[Ed. Note: The article below was presented as a written submission to the Asia-Pacific Seminar of Experts on Migrants and Trafficking in Persons with Particular Reference to Women and Children that was held in Bangkok, Thailand, from Sept. 5 to 7, 2000. The seminar was a preparatory meeting for the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance that will be held in South Africa in August 2001.]

It is the observation of the Asian Human Rights Commission (AHRC) that the overall 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 that a few experts and almost all representatives of non-governmental organisations (NGOs) 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 Western governments' perspectives were more prominently heard.

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

(1) Treating all forms and contexts of migration as similarÐfor example, professional migrants and other privileged migrants are lumped together with those who migrate for very low paying jobs, such as labourers, domestic helpers and other work usually considered to be menial;

(2) Characterising migration of the poor as middle-class migration;

(3) Delinking the poverty factor from a 'greater awareness factor'; for according to this view, people migrate because they are now more aware of opportunities than because of poverty;

(4) 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 opportunities,' were expressed. This can be said of anyone, including slaves. The slaves may be better off than those who could not become slaves, one could say, as their masters gave them food, drink and shelter. This approach ignores human rights issues and issues of discrimination);

(5) A failure to distinguish trafficking in people, including children, as a separate issue from the general issue of illegal migration as trafficking is a very complex phenomenon that requires very specific and rights-sensitive measures in order to avoid revictimizing victims, especially women and children;

(6) A failure to discuss the restrictive immigration policies of the more affluent countries as a cause of illegal migration;

(7) A failure to consider the structural issues behind the relationships between the richer nations and the poorer nations and the impact of this on migration, whether legal or illegal; and

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

The policy implications of this approach, from the world conference point of view, will be to seek the endorsement of very harsh punishment on illegal migrants in order to deter them and, as for legal migrants, to treat them as an already fortunate category of people compared to others in their countries and, therefore, not requiring any 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 labourers while in the past more people may have made their living from agriculture or other forms of traditional employment, such as fishing, etc. As people move from rural forms of employment, there is greater unemployment. Underdeveloped economies do not expand fast enough to absorb the new mass of people who seek jobs. Meanwhile, the former peasants become dependent on money for everything, and the rural safeguards which the poor had in the past disappear. Unlike in a rural economy, the poor become more mobile. Meanwhile, globalisation reduces social safeguards, such as health and education, which now have to be purchased, and consequently, the pressure to make more money for survival becomes urgent. In this process, the poor begin to learn of other possibilities for employment outside of their impoverished communities. Moreover, because of 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 derooted in some degree from their traditional social milieu and culture.

All this does not make the poor 'richer.' In fact, the poor are now more dependant on money, which they do not have, and become more dependant on employment. If they cannot 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 people migrating from the poorer sections of society clearly reveal their needs. The payment of debts, the need for money to treat the health problems of family members and food for the older or younger members of their families are among the more common motives for migration. Rather than becoming richer, surviving at levels they had in the less complex societies with traditional safeguards becomes the motivation for migration.

The assimilation of people seeking migration depends on the available opportunities outside of the community. However, there are vast numbers who cannot find such employment legally or cannot find the means for legal migration immediately. These are the basic causes of illegal migration. Some of those seeking help to migrate 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'

Because trafficking in persons was not defined as a specific issue that takes place within the migration continuum, but is not concomitant with either 'illegal migration' or the 'smuggling of persons,' the boundaries of the issues remain vague and confusing. Such a policy line is naturally not a human rights-based position. In fact, it runs contrary to a human rights perspective. Moreover, this conference, which is against racism, xenophobia and other related forms of intolerance, cannot accept a policy line as described above, which is itself racist in content. If a dislike of migrants, and even a hatred of them as is prevalent in some countries, is echoed at this world conference, it will certainly defeat the purpose expressed in the theme of the conference.

Therefore, AHRC suggests that the world conference adopt the definition made by the special rapporteur on violence against women in which the special rapporteur gave a comprehensive and rights-based definition of 'trafficking in persons,' which was unanimously accepted by the U.N. Commission on Human Rights (E/CN.4/300/68):

'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 slaverylike 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 people from the point of view of the moral and social issues involved, the human rights issues associated with this practise. Trafficking in people 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 the root causes of migration in both the sending and receiving countries, the specific crime of trafficking in people must be dealt with through an effective legal mechanism against the perpetrators, on the one hand, and assistance to the victims, on the other. If this is dealt with merely as an issue of illegal migration, it is unlikely to receive the proper attention it requires. Moreover, the sensitivities needed in both areas are very different.
A Human Rights Approach to Migration

A human rights approach regarding migration must be based on the right to life and the right to work. The right to life is not just the right to live an animal-like life but rather a life with dignity. The 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 that 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 the failure to achieve an adequate standard of living that drives the poor out of their lands to other countries. But do they then find work, the conditions of work and adequate living standard as prescribed by the International Covenant on Economic, Social and Cultural Rights (ICESCR) in the countries to which they migrate? 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, the right to work and an adequate standard of living must be the standpoint from which the issue of migration is approached.

The issue of 'trafficking in people' should be dealt with as morally heinous and inhumane. From this point of view, legal and other measures need to be developed to eradicate it and help the victims. For strategic purposes, the trafficking of people, which is a crime based on coercion and deception and results in multiple human rights violations, 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 U.N. Commission on Human Rights on Trafficking in Persons (E/CN.4/2000/68) deserve special attention.

A. At the International Level

(107) The protocol on trafficking to the draft international convention against transnational organised crime should ensure an unequivocal human rights standard on trafficking in women since it is impossible to combat trafficking without providing protection to the 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 institutionalisation of the rule of law in countries currently in transition, in situations of armed conflict or under military regimes.

(110) NGOs should be granted observer status at the meetings of heads of state of regional forums, such as the South Asian Association for Regional Cooperation (SAARC), the Association of Southeast Asian Nations (ASEAN), the Organisation of African Unity (OAU) and the Organisation of American States (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 their 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 NGOs. Furthermore, governmental organisations and international donor institutions should provide financial support to NGOs 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 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 marginalise, criminalise, stigmatise 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 interagency cooperation, cooperation between local and national authorities and cooperation with NGOs;

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

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

(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 the provision of all documents and records pursuant to having been victims of trafficking and/or forced labour or slaverylike practices;

(e) Free legal assistance; and

(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 slaverylike 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 slaverylike 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 NGOs, 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 that includes their legal and civil rights in the areas of labour and marriage, and for crime victims the names of support and advocacy organisations 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 United Nations General Assembly Resolution 49/165 on violence against women migrant workers passed on Dec. 23, 1994, and 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 recognising 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 Guidelines on the Protection of Refugee Women of the United Nations High Commissioner for Refugees (UNHCR);

(g) Ensure that all trafficking legislation is gender-sensitive and provides protection for the human rights of women and measures 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; and

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