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/

Human Trafficking as a Gendered Phenomenon – Part I

This is part 1 of a two-part post on human trafficking as a gendered phenomenon. In this first part we provide a brief contextualisation to the issue and introduce our recently published article examining the relationship between the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and human trafficking. In the second post, we take a historical look at how the issue of trafficking became divorced from the Committee’s work on violence against women.

Trafficking in human beings is a gendered phenomenon.[1] An estimated 79% of all detected trafficking victims are women and children and traffickers are ‘overwhelmingly male’.[2] As the former Special Rapporteur on Violence against Women, its Causes and Consequences (Special Rapporteur on VAWG) commented in her 15 year review of the mandate, human trafficking is one of the major areas of concern with regards to violence against women (alongside domestic violence, sexual violence in conflict and reproductive rights violations).[3]  The Special Rapporteur on VAWG commented that there has been a marked shift on policy in this area from a ‘prostitution framework’ to a framework which places human rights at the centre of the debate. The Declaration on Violence against Women (DEVAW) confirms this view and recognizes human trafficking as a form of violence against women (Article 2(b)). Further, violence against women has now been recognized as a form of discrimination against women.[4] It is therefore clear that human trafficking is a form of violence and discrimination against women.

More recently, trafficking has been recognised as one of the main forms of violence that women face in the context of migration.[5] Trafficked women and girls often face different forms of gender-based violence such as sexual violence, rape, violation of their reproductive rights, and slavery both in destination and during their trip. Trafficking may constitute torture, crimes against humanity, and war crimes, and it has been identified as a threat to international peace and security by the Security Council (S/RES/2331 (2016)). States of origin, transit, and destination have obligations to prevent trafficking, protect victims (within their territory and from refoulement to a country where there is a risk of torture or cruel, inhuman or degrading treatment or punishment, including the risk of re-trafficking), and to prosecute traffickers. For States to comply with these obligations, victims must be properly identified and identification proceedings must be put in place at strategic points on migration routes and access to asylum proceedings must be granted.

In practice, much remains to be done to implement a human rights and a gender approach to trafficking that can provide justice to those who have suffered violations of their rights due to human trafficking for sexual exploitation, forced labour and other forms of exploitation, slavery and servitude. Most States aim to combat human trafficking from a migrant model a criminal justice perspective and more recently a security approach, thus neglecting the rights of trafficking victims.

In our article “Human Trafficking as A Gendered Phenomenon: CEDAW in Perspective”, we argue that CEDAW is an important human rights instrument in the fight against trafficking in human beings. By way of brief introduction, the Convention is an international human rights treaty dedicated to women and girls. It has been described as ‘the definitive international legal instrument requiring respect for and observance of the human rights of women.[6] At the core of the Women’s Convention is the eradication of discrimination against women and States parties to the Convention accept wide-ranging obligations to promote equality in all spheres of life.[7]

Trafficking is expressly prohibited under CEDAW in Article 6, which mandates states to take all appropriate measures to supress trafficking and the exploitation of prostitution. We argued that given the disproportionate number of women and girls who are trafficked for the purposes of sexual exploitation and forced labour, the Convention is a valuable instrument, contextualising trafficking in the context of structural inequality, violence and discrimination. Further, the Committee’s General Recommendation No.30 and General Recommendation No. 35 point to some of the underlying factos which make women vulnerable to being trafficked including conflict, extractive industries, global supply chains and natural disasters. Significantly no State party has entered a reservation to Article 6.

However, Article 6 does not define the terms trafficking and exploitation of prostitution and the scope and contours of the obligation remain uncertain. Through an analysis of the Committee’s jurisprudence, we found that the Committee has yet to find a violation of Article 6 of the Convention finding all cases pleading Article 6 inadmissible. Further, the Committee has yet to draft a specific general recommendation on Article 6 which seems to be a glaring omission. CEDAW should make good its promise and provide substantive guidance on the scope of Article 6 of the Convention and States obligations to suppress and tackle trafficking. We argue that this is especially necessary given the lack of gender and structural analysis of trafficking by other regional and international courts and bodies and the brevity with which trafficking is dealt with in General Recommendation No 35 on violence against women.

[1] The Inter-Agency Coordination Group against Trafficking in Persons. ‘The gender dimensions of human trafficking’, Issue Brief #4, 2017.

[2] The UNODC Global Report on Trafficking in Persons 2016 notes that an increasing number of men have been detected as trafficking victims, United Nations Publication. Available at www.unodc.org/documents/data-and-analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf

[3] 15 years of The United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, available at www.ohchr.org/Documents/Issues/Women/15YearReviewofVAWMandate.pdf

[4] General Recommendation No. 35 (CEDAW) see paragraph 1 and 7. Opuz v Turkey (2010) 50 EHRR 28.

[5] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on Migration-Related Torture and Ill-Treatment, February 2018, A/HRC/37/50, available at www.ohchr.org/Documents/Issues/Torture/A_HRC_37_50_EN.pdf

[6] Rebecca Cook ‘Reservations to the Convention on the Elimination of all Forms of Discrimination against Women’ 30 Virginia J Intl’l Law (1990) 643, at 643.

[7] Andrew Byrnes and Marsha A. Freeman ‘The Impact of the CEDAW Convention: Paths to Equality A Study for the World Bank’ University of New South Wales Faculty of Law Research Series 2012, paper 7.

