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Hum Rights Rev (2010) 11:491–513 DOI 10.1007/s12142-010-0162-y Cross-Border Trafficking in Nepal and India—Violating Women’s Rights Tameshnie Deane Published online: 15 April 2010 # Springer Science+Business Media B.V. 2010 Abstract Human trafficking is both a human rights violation and the fastest growing criminal industry in the world. This article examines cross-border trafficking of girls and women in Nepal to India. It gives a brief explanation of what is meant by trafficking and then looks at the reasons behind trafficking. In Nepal, women and children are trafficked internally and to India and the Middle East for commercial sexual exploitation or forced marriage, as well as to India and within the country for involuntary servitude as child soldiers, domestic servants, circus entertainment, and factory workers. Nepal and India are both signatories to international conventions and bound by domestic law to combat trafficking, and yet, this scourge continues. There are many laws in place, both in Nepal and India, which regulate the trafficking and prostituting of girls and women. This article looks at how effective these laws and regulations actually are and will look at the reasons for the continuation of trafficking. Despite the formal recognition of girl trafficking as a major problem and the existence of laws to curtail it, trafficking continues. The major problem with Nepal’s and India’s domestic laws is in the lack of enforcement. Finally, this article will look at ways to fight trafficking and make the governments of India and Nepal more effective in their fight against trafficking. Keywords Trafficking . Commercial sexual exploitation . Slavery . Sale of humans . Human rights List of Acronyms CATW Coalition for trafficking in women CEDAW Convention on the elimination of all forms of discrimination against women CRS Congressional Research Service ECOSOC United Nations Economic and Social Council HRW Human Rights Watch T. Deane (*) Department of Criminal and Procedural Law, College of Law, University of South Africa, PO Box 392 Unisa 0003, South Africa e-mail: Deanet@unisa.ac.za 492 ICCPR ICESCR ILO IOM IPC NGO OHCHR UBINIG UN UNICEF UNIFEM UNODC US USAID SAARC T. Deane International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Labor Organization International Organization for Migration Indian Penal Code Non-governmental organization Office of the High Commissioner for Human Rights Unnayan Bikalper Nitinirdharoni Gobeshona (Policy Research for Development Alternatives) United Nations United Nations Children’s Fund United Nations Development Fund for Women United Nations Office on Drugs and Crime United States United States Agency International Development South Asian Association for Regional Cooperation Background Human trafficking is a complex and widespread problem. It is the world’s third largest organized crime after drugs and arms trafficking (US Department of State 2009). Both men and women are victims of trafficking, but the primary victims worldwide are women and girls who are made particularly vulnerable to this practice due to the persistent inequalities they face in status and opportunity.1 Trafficking in persons is an increasing problem that involves both sexual exploitation (Asia Foundation 2008) and labor exploitation of its victims (Library of Congress 1991). The majority of women and girls are trafficked for the purpose of sexual exploitation (UNIFEM 1998). This article focuses on trafficking of women and girls because they make up the largest proportion of trafficked persons (UNODC 2009) and “the effective suppression of trafficking in women and girls for the sex trade is a matter of pressing international concern”.2 Trafficking in women is a complex issue with many factors that affect a woman’s decision to go abroad. Perhaps one strong factor arises out of a desperate economic situation, which impacts the availability of suitable employment for women more severely than for men.3 Although trafficking seems to imply people moving across continents, most exploitation takes place “inhouse.” It has been reported that intra-regional and domestic trafficking are the major forms of trafficking in persons.4 Trafficking in persons must be viewed within the context of international and national movements and immigrations that increasingly are being undertaken owing to “economic globalization, the feminiza- 1 US Department of State Trafficking in Persons Report (2007) at http://www.state.gov/g/tip/rls/tiprpt/ 2007/. (Trafficking Report 2007). Traffickers primarily target women because they are disproportionately affected by poverty and discrimination, some of the factors that hamper their access to employment, educational opportunities, and other resources. 2 Beijing Platform for Action The Fourth World Conference on Women (1995) chap. I para 122. 3 At http://www.adb.org/Human-Trafficking/adb-ht-asia.asp. 4 UNODC (2009) op cit (n 6). Cross-border trafficking in Nepal and India 493 tion of migration, armed conflict, the breakdown or reconfiguration of the State, and the transformation of political boundaries” (Coomaraswamy 1997). Trafficking in Nepal to India The Kingdom of Nepal is a landlocked country bordered to the north by the People’s Republic of China, and to the south, east, and west by the Republic of India (United Nations Development Program 2008). The trafficking problem is particularly acute in Nepal, with 42% of its citizens living below the poverty line (Horizons The Asia Foundation 2001). Human trafficking is both a human rights violation and the fastest growing criminal industry in the world (Bechard 2006). The international trade in human beings is on the increase, and the trafficking of hundreds of thousands of women and girls for forced prostitution is one of the most difficult to fight. In South Asia, Nepal remains the top country that carries the burden of worldwide child and women trafficking5 followed by India.6 India is the biggest foreign destination for victims (Thaindian News 2009), with an estimated 10,000–15,000 Nepali women and girls being sold there annually.7 Over the years, India has emerged as a source, destination, and transit country for human trafficking.8 The incidences of crossborder trafficking, especially women and children trafficked between Nepal–India, has been on the increase in recent years (Choudhury 2009). In Nepal, women and children are trafficked internally and to India9 and the Middle East for commercial sexual exploitation or forced marriage, as well as to India and within the country for involuntary servitude as child soldiers, domestic servants, and/or factory workers.10 This is what is referred to as a modern-day form of slavery.11 Nepalese women are trafficked to India and to countries of the Middle East mainly for commercial sexual exploitation (Gaon et al. 2006). Young girls, usually between the ages of 9 and 16 years, are sold across the border to brothels in India, where prostitution is legal.12 They often have to work between 14 and 18 h/day offering commercial sex for which they are not paid. The trafficking of girls from Nepal into India for the principle purpose of prostitution is perhaps the busiest “slave traffic” of its kind anywhere in the world (McGirk 1997). 5 At Population Council http://www.popcouncil.org/countries/nepal.asp (2002–2008). Thaindian News India Becoming Hub Of Child Sex Abuse: Apex Court (January 29, 2010) at http://www. thaindian.com/newsportal/uncategorized/india-becoming-hub-of-child-sex-abuse-apexcourt_100311709. html#ixzz0fxcEh8vp 7 Thaindian News India Has Failed To Implement Human Trafficking Laws (June 19, 2009). 8 Trafficking Report 2009 op cit (n 1). 9 Thaindian News June 17, 2009 op cit (n16). 10 UNODC (2009) op cit (n 6). According to the report the most common form of human trafficking is sexual exploitation which makes up 79% of the victim population, followed by forced labor at 18% which is less frequently detected and reported than trafficking for sexual exploitation. 