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)
Enabling Access to Justice: A CSO Perspective on the Challenges of Realising the Rights of South Asian Migrants in the Middle East
In 2015-2016, the GAATW International Secretariat undertook a project called the ‘South Asia – Middle East Access to Justice Project’ (SAME A2J Project) as part of a larger initiative, ‘Addressing Labour Trafficking of South Asian Migrant Workers in the Middle East.’ The objective of the SAME A2J Project was to identify cases in which migrant workers who had travelled to the Middle East as temporary labour migrants were trafficked, and to identify the barriers those workers faced accessing justice. The rationale for the project was a perception within GAATW that migrant workers from South Asia who were coerced, defrauded or deceived into situations of severe exploitation were rarely treated as trafficked persons and rarely received an adequate remedy.
A total of thirteen partner organisations from seven countries (Bangladesh, India, Jordan, Lebanon, Kuwait, Nepal and Sri Lanka) participated in the project. This report aims to capture one area of learning that emerged from the project: the barriers that project partners experience or observe when supporting migrant workers to access justice. Although specific barriers to justice may differ between countries, and even regions within countries, project partners identified many in common. These include legal and operational barriers, practical barriers, social and cultural barriers, as well as barriers within the organisations assisting migrant workers.
The report concludes with reflections on the lessons learnt by the GAATW about the obstacles to justice for migrant workers, but also for organisations seeking to assist migrant workers and the effort required to overcome those barriers. It is not intended to dissuade civil society organisations or legal service providers from working to improve access to justice for migrant workers, but rather to highlight the complexity of human trafficking, and the many challenges along the road to justice.
Perspectives on and Access to Justice among Cambodian Migrant Workers in Thailand
No Trust, Few Options
Cambodian migrant workers in Thailand usually do not try to pursue justice after rights violations due to a lack of trust in the police and courts, research conducted by GAATW and partners found.
Lack of information about labour and migration laws and regulations was one factor among those interviewed that made them vulnerable to exploitation and human trafficking. When violations occurred they did not seek justice, either because they are undocumented and believe that this makes them ineligible for justice mechanisms or because they don’t believe they will receive a fair outcome against a Thai employer. Perceptions of what is just or fair among the migrant workers were often based on what had been agreed with a broker or employer, rather than what meets a minimum legal standard, the research found.
Interviewees spoke of lack of examples of success that might inspire their pursuit of justice - no one they knew had successfully accessed a fair resolution though the legal system. A number of workers spoke of having no other options than undertaking undocumented migration to Thailand again, despite knowing the risk of being overworked, cheated or facing physical abuse.
These are some of the main findings of our new research ‘Access Unknown: Access to justice from the perspectives of Cambodian migrant workers in Thailand’, which interviewed 59 migrant workers, men and women working in seven different industries, in Thailand and after returning home. This research aimed to examine why there is still such a significant disconnect between the currently available options in the legal system and Cambodian workers’ unwillingness or inability to practically access them.
Our project employed participatory methodologies, which included capacity building for service providers, and shared findings among key stakeholders formed a platform for future collaborative work between CSOs supporting migrants in Thailand and Cambodia.
These findings come despite increased resources and efforts in recent years dedicated to improving the conditions of migrant workers and addressing trafficking in Thailand. We hope that our research can help service providers to strengthen their engagement with migrant workers by understanding the challenges, motivations and needs of migrant workers.
Governments are responsible to tackle human trafficking and protect and assist trafficked persons. Civil society, for its part, is responsible for monitoring states’ compliance with their obligations and mandates as defined in national and international legislation. To do so, it is necessary to have accurate information how governments implement these policies.
In 2016, Fundación la Paz in Bolivia, Corporación Espacios de Mujer in Colombia and ECPAT in Guatemala, together with the Global Alliance Against Traffic in Women (GAATW), carried out an assessment of the implementation of anti-trafficking legislation in the three countries. What we found was that there was still a significant gap between the rights that trafficked persons are entitled to ‘on paper’ and the services that they receive in practice.
