| "There are continual attempts by undesirables of alien and impoverished nationalities to enter Canada, but these attempts will be checkedas much as possible at their source." Canadian immigration official, 1923 |
Introduction
In recent years there has developed an increasing international focus on
combatting migrant smuggling and trafficking in persons. Among other regional
and international initiatives, two of the first three protocols to the UN
Convention against Transnational Organization Crime (TOC) currently being
negotiated are on migrant smuggling and trafficking in persons (the third
relates to firearms). This suggests the priority accorded to the issue by
the international community.
Despite the fact that these discussions have an impact on refugees seeking
asylum, refugee advocates have been largely absent. On the issue of trafficking,
however, human rights and women's organizations have been very active.
This paper reviews the issues and particularly the draft protocols, from
firstly a refugee perspective, and secondly a migrants' rights perspective,
as they might apply in Canada and similarly situated countries. It also includes
some recommendations for a Canadian response to trafficked persons.
Definitions
Smuggling and trafficking have been distinguished, the first referring to
illegal entry into a country, the second to some form of enslavement of exploitation
of the person trafficked(1). There is far
from unanimity on the definitions or the distinction, and the terms are often
used interchangeably.
The UN draft protocols offer the following definitions:
"Smuggling of migrants"(2) refers to the
intentional procurement for profit of the illegal entry of a person into
and/or illegal residence of a person in a State of which the person is not
a national or permanent resident.(3)
"Trafficking in persons" means the recruitment, transportation, transfer,
harbouring or receipt of persons, either by the threat or use of abduction,
force, fraud, deception or coercion, or by giving or receiving unlawful payments
or benefits.(4)
Some commentators emphasize the notion of "voluntariness" to distinguish
between people who are smuggled and people who are trafficked. While people
who are smuggled are assumed to want entry into the other country,
people who are trafficked are unwilling victims, who have been deceived or
have been abducted by force.(5)
Some definitions of trafficking do not require crossing of an international
border, but only that the person trafficked be moved from the home community.
This is true of the definition used by the International Organization for
Migration, for whom trafficking occurs when:
- a migrant is illicitly engaged (recruited, kidnapped, sold, etc.) and/or
moved, either within national or across international borders;
- intermediaries (traffickers) during any part of this process obtain
economic or other profit by means of deception, coercion and/or other forms
of exploitation under conditions that violate the fundamental human rights
of migrants.
The Organization for Security and Cooperation in Europe (OSCE) has defined
trafficking in human beings as follows:
- All acts involved in the recruitment, abduction, transport (within
or across borders), sale, transfer, harbouring, or receipt of persons,
- by the threat or use of force, deception, coercion (including abuse
of authority), or debt bondage,
- for the purpose of placing or holding such person, whether for pay
or not, in involuntary servitude, forced or bonded labour, or in slavery-like
conditions (including forced prostitution),
- in a community other than the one in which the person lived at the
time of the original deception, coercion or debt bondage.(6)
The US Government definition does not even seem to require displacement:
"The term "trafficking" means recruiting or abducting, facilitation, transferring,
harboring, or transporting a person by the threat or use of force, coercion,
fraud or deception; or by the purchase, sale, trade, transfer, or receipt
of a person for the purpose of subjecting that person to involuntary servitude,
peonage, slavery, slavery-like practices, forced or bonded labor or services,
or other criminal exploitation of workers. This definition includes cases
of trafficking into the sex industry."(7)
Historical background
According to the modern international régime, states have sovereignty
to control who enters their territory. The right to freedom of movement between
states is not internationally recognized, although Article 13 of the Universal
Declaration of Human Rights recognizes everyone's right to leave any country,
including their own.(8) Needless to say, large
numbers of people nevertheless try to enter without authorization, for political,
economic and personal reasons. The 1980s and 1990s saw Western and other
countries putting increasing energy into stopping "irregular" or "illegal"
migration, including in circumstances when it was clear that the migrants
being interdicted were people seeking asylum from persecution. "Irregular
movements" were identified as a threat to national stability, an issue of
international crime along with money laundering, smuggling, drug trafficking,
arms trafficking, mafia-type criminality and terrorism.(9) Migrants, including refugees, trying to cross
borders came increasingly to be seen in the popular imagination as belonging
to the undesirable and criminal class. Interdiction techniques widely used
include visa requirements, reinforced border controls, carrier sanctions,
immigration officials posted in foreign airports, surveillance at sea and
interdiction of boats and cooperation agreements between countries.
The more states invest in measures to prevent "improperly documented arrivals",
the more those seeking unauthorized entry must have recourse to smugglers
(also known as "coyotes" and "passeurs") and the higher the price they are
charged and the more dangerous the routes proposed to them.
Since interdiction measures have never been more than minimally successful
in preventing the arrivals of undocumented migrants(10),
governments have also relied heavily on techniques of deterrence, i.e. making
the situation of those who do enter irregularly so unpleasant that others
will be discouraged from following their example.
