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Global Alliance Against Traffic in Women

Human Rights
at home, abroad and on the way...

GAATW Logo

Global Alliance Against Traffic in Women

Human Rights
at home, abroad and on the way...

Recommendations for Alliance 8.7 and the Achievement of SDG 8

IV Global Conference on the Sustained Eradiation of Child Labour

14-16 November 2017, Buenos Aires

Position paper by the Global Alliance Against Traffic in Women (GAATW)

versión en español

In 2015, world leaders adopted the 2030 Sustainable Development Goals. In target 8.7, they pledged totake immediate and effective measures to eradicate forced labor, end contemporary forms of slavery and trafficking in human beings, and ensure prohibition and elimination of the worst forms of child labor, including the recruitment and use of child soldiers, and, by 2025, ending child labor in all its forms.”


Alliance 8.7 was created a year later to help states achieve this goal. While we appreciate the importance of the present effort to eradicate child labour, we are concerned that in seeking to address target 8.7, the other aspects of this target will be overlooked.


This document seeks to outline issues that must be addressed without delay if we are thinking seriously about eradicating forced labour. What we present here is the result of the work of many people and entities involved with GAATW and the knowledge and experience of migrants and trafficked persons.

States should implement the protections of labour rights for all workers[1] without any distinctions

The trend in global labour markets is toward precarious, informal and risky work. ‘Acceptable’ poor working conditions are being normalised because they do not meet the criteria for extreme exploitation, and therefore, do not merit the government to intervene and demand from employers and companies the labour rights of their employees. The trend towards precarious work is even more obvious in sectors with low status, little protection, considerable control, and low wages in which women and migrants predominate.

States should implement a framework for action that addresses the economic and labour dimensions of forced labour and human trafficking, including those which place a disproportionate burden on women

The eradication of forced labour and fulfilment of rights at work are intrinsically linked to States’ broader development commitments and rights obligations, including the right to adequate housing and the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.[2] It is important to address the lack of investment in social protection, poverty wages and forced overtime. A lack of social protection supports the dependence of the development model on the unpaid social reproductive work of women. States must put in place policies and provide adequate public services that promote a more equitable exchange of unpaid care responsibilities.

 

The tightening of migration restrictions creates opportunities and incentives to abuse the rights of migrants and workers, and states should address migration policies accordingly

Migrants are human beings and entitled to all human rights, regardless of status.[3] A lack of access to regular migration channels and legislation and policies that do not respect, protect and fulfil the rights of migrants means that migrants must depend on alternative routes through which they can run the risk of human rights abuses, including trafficking. The incidence of abuses arising from inadequate access to migration channels need to be reduced. States, and other actors, also need to recognise the agency of migrants, promote their autonomy and leadership, and stop treating them as victims or criminals.


The prevention of trafficking cannot be a justification for limiting the human rights of migrants

The need to prevent trafficking in persons is often cited by states as ideological cover to justify increased border restrictions and other anti-migration initiatives, including gendered restrictions on women’s migrations.[4]
The implementation of the UNTOC Protocols against human trafficking and the smuggling of migrants have focused disproportionately on prosecutions and criminalisation – a ‘Crime Control Approach’ - while inadequate resources and energy have been allocated to the restitution of the rights of trafficked persons and abused migrants. Success in anti-trafficking is measured not by the numbers of prosecutions or by border restrictions, but by the experience of trafficked persons in the restitution of their human rights.

Freedom of association and collective bargaining are essential to reduce vulnerability to forced labour

It is necessary to strengthen the knowledge of workers, migrants and nationals alike, of their rights and defend them, ensuring administrative measures that allow them to seek justice in cases of exploitation.

We urge Alliance 8.7 to:

  1. Incorporate civil society organisations, especially those of migrants or working children and adolescents, in forums and conferences such as this one to ensure that these people participate actively and are recognised in the political spaces that affect their lives.
  2. Focus efforts to ensure that the labour rights of migrants are upheld throughout the UN architecture, seeking complementarity with and including in the negotiation of the Global Compact for Migration.

We further urge States to:

  1. Reaffirm, in policy and practice, the protection of the human rights of all migrants, regardless of their immigration status
  2. Remove barriers to access to justice that exist for migrants who have been exploited or trafficked
  3. Eliminate all forms of detention of irregular migrants whose only fault is having entered or remained in a country without official authorisation.
  4. Implement firewalls by keeping public services and the criminal justice system separate from the application of migratory laws, allowing migrants who are in an irregular situation to report situations of exploitation and access the necessary social services.

 

[1] Objective 8.8 of the Sustainable Development Goals

[2] Article 25, Universal Declaration of Human Rights and Article 12, International Covenant on Economic, Social and Cultural Rights.

[3] The Charter of International Rights - Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights - includes nationals and non-nationals. There are only exceptions with respect to two rights, and only in limited circumstances: The ICCPR, in Article 25, reserves to the citizens the right to vote and participate in public affairs, and in Article 12 reserves the right to freedom of circulation within a country to foreigners who are legally present in the country. However, in its General Comment No. 15, the Human Rights Committee has indicated that a foreign person can enjoy the protection of Article 12, including in relation to entry or residence, for example, when considerations of non-discrimination arise, prohibition of inhumane treatment and respect for family life.

[4] GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011; ILO, No easy exit: Migration bans affecting women from Nepal, ILO, Geneva, 2015; R. Napier-Moore, Protected or put in harm’s way? Bans and restrictions on women’s labour migration in ASEAN countries, International Labour Organization and UN Women, Bangkok, 2017; Khoo Choon Yen and Kellynn Wee, Do Indonesian women want to be ‘rescued’ from ‘trafficking’? Migrating Out of Poverty, 12 July 2017.

Facilitating migration and fulfilling rights

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FACILITATING MIGRATION AND FULFILLING RIGHTS – TO REDUCE SMUGGLING OF MIGRANTS AND PREVENT TRAFFICKING IN PERSONS

Global Compact for safe, orderly and regular migration: Thematic consultation on smuggling of migrants, trafficking in persons and contemporary forms of slavery, including appropriate identification, protection and assistance to migrants and trafficking victims

4 and 5 September 2017, Vienna

Position paper by the Global Alliance Against Traffic in Women (GAATW)


The global compact for migration seeks to realise safe migration. Too often, anti-trafficking legislation, policy and practice are used more to justify and rationalise deterrence policies and strengthen border policing than for addressing human trafficking and providing assistance to trafficked persons. Ensuring that migrants’ rights are respected, protected and fulfilled is the basis of preventing such crimes and human rights violations against migrants as trafficking in persons. An approach that respects, protects, and fulfils the human rights of migrants is also the basis of ensuring the identification of individuals who have been trafficked, the provision of assistance and protection, and access to justice including the right to remedy.

Trafficking and smuggling are legally distinct, however the reality is they may overlap in some instances, where persons trafficked may also have been smuggled. It is critical to distinguish the two issues that are too often used interchangeably. One result of this is that authorities do not always screen migrants to assess whether they have been trafficked, but detain them as criminals, as having been smuggled, or as irregular migrants, deporting them before they have a chance to realise their rights and the assistance to which they are entitled.

Conflating smuggling and human trafficking leads to criminalisation or stigmatisation of migrants and all people who assist with the migration process, and the denial of migrants’ human rights. The conflation makes plain the anti-migration agenda that underlies such efforts, making it is increasingly difficult to enter states through regular channels, it is also next to impossible to enter without someone’s help. It undermines efforts to prevent trafficking in persons and assist those who have been trafficked if the emphasis on stopping irregular migration or smuggling results in processes that do not provide for the identification of people who have been trafficked. States and non-state actors should provide rights-based responses and protection which apply under the specific protocols as well as under human rights law.

The global compact offers an excellent opportunity to de-link smuggling and trafficking and GAATW urges states to ensure this clarity in the compact and its implementation. In particular, the global compact is an opportunity to strengthen the understanding of and rights-based responses to smuggling of migrants and thus reduce the need for migrants to rely on smugglers, whereas trafficking in persons is not wholly tied to migration and the work is better established, with practical guidance on a rights-based approach to anti-trafficking.[1]

  1. SMUGGLING OF MIGRANTS

In the Global Compact, states should:

  • Distinguish and delink smuggling of migrants from trafficking in persons.
  • Develop a rights-based approach to the smuggling of migrants.
  • Commit to opening more regular migration channels that are accessible to all migrants and do not perpetuate underlying gender and other discriminations, to reduce migrants’ need to rely on the services of smugglers.
  • Commit not to criminalise migration or migrants, including where migrants have used the services of smugglers.
  • Ensure that laws and policies on smuggling of migrants do not criminalise or target those who are providing assistance to migrants or supporting migrants for humanitarian or familial reasons, in line with the Smuggling of Migrants Protocol.
  • Prioritise rights-based responses to aggravated smuggling.
  • Ensure that measures aimed at addressing smuggling of migrants shall not adversely affect the enjoyment of the human rights of migrants and facilitate and cooperate with independent human rights monitoring.[2]

The global compact on migration needs to work in the real world, where for migrants to find safety there might still be need for some to seek recourse to smuggling.[3] The involvement of third party facilitators arises from state policies, which have seen insufficient safe and accessible regular pathways for migration and admission across different types of migration and the increased border securitisation including the externalisation of borders.[4] Limiting the number of regular migration channels has gendered effect given the systemic discrimination against women. This includes women migrants often having limited access to finances and resources compared to men in their country of origin to pay for the documentation required or because the main labour sectors to which women migrate, such as the care economy, are not adequately valued to be covered by regular migration options. In harmful situations, such as armed conflicts, at home or that emerge during the migration, smuggling may be an essential route to safety – thus efforts focused on preventing or combatting the smuggling of migrants can deny individuals their human rights, including the right of all persons to leave any country including their own and the right to seek asylum.[5] As such this is one point of intersection of the global compact on migration with that for refugees.