Trafficking of Human Beings at the ECtHR: The Importance of Using Article 14 to Broaden the Protection of Women and Girls (Part I)

Two Spanish cases currently pending before the European Court of Human Rights illustrate gaping lacunae in the protections extended to victims of trafficking on the continent.  They also, however, offer a unique opportunity to broaden this protection by recognizing, for the first time, that the trafficking of human beings is a form of slavery and violence that constitutes discrimination against women and girls. By linking trafficking and discrimination (in the same way that it linked domestic violence with gender discrimination in cases like Opuz vs. Turkey), and thereby requiring that States appropriately protect victims of trafficking and refrain from further discriminatory treatment against them, the Court would provide much more robust safeguards for some of the most vulnerable women in Europe.

The insufficient protection to trafficked women under the European Convention of Human Rights

The Convention guarantees basic rights and freedoms and recognizes “the inherent dignity of all human beings.” The enjoyment of those rights “shall be secured without discrimination on any ground.” Trafficking, for its part, has been recognized as a humanitarian crisis. Trafficking is the only organized crime expressly prohibited in the EU Charter of Fundamental Rights. The Council of the European Union agreed on a Framework Decision on combating trafficking in 2002, adopting an action plan on best practices, standards, and procedures for tackling the phenomenon in 2005. Further plans have been adopted by the Committee of Ministers of the Council of Europe and the Parliamentary Assembly of the Council of Europe. Statistics bear out the fact that trafficking is widespread and well entrenched on European soil. European Commission statistics from 2014 indicate that 30,146 victims were found across the 28 Member States. 80 percent of registered victims are female, and approximately 35 percent arrived from outside the EU. More than 1,000 child victims were trafficked for sexual exploitation. Yet the Court has only heard twelve cases involving allegations of trafficking since 2005, eight of which were ruled inadmissible. The result is a legal regime that could do more to protect the high numbers of trafficked persons arriving in Europe. With regards to its trafficking jurisprudence, the Court has explicitly recognized three main positive obligations on States, all derived from Article 4.

The first is an obligation to put into place an appropriate legislative and administrative framework. It requires that States “penalize and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour,” with additional requirements for effectively preventing trafficking and protecting victims. In Rantsev v. Cyprus and Russia, the Court elaborated on Article 4’s requirements, holding that member States must “put in place adequate measures regulating businesses often used as a cover for human trafficking,” and that immigration rules must “address relevant concerns relating to encouragement, facilitation, or tolerance of trafficking.”

The second requirement involves the positive obligation to take operational measures to protect victims and potential victims of trafficking. The obligation only arises, however, if State authorities were aware, or should have been aware, of “circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited…”. The obligation is tempered, so that the Court will not impose an “impossible or disproportionate burden on the authorities.”

Thirdly, and lastly, the Court has held that Article 4 involves a procedural obligation to investigate where there is a credible suspicion that an individual’s rights . . . have been violated.” Any investigation must be effective, meaning that it must be independent from those implicated in events, and must be capable of leading to the identification and punishment of those responsible. The investigation must also be prompt and reasonably expeditious, with urgency attached where the possibility of removing the individual from the harmful situation is available.

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Go On! ASIL to hold ‘Human Trafficking and Migrant Smuggling: A Fireside Chat with [IntLawGrrls!] Anne Gallagher and Dina Haynes’ Oct. 16

ASIL and its Women in International Law Interest Group will hold “Human Trafficking and Migrant Smuggling: A Fireside Chat with Anne Gallagher and Dina Haynes” on Thursday, October 16, from 6:00-8:00pm, at ASIL headquarters (2223 Massachusetts Ave, NW, Washington, DC 20008). (We’re proud to note that both Anne and Dina are IntLawGrrls!)

Fifteen years have elapsed since the international community decided to use international law as a weapon against human trafficking and migrant smuggling. The results have been mixed, at best. This fireside chat brings legal practitioner Dr Anne Gallagher (author of The International Law of Human Trafficking (2010) and The International Law of Migrant Smuggling (2014)) and Professor Dina Haynes, renowned scholar on trafficking and migration, to address some of the most pressing questions facing States in responding effectively to large-scale exploitation of human beings for profit. Where do migrant smuggling and trafficking intersect and how do the different legal regimes operate in such situations?  To what extent has international law made a positive contribution to ending trafficking and smuggling-related exploitation? Where are the critical gaps and weaknesses and how could these be addressed? What is the US government doing and how could it be making a better contribution?

Speakers:

Dr. Anne Gallagher, author of The International Law of Human Trafficking (2010) and The International Law of Migrant Smuggling (2014)

Dina Haynes, Professor of Law, New England Law | Boston 

Moderator:

Christie Edwards, Director, International Humanitarian Law, American Red Cross
WILIG Co-Chair

Drinks and appetizers will be provided. To register, please visit http://www.asil.org/event/human-trafficking-and-migrant-smuggling-fireside-chat-anne-gallagher-and-dina-haynes

Hope to see you there!

Julia Knox
Communications, Education and Research Assistant
The American Society of International Law (ASIL)

Also note: ASIL’s Midyear Meeting and Research Forum will take place November 68, 2014, in Chicago, IL.  See www.asil.org/midyear for program details and to register.