At the beginning of the 1990s, the more specific problem of trafficking
began to attract increasing attention. Following the break-up of the former
Soviet Union, large numbers of women and girls were trafficked to Western
Europe, often to prostitution(11). Asia had
already emerged as one of the most important source areas of trafficked women,
who end up either within the region or elsewhere. Other regions of the world
are also affected, as sources, points of transit and/or destination.
The US government estimates that there are 1-2 million women and children
trafficked annually around the world and that approximately 50-100,000 women
and children are trafficked into the U.S. each year, primarily from S.E.
Asia and the former Soviet Union.(12)
Increasingly NGOs and then international institutions have been addressing
the issue of human trafficking, and specifically trafficking in women. For
example, in 1991 OSCE states committed themselves to "eliminate ... all forms
of traffic in women ..." (Moscow Document) and later, in the Stockholm Declaration
(1996) the OSCE Parliamentary Assembly expressed concern about trafficking
and recognized its link to economic transition and the problem of organized
crime.
In the Asia-Pacific region, an International Symposium on Migration in
April 1999 developed the Bangkok Declaration on Irregular Migration, where
the participating countries declared themselves "gravely concerned by the
increasing activities of transnational organized criminal groups and others
that profit from smuggling of and trafficking in human beings, especially
women and children, without regard to dangerous and inhumane conditions..."
The International Organization for Migration (IOM) has involved itself
in significant ways in combatting trafficking in migrants. It declares itself
"particularly concerned about those migrants who are, or have been, deceived
or coerced into situations of economic exploitation, which unfold through
forced labour, forced servitude, coercion, debt bondage, or other violations
of their fundamental human rights". In addition "the Organization is concerned
about trafficking, as it poses a migration management problem to governments
of sending countries as well as transit and receiving countries, because
orderly migration and several types of national legislation, including migration
legislation, are violated."(13)
The United Nations has also taken on the issue of trafficking with greater
insistence. For example, in March 1994 the United Nations Commission on Human
Rights adopted Resolution 1994/45 calling for the elimination of trafficking
in women for the purposes of prostitution. The Beijing Platform for Action
emphasized trafficking in women as one of the forms of violence against women
needing to be addressed by the international community. The General Assembly
adopted resolutions on traffic in women and girls on 12 December 1997 (52/98)
and 1 February 1999 (53/116).
Formal UN negotiations on the protocols to the Convention Against Transnational
Organized Crime began in January 1999 (although drafts had been discussed
before that date).
ISSUES/CONCERNS
People smuggling is undeniably a nasty business. It costs untold numbers
of people their lives (drowned, suffocated, shot, frozen or crushed to death).
Many others are raped or suffer violence and traumatic experiences. People
are routinely cheated out of thousands of dollars. After a painful journey,
some find themselves detained and deported back home.
If smuggling is bad, trafficking is much worse. People, especially women
and girls, are deceived or abducted, held in a form of modern slavery, forced
into prostitution, intimidated and subjected to violence.
People smuggling, despite its evils, has also been life-giving. It has
made it possible for significant numbers of people to flee persecution and
reach a place of asylum when no government was willing or able to offer an
escape route. It has allowed them to exercise their human right to seek and
to enjoy in other countries asylum from persecution (Article 14, Universal
Declaration of Human Rights). For others, smugglers have offered a way out
of a situation of misery and an opportunity for a new life of dignity.
Even some of the people who are trafficked, knowing the wrongs of their
situation of bondage, may still prefer it to what they left behind, either
for themselves or for what it enables them to do for family members. This
of course does not in any way justify the abuses perpetrated by the traffickers.
But it is relevant to any discussion about solutions to the problem of trafficking.
Article 14 of the Universal Declaration of Human Rights recognizes that "Everyone
has the right to seek and to enjoy in other countries asylum from persecution." Unfortunately, neither international human rights
instruments nor states' actions have done much to advance the right to seek
asylum. People facing persecution face enormous obstacles in attempting to
flee, both from their persecutors who may try to prevent them from leaving
and from other states that are attempting to control their borders. Interdiction
programs reinforce the barriers which the persecuted have to overcome to
reach asylum. People smugglers and even traffickers are sometimes the only
options left for desperate people trying to save their lives. Thus interdiction
programs are one of the factors feeding the demand for people-smugglers.
Yet states seem rarely if ever to discuss how their interdiction programs
affect the rise in people smuggling. Nor do they address the question facing
persecuted people: "How are they supposed to save their lives?"
There is a equivocation about who is the victim
of the people smugglers and even of the human traffickers. Are the victims
the people who are trafficked or the country into which they are being trafficked?
Judging from the discourses of governments of the North, there is some confusion.