The assessment allowed us to systematise the available information on human trafficking in the three countries, giving clarity about the responsibilities of each governmental body and the degree of compliance. Although policies can be improved, it would be a good starting point for governments to at least fulfil their existing obligations.
In general, the authorities in the three countries were responding promptly and comprehensively to the information requests. Nevertheless, in Colombia there was reluctance to provide information about the budget allocated for anti-trafficking activities. In Bolivia the Ministry of Justice showed mistrust from the beginning, even questioning the relevance of such an assessment.
Although all three countries have enacted anti-trafficking legislation, assistance to trafficked persons is insufficient and, in some cases, non-existing.
In Colombia, trafficked persons do not receive clear information about the available assistance routes and there are no assistance and protection systems established in the law. Similarly, in Guatemala, there is no system for identification, protection, or assistance for adults and the one for minors is weak and does not have specialised protocols that take into account the specific needs of children. Additionally the Guatemalan government is not implementing the registration system for trafficked persons, nor has it established a compensation fund, both of which are set out in the law as a responsibility of the Secretariat against Sexual Violence, Exploitation and Human Trafficking. Equally troubling were the weak training and specialisation of public servants involved in the assistance to trafficked persons, prosecution of the crime and administration of justice.
All these factors, along with the excessively long duration of the investigation, undermine the rights of trafficked persons and fuel re-victimisation.
In Bolivia police officers in charge of investigating human trafficking crimes are heavily underfunded. This is not surprising, considering that in 2015 only 0.03 % of the state budget was allocated to fight not only human trafficking, but also the smuggling of migrants. In Colombia, part of the budget allocated to the Ministry of Interior for the implementation of anti-trafficking activities was used in agreements with IOM and UNODC to provide prevention and assistance services—services which these organisations in turn subcontracted to other actors. As per the Ministry of Interior 2015 Annual Procurement Plan, an agreement of around 150,000 USD was signed with IOM. Unfortunately, neither the Ministry, nor the IOM responded to our requests for information.
Specific recommendations to protect the rights of trafficked persons
The information collected through the assessment offers clear elements for advocacy and, since it is based in official data, allows us to make clear and strong recommendations to the involved actors. There are three concrete measures that governments should implement in order to protect the rights of trafficked persons: 1) provide ongoing specialised training for public servants involved in identifying, assisting and protecting trafficked persons; 2) allocate sufficient financial resources to ensure quality assistance and protection of trafficked persons and prosecution of traffickers, and 3) establish a comprehensive system for referral, assistance and protection to ensure efficient coordination between the public and private sector.
If only one thing from the legislation could be improved, the organisations are very clear. Corporación Espacios de Mujer thinks that the Colombian law is very good and that it was considerably improved last year when the requirement for trafficked persons to file a complaint in order to receive long-term assistance was removed. For their part, ECPAT in Guatemala considers that the law needs to be significantly changed to reflect all purposes of exploitation. The Bolivian law currently includes both human trafficking and migrant smuggling, which creates confusion and misinterpretations of these crimes. Fundación La Paz recommends making a clear distinction between the two.
In all three countries it is essential that all governmental bodies understand the concept of human trafficking and implement the relevant legislation in the same way.
What about civil society?
The three organisations, together with other stakeholders, have been working for years to address human trafficking in their countries. In Colombia, Espacios de Mujer trains public servants involved in the prevention of human trafficking and guides trafficked persons through the different assistance services. Additionally, in collaboration with the Colombian Alliance of CSO against Human Trafficking, it carries out research and organises debates to include the issue on the governmental agenda. ECPAT in Guatemala will carry out a consultation in 2017 to draft a law proposal which criminalises labour exploitation, begging, any form of slavery, servitude, sale of persons, recruitment of minors for criminal activities and forced and servile marriage as purposes of human trafficking. For its part, Fundación La Paz in Bolivia is actively strengthening the Bolivian Network against Human Traffic and the Bolivian Observatory of Human Trafficking to guide civil society advocacy.
