Domestic Implementation of International Standards Combating Human Trafficking

First, let me say that in behalf of trafficking survivors, especially those from prostitution, and advocates in the region, I am very happy that the National Human Rights Commission of Korea is focusing on trafficking in persons as a major human rights issue, meriting coordinated responses from the governments, human rights institutions and civil society organizations.

It is indeed important to review the international standards – the established universal frameworks in viewing the global problem, the nuances of such a human rights perspective, the commitments made by states and what is happening in reality.  I will also attempt to analyze the roots of challenges in domestic application, as well as facilitating factors therein.  My paper will primarily cover the realities in the Philippines, but will also look later at other Asian examples or cases.

To review thus, the relevant international standards which have explicit mention of human trafficking or closely related issues are:

  1. the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), putting particular attention to Article 6 on Trafficking;
  2. the 1949 Convention for the Suppression of the Traffic in Persons and o the Exploitation of the Prostitution of Others; and
  3. the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

But fundamental human rights instruments such as the Universal Declaration of Human Rights (UDHR), the International Convention on Civil and Political Rights (ICCPR), the International Convention on Economic, Social and Cultural Rights (ICESR), the International Convention for the Elimination of all Forms of Racial Discrimination (ICERD), and the International Convention on the Protection of the Rights of All Migrant Workers and their Families can similarly be referred to as containing lists of rights violated in trafficking cases.  These instruments contain, among several others, the rights to:

  1. life, liberty, security of person (Art. 3, UDHR),
  2. freedom from slavery, servitude and all forms of slave trade (Art. 4, UDHR; Art. 8, ICCPR)
  3. freedom from torture or cruel, inhuman or degrading treatment or punishment (Art. 5, UDHR; Art.7, ICCPR),
  4. recognition everywhere as a person before the law (Art.16, ICCPR),
  5. non-discrimination to the equal protection of the law (Art. 26, ICCPR),
  6. highest attainable standard of physical and mental health (Art. 12, ICESR).

Through both sets of general instruments and those that make particular reference to trafficking, states parties are obliged to submit reports on how the rights are being implemented.  National legislations are to be crafted in harmony with these international standards.

In the Philippines, the anti-trafficking law or Republic Act 9208 was passed as an almost exact copy of the Palermo Protocol or the UN Anti-Trafficking Protocol, attached to the Main Convention on Transnational Organized Crime.  Its most salient points, such as the definition of trafficking as a crime where the “consent” of the victim is rendered irrelevant, are adopted.   Let me just reiterate how significant it is to remove from the victim the burden of proof that she was forced.  The important point is the presence of exploitation.  That the definition includes all means of trafficking beyond the use of force allows the protection of more persons trafficked by those who take advantage of their vulnerability.  Clearly, both the UN Anti-Trafficking Protocol and the Philippine law understand the presence of inequalities in society – may they be of sex, race, class and other categories – inequalities recognized also by the fundamental human rights standards.  Thus, exploiters are not given mitigating excuses to say that victims “consent,” and the marginalized is protected domestically and internationally by these principles.

Moreover, the Philippine law discourages demand in trafficking by punishing the buyers of trafficked persons, in accordance with the UN Anti-Trafficking Protocol, which encourages states to legislate against demand.

However, implementers of the law still relegate women who have been in prostitution for a long time as “consenting victims” which is a contradiction in terms and concept.  Does not the act of recruitment, or harboring or receipt of persons been applied to them by either procurers or buyers?  Was their vulnerability not taken advantage of by pimps or buyers when they entered prostitution because they have been sexually abused as a child?  Are they not, by UN Anti-Trafficking Protocol definition, trafficked, too?  If so, why do we allow them to be victimized all over again by allowing them to be arrested, prosecuted and jailed?  Why do we allow the prostitution establishments that harbor and receive them to operate with impunity?

Even as RA 9208 was passed, the age-old Vagrancy Law, which punishes women in prostitution, was not automatically repealed.  Women, and sometimes children, in prostitution are arrested, prosecuted as criminals, jailed and in many cases sexually abused by policemen and investigators in the process.  Persons that are rescued are those who have been forced or deceived.