This uncertainty is illustrated in the case
of Australia, which has been particularly energetic and outspoken on this
issue. According to the Statement by the Australian Delegation at the Regional
Tripartite Consultations on Resettlement, Auckland, 17-18 August 1999, "All
of those who take advantage of what traffickers have to offer are vulnerable
and open to blatant exploitation.... UNHCR is a key player in any partnership
to address the protection needs of those who fall prey to traffickers". Later
in the same speech, the emphasis is placed on trafficking as a problem for
Australia: "Large scale people trafficking is a relatively recent phenomenon
confronting developed countries in the international community".
The June 1999 Report of the Prime Minister's
Coastal Surveillance Task Force addresses the problem of people smuggling
and illegal immigration but does not mention trafficking: this perhaps suits
the militaristic approach which requires an unambiguous enemy.(14) The report views people smuggling as a problem
in which Australia is the victim. For example, paragraph 8 states that "[t]he
level and geographic location of our representation overseas should be reviewed
at regular intervals to meet the ever changing threat." (See also references
to "the threat from west" (para. 28) and "the threats involved" (para. 29)).
When we look behind the rhetoric of concern
for the migrants, we sometimes find little or no concrete action undertaken
by governments on behalf of the victims of traffickers. Despite the Australian
representative's words about the vulnerability of the trafficked and the need
to ensure refugees are protected, where there is action it is action geared
to protecting Australia. Migrants who arrive irregularly are detained. And,
as part of its crackdown on "illegal immigration" and "people smuggling",
Australia in October 1999 brought in a proposal to penalize refugees who arrive
using false documentation by granting them only temporary protection (with
probable deportation after three years).(15)
The United States and Canada have also pursued
policies of detention in response to the arrivals by boat of Chinese, despite
the fact that they are commonly described as being brought over by traffickers.
Such a treatment not only penalizes the victims, but also reinforces in the
public (and official) mind the notion that the trafficked persons are the
criminals.
- Distinguishing between people who are
smuggled and people who are trafficked
As noted above, there has been increasing emphasis
given to distinguishing between smuggling and trafficking. Those who are
trafficked are being exploited in abhorrent ways and are deserving of protection.
This is recognized by states participating in various regional and global
agreements and action plans and in the draft UN Protocol on trafficking.
These all call for measures of protection to be offered to victims of trafficking.
Yet very little thought seems to have gone into how on the ground people
who are being trafficked are to be identified. If authorities have no means
of determining among the intercepted or arrested who is being trafficked,
how do they propose to grant them the measures of protection they are committing
themselves to?
Conversely, where states in fact use the fear
of trafficking as a motivation for more punitive measures, it is those who
are not being trafficked that have an interest in having the determination
made. This is a real dilemma facing Chinese nationals in detention in Canada,
where release is being denied based on the hypothesis that the individuals
will disappear into the hands of their presumed traffickers if released (despite
the fact that there is no specific evidence to show that the individuals
were being trafficked).
In much of the Western discourse about the issues
of people smuggling/trafficking, the major preoccupation centres on the "assault"
on the borders and on actions to control the borders. The crossing of borders
is, however, only one element of trafficking (and according to some definitions,
not even a necessary one). Surely it is at least as important to address
the trafficking at other elements in the process: within the source country
and within the country of destination? As most states recognize, they will
never achieve total control over their borders and unknown numbers of people
enter undetected. Trafficking may also involve legal entry, for example on
a visitor visa, on a work permit as a dancer (in Canada at least), or perhaps
as a fiancée or spouse through a mail-order bride business.
(16) For these reasons, trafficking needs to be
addressed as a problem of slavery within the country.
- Questions about the well-foundedness
of claims about the extent of the "problem" of people smuggling
In August 1998 the Solicitor General of Canada
released highlights of an
Organized Crime Impact Study (the full study
was not made public). Migrant smuggling was one of the organized crime issues
studied: the annual cost was estimated at $120-$400 million. The study contains
a number of very basic errors in this section which puts into question their
conclusions (and the expertise of the "experts" they used as sources). Even
so, the financial costs they give for migrant smuggling are only a tiny fraction
of the costs estimated for other areas of organized crime (e.g. money laundering
= $5 - $17 billion a year). Despite this, media coverage of the study highlights
focused overwhelmingly on migrant smuggling. This suggests that the significance
accorded to the problem may be due to factors other than the objective scale
of costs.
As is widely recognized, the root causes of
people smuggling and human trafficking lie in economic, political and social
realities, and in the harsh inequalities of opportunity. People who use people
smugglers or fall victim to traffickers left home for a reason: sending them
back home will not change that reality. The root causes need to be addressed.
Approaching the issue from an enforcement standpoint simply reinforces a
divisive current reality, where a minority of the world's population (mostly
white) has wide range of opportunities, including opportunities to move freely
around the world, while a majority (mostly people of colour) are denied those
opportunities.
