Monday, August 29, 2005

Beyond gender: illegal laws, ethnicity, armed conflicts and trafficking

Source: Asian Centre for Human Rights (ACHR)

Presentation at the 13th Workshop of the Framework on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia-Pacific Region Beijing, Peoples Republic of China

29 August -- 2 September 2005

I. Introduction

No country, irrespective of its geographical situation, political systems, religious moorings or cultural practices, is immune from trafficking - the contemporary form of slavery. It is often described as a highly complex issue, interwoven with demand and supply, sex tourism, labour migration, forced marriages, bonded labour and other similar practices.

According to the US State Department's Annual Report on Trafficking in Persons, between 800,000 to 900,000 women, children, and men are trafficked each year. Around one third of them i.e. about 230,000 are trafficked within and from Southeast Asia. Around 30% of commercial sex workers in Southeast Asia are under 18 years of age. Some are as young as 10. (1) In India alone, reportedly an estimated 2.3 million are engaged in prostitution, a quarter of whom are minors. (2)

Though gender is the central aspect of trafficking, it is essential to go beyond gender to understand the root causes of trafficking and develop programmes of action accordingly.

First, while the victims of trafficking come from different races and nationalities, indigenous peoples/hill tribes and ethnic minorities have been disproportionate victims of trafficking because of the age-old prejudices and institutionalised discrimination against them based on their origin, conflict in the areas where they live and extreme poverty, gender discrimination, illiteracy, unemployment and most importantly, impunity.

Majority of the victims of trafficking are refugees, undocumented migrant workers and internally displaced persons who often flee to escape from internal armed conflicts and gross human rights violations including torture, rape and extrajudicial killings. Beyond the wars in Iraq and Afghanistan, internal armed conflicts in Asia - whether in Bangladesh, India, Indonesia, Laos, Myanmar, Nepal, Philippines and Sri Lanka - involve ethnic minority groups. The hill tribes in Cambodia, Thailand and Vietnam are victims of institutionalised discrimination. While addressing the issue of trafficking, the root causes of the armed conflict are often sidelined by diplomatic niceties and self-censorship. Priorities are rightly given to immediate pressing needs -- identity cards, refugee certificates, HIV/AID programmes etc but the root causes remain alive.

Second, most governments in the Asia-Pacific region have adopted some form of anti-trafficking laws. Yet, the victims of trafficking are first considered as undocumented migrants or criminals or both, before being considered as a victim of trafficking. (3)

Most importantly, many governments continue to have laws which make citizens or persons under the jurisdiction of a country "illegal" and make them easy prey of the traffickers and their agents.

Undoubtedly, combating trafficking requires comprehensive programme of action for rescue and reintegration, access to health care and education, awareness raising and advocacy for the communities and law enforcement personnel and a sound legal framework. However, without creating conducive condition for enforcement of the law and restoration of the faith of the victims in the majesty of the rule of law without any fear of retribution from the traffickers and their agents, other programmes of action are bound to fail.

In many situations, trafficking of persons is interlinked with the political instability and repression in the country. For example, the trafficking of Myanmarese nationals is interlinked with the political situation in that country and without improvement of the situation in Myanmar, trafficking of Burmese nationals is unlikely to end.

The 13th Workshop of the Framework on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia-Pacific Region must consider such critical issues while addressing the issue of trafficking.

Suhas Chakma
Director

II. How the national laws contribute to trafficking?

Many countries continue to have laws which contribute to trafficking by making a section of citizens or residents within their jurisdiction "illegal".

a. Discriminatory nationality law, restriction on freedom of movement and risks of trafficking in Thailand

In most countries infants are registered at birth. However, the records of a child of a Burmese asylum seeker born in a Thai hospital are removed and not registered. In addition to the refugees and migrants from Myanmar and Laos, the hill tribes who are subjects of Thailand are also deprived of birth registration. These children remain most vulnerable to trafficking.

The government of Thailand had expressed reservations to Article 7 and 22 of the Convention on the Rights of the Child by stating that "The application of articles 7, 22 .... of the Convention on the Rights of the Child shall be subject to the national laws, regulations and prevailing practices in Thailand."

The denial of birth registration has been a long standing dispute between Thailand and international agencies as it blatantly violates Thailand's obligation under international law. On 4 August 2004, key UN agencies based in Bangkok including the Office of the High Commissioner for Human Rights, United Nations High Commissioner for Refugees, UNESCO and UNDP and a few international non-governmental organizations reportedly wrote a joint letter to the government of Thailand on the birth registration of children of non-citizens. As of today, Thailand government has failed to provide any answer. (4)

In addition to the migrants, the government of Thailand also imposed restriction on the freedom of movement to the hill-tribes whose applications for citizenship are being processed. Article 36 of the 1997 constitution allows imposition of restriction on the right to freedom of movement in the name of "maintaining the security of the State, public order, public welfare, town and country planning or welfare of the youth".