11 US Office to Monitor and Combat Trafficking Trafficking in Persons Report (2005). The current UN definition of “slavery” is comprehensive. In addition to traditional slavery and the slave trade, these abuses include, but are not limited to the sale of children, child prostitution, pornography, child labor, the use of children in armed conflicts, debt bondage, the traffic in persons and in the sale of human organs and the exploitation of prostitution. See also UN Fact Sheet Contemporary Forms of Slavery (2005) V(14). 12 Thaindian News June 17, 2009 op cit (n16). 6 494 T. Deane Extent of Human Trafficking Human trafficking not only deprives people of their human rights and freedom but also increases global health risks, and it fuels growing networks of organized crime.13 One question that repeatedly arises in discussions of trafficking concerns the extent of trafficking. Estimates of the number of trafficked persons vary widely.14 The disparity can be clarified in part by the fact that since trafficking involves various illegal activities, there are no official statistics available. However, the disparity is also the consequence of widely differing interpretations of what it means to be trafficked. For example, those who believe that all women who are brought to another country to work as prostitutes are trafficked will definitely have much larger numbers of trafficked persons than those countries that accept that a woman can consent to work as a prostitute (Canadian Council for Refugees 2009). According to the United Nations (UN), approximately four million women, children, and men are victims of international trafficking each year.15 Millions more are trafficked within their own countries. 16 It is estimated that between 7,000 and 10,000 girls, between the ages of 9 to 16 years, are trafficked each month from Nepal to India (World News 2009). Over 200,000 girls have been trafficked to India’s red light areas alone.17 In Nepal and around the world, trafficking has become a highly profitable business (Hughes 1999). On a daily basis, the country receives children from Bangladesh and Nepal and sends the women and children to Middle Eastern countries (CATW 2007). An estimated 7,000 Nepalese women and girls are trafficked for prostitution to the Asia Pacific area alone (CATW-Asia Pacific and Philippine 1997). India, along with Thailand and the Philippines, has 1.3 million children in its sex-trade centers. The children come from relatively poorer areas and are trafficked to somewhat richer ones (Wadhwa 1998). In cross-border trafficking, India is regarded as a “sending, receiving and transit nation” (Sinha 2006). A large number of boys are being trafficked from Nepal to India, but unlike women trafficking, which is mostly done to force them into prostitution, boys are being trafficked primarily for cheap labor.18 Reasons for Trafficking In order to take the right steps to combat human trafficking, the knowledge around its nature, the underlying conditions, as well as the profiles of traffickers and victims need to be improved.19 The UN Office on Drugs and Crime (UNODC)20 points out that trafficking in persons is usually described in terms of the supply and demand 13 Trafficking Report 2009 op cit (n 1) at 1. At http://www.ccrweb.ca/trafficking/learn.htm. 15 International Organization for Migration Counter-Trafficking Database—78 Countries, 1999–2006 (2006) at http://www.iom.int/jahia/Jahia/pid/748. (IOM Database) 16 UNODC Global Report of Trafficking In Persons (2009) at 6. 17 Ibid. 18 At http://www.mahilaweb.org/footer/news/apr_02/kathmandu_post. 19 UNODC 2008 op cit (n 35) at 11. 20 At http://www.unodc.org/unodc/en/about-unodc/index.html. 14 Cross-border trafficking in Nepal and India 495 factors that lead children and adults to leave or be removed from their place of origin to a foreign place. Both supply and demand factors are usually seen as factors in society that make people particularly vulnerable to human trafficking. For most people, a powerful supply factor is the belief that there are better prospects in another place. The supply factors as indicated below include, but are not limited to, the following. Supply Factors Poverty, coupled with high unemployment rates, is the major factor contributing towards a persons’ vulnerability to being trafficked.21 Due to high and persistent unemployment, widespread poverty or a lack of economic opportunities, traffickers use promises of higher wages and better working conditions in foreign countries to tempt individuals.22 Families that see no economic opportunities within their communities will occasionally place their children with families and friends in areas where they believe the prospects for worthwhile employment may be greater. Children in these communities are easy prey for traffickers who promise them trade and work opportunities (Salah 2001). Trafficking can arise out of a variety of situations such as commercial sexual exploitation, forced labor, under the pretext of false marriages, adoption and crime and the direct selling of children into prostitution by their families (Benninger-Budel et al. 1999). Traffickers lure innocent women from Nepal with false promises of a job or marriage and sell them in different brothels in India (Koirala 2004). These circumstances provide an “easy passage in and out of India for organized human trafficking syndicates to operate undetected” (The Morung Express 2009). Poverty-stricken parents have also sold their children to traffickers to get out of debt and the poverty they face (Fitzgibbon 2003). Poverty and hunger also place women and children in situations where they are forced to exchange sex for food, shelter, and survival (Pamela and Ken 2001). According to the UN23 classification on the status of women in Nepal, the country was shown as a rigidly patriarchic society, and in almost all phases of life, women were commonly subordinate to men in the context of their access to knowledge, economic resources, and political power, as well as their personal autonomy in the process of decision making (Lewis 1991). The trafficking of young girls and women is, therefore, linked to the low cultural and economic status in their lives (Aengst 2001). Since they have these limited economic opportunities, girls are especially vulnerable to being trafficked unsuspectingly and in most cases forcibly.24 Other reasons for the high rate of trafficking can be attributed to the fact that in Nepal and India, child marriage is accepted and considered the best way of acquiring girls for prostitution.25 Parents themselves sometimes sell their daughters, while husbands of trafficked women sell their unwanted wives to brothels for approximately US$200 to $600. Parents sell their daughters because there is a cultural preference for boy children. Girls are considered an additional economic 21 Trafficking Report 2009 op cit (n 1) 26. Trafficking Report 2009 op cit (n 1) 7. 23 UNODC 2009 op cit (n6). 24 Wadhwa op cit (n36). 25 Sinha op cit (n37). 22 496 T. Deane burden as parents must provide a dowry upon marriage26. Due to these limitations, preferences, and stereotypes, girls in general have limited or no access to education and healthcare and are more prone to undernourishment, poverty, and illiteracy.27 Trafficking is considered to be such a lucrative business that organizer’s in rural areas, brokers, and even family members sell girls, and even boys are sold.28 As one of the most rapidly developing nations in the world, there are a variety of factors that make India a country that is particularly prone to human trafficking.29 One of the reasons is attributed to India’s budding sex industry which makes young Nepalese women susceptible to trafficking (US Report (Lead) 2009). India’s role in the international economy has relative advantage in the availability of cheap labor. This has the effect of decreasing wages and increasing the demand for child labor and various forms of forced labor. The low wages in an average employment situation makes the promises of higher paying jobs especially attractive. Therefore, traffickers, especially those in the commercial sex industry, capitalize and use the lure of more profitable opportunities to trick women into the profession.30 Another reason for the high rate of trafficking could be attributed to the open border that Nepal shares with India.31 As the national border between Nepal and India remains open and unregulated, a number of women and children are trafficked to Indian brothels (Human Rights Advocacy 2008). Mumbai is one of the major destinations of trafficking victims, due to the city’s rapid economic growth and increasing population caused by migration. It would seem that trafficking is made easy because of the 1,740-mile-long open border between India and Nepal.32 The open border agreement33 between Nepal and India was designed to facilitate trade and transit between the two countries but now merely enables traffickers to easily transport victims from Nepal to India.34 The trade agreement has specified the agreed routes for mutual trade. But there is no agreement regarding movement of the people and the agreed routes for movement of people of both countries along the border (Kansakar 1984). However, the increasing mass departure of Nepalese labor via illegal means to third countries has further exposed women to human rights violations by 26 Dowry or Dahej is the payment in cash or/and kind by the bride’s family to the bridegroom’s family along with the giving away of the bride (called Kanyadaan) in Indian marriage. Kanyadanam is an important part of Hindu marital rites. Kanya means daughter, and dana means gift. 27 Benninger op cit (n44). 