PROTOCOLS ON SMUGGLING AND TRAFFICKING
Negotiations began in April 1998 on the United
Nations a Convention against Transnational Organized Crime (TOC)(17). Three protocols to the Convention are being
developed concurrently: one on migrant smuggling, one on human trafficking
and one on firearms. An objective of the end of the year 2000 has been set
for the completion of negotiations.(18)
The draft protocols (and other information
relevant to the negotiation process) are available on the internet here.
Summaries of main provisions
The Protocol against the smuggling of migrants
by land, air and sea: Austria and Italy have the lead role.
Purpose: to criminalize migrant smuggling
and promote cooperation among states in actions against people smuggling.
(Art. 3)
Criminalization: states will adopt legislation
criminalizing people smuggling (but those being smuggled into a country are
not criminalized) (Art. 4)
Refugee convention: provisions are without
prejudice to state obligations under the Refugee Convention (Art. 5)
Measures against smuggling of migrants by
sea: actions to inspect, board, exchange information about, etc, ships suspected
of people smuggling (but actions to be in conformity with international law,
environmentally sound and humane and safe). (Art. 7)
Information: states will do public information,
exchange information among themselves. (Art. 10)
Prevention: states will take action to detect
and prevent people smuggling between its territory and others. (Art. 11)
Control of documents: states will ensure quality
of documents they issue. (Art. 12)
Training: states will provide specialized
training for officials in preventing migrant smuggling (and on protecting
the rights of victims). (Art. 14)
Return of smuggled migrants: states will accept
back without delay nationals who have been smuggled. (Art. 15)
The Protocol to prevent, suppress and punish
trafficking in persons, especially women and children: USA and Argentina
have the lead role.
Purpose: undecided (there are two options
circulating, but both are basically about preventing, suppressing and punishing
human trafficking). (Art. 1)
Criminalization: states will criminalize human
trafficking. (Art. 3)
Protection of trafficked persons: states will
provide various measures of protection for trafficked victims against their
traffickers who are being prosecuted and opportunities of seeking damages
from traffickers; states also to consider giving victims temporary or permanent
permits, and consider their status from a humanitarian and compassionate
viewpoint. (Art. 4-5)
Repatriation of victims: states will accept
nationals back without delay. (Art. 6)
Law enforcement, border controls, travel documents:
states will cooperate with each other, control their borders, ensure quality
of documents. (Art. 7, 8, 9)
Savings clause: nothing in Protocol to affect
rights and obligations under international law, especially the Refugee Convention,
and measures must be non-discriminatory. (Art. 13)
Comments
Smuggling protocol(19)
- A. In the preamble,
it is stated that "the smuggling of migrants may lead to the misuse of established
procedures for immigration, including those for seeking asylum". Nowhere is
it stated that for many fleeing persecution, smugglers offer their only opportunity
to seek asylum from persecution.
Recommendation: make clear in the preamble that
there is no necessary connection between using people smugglers and misuse
of asylum procedures, and that many refugees have no choice but to use people
smugglers to save their lives.
B. Although the draft protocol
in the preamble (j) speaks of the "need to provide humane treatment and protect
the full human rights of migrants", the articles of the Protocol contain
next to nothing to secure the protection of the migrants' rights (there is
a reference to training of personnel on "recognizing the need to provide
humane treatment and protect the human rights of migrants" (Art 14.2 (e))
but what more specifically those rights might be is not spelled out). As
pointed out by the UN High Commissioner for Human Rights, "the vulnerability
of migrants, in particular irregular or illegal migrants, as a result of
their precarious situation in society often leads to violation of their most
basic human rights ... any instrument dealing with [people smuggling] --
irrespective of its perspective -- must commit itself to preserving and protecting
the fundamental rights to which all persons, including illegal migrants,
are entitled."(20)
Recommendation: develop in the protocol the
consideration of the rights of the migrants and states' obligations to protect
them. This should include the right to make a refugee claim, as well as other
rights under international human rights instruments.
C. Interdiction measures
frequently have a discriminatory impact, entailing inconvenience and humiliation
or worse for some legitimate travellers, who are considered suspicious because
of their ethnicity or the colour of their skin.
Recommendation: include a provision in the
preamble articulating the principle of non-discrimination and an article in
the protocol committing states to apply the protocol in a non-discriminatory
manner and to monitor implementation in this regard.
D. Article 5 states that
the Protocol is without prejudice to obligations of states under the 1951
Convention and the 1967 Protocol. This leaves in question the obligations
of states signatory to this Protocol but not to the Refugee Convention.
Recommendation: articulate the principle of
non-refoulement as a principle of international law.
E. Article 7 calls for states
to cooperate "to the fullest extent possible to prevent and suppress the
smuggling of migrants by sea". Although this is to be "in conformity with
international law", the objective does not appear to be consistent with refugee
obligations and goes beyond criminally organized smuggling. What about a
boat whose passengers are refugees who have paid a sum to be taken to a country
where they hope to receive asylum? Should that be prevented and suppressed?