Although the UN Smuggling of Migrants Protocol makes clear that smuggling in the context of organised crime should be criminalised, not all smuggling is organised by criminal networks.[6] Smuggling is often organised via kinship or social and community networks making use of family or wider diaspora connections.[7] Moreover, counter-smuggling operations often focus on easier targets such as women, migrants, and the elderly, rather than organised crime – which is unjust and counterproductive to the goal of prohibiting smuggling, and a waste of the state’s resources.[8] Attempting to address smuggling only through a criminal justice lens cannot work: the Smuggling of Migrants Protocol identifies the need to address “socio-economic measures, at the national, regional and international levels” in its first paragraph.[9] The global compact offers an opportunity to build a consensus towards a rights-based approach to the smuggling of migrants.[10]

In large movements of migrants, research shows that migrants’ plans frequently evolve during the migration in response to new information and changing circumstances.[11] In such situations, migrants may have to rely on local actors rather than their own contacts. By emphasising the connection with transnational organized crime, states are able to represent the smuggling of migrants as a threat to their sovereignty and national security.[12] This drives a circular pattern of responses: limited regular channels for migration and increased securitisation of borders provides a role for smugglers; in response, states increase border controls, including through militarisation and the externalisation of borders, increasing migrants’ reliance on smugglers – at the same time failing to address the underlying structural forces driving these migrations. Moreover, this framing of smuggling of migrants as a threat feeds into wider anti-migrant sentiment currently fuelled by populist politics, driving discrimination and undermining efforts to ensure social inclusion and cohesion.[13] This focus on stopping the smuggling of migrants also encourages an expansion of the understanding of who is a smuggler beyond the intent of the international law on the issue to family members, or individuals and organisations who work to assist migrants, including those in large movements, with the result that they are erroneously criminalised as smugglers.[14]

Although irregular entry constitutes a violation of a country’s border and immigration laws, it is an administrative offence and people should not be criminalised for irregular entry, stay, or work;[15] further, international criminal law calls on states not to criminalise migrants for using the services of a smuggler.[16] The relevant international legal framework around the smuggling of migrants also encompasses the separate legal obligations under the law of the sea, human rights law, and refugee law, meaning that counter-smuggling initiatives must not adversely affect migrants’ enjoyment of their human rights.[17] Customary international law including the prohibition on racial discrimination, the prohibition on torture, and the right to a remedy, is binding on all states including in the context of the smuggling of migrants. Smuggling is not necessarily a violation of a migrant’s human rights and many migrants experience no difficulties and express gratitude to the facilitators.[18] A human rights-based response would be to realise states’ commitment to facilitate migration by opening more accessible regular migration channels, address the corruption that facilitates smuggling and worsens conditions for migrants, and focus the response on cases of aggravated smuggling where the smuggler abuses the rights of migrants or endangers their lives or safety.[19] This is also in line with the international law on the smuggling of migrants where states are “convinced of the need to provide migrants with humane treatment and full protection of their rights”.[20]

a. APPROPRIATE IDENTIFICATION, PROTECTION, AND ASSISTANCE TO MIGRANTS, INCLUDING IN THE CONTEXT OF SMUGGLING

In the Global Compact, states should:

  • Promote and protect the rights of migrants under international law, including for migrants who have been smuggled.[21]
  • Ensure anti-smuggling measures, including interdiction at sea, do not breach human rights obligations including the principle of non-refoulement.
  • Commit to providing gender-responsive protection and assistance, in line with women migrants’ self-defined best interests.
  • Establish, publicise, and monitor the implementation of binding firewalls in order to facilitate migrants’ access to justice, complaints mechanisms including labour inspection services, and social services.

As smuggling is taken to involve some level of consent by the migrant – although the agreed definition does not mention consent – migrants in situations of smuggling are not viewed as victims of crime or human rights abuses in the way that trafficked persons are and consequently there has been less attention to their assistance and protection needs.[22] Moreover, states’ focus on criminalisation of smuggling and of irregular migration can supersede implementation of their existing commitments including to ensure an individualised assessment of protection needs and identification process to identify migrants who have been subjected to human rights abuses, including trafficking, or have an asylum claim which may be missed in mixed migration flows. The anti-migrant rhetoric often labels migrants as criminals feeding a view that they do not have or deserve rights.[23]

A result of this focus on the means of migration rather than the individual who is migrating is that there are serious protection gaps for migrants who experience abuses within the smuggling paradigm and who do not fit existing state protection criteria.[24]

In addition to the protection of ensuring that migrants are not liable to criminal prosecution for having being smuggled,[25] states have agreed to the protection of the rights of persons who have been the object of smuggling,[26] and to implement their existing obligations and responsibilities of under international law, including international humanitarian law, refugee law, international human rights law.[27] These provide substantive sources of legal obligation with respect to protection and assistance owed to and guidance for the treatment of all migrants in situations of smuggling, including essential human rights principles of non-discrimination and non-refoulement.[28] All migrants, regardless of status or whether they used the services of a third party, have the right not to be returned or extradited to their country of origin or to another state where there are substantial grounds for believing that the individual would risk being subject to serious violations of their human rights.[29] This is also relevant to anti-smuggling operations such as interdictions at sea.[30] In operations at sea, states are required to ensure the safety and humane treatment of all persons on board.[31]

Though many migrants  who use the services of smugglers are able to complete their journeys without harm[32], the clandestine nature and power imbalance inherent to smuggling creates opportunities for unscrupulous and corrupt state and non-state actors to resort to ill-treatment, violence, and other human rights abuses against migrants, and states have obligations to protect and assist migrants in these situations.[33] The criminalisation of migration and of migrants in irregular status creates a barrier to individuals who have been smuggled reporting and seeking assistance for human rights abuses. States need to implement binding firewalls to eliminate migrants’ fear that their personal data will be shared with immigration enforcement authorities leading to arrest, detention and deportation denies migrants access to justice, complaint procedures, and social services.[34] For child migrants in situations of smuggling, states are obligated to take into account their special needs, in line with the wider international legal framework around the rights of the child.[35] In addition, the Smuggling of Migrants Protocol requires states to provide gender-responsive protection and assistance, however there is little guidance available on how best to achieve this and the global compact could provide an opportunity to develop this, in line with women migrants’ self-defined best interests.[36]

  1. TRAFFICKING IN PERSONS

In the Global Compact, states should:

  • Ensure the human rights of trafficked persons are at the centre of all efforts to prevent and end trafficking and that programmes to protect, assist and provide redress to them are adequately resourced.[37]
  • Facilitate and cooperate with independent human rights monitoring to ensure that anti-trafficking measures do not adversely affect the human rights and dignity of persons, in particular the rights of those who have been trafficked, and of migrants, internally displaced persons, refugees and asylum-seekers, and others.[38]
  • Review national and regional legal and policy frameworks to ensure that anti-trafficking frameworks are responsive to all genders and types of trafficking and do not rely on profiling or reinforce stereotypes based on gender, nationality, age, or other factors.
  • Recognise that regular channels of migration may create conditions for trafficking of migrant workers, especially women migrant workers in sectors that are not covered by labour laws, and reform programmes such as temporary, guest-worker, or circular migration programmes to eliminate institutionalised risks such as worker-paid recruitment fees, substandard working conditions allowed under such schemes, and sponsorship schemes tying visas to a specific employer.
  • Keep the collection and storage of trafficked persons’ personal data to the absolute minimum, ensuring the right to privacy and data protection standards to protect the personal data of trafficked persons, including by not transferring trafficked persons’ personal data across national borders.
  • Ensure the development and implementation of a credible and rights-based oversight mechanism for the Trafficking in Persons Protocol.

States’ agreement in 2000 of the international definition of trafficking in persons was a significant development in addressing this crime and human rights abuse. However, in the years since the adoption of the Trafficking in Persons Protocol, many states still vary in their approach – with some taking a narrow or increasingly broad interpretation of that definition and a move to using made-up concepts that lack the rigour of the legal definition.[39] Particularly for work on international cases, the use of a common agreed definition is central to collecting and sharing data and coordinating policy and assistance, as well as to criminal justice measures such as extraditing criminal suspects. The move to vague framings risks undermining the work to identify trafficked persons, provide them protection and assistance including redress, and prosecute perpetrators.[40]

The need to prevent trafficking in persons is often cited by states as ideological cover to justify increased border restrictions and other anti-migration initiatives, including gendered restrictions on women’s migrations.[41] However, trafficking is not simply a function of irregular migration: many regular migration schemes that would not be affected by border controls, including those for temporary seasonal work or tied visa schemes including the kafala system, lead to the migrant being in a situation of trafficking.[42] Bilateral agreements, pre-departure trainings, and other information provided to migrants and workers about their working conditions should promote the human rights of migrants and states’ obligations to migrants, workers, or trafficked persons.[43]

Moreover, evidence shows that restrictive immigration policies push migrants to use more dangerous routes, necessitating them to pay higher fees to facilitators or as bribes to state actors for documentation or passage, and reducing their time and opportunities to find decent work to pay the exploitative debt they have incurred, all of which can increase the risk of being trafficked.[44] Together with empowering immigration enforcement officials to raid work establishments in the name of finding trafficked persons, such measures serve to expand criminalisation and detention, often for profit,[45] and make it more difficult for individuals who experience human rights abuses, including trafficking, to seek assistance and access justice. Research by GAATW and others have repeatedly demonstrated that anti-trafficking initiatives have resulted in human rights abuses against trafficked persons, migrants, and other workers.[46]

Implementing a rights-based approach that facilitates, and does not criminalise, migrations and decent work is the most constructive approach to preventing trafficking in persons, as it reduces opportunities for exploitation and enables individuals to report crimes and seek assistance without fear of detention and deportation. Trafficking and indeed migration cannot be looked at in isolation from development and economic policies that are creating an increasingly unequal world. Without addressing the structural drivers in the global economy that fuel the demand for the cheap goods and services made possible by poor pay and working conditions with little or no labour regulation, the conditions for labour exploitation, including of migrant workers and that may constitute trafficking in persons, will continue.

Although there is increasing focus on data and indicators, including an indicator under the 2030 Agenda for Sustainable Development, and a multiplicity of estimates, indices and rankings, there is currently no sound methodological basis for constructing a global estimate of trafficking.[47] While several of these studies describe the context within which the data should be understood or the limitations of the data, these are not as widely publicised as the headline numbers. This is one area where the diversity of definitions of trafficking, in law or in practice, creates problems. The data can only account for what is counted, therefore if the legislation or policy is limited or biased towards certain forms of trafficking over others the data will mirror those differences, giving a misleading impression of the level or types of trafficking in persons and making comparison impossible.[48] Given the sensitive nature of trafficking as a human rights abuse, it is particularly important that data gathering and storage is undertaken in line with confidentiality obligations to trafficked persons and their right to privacy and the highest standards of data protection. This means that collection and storage of trafficked persons’ personal data should be reduced to the absolute minimum and only for a clearly defined purpose and with the informed consent of the trafficked person. To protect the trafficked person and their family, any transfer of trafficked persons’ personal data across national borders should be avoided and their data should always be anonymised, secured such that their identities cannot be traced during and after return and reintegration procedures.[49]

The international law on trafficking in persons, along with several regional laws as well as at the national level, draws particular attention to women and children who are trafficked.[50] This gendered focus can have the effect of positioning women’s migrations as well as women themselves as inherently vulnerable, infantilising them through the connection with children, positioning them overwhelmingly as actual or potential victims of a crime and human rights abuses and questioning the appropriateness of women working outside the home. These normative perceptions have resulted in bans on women’s migration or in profiling women travellers or migrant workers as trafficked persons. Measures taken to address irregular migration, or to counter human trafficking (or smuggling of migrants), should not be discriminatory in purpose or effect, including by subjecting migrants to profiling on the basis of prohibited grounds of discrimination, and regardless of whether or not they have been smuggled or trafficked.[51] Instead we need a fully gendered response: the focus on women has led to services for and the identification of men who have been trafficked being neglected or underdeveloped.