28 McGirk op cit (n25). 29 Trafficking Report 2009 op cit (n 1). 30 Trafficking Report 2009 op cit (n 1). 31 Before the signing of the Sugauli Treaty between Nepal and India and subsequent demarcation of the Nepal India boundary, there existed free and unrestricted movement of people of Nepal and India across the border. It was almost impossible to control and regulate the movement of people along more than 1,400 km long border. Nevertheless, the main thoroughfare existed for social relations, cultural exchanges (pilgrimages, festivities, fairs, etc.) and trade and commerce and they constituted the major road junctions and places for levying customs duties. Nepal–India border is unique in the world in the sense that people of both the countries can cross it from any point, despite the existence of border check posts at several locations. The number of check posts meant for carrying out bilateral trade is 22. Police does not patrol the check posts or paramilitary or military forces of either country; illegal movement of goods and people is a common feature on both sides of the India–Nepal border. Kansakar VBS Nepal–India Open Border, Prospects, Problems and Challenges (2001). (Kansakar) 32 Choudhury op cit (n19). 33 Kansakar op cit (n 60). 34 Trafficking Report 2009 op cit (n 1). Cross-border trafficking in Nepal and India 497 employers. Poverty and conflict-induced displacement35 in Nepal has driven millions of Nepalese to work abroad. This has led to an increase in the number of people wanting to leave the country, and this has in turn led to the expansion of opportunities for traffickers. Effective implementation of anti-trafficking policies can be hampered by political instability and limited resources (USAID 2009). Authorities of both countries and non-governmental organizations (NGOs) across the border area between Nepal and India must develop an effective strategy of border surveillance to prevent trafficking of women and children. In most cases, efforts to fight trafficking in persons are usually hampered by inadequate laws which allow traffickers to continue their activities with relative impunity.36 For example, none of the treaties between Nepal and India mentions the procedures for the regulation of the Nepal–India border (Kansakar 2001). The concept of open border between Nepal and India still remains a mystery (Shrestha 2002), and without the help of its southern neighbor, Nepal alone cannot successfully resolve the problem. Some sexual activities that are illegal in Nepal may not be illegal in India. Such legal incongruities will hinder a smooth implementation of any strategy to combat trafficking. That is why there is a need of common international law to address the issue. Once the concerned countries all ratify the common international law, they can work together to combat trafficking (Mehata 2001). People living below the poverty line, with limited employment opportunities, are most vulnerable to human trafficking; however, a recent trend has emerged whereby young, educated girls from the North East seeking employment outside their local area have also been caught up in trafficking when these girls are deceived or forced into the commercial sex trade by ill-intentioned employers.37 The continuing subordination of women in many societies, as reflected in economic, educational, and work opportunity disparities between men and women, also contributes to the increase in trafficking (Francis 2006). In some societies, men hold more value than women. Families who do not value female children may deny them education or give them off into marriage at a young age.38 This drastically restricts their life opportunities and increases their vulnerability to exploitation and abuse (Clark 2007). The Demand Factors The demand factors as identified by the UNODC39 are as follows: changes in the informal economies of countries, growing involvement of criminal syndicates, and illegal activities in the sector, globalization, migration, and development; better transportation and communication; internet, cell phones, etc., increased demand for cheap labor, and an increase in demand for sex with children. The supply of victims 35 Due to Maoist insurgents. Human Rights Advocacy op cit (2008) 29. 37 The Morung Express op cit (n46). 38 Shifman P and Franzblau K Trafficking: Legislative responses in Profiting from abuse: An Investigation into the Sexual exploitation of our Children (2001) 17. (Shifman) Also see US Department of State Trafficking in Persons Report (2003) 8. Trafficking Report 2003. 39 At http://www.unodc.org/unodc/en/about-unodc/index.html. 36 498 T. Deane for trafficking is supported by a high demand for the exploitation of these victims in various sectors, especially the sex industry. There is also a high demand for the exploitation of children within the informal economic sector as children provide cheap labor and are vulnerable to abusive situations.40 Children are often unaware of their rights or are powerless to seek assistance.41 The demand for sex with virgins in some regions means that younger and younger children are being trafficked and prostituted.42 For its victims, the impact of commercial sexual exploitation is devastating and may be permanent. It includes HIV infection and other sexually transmitted diseases, health consequences, physical abuse, psychological trauma, and the stigma of sexual abuse. These all create incredible challenges for the victims’ return and reintegration into society (USAID 2006). Sudden political change, economic collapse, civil unrest, internal armed conflict, and natural disasters greatly increase the likelihood of people being displaced who then become vulnerable to exploitation by traffickers.43 The environment of violence in conflict areas often breeds or brings with it gender-based violence.44 As job opportunities are limited, people are often forced to migrate in order to survive. Many women consider migration as the only way for them to improve their standard of living and that of their families.45 Although migration does not necessarily lead to trafficking, it can create conditions which make migrating women and children more vulnerable to being trafficked into different kinds of bonded labor, including sex work (UN HIV and Development Program 2001). The increased movement of people and goods has also made it easier for traffickers to transport women and children across borders (Umar 2003). Both the causes and phenomenon of trafficking are rooted in poverty, lack of opportunities, gender discrimination, social and political violence, and demand for services that trafficking victims will be forced to provide in other countries. It is due to these limitations, a lack of female empowerment together with a severe absence of overall awareness, that Nepal is facing this huge crisis regarding the phenomenon of trafficking of its girls and women. Seeing that thousands of women are trafficked each year from Nepal to India, it begs the question of what is it that these two countries are doing to combat this problem of trafficking. Definition of Trafficking The International System The main difficulty with anti-trafficking legislation is that there is no clear definition of trafficking. A UN treaty to denounce trafficking in persons is the 1949 Convention on the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others (the 1949 Convention). This international instrument saw, for the first time, prostitution and the traffic in persons to be incompatible with the dignity and worth 40 Trafficking Report 2009 op cit (n 1). Shifman op cit (n74). Thaindian News June 17, 2009 op cit (n16). 