Recommendation: Add the words "criminally
organized" before "smuggling" and insert a specific reference to compliance
with obligations under the 1951 Convention and 1967 Protocol.
F. Article 7 ter requires
that states "ensure the safety and the humane treatment of the persons on
board" but makes no reference to protecting any refugees from refoulement.
Recommendation: include reference to non-refoulement
obligations of states.
G. Article 9 directs states
to impose carrier sanctions. This goes beyond criminally organized smuggling,
since carrier sanctions do not specifically deter criminally organized smugglers
and may in fact force desperate people, including refugees, into the hands
of the criminally organized. Carrier sanctions also often lead to discrimination
against legitimate travellers.
Recommendation: delete reference to carrier
sanctions. Or include imposition of a requirement on non-discrimination in
the implementation of carrier sanctions.
H. Article 10 calls for
information measures to increase public awareness of the fact that the smuggling
of migrants is a criminal activity ... and that it poses serious risks to
the migrants involved." Since refugees may use people smugglers and the notion
of criminality is frequently transferred in the public mind to refugees,
it would be appropriate to take positive measures to rebut these misconceptions.
Recommendation: add reference to measures
to increase public awareness that refugees may have no other options but to
use people smugglers in order to escape persecution. More generally include
reference to promoting public awareness of the need to protect the human
rights of the migrants.
Trafficking protocol(21)
I. This protocol is designed
(according to the draft "purpose statement") in part to encourage states to
ensure that the victims of trafficking, particularly women and children, receive
protection. It never, however, addresses the question of how the victims
of trafficking are to be identified. Without an effective mechanism for such
identification it is not at all clear how trafficked persons will benefit
from the protections recommended in the protocol.
Recommendation: include in the protocol provisions
addressing the identification of trafficked persons.
J. The protocol is intended,
according to its title, to "prevent, suppress and punish trafficking in persons".
In fact the protocol is minimally concerned with preventing trafficking (Article
10, which deals with prevention, is brief and extremely general). There is
also relatively little in the protocol about punishing trafficking, beyond
the obligation to criminalize trafficking offences (Article 3). The protocol
seems to be largely concerned with trafficking at the point of border crossing.
Focusing on this element on trafficking is not likely to be effective in
combatting trafficking, since those caught will mostly be the trafficked
persons themselves. This emphasis also neglects the root causes of trafficking,
the "recruitment" (including possible purchase or abduction), and the exploitation
of trafficked persons at the receiving end (should they successfully reach
their destination). It also ignores the fact that trafficked persons may
gain prima facie legal entry to another country.
Recommendation: address more equitably the
full scope of trafficking, including in the countries of origin and the countries
of destination (rather than treating it as simply a border crossing problem).
K. Article 4 deals with
assistance for and protection of victims of trafficking. The kinds of assistance
to be given are very general and limited by reference to "in appropriate cases".
Since the protocol never defines the appropriate cases these provisions may
be virtually meaningless.
Recommendation: omit use of "appropriate"
and replace with firm commitments for assistance. Specific reference should
be made to access to NGO support and trafficked persons' right to receive
full information about their situation and options. Their right to privacy
should be fully protected. Special sections should address the needs of children
and youth who are victims of trafficking, and the needs of women.
L. Detention has often been
used in response to the discovery of trafficked persons. This is not an appropriate
way to treat people who have been victims of exploitation.
Recommendation: direct that persons who have
been trafficked not be detained or charged under immigration laws (or for
involvement in the sex industry).
M. There is no mention under
the section on protection of trafficked persons of their right to make a
refugee claim.
Recommendation: include an explicit reference
to states ensuring that trafficked persons have access to the refugee determination
process.
N. Article 5 proposes that
victims of trafficking be allowed to stay in their territories temporarily
or permanently "in appropriate cases". Again there is no clarification of
what cases would be appropriate. Giving trafficked persons an alternative
to immediate deportation is necessary to avoid further victimization.
Recommendation: direct states to give temporary
permits in all cases and permanent permits in appropriate cases.
O. "Repatriation of victims"
is addressed in Article 6. The draft however contains no reference to voluntary
repatriation, nor to safeguarding the protection or other interests of the
returnees after their arrival. There are no measures to prevent revictimization
of those returned. It is therefore not clear how what is proposed differs
from "deportation of victims".
Recommendation: call for repatriation to be
voluntary and for measures to ensure the protection of those repatriated on
return.(22)
P. States have particular
obligations to ensure the protection of unaccompanied children and youth during
repatriation. This has not been addressed.
Recommendation: introduce provisions ensuring
that the best interests of the child are respected before, during and after
repatriation.
Q. Article 8 addresses border
controls. As with the smuggling protocol, there needs to be attention to
protecting freedom of movement and non-discrimination in the application of
the measures to control borders.
