such as force, fraud or deception, with the aim of exploiting them. Human trafficking mainly happens for economic gain. UN Anti-Trafficking Protocol further defines human trafficking to include the recruitment, transportation, transfer, harboring 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 purpose of exploitation (Article 3).

The basic purpose of the UN Anti-Trafficking Protocol is to prevent and combat trafficking, to protect and assist victims and to promote international cooperation. The protection of, and assistance to, victims is specified as a core purpose of the Protocol. Article 4 limits the application of the Protocol to instances where human trafficking is transnational in nature and involves organized crime. TheProtocol requires states to establish criminal liability for human trafficking and to adopt preventative and cooperative measures to deter it. It also requires State Parties to provide a robust regime of health and social services to victims, including the possibility of remaining temporarily or permanently in the receiving country. Article 14 of the Protocol precludes any effect of the Protocol on international humanitarian and human rights law obligations and specifically mentions the 1951 Convention and 1967 Protocol Relating to the Status of refugees. (Commentary on Human Trafficking by UNHCR)

International Convention on the Protection of the Rights ofAll Migrant Workers and Members of Their Families(1990) stresses that undocumented migrants (which would include victims of trafficking) must see their fundamental human rights respected and obliges the state parties to  “detect and eradicate” irregular migration in its territory with a view to sanctioning human trafficking.

 

in1The UN Anti-Trafficking Protocol has helped to raise global awareness of human trafficking and provide a definitional framework for the problem. However, the protocol lacks a way to measure compliance with and conformity to its requirements on domestic human trafficking laws. Nor does it have an enforcement mechanism.
In addition, Convention Relating to the Status of Refugees (1951)and protocol (1967), Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (2000), ILO Conventions on Labor Rights and international human rights instruments, for instance, UDHR, ICCPR, ICESCR and so forth, sometimes, become relevant in dealing with human trafficking cases.

Moreover, over the past decade, an international consensus has developed around the need for a rights-based approach to trafficking. The General Assembly and the Human Rights Council, for example, have both advocated such an approach, as have many relevant human rights mechanisms, including special procedures and treaty bodies. A human rights-based approach is a conceptual framework for dealing with a phenomenon such as trafficking that is normatively based on international human rights standards and that is operationally directed to promoting and protecting human rights. Such an approach requires analysis of the ways in which human rights violations arise throughout the trafficking cycle, as well as of States’ obligations under international human rights law. It seeks to both identify and redress the discriminatory practices and unjust distribution of power that underlie trafficking, that maintain impunity for traffickers and that deny justice to their victims. (Commentary of the UN Human Rights Office of the High Commissioner on human rights and human trafficking)

Despite the presence of the domestic and international law, human Trafficking in South Asia, reportedly, is on the rise. From the humane perception, human trafficking costs heavily upon our social and individual levels and, statically, our economic relations to downfall.  Human trafficking jeopardizes the dignity and security of trafficked individuals, and severely violates their human rights. In South Asia, Constitutions of India, Bangladesh and Nepal guarantee the right to life and right to seek protection under the law, but they are often merely rhetoric when it comes to the question of practical implementation. In order to combat trafficking and, thus, to protect the human rights of the vulnerable people, strong political will of the governments in these countries is vital in implementing their anti-trafficking mandates under domestic and international law.

Poverty is the principal actor behind the widespread human trafficking problem in South Asia. People lacking basic needs and a secured means of earning livelihood often dares to voyage– through the sea with an unsecured and vulnerable boat, and without sufficient food and water –   for an uncertain destination seeking a better way of life leading. Short term and long term versatile poverty reduction strategies can be proved effective to minimize the problem to a satisfactory level.

A human rights-based approach would help us to address the vulnerably factors or root causes of trafficking. It helps us to understand how root causes such as poverty, corruption and unfair treatment among people reinforce the process of trafficking in these countries. Further, it could help us to consider how trafficked persons are victimized in the destination countries and how they are worthy of protection in order to strengthen the notion of human rights.in3
Trafficking is a gendered phenomenon. It is likely that people who are vulnerable are powerless, and many vulnerable women become victims of trafficking. In order to uphold a human security approach, emphasis must be given to gendered aspects of trafficking in future research. Gender empowerment would help to reduce both men and women’s vulnerability to trafficking.
Education is a must to fight poverty and trafficking.

 

There are enough anti-trafficking laws in these countries but they are seldom implemented. Implementation of these laws is essential to check the corruption related complicities. Accountability and efficiency of the law enforcers are very important. At the same time capacity building of law enforcement officials against corruption and trafficking is a must.

Media and civil society can play a crucial role to bring and expose adverse effects of human trafficking issues to the public for raising public awareness.

 

There is an urgent need for a strong political will and regional cooperation to fight against human trafficking.  A country alone – considering the nature and extent of the problem – cannot get rid of the human trafficking without regional and global cooperation. A uniform mechanism for South Asia under the SAARCEadministration can be effective for quick detection of a human trafficking action and communication to trafficked victim’s country and family.

Mahmudul Hasan studies LLM at the University of Dhaka.