43 Trafficking Report 2003 op cit (n 74) 8. 44 USAID 2006 op cit (n80) 5. 45 Trafficking Report 2009 op cit (n 1) 50. 41 42 Cross-border trafficking in Nepal and India 499 of the human person and to endanger the welfare of the individual, the family, and the community.46 Under this treaty, nations agreed to punish traffickers and illegal brothel owners or their accomplices. They also pledged to protect and safely repatriate trafficking victims (UN Department of Public Information 2000). The 1949 Convention defines trafficking as the: illicit and clandestine movement of persons across national and international border slavery from developing countries and some countries with economies in transition, with the end goal of forcing women and children into sexually or economically oppressive and exploitative situations for the profit of recruiters, traffickers and crime syndicates, as well as other illegal activities related to trafficking, such as forced domestic labor, false marriages, clandestine employment and false adoption. (OHCHR 1995) This definition is problematic because it overlooks two basic aspects of trafficking. Firstly, men can be victims of trafficking as well as women;47 secondly, sometimes, there is no coercion at the time of trafficking. The 1949 Convention is a compilation of four previous international conventions.48 These four previous conventions, as well as the 1949 Convention, are based upon the idea that women are especially vulnerable to trafficking. Further, there seems to be a relation between trafficking and prostitution only and not other forms of trafficking. The relationship between prostitution and trafficking is the root of the difficulty with anti-trafficking legislation. The 1949 Convention is based upon a prohibitionist49 position, which tries to abolish prostitution entirely through criminalizing all acts associated with prostitution.50 The Convention itself does not regard women as “independent actors endowed with rights and reason”; rather, the Convention views them as vulnerable beings in need of protection from the “evils of prostitution” (UNHC for Human Rights Trafficking in women 2000). The definition of trafficking is limited to trafficking for prostitution. Therefore, the 1949 Convention does very little to protect women from and provide remedies for the human rights violations committed in the course of trafficking. This increases trafficked women’s marginalization and vulnerability to human rights violations. Under the 1949 Convention, trafficking of women, for example, for domestic help and marriage brokering, is not included; the Convention equates trafficking with the exploitation of prostitution.51 As a result, many women are excluded from the protections of the Convention. The 1949 Convention equates anti-trafficking legislation with anti-prostitution legislation. 46 At http://www.unhchr.ch/html/menu3/b/33.htm. The definition of trafficking and the exploitation and prostitution of others is set out in articles 1 and 2 of the Convention for the Suppression on the Traffic in Persons and of the Exploitation of the Prostitution of Others 1949. 48 The International Agreement for the Suppression of the White Slave Trade (1904), the International Convention for the Suppression of the White Slave Trade (1910), The Convention for the Suppression of Traffic in Women and Children (1921), and the International Convention for the Suppression of the Traffic in Women of Full Age (1933). 49 The 1949 Convention was the result of an abolitionist and feminist struggle in England. Malko M Guide to the UN Convention of 2 December 1949 for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (2003) 2. (Malko) 50 Ibid 17. 51 Idem. 47 500 T. Deane As a result, countries which oppose trafficking but still have legal prostitution, like India, are caught in a double bind with respect to the Convention. Unless they change their laws to make prostitution illegal, they cannot ratify the convention. As a result of the Convention’s definition, only 73 countries have ratified the Convention since it has come into force.52 The Convention itself is poorly enforced.53 No independent treaty body has been established to monitor the enforcement of the Convention.54 However, the 1949 Convention constitutes a decisive step in the struggle for women’s human rights. It could, however, be strengthened further by a stricter monitoring mechanism. Even though prostitution is illegal in Nepal, the government of Nepal has still not adopted the 1949 Convention. Ratification55 or accession56 of UN treaties is the primary way to hold countries accountable for their actions. There are four UN conventions that Nepal has ratified which have provisions related to girl trafficking. These are: the Convention on Civil and Political Rights (ICCPR), the Convention on Economic, Social, and Cultural Rights (ICESCR), the Convention on the Rights of the Child, and the Convention on the Elimination of Discrimination against Women (CEDAW) (US Department of State 2006). International Conventions since the 1949 Convention Since 1949, the concept of trafficking has been extended to include trafficking for the purpose of other forms of exploitation of women. 57 This wider view of trafficking is reflected in the Beijing Declaration and Platform for Action, which also includes forced marriages and forced labor within the concept. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children58 (Palermo Protocol) is an international instrument that deals comprehensively with the issue of trafficking in persons. The Palermo Protocol addresses the crime of trafficking in persons on a transnational level. According to article 3 of this Protocol, which supplements the United Nations Convention against Transnational Organized Crime 2000,59 trafficking in persons is defined as: the “recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of 52 Malko op cit (n91) 25. In the 1996 report on the Trafficking in Women and Girls, it was noted that the absence of a monitoring body and the lack of any enforcement mechanism would weaken the implementation and effectiveness of the 1949 Convention. 54 Addendum (1998) to original article. Ignarski JS (1985) Encyclopedia of Public International Law V (IV) Q-Z 895–900 (2000) 9. 55 Ratification is when a country consents to a treaty prior to the convention going into effect. 56 Accession is when a country agrees to be bound by a convention that has already come to force. 57 Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, 2000, hereinafter referred to as the Palermo Protocol. 58 The Palermo Protocol, supplements the Convention Against Transnational Organized Crime 2000. 59 The United Nations Convention against Transnational Organized Crime 2000 is the main international instrument in the fight against transnational organized crime. This Protocol follows the 1949 Convention in recognizing that trafficking cannot be dissociated from the exploitation of prostitution. In listing various forms of exploitation prohibited by the Protocol, it initially targets “the exploitation of prostitution of others or other forms of sexual exploitation.” The definition of trafficking also states that the consent of the victim to the intended exploitation is irrelevant thus recognizing that the victim of trafficking should not bear the burden of proof. The Protocol also provides protection measures for victims. 