Recommendation: include a reference to Article
13 of the Universal Declaration of Human Rights (the right to leave one's
country), to the principle of non-discrimination and the need to protect
freedom of movement.
R. Article 10 on preventing
trafficking and protecting trafficked persons lacks detail and force.
Recommendation: develop Article 10 to include
specific measures to prevent trafficking and ensure that trafficked persons
are protected.
S. Trafficked persons are
frequently the victims of xenophobic and ill-informed public opinion, who
view them as perpetrators rather than victims of crime. This needs to be
addressed through public information campaigns.
Recommendation: add an article calling for
information and mass media campaigns to educate populations in receiving states
about the realities of trafficking.
RECOMMENDATIONS FOR CANADIAN ACTION ON
TRAFFICKING ISSUES
The issue of trafficked (or potentially trafficked)
persons in Canada has recently attracted enormous attention and considerable
controversy, following the arrival in the summer of 1999 of several hundreds
of Chinese people on the West Coast. These people are suspected of being
trafficked persons, destined for some form of enslavement in North America,
probably in the US.
How should Canada be dealing with such people?
Detention has been one of the primary
responses of the Canadian government, with the result that hundreds of people
have been detained for months, mostly in British Columbia but also elsewhere.
The right to liberty is a fundamental right. It is not appropriate to add
to the victimization of victims of traffickers by depriving them of their
liberty. This is especially true in the case of minors or when the detention
is long-term or in jails alongside criminals. (Detention, it is worth noting,
is also a very expensive way to respond to the problem).
One of the concerns frequently raised in relation
to arrivals of potentially trafficked people is abuse of the refugee claim
process. Where significant numbers of people make refugee claims even
though they do not have any fear of persecution, there is a burden placed
on the refugee determination system. There is also frequently significant
negative publicity about the movement. This is hurtful both to refugees, since
public opinion often fails to distinguish between "bogus" and genuine, and
to victims of traffickers, who are reviled as bogus claimants, rather than
understood as people who have been exploited by criminals.
All trafficked persons must have access to
the refugee claim process, and many may be Convention Refugees. For those
who are not refugees, however, if making a refugee claim is the only option
given to them, it is not surprising that they take it. People who have been
trafficked need to be offered some chance of improving their situation. This
does not necessarily mean that they should stay in Canada: it does mean offering
them something other than indefinite detention followed by deportation to
the situation they left behind.
Where trafficked persons are being sent back
to their country of origin, there needs to be some effective mechanism to
oversee the protection of their basic rights in the home country, likely
through an international organization. This would include avoiding the "revolving
door" potential, that is ensuring that people returned do not find themselves
once again in the hands of the traffickers.
Canada should also avoid penalizing trafficked
persons under immigration laws. For example, people who are deported
from Canada are not allowed to re-enter Canada (unless they have permission
from the Minister).
As noted by the United Nations High Commissioner
for Human Rights in her informal note (AC.254/16, 1 June 1999), children have special rights under international law and child victims of trafficking
have special needs that must be recognized and met by States parties. These
needs are little developed in the international discussions and, given the
numbers of minors suspected of being victims of traffickers currently in
immigration processing in Canada, and the serious concerns about their treatment,
it is particularly important that these issues be explored.
Women are among the prime targets of
traffickers, frequently destined by them for sexual exploitation. Special
measures need to be in place to respond to their situation.
Effective access to and services from non-governmental
organizations, including groups from their own communities, should be
assured for trafficked persons.
Appropriate health services should
be made available, particularly taking into account the health risks associated
with trafficking.
The privacy of trafficked persons should
be respected. (In recent months, media interest in the Chinese in detention
has been high and even minors have been exposed to cameras and their personal
information made public).
In developing a response to trafficked persons,
it is crucial that some mechanism be established for distinguishing the
victims of traffickers. Currently, people in immigration processing are
merely suspected of being trafficked, rather than being determined to be
trafficked persons. (The suspicion has negative rather than positive consequences,
as it leads to detention, frequently long-term).
International discussions about responding
to trafficking have generated many recommendations that can be a useful guide
for action here in Canada. They focus on:
- preventing trafficking, including by addressing
the economic and other causes.
- prosecuting the traffickers.
- protecting trafficked persons.
The last is particularly relevant for considering
how Canada should be treating trafficked persons in Canada. Elements of the
recommendations include:
- developing a coordinated national strategy
and ensure ongoing coordination between government departments and between
government and NGOs.
- offering victims of trafficking
temporary or permanent permits as well as access to shelter, counselling,
information, etc.
- ensuring victims of trafficking
have access to NGOs that can offer them assistance.
- making available witness protection
programs.
- establishing policies and providing
training to government officials.