About 3,77,677 indigenous hill tribes who have not been granted citizenship as yet continue to be issued different colours of identity cards. Each colour reflects the extent of restrictions on the freedom of movement and the racial discrimination against the hill tribes. For them, Thailand is an "Open Jail".

Blue identity cards are used for highland people who were registered in 1993 after "surveying of highland persons for the issuance of personal history cards" in 1990-1991. This card provides as to where the individual is currently residing in Thailand and restricts all movement outside the surrounding province. To travel out of the province or district, permission must be sought from the district head. If the duration of the travel is more than 10 days permission must be sought from the Provincial Governor. Offenders of this restriction face a heavy fine and a jail term. Holders of this card have no right to employment in urban areas, education, the right to buy land or even to purchase a car.

Green cards with a red border further restrict the rights and freedom of movement. Holders of this card are restricted to movement only within their immediate district and offenders are once again subject to heavy fines and jail terms. This card is given to those who were not registered in the first round in 1993. These people are considered to have migrated to Thailand since 1999, even though in reality the families of many have resided in Thailand for generations.

Pink card holders must seek permission from the district chief if they travel out of village or sub-district. To travel out of the district, they must seek permission from the governor. To travel out of the province, permission must be sought from the Permanent Secretary of the Ministry of the Interior.

Where the hill tribes live, police officers regularly check the transports and demand to check the identification cards of all passengers. The passengers belonging to the hill tribes are addressed as Khon Tang Dao, alien people, and ridiculed, as if they belong to another planet. (5)

Women belonging to the hill tribes who have not been accorded citizenship as yet cannot register births or marriages. They are denied opportunities for education and work, and cannot access public health care services through the universal health care plan. Financial hardship or loss of farmland often drive hill tribe women and girls from their villages to cities where their lack of legal status pushes them into exploitative situations. Traffickers and unscrupulous employers capitalise on the fact that these indigenous peoples are unable to prove their eligibility to legally work in their country of origin and are, as such, considered "illegal aliens". They are at the mercy of the employers and traffickers.(6)

In fact, fear of and intimidation by Thai police and government officials have denied Burmese migrant workers and hilltribe people along the northern border access to HIV/Aids treatment and education.(7)

On 29 August 2000, the Cabinet adopted a resolution to complete the review of citizenship applications by 28 August 2001. The process was to have been completed within one year. Since then the Cabinet of the government of Thailand adopted resolutions on 28 August 2001, 27 August 2002, 26 August 2003 and 24 August 2004 respectively. The process has been marred by discriminatory laws and procedures, apathy and prejudices against the hill tribes, corruption by the bureaucrats, excessive powers in the hands of the District Chief, lack of any judicial or quasi-judicial oversights over the process and the lack of cooperation with the civil society groups. (8)

b. Restrictions on internal migration and risks of trafficking in China

Under the hukou system as provided under the Provision of the People's Republic of China on Household Registration of 1958, citizens do not have the right to selecting the place of their residence. Migration is permitted only in cases relating to job assignment and transfer, and school enrolment. (9)Those who migrate without seeking permission are "illegal" and can be subjected to detention and various punishments. They are also denied of access to a range of economic, social and cultural rights.

According to the estimate of an authoritative department, China's floating population would be about 130 million by 2005.(10)Many are illegal in their own country.

In 2000, there were reportedly 3.2 million instances of detention under Custody and Repatriation. The "vast majority" of detainees were internal migrants from rural areas. (11)

Since 1990, there have been reforms of hukou system but they failed to address the basic problems. The demands for changing hukou system found resonance in the National Peoples Congress (NPC) of China. But, the response of the government has been slow.

In March 2002 session of the National Peoples Congress, Chen Lini, a NPC deputy from Guangdong Province put forward a motion on the right to free migration by amending the constitution.(12) Chen reportedly pointed out in her motion that Article 12 of the International Convention on Civil and Political Rights signed by China in 1998 prescribes the scope of free migration: everyone legally staying in the territory of a country enjoys the freedom of migration and the freedom of selecting one's residence in the territory. (13)

Early in 2003, a total of 134 representatives of NPC headed by Lu Binghua submitted a bill. The Commission of Legislative Affairs of the NPC reportedly recognized that the Provision on Household Registration endorsed in 1958 could no longer meet the needs for economic and social development in China, thus reform of the household registration has become an imperative task. The Ministry of Public Security has been assigned to conduct research on making a household registration law.(14)

In March 2005, the government of China has reportedly begun drafting a new law on household registration. The research paper reportedly argued that a country's residential registration system should only have two functions - proving an individual's identification and calculating the population. (15)

Unless the new regulation presently being drafted by the government of China is restricted to two functions i.e. proving an individual's identification and calculating the population, any penalty, punishment, restriction on the freedom of movement has the potential to make internal migrants as "illegal" and therefore, potential victims of trafficking and other forms of exploitation.