The international human rights treaties and the anti-trafficking convention of the Council of Europe have credible monitoring mechanisms to support states’ implementation and offer authoritative guidance, offering a model of participation, transparency and accountability that the global compact should follow.[52] However, the international law on trafficking in persons has no credible accountability mechanism, nearly two decades after its adoption. Given the complexity of human trafficking, its interrelations with a range of other crimes and human rights abuses, the wide latitude given to states in interpreting and applying their obligations, and the documented abuses arising from some actions undertaken in the name of anti-trafficking, there is urgent need for a credible, independent, transparent and rights-based oversight mechanism, open to all actors engaged in anti-trafficking efforts including NGOs, and inclusive of the experiences and analyses of survivors of trafficking.[53]

a. APPROPRIATE IDENTIFICATION, PROTECTION, AND ASSISTANCE TO TRAFFICKED PERSONS

In the Global Compact, states should:

  • Improve processes to ensure the rapid and accurate identification of trafficked persons by actors with appropriate training involved in the reception, processing and detention of migrants.[54]
  • Commit to providing individualised support and assistance to trafficked persons, that is not contingent on their cooperation with the criminal justice system, in the country in which they are identified and if they return to their country of origin or to a third country, for as long as they need it, and ensure that trafficked persons have an enforceable right to fair and adequate remedies, including the means for as full a recovery as possible.[55]
  • Commit to adopting legislative or other appropriate measures that permit trafficked persons to remain in the territory, temporarily or permanently, considering humanitarian and compassionate factors.[56]
  • Ensure that trafficked persons are not, in any circumstances, held in immigration detention or other forms of custody and will not be detained, charged or prosecuted for irregular entry or stay in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.[57]
  • Provide adequate, prompt and effective remedies, including reparations, to for trafficked persons for the harm they have suffered.

States should accord trafficked persons all human rights, including those to which they are entitled as victims of crime and victims of human rights violations. These include the rights to receive protection from further harm including special consideration and care to avoid his or her re-traumatisation in the course of any legal and administrative procedures, be treated with compassion and respect for their dignity and human rights, be provided with access to justice and prompt and effective remedies including reparation, regardless of the individual’s immigration status, presence in the country of jurisdiction, criminal case against or identification of the trafficker.[58] To realise this, states need to ensure they develop a proactive and systematic approach to the identification of victims of trafficking in persons and the provision of assistance.[59] The frequent conflation of trafficking with smuggling and the reality of mixed migrationsecessitates an individualised identification process.

Trafficking in persons is distinguished from smuggling of migrants by the use of force, coercion and/or deception throughout or at some stage of the process, for the purpose of exploitation. That final element of the definition makes it is difficult to identify or prove trafficking during the movement phase of migrations and it is important not to rely on profiling which can be discriminatory (see above). Relevant state actors need clear guidelines, procedures and training in the identification of trafficked persons.[60] This includes border guards, immigration officials and others dealing with the reception and processing of migrants, including in large movements, or who work in immigration detention, and actors such as police and labour inspectors who may encounter trafficking situations. Civil society organisations are critical partners in developing and implementing activities to prevent and end trafficking in persons and, in particular, to protect and assist trafficked persons.[61]

Trafficking is not determined by an individual’s migratory or residency status but like any migrants, where trafficked persons are in irregular status they should not be prosecuted for violations of immigration laws.[62] Trafficked persons should not be prosecuted for the activities they are involved in as a direct consequence of their being in a situation of trafficking.[63]

Responses to trafficking should be centred on the needs and human rights of trafficked persons.[64] State authorities should offer trafficked persons temporary residence permits at least for an adequate time to allow for the start of their recovery (reflection period) and during any legal proceedings.[65] Although states are obligated to facilitate safe returns to trafficked persons’ countries of origin or residency and not insist that they remain in the country in which the exploitation took place for example for what are often a lengthy criminal proceedings, this needs to be understood in the context of creating a safe environment for trafficking persons to support their recovery.[66] As such, this must not be a summary return and trafficked persons should be offered legal alternatives to repatriation, such as option of residency in the country of destination or third-country resettlement, where returns would pose a serious risk to their safety or that of their families.[67] However, given the principle of non-refoulement, and in the case of inability to guarantee a secure return, or where there is a risk of re-trafficking, states should provide permanent residency. The global compact should affirm that any returns of all migrants including trafficked persons should be voluntary, and carried out with due regard for the rights, safety and dignity of the individual, following an individualised pre-return risk assessment.[68]

 

[1]       The crossing of an international border is not an element of the definition of trafficking in persons (Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Trafficking in Persons Protocol). The UN Office of the High Commissioner for Human Rights has set out practical, rights-based policy guidance on addressing trafficking in persons: OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking: Commentary, 2010, HR/PUB/10/2

[2]       OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP.1, 23 July 2014, Principle 5

[3]        New York Declaration for Refugees and Migrants (A/RES/71/1), para. 9

[4]       F. Crépeau, UN Special Rapporteur on the Human Rights of Migrants, Fighting Violence against Migrants Through Protecting the Rights of Irregular Migrants: Presentation to the Commission on Crime Prevention and Criminal Justice, UNODC, Vienna, 24 April 2012; General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/71/40767, 20 July 2016, paras.14, 15, 21, 37; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants on a 2035 agenda for facilitating human mobility, A/HRC/35/25, 28 April 2017, paras.30, 31, 44, 45, 50; H. Crawley, F. Düvell, K. Jones, S. McMahon, N. Sigona, Destination Europe? Understanding the dynamics and drivers of Mediterranean migration in 2015, Unravelling the Mediterranean Migration Crisis (MEDMIG), Final Report November 2016

[5]       F. Crépeau, The fight against migrant smuggling: migrant containment over refugee protection, in J. Van Selm et al. (eds) The Convention at 50: A View from Forced Migration Studies, Lanham: Lexington Books, 2003; J.C. Hathaway, Why Human Smuggling is Vital, National Post (Canada), 13 September 2010; T. Reitano, L. Adal and M. Shaw, Smuggled Futures: The Dangerous Path of the Migrant from Africa to Europe, Geneva, Global Initiative against Transnational Organized Crime, 2014; Crawley et al., Destination Europe? The Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (Smuggling of Migrants Protocol) references in its saving clause (Article 19) the 1951 Refugee Convention and its 1967 Protocol, acknowledging that refugees and asylum seekers may be smuggled into a state in search of international protection.

[6]       Smuggling of Migrants Protocol, Article 6; on the delinking of smuggling of migrants with organised crime and other smuggling operations see, UNODC, Migrant Smuggling in Asia: Current Trends and Related Challenges, UNODC: Bangkok 2015, p.91; OHCHR, Situation of migrants in transit, A/HRC/31/35,2016, at note 66.

[7]       S.X. Zhang and K. Chin, The Social Organization of Chinese Human Smuggling-A Cross National Study. San Diego, CA: San Diego State University, 2002; Global Alliance Against Traffic In Women (GAATW) in collaboration with the UN Office of the High Commissioner for Human Rights (OHCHR), Smuggling Roundtable Meeting Report, 20-22 June 2011, Bangkok, Thailand; T. Reitano, L. Adal and M. Shaw, Smuggled Futures: The Dangerous Path of the Migrant from Africa to Europe, Geneva, Global Initiative against Transnational Organized Crime, 2014; Crawley et al., Destination Europe?.

[8]       D.M. Provine and G. Sanchez, Suspecting immigrants: exploring links between racialised anxieties and expanded police powers in Arizona, Policing and Society: An International Journal of Research and Policy, 21(4), 468-479.

[9]       Smuggling of Migrants Protocol, Preamble. The preamble continues, in its second paragraph, with states recalling their commitment “to strengthen international cooperation in the area of international migration and development in order to address the root causes of migration, especially those related to poverty, and to maximize the benefits of international migration to those concerned.”

[10]     In adopting the New York Declaration, states have agreed to consider reviewing their migration policies including policies that criminalise cross-border movements (para.33), with a view to examining their possible unintended negative consequences (para.45). Although they have also committed to review their laws and policy on smuggling of migrants, in line with the international criminal law in this area (para.36), the saving clauses of those laws taken with these other possible reviews offers an opportunity for a more rights-based approach to the smuggling of migrants.

[11]     Crawley et al., Destination Europe?

[12]     General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/68/283, 7 August 2013, para.91; General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/71/40767, 20 July 2016, paras.13, 111; A.T. Gallagher, Migrant Smuggling, in N. Boister and R.J. Currie (eds), Routledge Handbook on Transnational Criminal Law (2015), available at: http://works.bepress.com/anne_gallagher/32/

[13]     Member States have signalled the importance of addressing social inclusion and integration in the global compact process: see Global compact for safe, orderly and regular migration: First informal thematic session on “Human rights of all migrants, social inclusion, cohesion, and all forms of discrimination, including racism, xenophobia and intolerance” – Co-facilitators’ summary, 8-9 May 2017, United Nations Office at Geneva. See also, GAATW, Migrants’ rights are human rights: the basis of the Global Compact on migration, Paper for the Global Compact for safe, orderly and regular migration: Thematic consultation on the human rights of all migrants, social inclusion, cohesion, and all forms of discrimination, including racism, xenophobia and intolerance, 8 and 9 May 2017, Geneva

[14]     The definition of smuggling of migrants in Article 3(a) of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (Smuggling of Migrants Protocol) refers to the element of “financial or other benefit”. This was intended “to exclude the activities of those who provided support to migrants for humanitarian reasons or on the basis of close family ties. It was not the intention of the Protocol to criminalize the activities of family members or support groups such as religious or non-governmental organizations.” See, General Assembly, Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, A/55/383/Add.1, 3 November 2000, para. 88; UNODC, The Concept of “Financial or Other Material Benefit” in the Smuggling of Migrants Protocol: Issue Paper, 2017.