53 Cross-border trafficking in Nepal and India 501 fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” Exploitation includes, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.60 Accordingly, trafficking invariably involves the forcible movement of a person from one place to another and forcible utilization of their services with the intention of initiating them into trade for commercial gains.61 The word “forcible” signifies that the action is against the person’s will or that consensus has been obtained by making deceptive claims and false allurements. In some cases, consensus is obtained because of the victim’s social conditioning, where the victim is not even aware that s/he is being exploited.62 The common denominator of trafficking scenarios is the use of force, fraud, or coercion to exploit a person for profit.63 Traffickers can subject victims to labor exploitation, sexual exploitation, or both. Trafficking for labor exploitation includes traditional chattel slavery, forced labor, and debt bondage. Trafficking for sexual exploitation includes abuse within the commercial sex industry. In other cases, individuals exploit victims in private homes, often demanding both sex and work. The use of force or coercion can be direct and violent or psychological. The advantages of article 3 of the Palermo Protocol are twofold. It gives effect to the rights of victims, and it establishes a common definition for trafficking. According to the first part, the trafficked persons are seen as victims and not as perpetrators of the crime (Raymond for CATW 2000). In addition, the consent of the victim is irrelevant. This provision is a response to the fact that sex traffickers often lure their victims, most of who are suffering in poverty, with false promises of a better life elsewhere.64 The crux of the trafficking process is recognized by the article as the exploitation of the victims and not their physical passage from one place to another.65 Regarding the second part, there is now an accepted definition of trafficking. The article casts a very wide and comprehensive definition of trafficking. This will make it easier for governments to harmonize anti-trafficking legislation. There are, however, two main criticisms of the definition article of the Palermo Protocol. First, the definition of trafficking in persons is “enumerative” (Hilton 2007). This means that the Protocol gives a rather too broad list of the various activities that constitute human trafficking. It may be technically possible for traffickers to find a loophole in the article by arguing that an act of his actually falls outside this list. Admittedly, there is very little scope for any trafficker to find such a loophole as the definition is drafted quite widely, but the possibility remains. Second, it becomes very difficult to design assistance mechanisms for victims of trafficking if too many related criminal activities are included into the definition of trafficking.66 It has been argued that this overly broad attempt to crowd together a variety of other crimes within the 60 Article 3 of the United Nations Convention Against Transnational Organized Crime of 2000. IOM Database op cit (n29). 62 Article 3(b) of the United Nations Convention Against Transnational Organized Crime of 2000. 63 Trafficking Report 2009 op cit (n 1) 2. 64 Trafficking Report 2009 op cit (n 1) 33. 65 Article 3(b) of the Palermo Protocol. 66 Idem at 51. 61 502 T. Deane trafficking definition may ultimately result in distracting assistance designed uniquely for victims of a more narrowly defined trafficking (Martens for IOM 2003). Despite its criticisms, the Palermo Protocol provides an internationally accepted definition on human trafficking and is the primary international legal instrument addressing the activity as a crime. The definition contained in article 3 of the Palermo Protocol is meant to provide uniformity and agreement around the world on the occurrence of trafficking in persons. Article 5 requires that the conduct set out in article 3 must be criminalized in domestic legislation. Domestic legislation does not need to follow the language of the Palermo Protocol exactly but should be tailored in accordance with domestic legal systems to give effect to the concepts contained in the Protocol (UNODC 2010). Its purposes are to prevent and combat trafficking, paying particular attention to the protection of women and children and to promote and facilitate cooperation among State parties in order to meet this objective. The UNODC has furthermore highlighted the fact that the definition of trafficking is broken down into three elements: acts, the means used to commit those acts, and purposes or goals (being forms of exploitation).67 Molo Songololo68 breaks down this definition into different easily detectible elements as follows: “trafficking involves the recruitment, transportation, harboring, transfer and receipt of persons by means of a threat, other forms of coercion, abduction, fraud, deception, abuse of power, abuse of position of vulnerability, the giving and receiving of payments or benefits, achieving the consent of a person who has control over another person, for the purpose of exploitation, forced labor, servitude, slavery or the removal of organs and illegal adoptions” (South African Government Information 2009). In addition to the criminalization of trafficking, the Palermo Protocol requires criminalization also of the following actions as well: attempts to commit a trafficking offense; participation as an accomplice in such an offense; and organization or direction of others to commit trafficking.69 Indeed, countries’ national legislation should adopt the broad definition of trafficking prescribed in the Protocol.70 In addition to the criminalization of trafficking, the Palermo Protocol requires criminalization also of the following actions as well: attempts to commit a trafficking offense; participation as an accomplice in such an offense; and the organization or direction of others to commit trafficking.71 Another international instrument dealing with trafficking is the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography of 2000 (Optional Protocol) which supplements the Convention on the Rights of the Child of 198972 (CRC). The Optional Protocol calls on state parties 67 UNODC (2009) op cit (n 6). Molo Songololo The Trafficking of Children (2000) at 44–49. Being a child rights organization, Molo Songololo uses a number of international instruments as a contextual reference to raise awareness and education about the rights of the child. 68 69 UNODC What is Human Trafficking op cit (n 114). Ibid. 71 UNODC Response to Human Trafficking (2010) at http://www.unodc.org/unodc/en/human-trafficking. According to the UNODC it is required that countries national legislation should adopt the broad definition of trafficking prescribed in the Protocol. The legislative definition should be dynamic and flexible so as to empower the legislative framework to respond effectively to trafficking. 72 The Convention on the Rights of the Child of 1989 maintains the spirit of the Convention of 1949 in its articles 34 and 35 and adds other forms of sexual exploitation such as pornography. 70 Cross-border trafficking in Nepal and India 503 to protect the rights and interests of child victims of trafficking, child prostitution, and child pornography.73 It promotes international law enforcement cooperation with provisions covering diverse issues such as jurisdiction,74 extradition,75 mutual assistance in investigations, criminal or extradition proceedings,76 and seizure and confiscation of assets.77 Unlike the CRC in terms of which state parties commit themselves to take only “appropriate measures” to prevent certain practices, the Optional Protocol places an explicit obligation on state parties to make certain activities relating to the sale of children a criminal offense.78 The UN, therefore, calls on all state and non-state actors to eradicate human trafficking by: (a) reducing both the vulnerability of potential victims and the demand for exploitation in all its forms; (b) ensuring adequate protection and support to those who do fall victim; and (c) supporting the efficient prosecution of the criminals involved, while respecting the fundamental human rights of all persons (UNODC 2008). In carrying out this mission, there will be an increase in knowledge and awareness on human trafficking. It will also help promote effective rights-based responses; build capacity of state and non-state actors; and foster partnerships for joint action against human trafficking.79 It is imperative that Governments implement the Palermo Protocol to address this crime. Regulating Trafficking in Nepal and India There are many laws in place, both in Nepal and India, which regulate the trafficking and prostituting of girls and women. The Constitution of Nepal entrenches basic human rights80 including the right to equality and the right to freedom from exploitation. The right against exploitation81 specifically prohibits any trafficking in persons. Nepal also has three domestic laws in place that address girl trafficking and forced child labor. These include the Labor Act of 1992,82 the Human Trafficking Control Act of Nepal of 1986, and the National Human Rights Commission Act of 1993. More recently, the Children’s Act of 1992 contains a number of provisions on child labor, and it has recently been amended to make the Act more abuse-specific, especially in relation to sexual abuse (ILO 2009). Thus, the Act prohibits any form of labor that engages a child in immoral behavior (section 16), thereby striving to 73 The Palermo Protocol article 8. Idem Article 4. 