Extracts from relevant international sources
UN General Assembly Resolution (A/RES/53/116
) Traffic in women and girls, (1 February 1999), especially:
- ... encourages Governments to intensify
collaboration with non-governmental organizations to develop and implement
programmes of effective counselling, training and reintegration into society
of victims of trafficking, and programmes that provide shelter and helplines
to victims or potential victims;
- Invites Governments to take steps,
including witness protection programmes, to enable women who are victims
of trafficking to make complaints to the police and to be available when
required by the criminal justice system and to ensure that during this time
women have access to social, medical, financial and legal assistance, and
protection, as appropriate;
- Urges Governments to strengthen national
programmes to combat trafficking in women and girls through sustained bilateral,
regional and international cooperation, taking into account innovative approaches
and best practices ...
- Invites Governments, once again,
with the support of the United Nations, to formulate training manuals for
law enforcement and medical personnel and judicial officers who handle cases
of trafficked women and girls, taking into account current research and materials
on traumatic stress and gender-sensitive counselling techniques, with a view
to sensitizing them to the special needs of victims.
Proposed Action Plan 2000 for activities to
combat trafficking in human beings, OSCE ODIHR, November 1999
Action at the National Level, especially:
- Develop a national strategy to combat
trafficking, including measures to prevent trafficking, prosecute offenders,
and protect the rights of trafficked persons;
- Institute a coordinating mechanism
on a national level to ensure effective coordination between different government
authorities (and between government and NGOs) and to allow for a multi-disciplinary
approach;
- Establish social policies and programmes
to prevent trafficking in human beings, including economic and legal measures
in origin countries
- Increase awareness about trafficking
among police, judicial, immigration, and consular/embassy authorities, including
the human rights aspects of trafficking and the obligation of State authorities
to assist and protect trafficking victims;
- Adopt policies and protocols to
treat trafficked persons as victims of crime and potential witnesses, rather
than as criminals;
- Provide a temporary residence permit or
stay of deportation (in destination or transit countries) to all victims
of trafficking to enable victims to receive appropriate care and legal assistance.
Permits should be extended if the trafficked person cooperates with law enforcement
or if she would be endangered by repatriation;
- Enact or strengthen laws or policies
to protect trafficked persons, consistent with international human rights
standards. Such measures should include shelter, physical protection, appropriate
medical and legal assistance, procedural protections in criminal proceedings,
access to legal redress and compensation, and return and reintegration assistance;
- Provide resources to NGOs and social
agencies providing services to trafficked persons. Take steps to identify
and develop alternative sources of assistance where specialized trafficking
NGOs or public funds are not available.
Informal Note by the United Nations High Commissioner
for Human Rights (AC.254/16, 1 June 1999)
Re. Draft Trafficking Protocol
- ... Assistance and protection provisions
must, at a minimum, meet basic international human rights standards. From
this perspective, special reference should be made to adequate housing, appropriate
health care and other necessary support facilities.
- Assistance and protection provisions
should also take account of the fact that trafficked persons are usually
in an extremely vulnerable situation and may be subject to reprisals from
traffickers. In addition, it should be noted that trafficked persons are
often subject to detention and prosecution for offences related to their
status (including violation of immigration laws, prostitution, etc). States
parties should be directed to refrain from detaining or prosecuting trafficked
persons for such status-related offences.
- The High Commissioner is of the view that
safe and, as far as possible, voluntary return must be at the core of any
credible protection strategy for trafficked persons. A failure to include
provision for safe and (to the extent possible) voluntary return would amount
to little more than an endorsement of the forced deportation and repatriation
of victims of trafficking. When trafficking occurs in the context of organized
crime, such an endorsement presents an unacceptable safety risk to victims.
- At a very minimum, the identification
of an individual as a trafficked person should be sufficient to ensure that
immediate expulsion that goes against the will of the victim does not occur
and that the expanded protection and assistance provisions of the Protocol
suggested above become immediately applicable. The High Commissioner urges
Member States to consider a provision whereby trafficked persons are provided
with the option of at least temporary residence. In addition to providing
a measure of safety, such a provision would encourage victims of trafficking
to cooperate with the authorities and thereby contribute to achieving the
law enforcement objectives of the Protocol. It is important in this context
to note that victim protection must be considered separately from witness
protection, as not all victims of trafficking will be selected by investigating
and prosecuting agencies to act as witnesses in criminal proceedings.
- ... The High Commissioner suggests the
insertion of a provision to the effect that States Parties are to take steps
(both individually and through international assistance and cooperation)
to provide for the physical, psychological and social recovery of victims
of trafficking.