[15]     In the context of smuggling, the Smuggling of Migrants Protocol does not require the criminalisation of irregular entry or stay: the drafters’ intention was to apply the sanctions of the Protocol to “the smuggling of migrants by organised criminal groups and not to mere migration or migrants, even in cases where it involves entry or residence that is illegal under the laws of the State concerned”: UNODC, Legislative Guide for the Implementation of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the UN Convention Against Transnational Organized Crime, para.28

[16]     Smuggling of Migrants Protocol, Article 5

[17]     Smuggling of Migrants Protocol, Article 19 (Saving clause); OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP.1, 23 July 2014, Principle 5

[18]     OHCHR, Situation of migrants in transit, A/HRC/31/35,2016, para.56; migrants reported requiring the services of smugglers for their expertise and mostly regarded them as a necessity even if the experience was not a positive one, see Crawley et al., Destination Europe?, p.56

[19]     Smuggling of Migrants Protocol, Article 6(3); see also, General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/71/40767, 20 July 2016, para.15. Such abuses are well documented – see for example, in GAATW, Smuggling and Trafficking; Crawley et al., Destination Europe?; United Nations Support Mission in Libya and OHCHR, Detained and dehumanised: Report on human rights abuses against migrants in Libya, 13 December 2016

[20]     Smuggling of Migrants Protocol, preamble; see also, Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on the Smuggling of Migrants held in Vienna from 30 May to 1 June 2012, CTOC/COP/WG.7/2012/6, 27 June 2012, para.21

[21]     Smuggling of Migrants Protocol, Articles 4 and 16(1)

[22]     T. Obokata, Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and State Actors under International Human Rights Law, International Journal of Refugee Law (2005), 17(2), 394-415; GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011; A.T. Gallagher, Migrant Smuggling, in N. Boister and R.J. Currie (eds), Routledge Handbook on Transnational Criminal Law (2015), pp.197, 203; see Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna on 19 October 2010, CTOC/COP/WG.4/2010/7, Annex

[23]     GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011

[24]     Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, A/HRC/7/12, 25 February 2008, para.51; Global Alliance Against Traffic In Women (GAATW) in collaboration with the UN Office of the High Commissioner for Human Rights (OHCHR), Smuggling Roundtable Meeting Report, 20-22 June 2011, Bangkok, Thailand.

[25]     Smuggling of Migrants Protocol, Article 5

[26]     Smuggling of Migrants Protocol, Article 4; see discussion in GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011

[27]     In ratifying the Smuggling of Migrants Protocol, given Articles 16 and 19.

[28]     Smuggling of Migrants Protocol, Article 19(2) requires states to interpret and apply the Protocol in a way that is not discriminatory to migrants who have been smuggled and “application of those measures shall be consistent with internationally recognized principles of non-discrimination.” This would prohibit discrimination against a particular group of migrants who have used the services of smugglers, for example on the basis of their national origin. Anne Gallagher suggests it could also “extend to prohibit discriminatory treatment of different groups of smuggled migrants, reflecting their different modes of arrival.” (Gallagher, Migrant Smuggling, p.204) The international bill of rights makes only two exceptions between nationals and non-nationals, in relation to Articles 12 and 25 of the International Covenant on Civil and Political Rights, and only in limited circumstances (on Article 12, see Human Rights Committee, General Comment No. 15: The Position of Aliens Under the Covenant, 11 April 1986). The fundamental principle of non-discrimination that lies at the heart of the international human rights law is essential to the exercise and enjoyment of human rights for everyone, including migrants and across the migration experience.

[29]     Under international human rights law, see the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3, amongst others. In the context of smuggling: Smuggling of Migrants Protocol, Article 16.1.

[30]     Smuggling of Migrants Protocol, Article 16(1); Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on the Smuggling of Migrants held in Vienna from 18 to 20 November 2015, CTOC/COP/WG.7/2015/6, 4 December 2015, para.18.

[31]     Smuggling of Migrants Protocol, Article 9(1)(a)

[32]    GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011

[33]     As well as states’ existing obligations under international human rights treaties, the Smuggling of Migrants Protocol obligates states to protect the rights of individuals who have been smuggled (Article 4), and specifically to protect them from smuggling-related violence by individuals or groups (Article 16(2)) and to provide assistance to migrants whose lives or safety are endangered through smuggling (Article 16(3)). Where migrants who have been smuggled are detained they have the right to be informed of consular access (Article 16(5)). There are some further rights protections such as witness protection, compensation and restitution, in the UNTOC parent convention.

[34]     See for example, Committee on Economic, Social and Cultural Rights, General Comment No. 23 on the Right to just and favourable conditions of work (article 7 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/23, 8 March 2016, para.54; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General Comment No. 2 on the rights of migrant workers in an irregular situation and members of their families, CMW/C/GC/2, 28 August 2013, paras.63, 64, 74, 77; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants on a 2035 agenda for facilitating human mobility, A/HRC/35/25, 28 April 2017, para.68, Targets 6.1, 8.1 and indicator 6(a); General Assembly, Report of the Special Rapporteur on the human rights of migrants: Developing the Global Compact on Migration, A/71/40767, 20 July 2016, paras.36, 83, 123; ILO Committee of Experts, 2006 General Survey on the labour inspection instruments, paras.78 and 161; ILO Committee of Experts, Promoting fair migration: General Survey concerning the migrant workers instruments, ILC.105/III(1B), 2016, paras.480-482; OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP. 1, 23 July 2014, Guideline 10.11 specifically calls for firewalls and many others cannot be realised without them; OHCHR, Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations within large and/or mixed movements, on the basis of existing legal norms, A/HRC/34/CRP.1, 23 February 2017, paras.17, 50, 86, 91, 95, 99, 110; European Commission against Racism and Intolerance (ECRI), General Policy Recommendation No. 16 on Safeguarding Irregularly Present Migrants from Discrimination, adopted on 16 March 2016, Council of Europe, Strasbourg, CRI(2016)16, Recommendations 2, 3, 11, 15, 29, 30.

[35]     Smuggling of Migrants Protocol, Article 16(4).

[36]     Smuggling of Migrants Protocol, Article 16(4). On the lack of development of gender-responsive measures see T. Gallagher, Migrant Smuggling, in N. Boister and R.J. Currie (eds), Routledge Handbook on Transnational Criminal Law (2015), p.204 including at note 118; Louise Arbour, Special Representative of the Secretary-General for International Migration: Opening Plenary of the GFMD Common Space, Berlin, 30 June 2017: “the global compact must reflect throughout the best interests of women – as they themselves define their best interests.”

[37] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principle 1

[38] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principle 3; OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP.1, 23 July 2014, Principle 5

[39]     For example, at the regional level, the member states of the South Asian Association for Regional Cooperation (SAARC) adopted the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution in 2002, two years after the adoption of the UN Trafficking in Persons Protocol which understands trafficking occurs across genders and sectors/types of trafficking; several states and other bodies are using a broader framework of modern slavery which has no agreed definition, see J. Chuang, Exploitation Creep and the Unmaking of Human Trafficking Law, The American Journal of International Law, 2014, 108, 609-649.

[40]     J. Chuang, The challenges and perils of reframing trafficking as ‘modern-day slavery’, Anti-Trafficking Review, 2015, 5, 146-149. In 2014, the ILO noted: “There has been some concern, in both academic and legal circles, that the phrase [modern slavery] represents a trend to label certain practices as more extreme than is legally accurate. There is no question that slavery, in all its forms, is unacceptable and must be eradicated. However, not all children exposed to hazardous work are “slaves”, and not all labour that is not compensated with a fair wage is necessarily forced.” ILO, Profits and poverty: the economics of forced labour, International Labour Office 2014, p.3

[41]     GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series, 2011; ILO, No easy exit: Migration bans affecting women from Nepal, ILO, Geneva, 2015; R. Napier-Moore, Protected or put in harm’s way? Bans and restrictions on women’s labour migration in ASEAN countries, International Labour Organization and UN Women, Bangkok, 2017; Khoo Choon Yen and Kellynn Wee, Do Indonesian women want to be ‘rescued’ from ‘trafficking’? Migrating Out of Poverty, 12 July 2017, available at migratingoutofpovertysg.org/2017/07/12/do-indonesian-women-want-to-be-rescued-from-trafficking/

[42]     See for example, International Labor Recruitment Working Group, The American Dream Up for Sale: A Blueprint for Ending International Labor Recruitment Abuse, ILRWG 2013, available at https://fairlaborrecruitment.files.wordpress.com/2013/01/final-e-version-ilrwg-report.pdf

[43]     Trafficking requires all three elements of its act-means-purpose definition to be present (Trafficking in Persons Protocol, Article 3)

[44]     Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, A/HRC/7/12, 25 February 2008, para.53; Human Rights Council, Report submitted by the Special Rapporteur on trafficking in persons, especially women and children, A/HRC/10/16, 20 February 2009, para.49; GAATW, Smuggling and Trafficking: Rights and Intersections, GAATW Working Paper Series 2011.

[45]     Given the use of private contractors in the administration of using criminal sanctions to enforce civil immigration law. See for example, M.Fan, The Case for Crimmigration Reform, North Carolina Law Review (2013), 92, 101-169; M. Flynn, Bureaucratic Capitalism and the Immigration Detention Complex, Global Detention Project Working Paper No.9, June 2015.

[46]     GAATW, Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World, 2007; Empower Foundation, Hit and Run: Sex Workers’ Research on Anti-trafficking in Thailand, 2012

[47]     J. Quirk and J. O’Connell Davidson, Moving beyond popular representations of trafficking and slavery, Popular and Political Representations, in J. Quirk and J. O’Connell Davidson (eds), Popular and Political Representations, Beyond Trafficking and Slavery Short Course: Volume 1, 2015, pp.11-12. The different anti-trafficking and related estimates, indices, and rankings include the US Trafficking in Persons Report, the UNODC Global Report on Trafficking in Persons, the ILO Global Estimate of Forced Labour, and the Global Slavery Index. Under the 2030 Agenda, indicator 16.2.2 looks to count the number of victims of human trafficking per 100,000 population, by sex, age and form of exploitation.

