Human Trafficking as a Gendered Phenomenon: CEDAW and a missing jigsaw piece – Part II

In the first part of this blog, we provided a summary of our article “Human Trafficking as A Gendered Phenomenon: CEDAW in Perspective in which we argue that the CEDAW Committee is an important actor whose voice should be heard when discussing States obligations towards the elimination of trafficking and that Article 6 of the Convention needs further clarification/development.

Since publication of our article we have continued to ask ourselves how and why trafficking is divorced from the issue of violence against women within CEDAW’s framework. This posts sets out part of this brief history as a prelude to our article and as part of the history of women’s rights advocacy on these issues. We hope that others can elaborate on the schism between Article 6 and violence against women, and the ongoing lack of a GR on human trafficking.

Gender-Based Violence Against Women

Last year, the CEDAW Committee updated General Recommendation No 19 on violence against women in its General Recommendation No 35 (2017). This GR has garnered much attention for both its content and for its procedure with over 100 women’s groups, NGOs and stakeholders contributing to its promulgation.[1] The Recommendation, which acts as authoritative guidance on the Committee’s interpretation of the Convention’s provisions in relation to violence, acknowledges that despite advances in the field since GR19, gender-based violence against women remains pervasive in all countries of the world and it manifests in a continuum, in a range of settings.[2] The updated substantive statement on gender-based violence against women is a reminder of where we have come and where we still have to go to eradicate violence, and make the right to live a life free from violence a reality.[3]

GR 35 however does not however deal with the issue of human trafficking of women and girls. While trafficking has been mentioned in a number of the Committee’s General Recommendations (GR 26, 28, and 35) the Committee has only done so in passing, instead commenting in its GR on migrant workers that the phenomenon of trafficking could be more comprehensively addressed in its own GR on Article 6. It has remained a mystery to us as to why the Committee has remained interpretatively silent on an important substantive article, leading us to question why Article 6 and violence against women have become separated and whether the Committee has always taken this approach.

An Archaeological Dig

It is well known that the Convention did not include a substantive article on violence against women and that instead GR19 marked an important step in the Committee’s interpretation of the Convention to make explicit the link between violence and discrimination. An analysis of the CEDAW Committee’s session minutes indicates that at the time of drafting GR19, Article 6 (trafficking) formed an integral part of that discussion. GR19 was adopted at the eleventh session, and it was and still is a landmark statement on gender-based violence. It provides an article by article approach setting out how the different articles of the Convention interact and relate to violence against women.

Interestingly, the minutes of the 10th and 11th sessions seem to indicate that originally violence and trafficking were to be considered together in one general recommendation.  The report mentions an anticipated discussion of Article 6 of the Convention and that members were asked to consider the report of the Secretary General on Violence against Women in all its forms, which contained the report of the Expert Group Meeting on Violence against Women, held in Vienna in 1991. We then see that a member (anonymised) expresses concern over the lack of coordination of the CEDAW Committee with the Expert Group and the Commission of the Status of Women. Different experts voiced their consideration at the risk of duplication. One member asked if “it was perhaps necessary to have two separate recommendations: one on violence and one on article 6”.

The report then records that GR19 was adopted as a response to the Expert Group Meeting on Violence against Women and that comments of the Working Group on Article 6, would be picked up at a later session. Ms Bustelo and Ms Aouij volunteered to prepare draft general comments for the next session. At the 12th session, the Working Group recommended that the work should be continued. The minutes of the 12th session thus further indicate that there has been long-standing work on a General Recommendation on Article 6 yet it is unclear from the later minutes what happened and why this GR has not come to fruition. This mystery is underlined further by the Committee’s own statement in the GR on migrant women that there should be a separate recommendation in relation to Article 6 and trafficking.

Conclusion

The work of the Committee continues today and is phenomenally important to women’s rights advocates. The Committee’s work on gender-based violence against women as a form of discrimination together with its specialised status in interpreting human rights norms and obligations in relation to women has been significant and influential. In the context where regional and international courts and tribunals have yet to grasp how trafficking is a gendered phenomenon CEDAW’s interpretative expertise is welcome, and in our view, long overview. Understandably, the Committee has many competing issues to deal with, and we recognise that Article 6 presents particular theoretical and political challenges.  However, the seriousness and pervasiveness of the violations of women and girls’ rights who suffer from human trafficking and exploitation in prostitution demands the Committee’s specialised and expert action. The enactment of GR35 forms another historical moment for the Committee, and for us another reminder that more has to be done to tackle trafficking against women and girls.

[1] ‘The CEDAW Committee’s General Recommendation 35. A renewed vision for a world free of gender-based violence against women’, available at http://ehrac.org.uk/wp-content/uploads/2018/01/EHRAC-Winter-2017-WEB.pdf.

[2] ‘CEDAW General Recommendation 35 draws an explicit link between gender, discrimination and conflict-related violence against women’, available at http://blogs.lse.ac.uk/wps/2017/09/12/cedaw-general-recommendation-35-draws-an-explicit-link-between-gender-discrimination-and-conflict-related-violence-against-women/

[3] ‘CEDAW General Recommendation 35 on violence against women is a significant step forward’, available at http://blogs.lse.ac.uk/wps/2017/09/06/cedaw-general-recommendation-35-on-violence-against-women-is-a-significant-step-forward/

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