75 Idem Article 5. 76 Idem Article 6. 77 Idem Article 7. 78 Idem Article 3. 79 Ibid. 80 Part Three of the Interim Constitution of Nepal 2007 which replaces the Constitution of the Kingdom of Nepal, 2047 (1990). 81 Article 20 of the Interim Constitution of Nepal 2007. Articles 29(3) and 29(4) states that “the traffic in human beings, slavery, serfdom or forced labor in any form is prohibited. Any contravention of this provision shall be punishable by law.” 82 The Labor Act of 1992 prohibits the employment of minors, who are considered to be less than 14 years old. Also see Fundamental Features of the Trafficking of Persons (Control and Punishment) Act, section 8, 1986. 74 504 T. Deane ensure physical, mental, and intellectual development of children (South Asian Law School Forum 2007). Similarly, the Child Labor (Prohibition and Control) Act (2000) prohibits work performed by children under the age of 14 years. Section 4 of the Act further forbids the engagement of a child as a laborer “against his/her will in a way of persuasion, misrepresentation, false promise or fear of undue influence.”83 Further, the Human Trafficking Control Act of 1986 (Trafficking Control Act of 1986) was enacted and enforced as a special Act. This Act provided a number of legal safeguards, including the provision of rehabilitation and integration of victims of trafficking, protection of victims and witnesses, compensation, and others. The fundamental features of the Trafficking Control Act of 1986 is a law “promulgated primarily in order to combat the growing menace of trafficking in women and girls for prostitution,”84 an issue that became salient in the 1980s. This law is supplemental to the Muluki Ain (Code of Law) of 1964, which “prohibits the taking of persons out of the country, by fraud or incitement, for the purpose of selling them, and imposes penalties of 10–20 years” (McGill 2002). Section 4 of the Trafficking Control Act of 1986 defines trafficking as the selling of human beings for any purposes; taking any person to a foreign territory with an intention of selling; involving any woman in prostitution by enticement or allurement or fraud, threat or coercion, or by any other way or means; and abetting or assisting or conspiring and making attempt to carry out any of the above mentioned acts.85 The Act further applies extraterritorially.86 While the government of Nepal has made efforts to address the problem of trafficking, the definition of trafficking varies widely between current laws and policies. The Trafficking Act of 1986 provides protection against the explicit buying and selling of human beings for any purpose but does not cover recruitment by deception for the purposes of bonded labor unless it is for prostitution. The Human Trafficking (Control) Act, of 2007 (Trafficking Control Act of 2007) was then passed. This Act has been enacted in order to implement the provisions under the Trafficking Control Act of 1986 more effectively. The Act of 2007 has extraterritorial jurisdiction, with equal penalties for offenses committed within and outside Nepal. Even though the Trafficking Control Act of 2007 stipulates the extraterritorial jurisdiction of the offense by its nature of being a cross border criminal offense, it does not make mention of that in extradition agreements agreed to in principle between the two parties. Therefore, the provision of extraterritorial jurisdiction is almost dormant in the implementation phase. There are no stringent regulations to control the emigrants of women to India. For example, where a complaint is made against traffickers, it is almost impossible to apprehend the accused since the investigation method is very stereotyped and biased against the women (Chudar 2009). This 2007 Trafficking Act is, however, deemed to be more comprehensive and incorporates provisions for the protection and rehabilitation of victims of trafficking (US Report 2009). 83 Ibid 59. Ibid 56. 85 Human Rights Advocacy op cit (2008) 14. 86 The Trafficking of Persons (Control and Punishment) Act, 1986, section 8. Also section 3 states that: “an individual performing a crime deserving punishment according to this act while residing outside the Kingdom of Nepal will be treated as if she or he had performed such crime while residing inside Nepal and action will be taken in accord with this law.” 84 Cross-border trafficking in Nepal and India 505 Further legislative measures are, however, urgently needed. These measures could include establishing a witness and victim protection program to guarantee the security of witnesses, victims, relatives, and human rights defenders. Protection is also required for persons investigating or carrying out advocacy programs regarding human rights abuses. All these persons must be protected against reprisals or intimidation by perpetrators or others.87 Further, the laws relating to rape discriminate against women in the sense that if the perpetrator can prove the victim was a prostitute then he can get away with a minimal punishment (Nair 2005). The Muluki Ain (Code of Law) of 1963 lays down provisions against inter-state and domestic trafficking.88 Section 11 of this Code stipulates that no one shall take any person through employment of temptation out of the territory of Nepal with the intention of trafficking.89 A problem with this code is that it does not allow for members of the security forces to be charged with contempt or perjury.90 It has been recommended that to ensure the effective combating of trafficking section 169 of the Code of Law must be amended to ensure state officials, including members of the security forces, can be charged for perjury and contempt of court (Human Rights Watch 2009). Owing to the fact that prostitution is prohibited in Nepal but not illegal in India, traffickers bring girls across the border from Nepal to India. Recognizing this problem the government of Nepal has taken various preventative constitutional measures. One such measure includes article 20 (1) of the Constitution of Nepal, which guarantees the right against exploitation and explicitly prohibits the traffic in human beings, slavery and serfdom or force labor in any form. Any act contravening this article is regarded as a “heinous crime” and is punishable under the existing law (Khatri 1999). Article 23 of the Constitution of India of 1950 prohibits trafficking in any form and forced labor. 91 The substantive law in India is the Indian Penal Code of 1860 (IPC). The IPC addresses issues of the buying and sale of minors, importation of girls etc, for example, section 363 A relates to the kidnapping or maiming of a minor for the purpose of begging; section 366 A relates to the procuring of minor girls for sexual exploitation and section 366 B relates to the importation of girls from a foreign country for sexual exploitation. The Immoral Trafficking Prevention Act 1986 also has relevance. This act was promulgated with the object of inhibiting and/or abolishing traffic in women and girls for prostitution as a means of living and deals exclusively with trafficking and the Juvenile Justice Act Justice (Care and Protection of Children) Act 2000 deals with the procurement of a child under the age of 18 years for the purpose of 87 Ibid. The judiciary in Nepal is based upon the Muluki Ain Code of Law of 1963, which is a combination of Hindu traditions and English common law. 89 It further states that if he/she is arrested before the person being trafficked is sold, he/she is subject to 10 years’ imprisonment, but in case the victim is already sold, the culprit can be imprisoned for 20/ 25 years. 