[48]     On this and other data challenges see, P. Buckley, The bias in counter-trafficking data and need for improved data collection: reflections on trafficking onto fishing boats, The Trafficking Research Project, 10 May 2013, available at https://thetraffickingresearchproject.wordpress.com/2013/05/10/the-bias-in-counter-trafficking-data-and-need-for-improved-data-collection-reflections-on-trafficking-onto-fishing-boats/

[49]     Data protection anti-trafficking action (datACT), Data protection standards for NGO service providers, datACT and project partners KOK e.V. and La Strada International, available at http://www.datact-project.org/en/materials/standards.html; see also datACT, Data Protection Challenges in Anti-Trafficking Policies: A Practical Guide, 2015.

[50]     For example, the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children; SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002); ASEAN Convention Against Trafficking in Persons, Especially Women and Children (2015). The UN General Assembly has a recurring resolution on the trafficking in women and girls.

[51]     OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP.1, 23 July 2014, Principle 8.

[52]     The international human rights treaties each have an independent committee to monitor states parties’ implementation of the convention and make authoritative recommendations. The Council of Europe Convention on Action against Trafficking in Human Beings is monitored through the Group of Experts on Action against Trafficking in Human Beings (GRETA).

[53]     A.T. Gallagher, Two Cheers for the Trafficking Protocol, Anti-Trafficking Review, 2015, 4, 14-32; states have been negotiating for a review mechanism to the United Nations Convention against Transnational Organized Crime and its Protocols since 2008.GAATW, Joint Statement to the seventh session of the Conference of the Parties to the United Nations Convention against Transnational Organized Crime and the Protocols Thereto, Delivered 8 October 2014, http://www.gaatw.org/resources/statements?start=5

[54] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, see Guidelines 2(1),(2)

[55] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Guidelines 6(7), 9(1); Surtees, R. 2013. After Trafficking: Experiences and Challenges in the (Re)integration of Trafficked Persons in the Greater Mekong Sub-region. Bangkok: UNIAP/NEXUS Institute

[56]     From Trafficking in Persons Protocol Article 7

[57] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, based on Principle 7, see also Guidelines 2(5),(6); Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna on 14 and 15 April 2009, CTOC/COP/WG.4/2009/2, para.12; Council of Europe Convention on Action against Trafficking in Human Beings, Article 26.

[58]     Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Article 4; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law; see also Basic principles on the right to an effective remedy for victims of trafficking in persons, in A/HRC/26/18; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principles 8 and 17

[59]     Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna from 10 to 12 October 2011, CTOC/COP/WG.4/2011/8, 15 November 2011, para.24

[60] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Guideline 2; Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna on 19 October 2010, CTOC/COP/WG.4/2010/7, Annex, paras.(h),(i)

[61]     Trafficking in Persons Protocol Articles 6.3, 9.3, 10.2; Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna from 6 to 8 November 2013, CTOC/COP/WG.4/2013/5, 26 November 2013, para.5.

[62] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principle 7 and Guideline 2(5)

[63]     Council of Europe Convention on Action against Trafficking in Human Beings, Article 26; EU directive on preventing and combating trafficking in human beings and protecting its victims (Directive 2011/36/EU), Article 8; ILO Protocol of 2014 to the Forced Labour Convention, 1930 (No.29), Article 4(2); Trafficking in Persons Protocol Article 7; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Guideline 2(5)

[64]     UNODC, Salvador Declaration on Comprehensive Strategies for Global Challenges: Crime Prevention and Criminal Justice Systems and Their Development in a Changing World (2010), para.36. See also Surtees, After Trafficking, and B. Pattanaik, Statement to Panel 3: Appropriate Identification, protection, and assistance to migrants and trafficking victims of the 5th global compact thematic consultation.

[65]     Trafficking in Persons Protocol, Article 7; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principle 9

[66]     Trafficking in Persons Protocol, Article 8(2); Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the meeting of the Working Group on Trafficking in Persons held in Vienna from 10 to 12 October 2011, CTOC/COP/WG.4/2011/8, 15 November 2011, para.28:

[67] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Principle 11 and Guidelines 4.6, 6.7

[68]     See UNODC, The Travaux Préparatoires of the negotiations for the elaboration of the UN Convention against Transnational Organized Crime and the Protocols thereto, UN 2006, pp.387-389; Council of Europe Convention on Action against Trafficking in Human Beings, Article 16; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Guideline 6.7; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking: Commentary, 2010, HR/PUB/10/2, pp.177-178.

Speech by Bandana Pattanaik at the fifth Global Compact thematic consultation

Speech delivered by Bandana Pattanaik, International Coordinator of the Global Alliance Against Traffic in Women (GAATW), at the fifth thematic consultation ‘Smuggling of migrants, trafficking in persons and contemporary forms of slavery, including appropriate identification, protection and assistance to migrants and trafficking victims’

5-7 September 2017, Vienna, Austria

Panel 3: Appropriate identification, protection, and assistance to migrants and trafficking victims

Bandana speech gcmFirst, I want to acknowledge the debt I owe to the many survivors of trafficking and migrant workers, some of whom have organised themselves to advocate for their rights, and whose lived experiences, struggles, extraordinary courage and resilience have taught me what I know about the realities of migration and work in today’s world.

Before I talk about the issue of rights protection and assistance, I’d like to say a few words about the context in which we currently live and work. The international community has undertaken an extremely ambitious task by deciding to work on a Global Compact for Safe, Orderly and Regular Migration. The world we live in today looks anything but safe and orderly and human security is at an all-time low. Rising income and wealth disparity have polarised people within the same society and the many layers of discrimination and social inequalities have not gone away despite the efforts at several levels in all parts of the world. As the 2017 Oxfam report An Economy for the 99% points out, just eight men have the same wealth as the poorest half of the world. At the World Economic Forum this year, even those who were the most eloquent proponents of economic globalisation a decade ago, called for a fundamental rethinking of the current economic model. The Oxfam report called for a more humane economy, an economy for the 99%! To this worrying data on rising inequality, if we add just two of the more obvious threats to human security - climate change and the crises in democracy in many parts of the world - the bleak picture is almost complete.

As we set out to talk about identification of and assistance to trafficked persons and exploited migrants, we need to remind ourselves that exploitation is embedded in our economic model; that trafficking is not an aberration but often a logical outcome of this model. As we set out to prepare a global compact for safe, orderly and regular migration, we must try to understand the vulnerabilities that are created for a very large number of people and the ensuing precariousness in migration and at work places. It is therefore imperative that the Global Compact keep the rights of migrant workers, both internal and cross-border, at its core, for without a human rights and labour rights approach, irregularities and chaos will continue and migration will never become safe and fair for people.

Providing assistance to trafficked persons and exploited migrants is the key focus of many civil society organisations. We have lobbied with states for stronger rights protection and worked closely with them to implement assistance provisions. Notwithstanding the weak rights protection measures in the UN Trafficking Protocol, over the years states have indeed taken many strong steps in this direction. Unlike two decades ago, today there are procedures for assistance in place: shelter homes, psycho-social care and legal assistance are available.

However, much still needs to be done. Members and partners of GAATW have pointed to the following lacunae:

  • While it is important to define concepts and crimes in law, reality often blurs those distinctions. Indeed, I would go a step further and say that distinctions sometimes create undesirable hierarchies. Maintaining a rigid distinction between trafficked persons and exploited migrant workers (whose rights have been violated but who are not trafficked) often results in the latter not receiving any assistance.
  • Most assistance provisions, unfortunately, are still just promises on paper. Many countries still have not made budget allocations for assistance to trafficked persons and are dependent on donors. So when external funds are no longer available, assistance provisions stop.
  • Assistance, when it reaches trafficked persons and exploited migrant workers, is often short-term. Long-term assistance for social and economic integration and rebuilding of lives is not available. As neither jobs nor legal avenues for labour migration are available, there are many instances of trafficked persons and severely abused migrant workers taking risky and unsafe channels to migrate to work again.
  • When it comes to women migrant workers, assistance measures are often protectionist rather than rights protective. For example, in order to ‘protect’ women from harm and trafficking, some states, for example, in South and Southeast Asia have imposed bans for women of a certain age to migrate into certain sectors in certain countries. This does not deter women from migrating; it only forces them to take unsafe routes.
  • Assistance in countries and sites of destination, often aims to send the trafficked person back home, without paying any heed to the fact that the person had left home in the first place to earn a living. And indeed, there are instances of women deciding to migrate to flee domestic violence and abuse. Because of the often mandatory repatriation or return provisions, many migrant workers do not want to be identified as trafficked.
  • Similarly, our research in South and Southeast Asia and the Middle East showed that procedural barriers to access the justice system are far too many, and many exploited migrants and trafficked persons choose to seek informal support from communities or NGOs and even decide to stay in irregular situations rather than contact the authorities or take legal measures. The same research also showed that sometimes corrupt embassy officials in countries of destination have caused more harm to trafficked persons and abused migrants and in collusion with agents extorted money from them.

So what are the ways forward?

In the short term:

States need to guarantee non-conditional assistance to trafficked persons and exploited migrant workers, as well as smuggled migrants. A decade ago, we had appealed to states to not make assistance to trafficked persons conditional on their cooperation with law enforcement officials. We had maintained that trafficked persons have a right to assistance regardless of their decision to press charges against the traffickers. Today, we are reminding states of their human rights obligations and requesting them to extend non-conditional assistance to trafficked persons, exploited migrant workers and smuggled migrants in need of assistance. Definitional distinctions are important in the legal sphere and efficient procedures for identification must be put in place by law enforcement, but assistance must precede identification.

I also call upon all states to follow the example of those that have provisions for granting temporary or permanent residence permits to trafficked persons.

Finally, I urge states to protect the rights of trafficked women and women migrant workers and not take protectionist measures, such as migration bans.

I endorse the recommendations made in the Issue Paper #5. For clarity around the terminologies used in the UN protocols on Trafficking and Smuggling, I strongly recommend that all stakeholders refer to the issue papers published by the UNODC, namely the ones on consent, the concept of exploitation, abuse of a position of vulnerability and the most recent one on smuggling.

In the long term assistance measures for trafficked persons and migrant workers must address vulnerabilities and look for sustainable solutions. This would involve addressing exploitation by reframing our current economic paradigm. States need to look for ways to create decent work for their citizens, look into sectors which are dependent on the labour of migrant workers and open legal and non-complicated avenues for migration and accord the workers living wages and decent working conditions.