III. Ethnicity, armed conflicts and trafficking

Ethnicity is a key factor of the low intensity conflicts in Bangladesh, India, Indonesia, Laos, Myanmar, Nepal, Philippines, Sri Lanka and Vietnam. Hundreds of thousands of indigenous/hill tribes and ethnic minorities have been forced to flee to escape from the problems associated with conflicts including gross and flagrant human rights violations by the security forces and armed opposition groups.

The camps of the IDPs and refugees are the hunting grounds of the traffickers and their agents.

Yet, most governments do not have policy with regard to the refugees or IDPs. Often, international humanitarian agencies are not provided access to the camps in the name of national security.

In Thailand, only an estimated 1,50,000 Burmese refugees have been allowed to register to live in refugee camps, leaving more than one million others to live illegally both inside and outside of the refugee camps. (16) In 2004, some 1,29,000 migrants applied to Thai authorities for work permits as domestic servants, although according to unconfirmed reports there are 70,000 others working without registration papers. About two-thirds of the domestic workers are from Burma.(17)

According to some estimates, 90% of trafficked sex workers in northern Thailand are Burmese nationals.(18)

While it is easy to classify refugees and migrants from Myanmar as "Burmese" on the basis of their nationality, the large majority of these Burmese refugees belong to ethnic minority groups who have been engaged in decades old armed conflicts with the State Peace and Development Council. In addition, the refugees from Laos in Thailand belong to the ethnic Hmongs.

In recent years, refugees fleeing from Northern and Central Highlands of Vietnam to Cambodia belong to the ethnic minorities.

A study by International Labor Organization (ILO) in 2004 found that hill tribes of Nepal have been disproportionate victims of trafficking. The study shows that out of total trafficked persons, 43.1 percent belong to hill ethnic groups followed by 23.8 percent from Brahmin/Chhetri; 22.4 percent from occupational castes; 3.3 percent from Tharu and Chaudhary communities, and 7.2 percent from Terai and others.(19) Around 12,000 Nepalese women and children are trafficked every year to India for the purpose of prostitution. The Maoists conflict, which is more concentrated in the areas of hill tribes, has further increased the vulnerability of the hill tribes to trafficking.

According to a report of the government of India of 1998 "about 60% of the victims (of trafficking) belong to the Scheduled Castes and Scheduled Tribes and the Other Backward Castes". (20) This is not surprising considering that tribal peoples have been disproportionate victims of forced displacement of the development projects undertaken in India. According to the Ministry of Tribal Affairs of the government of India, "Nearly 85.39 lakh tribals had been displaced until 1990 on account of some mega project or the other, reservation of forests as National Parks etc. Tribals constitute at least 55.16 percent of the total displaced people in the country." The fact that the tribals who constitute about 8.1 percent of the total population of the country also constitute 55.16% of total displaced people is indicative of the massive victimisation of tribal peoples. (21) According to the 10th Five Year Plan of the Government of India, out of the 8.54 million of the tribals displaced between 1951 and 1990 in the states of Andhra Pradesh, Bihar, Gujarat, Maharashtra, Madhya Pradesh, Rajasthan and Orissa, only 2.12 million (24.8 per cent) could be resettled, so far. (22)

IV. Lack of law enforcement strategy

"Despite the increasing number of girls and women being trafficked from the country, we are not able to control it as the offenders are getting the protection of highly-placed political officials" - Shashi Kanta Mainali, secretary at the Ministry for Women Children and Social Welfare, government of Nepal on 10 May 2004. (23)

Cross-border trafficking across South Asia and South East Asia is common, systematic and widespread. Often victims of trafficking are also victims of serious human rights violations both at the hands of the traffickers and the law enforcement personnel as most governments treat victims of trafficking as undocumented migrants, criminals, or both. (24) The cooperation among the governments for apprehension and prosecution of the traffickers and their agents is awfully inadequate.

Most programmes for combating trafficking in persons remain adhoc and episodic. Human trafficking is a big business with involvement of organised criminal gangs and complicity of the corrupt border guards, police, state officials and sometimes, political leaders and members of the judiciary. It requires comprehensive interventions for enforcement of the anti-trafficking laws.