90 Section 169 of the Muluki Ain (Code of Law) 1963. 91 The Constitution of the Republic of India 1950. The Constitution of India guarantees to all its citizensjustice, social, economic and political, freedom of thought, expression, belief, faith and worship, equity of status and opportunity and fraternity, dignity of individual and unity of the Nation. 88 506 T. Deane exploitation (Merinews 2009). Other laws include, but are not limited to,92 the Probation of Offenders Act 1958,93 and the Indecent Representation of Women (Prohibition) Act of 1986.94 Another important piece of legislation is the Bonded Labor System (Abolition) Act of 1976.95 Despite the presence of such a framework, there is a need to enforce such laws to curb trafficking from and into India. Not only are the enforcement of laws important but there is also a need to develop and attend to those areas, which serve as a source for human trafficking. 96 With respect to existing legislation, including the IPC, the prohibition on selling or buying a minor for the purposes of prostitution fails to include many other activities related to trafficking prohibited by the Palermo Protocol, such as recruiting, harboring, transporting, transferring or receiving trafficked children. Additionally, while the IPC prohibits importing a foreign girl for purposes of illicit sex, this provision offers no protection for girls from India or boys from any country. It should also be noted that trafficking in children for purposes other than those stated above is not criminalized, while the Palermo Protocol defines trafficking in children and its related acts for the purpose of exploitation, such as but not limited to prostitution, forced labor or slavery. Sexual exploitation of children and young people is often viewed as being limited to girls. Consequently, the prostitution of boys is little understood, despite its existence in India. Legislation is required to ensure that boy children are also protected (Robert 1996). Even though both the Governments of Nepal and India seem to making efforts to do so, they do not fully comply with the minimum standards for the elimination of trafficking. Nepal and India are currently placed on a Tier 2 Watch List97 for their failure to combat trafficking in persons (US Department of State 2008). A country on the Tier 2 Watch List, also known as the “Special Watch List,” is a country where the quantity of victims of this crime is considerable or is on the increase. It would also be evidence that such a country has not shown sufficient proof to demonstrate their combat towards trafficking over the previous year.98 Further, Nepal and India, having become parties to a number of international legal instruments, have an obligation to adopt necessary and effective measures to meet the objectives put forward (UBINIG 1995). Conclusion Realizing the ever-growing problems of women trafficking, laws are promulgated to combat the problems. However, existing laws in both countries have had virtually no 92 For example, The Criminal Law Amendment Ordinance 1944; The Child Labor (Prohibition and Regulation) Act 1986; The Bonded Labor System Abolition Act 1976 etc. 93 This Act deals with offenders. 94 This Act puts a restriction on the publishing indecent representations of women. 95 This Act provides for the abolition of the system of bonded labor, and it also dispenses with the future liability of repaying a bonded debt. 96 Trafficking Report 2007 op cit (n2). 97 India and Nepal are among 75 countries in an intermediate group called “Tier 2.” These countries are considered as demonstrating a “significant” commitment to address their trafficking problems but have not yet achieved international standards. 98 International Labor Organization Report on Stopping Forced Labour (2001). (Stopping Forced Labor) Cross-border trafficking in Nepal and India 507 effect on curbing trafficking.99 Women activists, including NGOs, like the Forum for Women Law and Development and Human Rights Watch (HRW), etc., are doing a lot to curb the crime. Governmental agencies are becoming involved to prevent crime and if the crime occurs they act to bring the criminal into the administration of justice (One Women 2007). However, the reality is that despite such well-known institutions as HRW, etc., which has chronicled the legal and human rights violations in the act, Nepalese girls continue being trafficked and sold for prostitution in India. The problem is that if there is no real commitment to implement the laws or no increase of international pressure, then trafficking in women will continue to be on the increase.100 It is quite apparent that trafficking and the abuses suffered by its victims violate not only internationally recognized human rights, but also the laws of both countries. Even though both India and Nepal are committed they are also cautious to adopt the effective measures that are compatible with international standards. To avoid condemning and denouncing victims of trafficking, as well as false ideas that all prostitutes willingly promote their own bodies for income, society must be sensitized to the vulnerability of women in trafficked situations. What Nepal and India lacks are effective programs designed for witness and victim protection and rehabilitation, in camera court proceedings and the collection of evidence that does not discriminate against victims.101 There is a serious lack of emphasis on rehabilitation in Nepal and Indian legislature. This is a major challenge which leads to not only victimization of victims but also to re-trafficking of the rescued person (Nigam 2008). Morally incorrect and inhuman social rituals and customs, the marriage of young girls to older men, illiteracy, poverty, discrimination, and violence against women must be eliminated. This must be done by changing society’s perceptions and by imposing severe punishment on perpetrators of laws and human rights.102 One should not ignore that trafficking in Nepal occurs mainly through the open international border between Nepal and India. Therefore, extradition agreements relating to trafficking between these two countries must be in place as this is a fundamental requirement in controlling the trafficking of girls and women. This also becomes vital to facilitate better collaboration with India to facilitate the monitoring and prosecution of traffickers. However, even though both India and Nepal have agreed to sign extradition agreements in September 2008, no agreement has actually been signed to date (Human Rights Watch and Advocacy Forum 2008). Unless there is firmer cross-border action with the involvement of international NGOs, it will be difficult for the governments of Nepal and India to resolve the crisis on their own. A major reason why traffickers have been able evade prosecution is that governments and society, tend to judge the woman guilty of prostitution and minimize the trafficker's role in this crime.103 HRW has found that police and other 99 Indian anti-trafficking laws are designed to combat commercialized vice; prostitution itself is not illegal. At http://www.acf.hhs.gov/trafficking/about/fact_sex.pdf. 101 Stopping Forced Labor op cit (n159). 102 Letters to Prime Minister op cit (n147). 103 Nair op cit (n143). 100 508 T. Deane government officials sometimes, are in collusion with traffickers, at various points along the routes, but little has been done to investigate charges or punish those responsible.104 Also, many women are immediately deported to their homelands before they can give evidence against traffickers. 