As someone working in the field of anti-trafficking for nearly two decades, I am disturbed by the anti-trafficking community’s desperate search for ‘new and innovative’ solutions to the problem of human trafficking rather than addressing the root causes. At the expense of sounding old fashioned, let me say that instead of buying into the agenda of a few philanthrocapitalists and some powerful states who are pushing for an umbrella term like modern day slavery, which has no basis in international law, and advising us to deploy drones and satellites to identify ‘modern day slaves’, state and non-state actors need to expend energy to understand various sectors of work, especially the so-called informal work, and address the specific rights violations in those sectors. Allowing workers to understand their labour rights and enabling them to organise are key to address exploitation, including trafficking. Modern day slavery as a legal framework may work for certain countries. But pushing for its acceptance by the international community only creates further confusion, distracts us from the real problems and may undo the progress made in the arena of anti-trafficking in many countries.

Almost two decades ago, states came together to negotiate a convention against transnational organised crime and its two protocols on trafficking and smuggling. Civil society, including women’s rights groups from the global South such as GAATW, joined in and called for inclusion of human rights protection for trafficked persons, in what is essentially a crime control instrument. In the years that followed, many states have risen to the challenge and demonstrated that criminal justice and human rights are not incompatible with each other. The call of civil society at that time was for a broader legal framework that would address the realities of increasing informalisation of work and escalated labour migration.

In the intervening years, CSOs have analysed the human rights impact of anti-trafficking initiatives and pointed out that too often, anti-trafficking legislation, policy and practices are used more to justify and rationalise deterrence policies and strengthen border policing than for addressing the crime of trafficking and providing assistance to trafficked persons. CSOs have continued to hold states and themselves accountable to the rights of trafficked persons. 

Today when we are negotiating a Global Compact on Migration, as a representative of a CSO, I urge states to renew their human rights commitments towards all human beings and to meet their legal obligations under international law to specific groups of people. States must also rethink their current economic paradigms which are blatantly creating inequalities among people and fuelling exploitation. We have enough proof today to know that markets are not always right and leaving businesses and market to govern our world just does not work in the interest of the 99%. We must therefore renew our faith in democracy and human rights and centre the rights to work and mobility in our commitments and action. That is my fond hope for the GCM. I just hope that it does not turn out to be a foolish one!

 

Rights-based Governance for Migrants’ Rights

Logo for use in Word and PDF format

RIGHTS-BASED GOVERNANCE FOR MIGRANTS’ RIGHTS

Global Compact for safe, orderly and regular migration: Thematic consultation on international cooperation and governance of migration in all its dimensions, including at borders, on transit, entry, return, readmission, integration and reintegration

19 and 20 June 2017, Geneva

Position paper by the Global Alliance Against Traffic in Women (GAATW)


  1. GOVERNANCE AND INTERNATIONAL COOPERATION

The Global Compact should:      

  • Ensure a human rights-based and gender-responsive approach to migration governance.
  • Call on states to ratify and implement all relevant international instruments to respect, protect and fulfil the human rights of migrants, regardless of their migratory status.

In the first thematic consultation for the Global Compact for Migration, most states affirmed the human rights of migrants. To realise this, the centring of rights must extend to the governance of migration. This should engage the human rights agencies and mechanisms of the UN and the ILO, given the importance of labour migration.[1] To ensure transparency and accountability and the meaningful access and participation of civil society, governance of migration needs to be located within the UN, implemented by and monitored within bodies with normative and rights-based mandates.

The existing international legal framework, comprising international human rights law, the refugee regime, international labour standards, and transnational criminal law (on smuggling of migrants and trafficking in persons), provides a strong framework for policy-making on and governance of migration. The Global Compact should call on states to ratify these standards where they have not already done so, and remove any reservations. However, this alone will not be not sufficient. What is lacking is the application of this rights-based body of international laws and standards. The Global Compact needs to provide guidance to states on how to implement these existing obligations without discrimination, for all migrants. This means moving away from the standardised recommendations that often treat migrants as a homogenous group and being responsive to the realities of how multiple and intersecting discriminations change individuals’ experiences of migration. It is an opportunity to recognise the agency of women in migration, promote their autonomy and leadership and stop addressing migrant women primarily through a lens of victimhood.[2]

To improve accountability, there needs to be a monitoring process for states to share their progress regularly, in addition to the periodic reporting under the different treaty body monitoring mechanisms. The work of the international human rights treaty bodies already applies to migrants and some have specifically considered implementation of human rights standards in the context of migration: these can be the basis on which the Global Compact should build. The Global Compact should strengthen the role on migration of the rights-based institutions of the United Nations and cooperation between them.[3]

The Global Compact should also address the use of bilateral agreements, such as those on migrant workers, and ensure they are not used to circumvent international human rights obligations. Similarly, to ensure good governance of migration, trade agreements that include migration governance mechanisms must not erode human rights protections and engender a precariousness that leaves migrant workers at risk of exploitation and abuse.[4]

States need to domesticate these human rights standards and implement them as gender-responsive, rights-based migration policies, in consultation with migrants, civil society, and national human rights institutions. In order for states to support comprehensive institutional framework for rights-based global migration governance, they need to resist and challenge the populist anti-immigrant discourse and associated political pressure at the national level.[5]

The Global Compact for Migration should support coherence in the governance of migration by ensuring complementarity with the Global Compact on Refugees,[6] acknowledging the high degree of interlinkage between the two issues if they are to address the realities of mixed movements of migrants and refugees that take place in all regions of the world, sometimes at large scale.[7]

  1. TRANSIT, ENTRY AND AT INTERNATIONAL BORDERS

The Global Compact should:

  • Call on states to review and amend any gender discriminatory restrictions on migration in law, policy or practice that limit opportunities for women to migrate and ensure gender equity and respect for women’s autonomy in relevant policies including those regarding access to visas, residence permits, work permits and other documentation for migration.
  • Ensure migrants are not criminalised for irregular entry or stay, including if they have used the services of smugglers.
  • Ensure that measures aimed at addressing migration at international borders – including irregular migration, smuggling of migrants and trafficking in persons – do not adversely affect the enjoyment of the human rights of all migrants.[8]
  • Incorporate, and urge states to implement, the Recommended Principles and Guidelines on Human Rights at International Borders.[9]
  • Ensure effective non-discriminatory screening and referral processes at international borders to determine that every migrant’s individual situation and reasons for entry, upholding the right to privacy, and providing appropriate referral for any migrants who may have particular protection needs.[10]
  • Ensure any data on migrants is collected or stored in line with the right to privacy and data protection laws and standards.
  • Establish a presumption against immigration detention in law, and until that time ensure all forms of immigration detention follow international human rights law and its procedural safeguards in all cases.

Although there are thought to be at least 244 million international migrants,[11] they are not all “on the move” at any time – many are living their lives in and contributing to their countries of destination, whether that was their intended destination or turned into one during their migration. For those individuals who are in transit, there are clear protection gaps and transit migration remains little studied or addressed by migration governance measures.[12] To be effective, the Global Compact needs to address all stages of migration.

Women migrants face particular challenges in securing regular migration and residency documentation due to factors including limited access to travel documents compared to men, and discriminatory residency regulations where women’s documentation is premised on the sponsorship of an employer or spouse.[13] Women often face discrimination in accessing regular channels of migration for example through gendered bans on some migrations, or gendered restrictions in MOUs.[14] Limited regular migration channels and increased border security do not stop migration but they do make it more difficult which often makes it more dangerous and expensive. Far from helping women, these restrictions on women’s mobility violate their rights and heighten their risk of being targeted for human rights abuses including trafficking.[15] As gendered social norms mean they often have fewer resources and may have had less access to education than men, women are more likely to migrate in debt, giving them less control over their migration experience, which may mean they face longer and more precarious journeys than those who can pay for better and easier options, and will have limited or no access to assistance or redress for human rights abuses.[16] Women who travel in spite of migration bans often find themselves blamed if they experience any abuses of their human rights rather than locating the blame with the perpetrator(s) of the abuse.[17] Importantly for migration governance, there is some evidence that restrictions on women’s migration can strain diplomatic relations reportedly making bilateral relations and negotiations more difficult.[18]

Many migrants rely on the services of facilitators for assistance with their migrations – for transport, border crossings, housing, work, and in some cases, return. Where in regular migrations individuals use the services of travel agents, migrants in irregular status use the services of smugglers and the clandestine nature of the services can shift the power to the facilitator and at the same time make migrants’ access to the criminal justice system more difficult, opening up opportunities for abuse. However, smuggling of migrants does not in itself constitute a human rights abuse and migrants often gratefully rely on their assistance.[19] States’ efforts to stop smuggling of migrants or prevent entry of migrants in irregular status, including those in large and/or mixed movements, has led to dangerous interception methods that violate migrants’ rights and can result in injury or death.[20] Delays in transit can increase risks of human rights violations including aggravated smuggling and trafficking in persons.

Whilst states have the sovereign right to control their borders, irregular entry or stay are not crimes per se. As border crossing, management of residence and work permits are administrative issues, migrants who enter a country through irregular channels or move into irregular status after entry should not be criminalised.[21] This includes migrants who have used the service of facilitators.[22] Criminalisation of migration can heighten migrants’ risk of being targeted for human rights abuses including trafficking in persons and limit opportunities to seeking assistance.

Good border management, implemented in accordance with states’ obligations under the international legal framework, is a critical component of meeting states’ commitments to facilitate migration.[23] States often position policy choices on mobility and security as being in conflict, prioritising a securitisation agenda over human rights obligations, when in fact respecting the human rights of all migrants regardless of their nationality, migration status or other circumstances, facilitates effective border governance.[24] Only a rights-based approach will achieve the aspiration of this process – to facilitate safe, orderly and regular migration. Such measures as restricting rights, militarising borders, limiting regular channels of migration, implementing migration agreements that discriminate based on factors such as gender and age, do not stop migration but serve to make it more dangerous, pushing migrants into taking riskier routes and leading to more violations of migrants’ human rights, including of migrants in regular situations.[25] States are entitled to exercise jurisdiction at their international borders, and border agents face a complex reality of migrations in their many forms and migrants with their diverse experiences and motivations, but state actors must act in light of their human rights obligations.[26] Border governance should facilitate border crossings, including by establishing landing points for safe disembarkation, and giving primacy to humanitarian assistance: arbitrary expulsions or push-backs constitute a violation of migrants’ rights. Increasingly, the externalisation of international border controls, the transfer of border management to third countries, means that migrants are being intercepted or prevented from moving even before they have left their country of origin or transit.[27] This can result in abuses of migrants’ rights and undermine the right to asylum and the international protection of refugees and of trafficked persons.