Yet, most programmes of the governments, United Nations agencies etc to combat trafficking focus on activities such as awareness building among potential victims and communities, information exchanges, rescue and rehabilitation efforts, training and capacity-building programmes. The law enforcement, which is most critical to break the criminal gangs, is often ignored. Impunity contributes to further trafficking. (25)

V. Conclusion and recommendations

The collection of accurate and disaggregated data is fundamental for understanding intensity and complexity of trafficking and taking appropriate measures to combat the menace. Yet, "The scale of the phenomenon (of trafficking) is difficult to judge" is a common refrain of all the governments. Today, most governments, agencies and NGOs rely on the figures provided the United States State Department's Annual Report on Trafficking in Persons. It will not be an understatement to state that the attempts of many governments are aimed at not to be listed in different tiers by the United States State Department rather than combating trafficking on their own volition.

Given the complexity of the trafficking menace, there are obviously no ready made fix solutions. However, the governments must take certain measures to ensure that their laws, policies and practices do not directly and indirectly contribute to trafficking and the measures taken also address the root causes of trafficking.

Asian Centre for Human Rights, inter-alia, makes the following recommendations for consideration by the 13th Annual Meeting of the Asia-Pacific Regional Framework:

- Ensure collection of disaggregated data of the victims of trafficking on the basis of their ethnic origin/nationality;

- Amend all laws such as Nationality Laws of Thailand and Provision of the People's Republic of China on Household Registration of 1958, which restrict birth registration, restrict the freedom of movement and impose punishment and make such persons vulnerable to trafficking;

- Ensure that anti-trafficking laws do not victimise and criminalise the victims of trafficking;

- Ensure a cheaper and simpler method for issuing work permits for all migrants including the provision of better information about the rights of migrants and their families and effective inspection of workplaces to ensure compliance with labor standards and the enforcement of legislation combating human trafficking.

- Recognise the rights of refugees and ensure proper registration of all refugees and internally displaced persons;

- Ensure proper rehabilitation for the IDPs and access adequate humanitarian assistance including to the United Nations and humanitarian agencies; and

- Institutionalise cross border cooperation by signing bilateral and multilateral agreements, among others, for sharing of information and apprehension and prosecution of the traffickers and their agents.

Notes:

(1) . http://www.state.gov/g/tip/rls/tiprpt/2005/46606.htm

(2) . http://www.wiseindia.org/briefingkit.htm

(3) . http://www.achrweb.org/Review/2004/16-04.htm

(4) . Thailand: Not Smiling on Rights, An Alternate Report to the UN Human Rights Committee to the Initial Report of Thailand, Asian Centre for Human Rights, 18 July 2005

(5) . http://www.hrsolidarity.net/mainfile.php/2004vol14no06/2384/

(6) . Thailand: Not Smiling on Rights, An Alternate Report to the UN Human Rights Committee to the Initial Report of Thailand, Asian Centre for Human Rights, 18 July 2005

(7) . "No Status: Migration, Trafficking and Exploitation of Women in Thailand -- Health and HIV/Aids Risks for Burmese and Hill Tribe Women and Girls", Physicians for Human Rights, July 2004

(8) . Thailand: Not Smiling on Rights, An Alternate Report to the UN Human Rights Committee to the Initial Report of Thailand, Asian Centre for Human Rights, 18 July 2005

(9) .Reform of China's Household Registration System Underway, http://www.china.org.cn/baodao/english/newsandreport/2002sep1/18-4.htm

(10) . Reform of China's Household Registration System Underway, http://www.china.org.cn/baodao/english/newsandreport/2002sep1/18-4.htm

(11) . http://www.hrichina.org/public/contents/article?revision%5fid=17138&item%5fid=3195

(12) . Ibid

(13) . Ibid

(14) . New Law to Guarantee Free Migration, China Daily March 3, 2005

(15) . Ibid

(16) . http://www.refugeesinternational.org/content/article/detail/3014/

(17) . The Irrawaddy, 25 August 2005, http://www.irrawaddy.org/aviewer.asp?a=4931&z=153

(18) . http://news.bbc.co.uk/1/hi/world/asia-pacific/3623091.stm

(19) . http://www.nepalnews.com.np/contents/englishweekly/spotlight/2004/apr/apr02/national7.htm

(20) . Para 12, page 5, Report of the Committee on Prostitution, Child Prostitutes and Children of Prostitutes and Plan Action to combat trafficking and commercial sexual exploitation of women and children, Ministry of Women and Child Development, Government of India, 1998.

(21) . Draft National Policy on Tribals, Ministry of Tribal Affairs, Government of India, available at http://www.tribal.nic.in/index1.html

(22) . Promising Picture or Broken Future? - Commentary and recommendations on the Draft National Policy on Tribals, Asian Centre for Human Rights, 17 August 2005

(23) . Girl traffickers getting high-level protection, The Kathmandu Post, 11 May 2004

(24) . http://www.achrweb.org/Review/2004/16-04.htm

(25) . http://www.achrweb.org/Review/2004/16-04.htm

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