This is despite the fact that the CEDAW Committee recommended “educational and economic opportunities” for women in prostitution to provide them adequate options “thereby reducing and eliminating their vulnerability to exploitation and traffickers” and “reintegrat[ing them] into society and provid[ing] rehabilitation, social integration and economic empowerment programmes to women and girls who are victims of exploitation and trafficking.”

The CEDAW Committee also urged the Philippines to “prosecute and punish traffickers and those who exploit the prostitution of women, and provide protection to victims of trafficking.”  Women’s groups invoke this even as the anti-prostitution bill being pushed for by survivors and advocates has been languishing in the Philippine parliament for almost a decade now.  The said bill would have repealed the Vagrancy Act provision in the Revised Penal Code and increased the penalties against buyers of women and children in prostitution, thereby discouraging demand, in compliance also with the UN Anti-Trafficking Protocol.

The Philippine government similarly continues to promote labor export as an employment program.  Under the administration of President Gloria Macapagal-Arroyo, a million migrant workers are targeted for overseas deployment every year, contradicting Republic Act 8042 which states that “…the State does not promote overseas employment as a means to sustain economic growth and achieve national development”. Moreover, whereas the law (RA 8042) allows the deployment of workers only in countries where the rights of Filipino Migrant Workers are protected based on existing labour and social laws, agreements, declarations and resolutions, and other protective measures, there are more than 2 million overseas Filipino workers in many of the Gulf countries where their rights are very difficult to protect.

To quote the reply of Philippine Migrants’ Rights Groups to the Philippine Report to the UN Migrant Workers Committee, “As part of its labor export policy, the Philippine government negotiates with labor receiving countries of Filipino workers, but at present has forged agreements with only 9% of the total 193 countries and territories.”  The push for overseas employment, instead of creation of local jobs, puts a huge population of people desperate for jobs, majority of whom are women, in a position of lack of choice.  Many trafficked women that we have helped lament that they are pushed to leave the country because the jobs they get locally last only for three to four months.  Some end up in Taiwan with two employers, working for 18 hours, without decent food, then raped, too, by the employer.  Or they would end up marrying a Japanese man, through arrangements, similarly raped in the process by the pimp and the supposed “spouse”, then land in prostitution to pay off incurred debts.

Massive poverty, the sexualization by the environment of women’s bodies, and the unquestioned demand by men for commodified sex bring about new forms of trafficking.  We have been recently rescuing women trafficked to cyber- or internet prostitution.  Young women are made to perform sexual acts in front of a webcam, while a buyer from Australia or the US watches after sending money to the establishment owner via Western Union or by swiping a credit card.  The profile of the buyers is the same as those of other sex trafficking cases.  The young women, strikingly for us, also suffered from previous childhood sexual abuse experiences.

Challenges in faithfully implementing the international standards in local settings can be summarized into the following points:

  1. Consciousness of policy-makers and implementers.  As societies are steeped in old, patriarchal thinking that women who are sexually violated “invited” the violations that were done to them, we have to contend with the reality that numerous legislators, government officials and law enforcers maintain the thinking that women (and sometimes even children) are to be blamed for the sexual violence, such as trafficking into prostitution, that they have suffered.  This reflects in the lack of prioritization for an anti-prostitution bill (or relevant laws for that matter) that will protect the victims and punish the perpetrators.  This also manifests in the continuing abuse of women and children in prostitution even by government officials who buy them, own prostitution establishments or simply ignore the existence of the sex industry.  There are also ethical issues when frontline government agencies blame victims even in the process of supposedly assisting them.  Finally, this lack of in-depth awareness of the issue and special provisions of the anti-trafficking law shows in the low level of conviction of trafficking cases.
  1. Political Will.  This relates to the first challenge, but has to be mentioned, because some government leaders profess understanding of the dynamics of trafficking as well as involvement in the drafting of the international standards.  However, the work of passing the necessary bill domestically takes a backseat compared to “politically expedient” agenda items.  Thorough investigation and efficient prosecution of cases are wanting until funders make an extra push or the US Trafficking in Persons Report is due.  By 2008, only 1% of cases were convicted, 21% were dismissed, dropped or withdrawn, while 35% are still waiting for resolution.  Local government units are critical levels of governance whose political will to implement the law on the local level are challenged as they are known to be involved in protecting the local sex industry, if their leaders are not part-owners of establishments or buyers themselves.
  1. Socio-economic and Cultural Structures.  Education, the media and even families continue to reinforce the vulnerability of young women to sexual exploitation.  Gender definitions of women as secondary human beings, passive sexual objects and homemakers on the one hand, and definitions of masculinity as aggressive, superior to women and sexually virile are at the base of gender-based violence that includes sex trafficking, where women and children become the majority of victims, and men become the perpetrators.  These, combined with poverty, discrimination based on race/ethnicity and age, exacerbates the vulnerability of women and children to trafficking, especially those coming from the rural areas or indigenous groups.