There exists authoritative human rights guidance for the realities at international borders for migrants and border staff.[28] These set out some of the steps to establish rights-based processes in border control, law enforcement and other state objectives, including the right to an individual examination, the right to a judicial and effective remedy, and the right to appeal.

Data, including the collection and storage of sensitive information, is central to administrative procedures at international border for the deciding on entry and stay, determining applications for particular visa categories, and assessing protection needs. As such, states must ensure migrants’ right to privacy and adhere to data protection laws and standards.[29]

States are obligated to ensure that trafficked persons are identified and referred for assistance that is not contingent on any compliance with law enforcement officials.[30] This means ensuring there are adequate and appropriate guidelines, procedures, and trained staff, to enable the rapid and accurate identification of trafficked persons and referral to appropriate services and support.[31]

Recognising that crossing borders without authorisation should be considered an administrative rather than a criminal offence, the Global Compact provides states with the opportunity to establish a presumption against immigration detention in law.[32] While states work progressively towards ending such detentions,[33] all forms of immigration detention should be limited, never arbitrary or mandatory, and following international human rights law and its procedural safeguards in all cases. Detention conditions guarantee due respect for the dignity of the person by ensuring adherence to the UN Standard Minimum Rules on the Treatment of Prisoners and all other relevant international standards.[34] Trafficked persons should not, in any circumstances, be held in immigration detention or other forms of custody.[35]

  1. RETURNS AND RE/INTEGRATION

The Global Compact should:

  • Ensure returns are carried with migrants’ voluntary consent and in full respect for the human rights of migrants and in accordance with international law and its procedural safeguards.
  • Uphold the principle of non-refoulement.
  • Commit to ensuring the safe reception, as well as economic and social re/integration of returnees to enable full enjoyment of their human rights.

The right to return is enshrined in international law and provides migrants with the right to return to and re-enter their country of origin.[36] States also have the right to remove migrants from their territory if that is lawful: carried out in accordance with international human rights and refugee law. This means that returns should be informed, with migrants fully and meaningfully informed of their choices, voluntary, with migrants giving their consent, and carried out only after each migrant has had an individual assessment of their case and the situation to which they would be returned, in accordance with due process guarantees. This right is too often ignored in fast-track migration processes. Voluntary returns must be free of any actual or implied coercive measures and conditions. This includes return schemes which include coercive measures such as the conditionality of availability of Assisted Voluntary Return and Reintegration (AVRR) for those who appeal rejected asylum status.[37] Returns should not prejudice future migrations.[38] In conducting returns and in all engagement with migrants at international borders, states are obligated to uphold the principle of non-refoulement, ensuring that no migrant is returned to a place where there are substantial grounds to believe that the individual would be at risk of torture or cruel, inhuman, or degrading treatment or punishment, or other serious human rights violations or irreparable harm.[39] The deportation of migrants into unstable and hostile environments puts their human rights at risk and may further increase instability in those contexts.[40] Human rights monitoring of returns – pre-removal, during and after returns when migrants have arrived back in their homes and communities – is essential to ensure that returns are voluntary and in line with international standards.

Identification of trafficked persons is essential in order to enable return processes in line with standards outlined in international law.[41] Research shows that in some contexts states are returning trafficked persons, given that migrants are not aware their experience fits the definition of trafficking and they are entitled to assistance, a clear breach of the legal obligations of states to the trafficked person.[42] Any decision to return a trafficked person should be preceded by a risk assessment and with due regard for their safety and that of their families.[43] Trafficked persons who wish to seek asylum should be allowed access to asylum procedure for an examination of their claim.[44]

Return is a concept inbuilt into temporary and circular migration schemes. However, the returns involved in circular migration are often unsustainable, and leave migrants no better off, and sometimes worse off on return than when they started, with no option but to re-migrate, often in risky, temporary re-migration schemes to provide for their families or repay a debt incurred in the initial migration. Migrants’ return to their countries of origin or to third countries can be fraught with difficulties. Migrants face difficulties in readapting to the local context, such as poverty, discrimination, and marginalisation, or retaliation from brokers in instances of disagreements over contracts. The Global Compact should support the conditions necessary for sustainable returns for all migrants, meaning that their human rights are respected, protected and fulfilled and they return to liveable areas free of repeated extreme weather and slow onset events. Models of migration should be judged by their ability to support the enjoyment of human rights of migrants before, during and after their migration. The Global Compact should commit to ensuring that the rights of migrant workers are protected after returns, by, among other measures, promoting the portability of social security, cross-border recognition of skills and education qualifications, and the right to remedy for human and labour rights abuses suffered in the migration process or countries of destination.[45]

Rights-based return is an essential component of a successful reintegration process. ‘Reintegration’ often implies a return to the person’s community/country of origin, which may not always be the best solution and might, in fact, work against their social inclusion in the long term. It also implies that the person was integrated into society prior to their migration, which may not have been the case – a factor that may have contributed to their decision to migrate. It is likely that the socio-economic factors, which caused the migration in the first place, such as poverty and unemployment, violence in the family or conflict, have not been resolved. Assistance provided to migrants should be evidence-based and respond to migrants’ needs and priorities, rather than be based on gendered stereotypes or the interests of the service providers or donors. Where a migrant has experienced serious human rights abuses such as trafficking in persons, they need individualised, adequately resourced, long-term support to enable their successful social and economic reintegration upon return.[46]

 


 

 

[1]       ILO, Resolution concerning fair and effective labour migration governance, 106th Session of the International Labour Conference (2017)

[2]       See General Assembly, Violence against women migrant workers: Report of the Secretary-General, UN Doc. A/66/212, 29 July 2011, para.5; UN Women, Recommendations for Addressing Women’s Human Rights in the Global Compact for Safe, Orderly and Regular Migration, Outcome of expert meeting in Geneva, November 2016, recommended commitment 1.3.

[3]       See: OHCHR, Improving Human Rights-Based Governance of International Migration, 2013; ILO, Addressing governance challenges in a changing labour migration landscape, 2017, Reference: ILC.106/IVtest data; ILO, Resolution concerning fair and effective labour migration governance, 106th Session of the International Labour Conference (2017)

[4]       Human Rights Council, Report of the Special Rapporteur on the human rights of migrants on the impact of bilateral and multilateral trade agreements on the human rights of migrants, A/HRC/32/40, 4 May 2016

[5]       General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/68/283, 7 August 2013, para.87

[6]       See http://refugeesmigrants.un.org/refugees-compact

[7]       General Assembly, In Safety and Dignity: Addressing Large Movements of Refugees and Migrants, Report of the Secretary General, A/70/59, 21 April 2016; General Assembly, High-Level Meeting on Addressing Large Movements of Migrants and Refugees, 19 September 2016, http://refugeesmigrants.un.org/summit

[8]       OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP.1, 23 July 2014, II.A.5.

[9]       Ibid.

[10]     Ibid., Guideline 6, see also Guideline 7.6; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Guideline 2.

[11]     As of 2015. General Assembly, New York Declaration for Refugees and Migrants, Outcome document of the high-level plenary meeting of the General Assembly on addressing large movements of refugees and migrants, A/70/L.1, 13 September 2016, para.3

[12]     There is no agreed definition of “transit migration”; the term is commonly understood as the temporary stay of migrants in one or more countries, with the objective of reaching a further and final country of destination. The other main conceptual challenge is the temporality of transit migration: what is the length of a period of transit migration? How long does a migrant stay in a transit country before it becomes their country of destination? Does that depend on why they stay? See, OHCHR, Situation of migrants in transit, A/HRC/31/35, 2016, para.5

[13]     Committee on the Elimination of Discrimination against Women, General Recommendation No. 26 on women migrant workers, CEDAW/C/2009/WP.1/R, 5 December 2008, paras.24(a),(e), 26(a),(f).

[14]     Global Alliance Against Traffic in Women, Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World, GAATW 2007, in particular the chapters on Nepal and Nigeria; ILO and GAATW, No easy exit: Migration bans affecting women from Nepal, ILO, Geneva, 2015; R. Napier-Moore and K. Sheill, High rise, low pay: experiences of migrant women in the Thai construction sector, International Labour Organization, Bangkok, 2016, p.20; R. Napier-Moore, Protected or put in harm’s way? Bans and restrictions on women’s labour migration in ASEAN countries, International Labour Organization and UN Women, Bangkok, 2017, International Labour Organization, Bangkok, 2017; Committee on the Elimination of Discrimination against Women, General recommendation No.26 on women migrant workers, paras.5, 10, 24(a), 26(a); CEDAW, General recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations, para.40; ILO Committee of Experts, Promoting fair migration: General Survey concerning the migrant workers instruments, ILC.105/III(1B), 2016, para.543.

[15]     Committee on the Elimination of Discrimination against Women, General recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations, para.40; General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/71/40767, 20 July 2016, para.123/p.27.

[16]     Committee on the Elimination of Discrimination against Women, General recommendation No.26 on women migrant workers, para.10; OHCHR, Situation of migrants in transit, A/HRC/31/35, 2016, para.15; ILO, No easy exit: Migration bans affecting women from Nepal, ILO, Geneva, 2015

[17]     Migrants in transit should have the same rights in national law as other victims of crime: UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, General Assembly resolution 40/34, annex.