REFERENCES
United Nations Crime
and Justice Information Network
Note by the United Nations High Commissioner for
Human Rights, International Organization for Migration, United Nations High
Commissioner for Refugees, and the United Nations Children's Fund on the
Protocols concerning migrant smuggling and trafficking in persons
UN Global Programme against
Trafficking in Human Beings
IOM
site on trafficking
OSCE
- ODIHR Office for Democratic Institutions and Human Rights
US Secretary
of State
Australian
Department of Immigration and Multicultural Affairs (DIMA)
The Prime Minister's Coastal
Surveillance Task Force Report, Australia
Solicitor
General of Canada, Organized Crime Impact Study
Minister of
Citizenship and Immigration Canada, speech to CCR, 3 December 1999
Coalition to Abolish Slavery and
Trafficking
Global Alliance against Traffic
in Women
Trafficking
in Human Beings, Australian Institute of Criminology
NGO Joint submission
on Protocol against the Smuggling of Migrants by Land, Air and Sea ANDProtocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children
1. The Honourable Elinor Caplan, Minister of Citizenship
and Immigration of Canada, has expressed the distinction between smuggling
and trafficking in the following way:
"Human smuggling has been around for a while. It is a fee-for-service operation,
involving simple payment for passage, and we all know that it is sometimes
used by genuine refugees. Human trafficking, however, is more akin to human
slavery. Its goal is profit from indentured human servitude. We know that
organized criminals demand up to $50,000 dollars in unconditional debt from
their naïve or misguided victims, in order to exploit their simple desire
for a better life. This debt is typically repaid over a short and brutal
lifetime of illicit activity, sexual exploitation and forced labour. The
victims of human trafficking often have reason to fear for their lives, and
the lives of their family members back home." (Address to the Canadian Council
for Refugees, 3 December 1999.)
2. One of the hurdles identified by the drafters of
the UN Protocols is the difficulty in finding equivalents in other languages
for "smuggling", particularly in opposition to "trafficking". French, for
example, would tend to use "trafic" for both.
3. Elements of this definition remain under discussion
among states negotiating the protocol.
4. There is not yet agreement on the definition of trafficking.
The definition cited comes from the preferred of two options being considered.
Individual elements of the definition are also under discussion.
5. This distinction is not however a simple one, given
the situations from which many of the smuggled/trafficked persons come.
6. Proposed Action Plan for Activities to combat
Trafficking in Human Beings, Warsaw, November 1999.
7. http://secretary.state.gov/www/picw/trafficking/
8. This right is also guaranteed in Article 12 of the
International Covenant on Civil and Political Rights: "Everyone shall be
free to leave any country, including his own."
9. François Crépeau examines this phenomenon,
particularly in the European context, in International Cooperation on Interdiction
of Asylum-seekers: a Global Perspective, in Interdicting Refugees,
Canadian Council for Refugees, May 1998.
10. Given the recent increase in boats of migrants
from China arriving in North America, it is ironic to see the Houston Chronicle
reporting on 31 October 1994 that discussions on human smuggling between China
and the US "have been so productive that since June of this year U.S. officials
have not detected one smuggling ship trying to bring Chinese immigrants to
the United States".
11. According to the Office of Democratic Institutions
and Human Rights (ODIHR) of the OSCE, in 1997 an estimated 175,000 women and
girls were trafficked from Central and Eastern Europe and the Newly Independent
States alone, mostly to other OSCE countries (OSCE, 1999).
12. US government
web site on trafficking
13. IOM's
Focus on Trafficking.
14. The report in fact calls for the Australian Defence
Force to be involved in the defence of Australia's borders against illegal
immigrants: it recommends, inter alia, that a uniformed Australian
Defence Force officer fill the position of Director-General Coastwatch.
15. The Australian Minister for Immigration and Multicultural
Affairs, Philip Ruddock, undertook in January 2000 an Overseas Anti-People
Smuggling Mission, a highly publicized tour of Jordan, Syria, Turkey, Iran
and Pakistan, in order "to learn more about the experiences these countries
have had in dealing with people smugglers and to provide information on Australia's
tough new stance to curb the flow of people arriving illegally." The Minister's
media materials note that 1200 Iraqis and nearly 1100 Afghanis arrived in
Australia in 1999. The likelihood of some or even most of these people being
refugees is not mentioned.
16. A report by the US Immigration and Naturalization
Service states that "[t]he information on trafficking suggests that mail-order
brides may become victims of international trafficking in women and girls".
News Release: INS Reports to Congress on "Mail-Order Bride" Businesses, 12
December 1999.
17. Negotiations are being conducted in Vienna under
the auspices of the United Nations Centre for International Crime Prevention.
18. The European Union General Affairs Council recently
(14-15 February 2000) authorized the EU Commission to negotiate the two Protocols,
on behalf of the member states. This indicates that the members do not consider
the protocols controversial.
19. Comments are with reference to the 27 December
1999 version of the protocol.
20. Informal Note, 1 June 1999.
21. Comments are with reference to the version of the
draft protocol dated 1 January 2000.
22. An additional provision calling on receiving states
to "provide necessary facilities for the return of victims" has been proposed
by one state, ironically China. China has recently reportedly brought in
penalties of one year's imprisonment for those leaving the country illegally.