“Marrying up” is being seen as a channel for women’s economic and social uplift.  Meanwhile, men from the North are on the flipside of the coin and are attracted to the exoticized images and vulnerability of women in the South.

Between the vulnerable women and children on the one hand, and the men who are buying on the other, is the globalized business of trafficking where exploiters profit.  Finding a huge market among men across societies socialized by their own families, even by schools and by the media to act out exploitative sexuality, more and more sectors of profiteers are drawn to trafficking – from the procurers, to the illegal recruiters, to travel agents, to shippers, airline personnel, immigration officials, pornographers, establishment owners and drug pushers.  Those who profit from this huge business have become a politically potent sector as they overlap with those in power, even promoting the idea that prostitution is acceptable.  They also push the idea that the sex industry should be tolerated as long as the women are free from HIV/AIDS.

This is the general context where challenges in the implementation of international standards reside.

In the region of Asia-Pacific, laws against trafficking may have been passed but a huge majority are protective of children but provides conditions or qualifies protection of adults trafficked, especially to prostitution.  In India, the Immoral Trafficking in Persons Act is yet to be amended to remove penalties against women and to punish the buyers, as pushed by anti-trafficking advocates.  The Anti-Trafficking Law in Nepal punishes both those who engage in prostitution (which can be the women), as well as the buyers.  India, Nepal and Pakistan in South Asia have not ratified the UN Anti-Trafficking Protocol.

Countries receiving trafficked persons in Asia, such as Malaysia, Japan and Singapore address the supply side of trafficking but have yet to comprehensively address the local demand for trafficked women and children.  Malaysia continues its raids targeting undocumented migrants, including trafficking victims.  Japan has not yet ratified the UN Anti-Trafficking Protocol and has no comprehensive anti-trafficking law.  Singapore denies human trafficking as a significant local problem and has no comprehensive anti-trafficking law as well.

We are optimistic that this coming together will seriously challenge duty-bearers to an in-depth look and analysis of the issue.  To understand that at the core of the problem are inequalities – gender, socio-economic and political – will facilitate thorough and strategic responses to the issue.  As some in the panel may be presenting good practices on integration of victims-survivors of trafficking, I would like to end by presenting how we contribute to the addressal of the demand side.  Because as the UN Anti-Trafficking Protocol provides, “States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.”  CATW-AP has been educating young men, aged 16-21, in three-day education camps on gender issues, sexuality, trafficking and prostitution since 2004.  In those camps, the boys’ socialization are revisited by them.  They reflect on the impact of their learned concepts and behavior on masculinity to women around them, to themselves and to their environment.  Finally, they are able to talk to a survivor of sex trafficking and erode their myths about prostitution.  To date, we have more than 300 young male advocates who say no to buying women and children in prostitution.  They have formed a national organization called Youth and Students Advancing Gender Equality.  These camps have been replicated in Thailand, and will soon be brought to India and Indonesia.  I wish to end by promoting a different notion of masculinity.  (Show 29-second video “First Time”.)

*Please check out the video “First Time” either from www.catw-ap.org or through our facebook account “Coalition Against Trafficking in Women-Asia Pacific.” Thank you.

Speech delivered by Ms. Jean Enriquez in South Korea on June 29, 2010 upon the invitation of the National Human Rights Commission of Korea

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