Late last year, the Committee on the Elimination of Discrimination against Women issued General Recommendation 38 on trafficking in women and girls in the context of global migration. This was a culmination of a multi-year process, which we in Amnesty International, along with scores of women’s rights and sex worker rights organizations and activists, had engaged closely with.
For many of us, however, the final result was bitterly disappointing. While there are some welcome and inspiring elements to the new general recommendation, it also suffers from a number of missed opportunities and regressive provisions. Worst of all, it has completely disregarded the lived realities and rights of sex workers, a key group of stakeholders who are deeply affected by anti-trafficking policies.
The Good
The general recommendation takes aim at a broad range of root causes of trafficking, particularly the socio-economic injustice it is fueled by, and includes far-reaching steps states must take to tackle the wider structures that leave women at risk. These include gender-based discrimination and patriarchy, structural inequality, lack of decent work, denial of social protection and discrimination in migration policies. In particular, the general recommendation sets out the need to place a labour rights and safe migration approach at the center of States’ efforts to address trafficking.
These calls are particularly important in a context where trafficking is traditionally addressed as an issue of transnational crime or security under international law, to be dealt with by stronger criminal justice approaches, national security measures, and tighter border control. It is an implicit rebuke to popular discourses which blame the deaths of migrants in transit on criminal trafficking gangs, for example, camouflaging the gross inequalities that trigger flight and the restrictive border regimes that push migrants into high-risk circumstances.
The Bad
The general recommendation is, however, still torn between a transformative vision concerned with promoting women and girls’ autonomy and agency, and a narrower approach that sees women as victims and the State as protector. This stops it from reaching its full potential and raises a series of concerns.
As Radhika Coomaraswamy, former UN Special Rapporteur on violence against women has stated, by empowering State officials to increase their surveillance of women’s lives, the general recommendation assumes a benign State which does not match the lived realities of all women. Migrant women, sex workers, women of diverse racial origin, LBTI women among others have reason to fear ill-treatment, arrest, detention or deportation from the authorities, and in many cases prefer to remain invisible. This is particularly the case in contexts where irregular entry, same-sex conduct and sex work are criminalized.
More policing without wider legal and policy change, and a multi-faceted approach that puts the needs of rights-holders at the center, still leaves women at risk. Some women may also wish to avoid being “rescued” as this interjects the State into many facets of their lives and may result in unwanted deportation and other adverse outcomes.
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