It is necessary to carry out and publish this kind of assessment identifying the work done by the governmental bodies and documenting the current state of affairs. An annual assessment report will allow for the identification of the progress made in the implementation of the law and to plan an advocacy and monitoring strategy in accordance with the documented situation. To do this, it is crucial to stablish strategic alliances with CSO in order to strengthen the monitoring process and facilitate constructive criticism of the state.
GAATW knows that accurate information is essential to identify the gaps in the services that governments provide to trafficked persons and to plan advocacy actions to address these gaps. For this reason, in 2017 the Alliance will keep working with Fundación la Paz in Bolivia, Corporación Espacios de Mujer in Colombia and ECPAT in Guatemala to analyse the implementation of their national anti-trafficking legislations.
In the past several decades globalisation, unequal development between and within countries, and conflict and environmental degradation, have prompted unprecedented levels of international migration. It is estimated that there are currently nearly 250 million migrants worldwide, half of whom are women. In developed countries, demographic changes, such as aging societies, a larger female workforce, and labour market shortages prompted by a move towards service-oriented economies have created a demand for (low-wage) female workers, especially in the hospitality and care work sectors, and the entertainment sector. In developing countries, economic restructuring and industrialisation have led to the loss of traditional livelihoods, with a disproportionate effect on women, pushing many to seek work outside their communities. At the same time migration policies have not responded to this change in labour market supply and demand, leading to increasingly precarious migration and work for many women, especially those with lower education and social status.
In the past 20 years, feminists, including GAATW, have tried to bring attention to the violence, abuse and exploitation that women experience in the process of their labour migration. GAATW has tried to stress women’s perspectives, and had detailed the unintended consequences of protectionist policies like the anti-trafficking initiatives undertaken by states in ‘Collateral Damage’ back in 2007. However, the conversation about trafficking has backfired and contributed to further violating the rights of migrating women. Governments of destination countries have restricted migration opportunities, especially for low-wage workers, and increased border controls, while origin countries have placed restrictions on women’s mobility, to ‘protect’ them from trafficking. However, instead of protecting the migrant women workers, these restrictions have led to a market for clandestine and debt-financed migration, leading to the very vulnerabilities including risk of violence and trafficking that they were intended to prevent.
Access to Justice has been one of GAATW’s three thematic priorities since 2005. Through this programme, we try to understand how migrant women themselves view ‘justice’ and what factors enable and hinder their access to justice. We’ve learnt from them that justice should not solely be seen through a legal prism, which is often male oriented and focused on prosecutions. Rather, justice should be viewed comprehensively to include gender and social justice that is rooted in a right to dignity and in state accountability, that values the indivisibility and interdependence of political, economic, social, legal, and cultural human rights, and sees all of these as cumulatively leading towards the greater goal of justice.
Justice for migrant women workers needs to be embedded into migration governance mechanisms. The international community has recognised and responded to the urgent migration and refugee crisis that exploded in 2011, prompted by European and indeed a global lack of empathy towards migrants, by initiating the process of drafting Global Compacts on Migration and Refugees. They are intended to provide countries with an international roadmap on migration, which sets enforceable human rights-based standards for states in dealing with migration and its resultant impacts. At the same time, the Global Compacts need to include strong, binding protections that allow women to access justice, when their rights have been violated.
At GAATW, we are excited to be among the civil society organisations that will come to bear on this process and to bring our expertise in working with women migrant workers. If women migrant workers are able to access dignified employment opportunities, it would facilitate sustainable development and inclusive growth throughout the world. At this momentous time in history, we laud the Commission on the Status of Women 61st session and UN Women International Women’s Day, 2017 theme of ‘Women in the Changing World of Work’. The issue is pertinent in the context of the Global Compact on Migration as female migrant workers make up approximately 90% of all female migrants worldwide.
We are heartened to see the voices raised on the occasion of International Women’s Day 2017 and we lend our voice in support and solidarity with civil society and women across the world.