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

First, 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!