[18]     R Napier-Moore, Protected or put in harm’s way? Bans and restrictions on women’s labour migration in ASEAN countries, International Labour Organization and UN Women, Bangkok, 2017

[19]     OHCHR, Situation of migrants in transit, para.56; Global Alliance Against Traffic in Women (GAATW), Smuggling and Trafficking: Rights and intersections, GAATW Working Papers Series, 2011

[20]     See for example, Mandates of the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the human rights of migrants; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; and the Special Rapporteur on trafficking in persons, especially women and children, Joint letter concerning the allegation of “push back” policies of irregular migrants, including asylum seekers, from Myanmar and Bangladesh in the Bay of Bengal, 21 May 2015, available at https://spdb.ohchr.org/hrdb/30th/public_-_UA_Malaysia_21.05.15_(2.2015).pdf

[21]     Commission on Human Rights, Report of the Working Group on Arbitrary Detention, A/HRC/7/4, 10 January 2008, para. 53; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), General comment No. 2 on the rights of migrant workers in an irregular situation and members of their families, CMW/C/GC/2, 28 August 2013, para.24. See also, Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/13/30, 18 January 2010, para.58; Committee against Torture, Concluding observations on the fourth report of Cyprus, CAT/C/CYP/CO/4, 16 June 2014, para.17(a); CMW, Concluding observations on the combined second and third periodic reports of Senegal, CMW/C/SEN/CO/2-3, 20 May 2016, para.27(a); Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, A/HRC/20/24, 2 April 2012, paras. 13, 14; OHCHR Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP. 1, 23 July 2014, Guideline 2, para.4; OHCHR, Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations within large and/or mixed movements, on the basis of existing legal norms, A/HRC/34/CRP.1, 23 February 2017, paras.3 (under Principle 1); Council of Europe Commissioner for Human Rights, Issue Paper: Criminalisation of Migrants in Europe: The Human Rights Implications, 10 February 2010, https://wcd.coe.int/ViewDoc.jsp?id=1579605; European Commission against Racism and Intolerance (ECRI), General Policy Recommendation No. 16 on Safeguarding Irregularly Present Migrants from Discrimination, adopted on 16 March 2016, Council of Europe, Strasbourg, CRI(2016)16, Recommendation 8, available at http://www.coe.int/t/dghl/monitoring/ecri/activities/GPR/EN/Recommendation_N16/REC-16-2016-016-ENG.pdf; European Union Agency for Fundamental Rights, Criminalisation of migrants in an irregular situation and of persons engaging with them, 2014, available at http://fra.europa.eu/sites/default/files/fra-2014-criminalisation-of-migrants_en.pdf.

[22]     Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organized Crime, Article 5; OHCHR Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP. 1, 23 July 2014, Guideline 2, para.5; OHCHR, Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations within large and/or mixed movements, on the basis of existing legal norms, A/HRC/34/CRP.1, 23 February 2017, para.28 (under Principle 5).

[23] For example, General Assembly, Declaration of the High-level Dialogue on International Migration and Development (adopted on 3 October 2013), in A/RES/68/4, 21 January 2014, para.18; General Assembly, Transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1, SDG Target 10.7; General Assembly, New York Declaration for Refugees and Migrants, Outcome document of the high-level plenary meeting of the General Assembly on addressing large movements of refugees and migrants, A/70/L.1, 13 September 2016, paras.16, 41, 54, 57, Annex II 8(e).

[24]     OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP.1, 23 July 2014, para.4

[25]     Office of the High Commissioner for Human Rights (OHCHR), in cooperation with the Global Alliance Against Traffic in Women (GAATW), Expert consultation of Human Rights at International Borders: Exploring Gaps in Policy and Practice – Background Paper, 22–23 March 2012; P. Oberoi and E. Taylor-Nicholson, The Enemy at the Gates: International Borders, Migration and Human Rights, Laws, 2013, 2, 169–186; doi:10.3390/laws2030169

[26]     For example, Article 11.1 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime calls on states to take action, including strengthening border controls, to prevent and detect trafficking in persons, without prejudice to international commitments in relation to the free movement of people.

[27]     Office of the High Commissioner for Human Rights (OHCHR), in cooperation with the Global Alliance Against Traffic in Women (GAATW), Expert consultation of Human Rights at International Borders: Exploring Gaps in Policy and Practice – Background Paper, 22–23 March 2012

[28]     Recommended Principles and Guidelines on Human Rights at International Borders op.cit. See also the work of the international human rights treaty bodies – for example, in its General Comment No. 15, the Human Rights Committee makes clear that a foreigner may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise (para.5).

[29]     Recommended Principles and Guidelines on Human Rights at International Borders op.cit. Guidelines 3.16, 4.12, 6.2. See discussion in Office of the High Commissioner for Human Rights (OHCHR), in cooperation with the Global Alliance Against Traffic in Women (GAATW), Expert consultation of Human Rights at International Borders: Exploring Gaps in Policy and Practice – Background Paper, 22–23 March 2012.

[30]     The obligation to identify victims of trafficking is implied in the UN Trafficking in Persons Protocol and all legal instruments that provide for victim protection and support. See Recommended Principles and Guidelines on Human Rights and Human Trafficking, op.cit., Guidelines 2, 6.1; GAATW, More ‘Trafficking’, Less ‘Trafficked’: Trafficking for Exploitation Outside the Sex Sector in Europe, GAATW Working Paper Series 2011, available at http://www.gaatw.org/publications/MoreTrafficking_LessTrafficked_GAATW2011.01.31.12.pdf

[31]     Recommended Principles and Guidelines on Human Rights and Human Trafficking, op.cit., Guidelines 2.1, 2.2, 6.

[32]     See Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General Comment No. 2 on the rights of migrant workers in an irregular situation and members of their families, CMW/C/GC/2, 28 August 2013, para.24; CMW, Concluding observations on the combined second and third periodic reports of Senegal, CMW/C/SEN/CO/2-3, 20 May 2016, para.27(a); Committee against Torture, Concluding observations on the fourth report of Cyprus, CAT/C/CYP/CO/4, 16 June 2014, paras.17(a); CAT, Concluding observations on the fifth periodic report of CAT/C/AUS/CO/4-5, 23 December 2014, para.16; Commission on Human Rights, Report of the Working Group on Arbitrary Detention, A/HRC/7/4, 10 January 2008, para. 53; Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/13/30, 18 January 2010, para.58.

[33]     On this, see the work of the UN Working Group on Arbitrary Detention, including: Human Rights Council, Report of the Working Group on Arbitrary Detention, United Nations Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court, A/HRC/30/37, 6 July 2015, Principle 21, paras. 45, 46, and WGAD reports A/HRC/7/4, 10 January 2008, para.53, and A/HRC/13/30, 18 January 2010, para.58.

[34]     UN General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), A/RES/70/175, 8 January 2016.

[35]     Recommended Principles and Guidelines on Human Rights and Human Trafficking, op.cit., Guideline 2.6

[36]     Including, Universal Declaration of Human Rights, Article 13(2); International Covenant on Civil and Political Rights, Articles 12(4), 13; Protocol Against the Smuggling Of Migrants By Land, Sea And Air, Supplementing The United Nations Convention Against Transnational Organized Crime, Article 18(5); Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, Article 8(1,2). International law also prohibits collective expulsion, for example International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Article 22(1,2).

[37]     Norwegian Refugee Council and others, 15 NGOs decry new policy limiting asylum seekers in exercising their right to appeal, 10 May 2017, available at https://www.nrc.no/news/2017/may/statement/

[38]     Frances Webber, The politics of voluntary returns, Institute of Race Relations (UK), 11 November 2010

[39]     Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3. See also International Covenant on Civil and Political Rights, Article 7; International Convention for the Protection of All Persons from Enforced Disappearance, Article 16(1); Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), para.9; Human Rights Committee, General Comment No 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/ Add.13, 26 May 2004, para.12; Committee on the Rights of the Child, General Comment No. 6: Treatment of unaccompanied and separated children outside their country of origin, 1 September 2005, CRC/GC/2005/6 paras.27, 28, 58, 84; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General comment No. 2 on the rights of migrant workers in an irregular situation and members of their families, CMW/C/GC/2, 28 August 2013, para.50; Committee on the Elimination of Discrimination against Women, General recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women, CEDAW/C/GC/32, 14 November 2014, paras.17-23; Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/31/57, 5 January 2016, paras.33, 70(r); European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3; European Convention on Extradition, Article 3(2); Inter-American Convention on Extradition, Article 4(5).

[40]     OHCHR, End of Mission Statement by the United Nations Special Rapporteur on the human rights of internally displaced persons, Mr. Chaloka Beyani, on his visit to the Islamic Republic of Afghanistan, 20 October 2016, available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20712&LangID=E#sthash.f1Mq2DIg.dpuf

[41]     Protocol to Prevent, Suppress and Punish, Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, Article 8

[42]     See for example, Amnesty International, The human cost of ‘crushing’ the market: Criminalization of sex work in Norway, AI Index: EUR/36/4034/2016, at p.12, reporting a representative of Oslo police district stating that: “We deport trafficking victims. Many of them don’t know that they are victims, but they are according to the law.”

[43]     Return should only happen after a trafficked person has been allowed an adequate reflection period, accompanied by appropriate support. Trafficked persons should be issued a temporary residence permit in the destination country to facilitate their rights to access to justice, obtain redress including compensation and to facilitate access to social, medical and psychological care. See, Protocol to Prevent, Suppress and Punish, Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, Article 8.2, and OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking: Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council, E/2002/68/Add.1, 20 May 2002, Principle 11, Guidelines 4(6), 6(7).

[44]     UNODC, International Framework for Action to Implement the Trafficking in Persons Protocol, 2009, p.28 (implementation measures), p.28, available at https://www.unodc.org/documents/human-trafficking/Framework_for_Action_TIP.pdf; OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, Guideline 1.6, and OHCHR, Human Rights and Human Trafficking, http://www.ohchr.org/Documents/Publications/FS36_en.pdf: “all persons, including both smuggled migrants and trafficked persons, should be given full opportunity (including through the provision of adequate information) to make a claim for asylum or to present any other justification for remaining in the country of destination on that basis.”

[45]     On social security, see: ILO, Social Protection Floors Recommendation, 2012 (No. 202), and ILO, Multilateral Framework on Labour Migration, Non-binding principles and guidelines for a rights-based approach to labour migration, Guideline 9.9, April 2006, http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---migrant/documents/publication/wcms_178672.pdf

[46]     R Surtees, After Trafficking: Experiences and Challenges in the (Re)integration of Trafficked Persons in the Greater Mekong Sub-region. Bangkok: UNIAP/NEXUS Institute, 2013.

Migrants’ Rights are Human Rights: The basis of the Global Compact on migration

GAATW Position Paper MigrantRightsAreHumanRights GlobalCompact.06

Migrants’ Rights are Human Rights: The basis of the Global Compact on migration

Global Compact for safe, orderly and regular migration: Thematic consultation on the human rights of all migrants, social inclusion, cohesion, and all forms of discrimination, including racism, xenophobia and intolerance, 8 and 9 May 2017, Geneva

Position paper by the Global Alliance Against Traffic in Women (GAATW)


Commit to realising the human rights of all migrants

The Global Compact should:                                                                 

  • Affirm and re-commit to respecting, protecting and fulfilling the human rights of migrants without discrimination and across the international human rights framework of civil, political, economic, social and cultural rights
  • Urge states who have not yet done so to ratify and implement all international and regional human rights instruments, withdraw any reservations, and reaffirm in policy and practice the human rights of all migrants, regardless of their migratory status. (read more)