105 Amongst other rights that are being violated this situation also violates a women’s right to voluntary migration. Another major problem faced is the repatriation of cross-border victims to their country of origin. At present there are no streamlined procedures which would enable humane and quick repatriation of the victims.106 Alertness and retribution must follow violations and the governmental law enforcement agencies must be the basis for achieving the objectives of legal instruments. The Nepal and India police authorities should, for example, sanction officers who do not proceed with investigations in a humane and legally correct manner.107 To improve the human rights training of the police forces and prosecute those found guilty of indulging in corruption is extremely important in changing perceptions of how serious trafficking in girls and women is being considered. It has been recommended that a strong message needs to be sent to all security forces that trafficking is a gross human rights violation and that the perpetrators involved in the trafficking of human beings will be held to account and that all members of the security forces must fully cooperate with investigations into these allegations.108 Those who fail to do so must face appropriate sanctions such as suspension or dismissal. It has also been recommended that to send a message that the governments of India and Nepal are serious about combating trafficking, all security forces personnel against whom there is prima facie evidence of criminal activity be suspended pending investigations and until such time as any prosecutions are completed.109 To combat trafficking the monitoring of these offenses must be stepped up and governments have a definite role to play in this aspect. Further, in accordance with article 20 of the Convention of the Suppression of Traffic in Persons Act of 2000, governments needs to monitor and break up the recruitment networks seen to function in places notorious for trafficking.110 Governments must be held accountable. The Government of Nepal must keep and update a list of missing persons and be more thorough about following up investigations into this prevalence especially of women and girls who have without suitable reasons disappeared. This is important as laws might be in place but the serious lack of enforcement in successful prosecutions and the implementation of 104 UN 2000 op cit (n87). Ibid. 106 For this purpose, the Ministry in collaboration with UNICEF has undertaken a rapid assessment of the existing processes and mechanisms concerning rescue, recovery and reintegration of victims of cross-border trafficking between India and Bangladesh to begin with. A report was prepared in consultation with stakeholders from both countries. See UNICEF Initiatives to Combat Trafficking of Women and Children (2008). 105 107 Waiting for Justice op cit (n167). Ibid. 109 Ibid. 110 Letters to Prime Minister op cit (n147). 108 Cross-border trafficking in Nepal and India 509 these laws contribute towards the general apathy towards the trafficking of women.111 Therefore, to break up the nexus between the actual girl traffickers, corrupt police and government officials, proper investigation of complaints and the timely prosecution of the perpetrators are needed.112 There is also an urgent need to work with communities on rights-based approaches and to begin the long-term task of combating stigmatization of trafficking survivors. In addition, poverty, caste factors, corruption, a link between law enforcers with the traffickers and lack of empathy are some of the other reasons contributing towards the increase of trafficking.113 Realizing that poverty is a serious factor contributing to the rise of trafficking, since 1996 the ILO has been supporting the government of Nepal to combat trafficking. This new ten year time-bound program,114 launched in May 2001, is meant to provide education and vocational training for girls at risk as well as economic alternatives to their families, its aim to eradicate trafficking in children (ILO 2001). This program involves intensified efforts aimed at ending the worst forms of child labor, in participating countries, in 10 years or less. The time-bound programs approach will focus on eliminating the use of children in, including but not limited to, domestic work, bonded labor, commercial sexual exploitation and trafficking of children. One of the problems with the program is that it might resolve some of the problems of the girl child forced into prostitution and being trafficked but not of the women being trafficked.115 Poverty increases one’s susceptibility to becoming a victim of trafficking, but even if poverty is eradicated, trafficking will remain a problem as long as the industry is one of low-risk and high profits for the traffickers themselves. This is particularly challenging because the traffickers face a rapidly growing demand. The commercial sex industry and the industry for cheap, dispensable labor are growing around the world. Therefore, governmental and non-governmental schemes against trafficking should, in addition to executing poverty alleviation measures, focus on enforcing firmer prosecution of the perpetrators of human trafficking. Nepal does not prohibit all forms of trafficking in persons, but prohibits slavery, the selling of human beings, and forced prostitution through its Trafficking Control Act of 1986. Therefore, seeing that Nepal does not prohibit all forms of trafficking in persons, but prohibits only these forms of trafficking then the laws must be amended to include all forms of trafficking in its definition to effectively curb trafficking.116 The trafficking of girls and women in Nepal is considered to be in such a state that some even believe that the situation is hopeless and that the exploitation of Nepalese women and girls may never end. But the enormity and gravity of the 111 For example, for the entire country of India in 2006, there were only 27 convictions for trafficking offences reported. From October 2006 to December 2006, 1672 child labor violations were reported, but no one was criminally prosecuted. Also in 2006, 685 suspected sex traffickers were attained, but no convictions were reported. Government of India Trafficking in Persons Report 2008 (June 4, 2008). 112 Waiting for Justice op cit (n167). 113 Ibid. 114 In response to international calls for action, Nepal has developed the Time-Bound Program. It has been designed within the framework of the new ILO Convention No. 182. 115 Waiting for Justice op cit (n167). 116 Trafficking Report 2007 op cit (n2). 510 T. Deane situation can be lessened if properly monitored and the cases that make it to court are effectively prosecuted. The disturbingly small amounts of female literacy, together with the customarily low status of the girl-child in Nepal have to be addressed to tackle the problem. The elimination of sexual exploitation is perhaps the only way to end this human rights violation and it starts with changing and challenging society.117 Failure to adequately investigate grave human rights abuses which includes trafficking and not bringing alleged perpetrators to justice is not only a violation of Nepal and India’s obligations under international law, but remains a serious impediment to the resolution of both country's political and social disputes and to sustainable development.118 It has been argued that Nepal and India need to work together to stop such trafficking. Women and children are not being brought into India only; there is a lot of reverse trafficking taking place as well. So it is really important for these nations to work together as a sub-regional group to remedy the situation (Singh 2007). The lack of enforcement of Nepal’s and India’s laws leads us to use the international system. The UN conventions, the ICCPR, CEDAW, ECOSOC procedures, and special reporters are all additional avenues that can be utilized on an international level. The relationship between prostitution and trafficking is the crux of the problem in adopting the anti-trafficking legislation (Kumar 2001). Whether prostitution is criminalized, legalized, or regulated in a country influences how that individual country responds to international trafficking conventions.119 Both countries have also ratified the ICESCR. According to this law, women and children should be protected from economic and social exploitation. Their employment in work that is harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labor should be prohibited and punishable by law. Both CEDAW and the CRC are also significant as both countries have signed it.120 These laws and conventions are the basic rules that should guide signatories in their fight against human trafficking.121 The fundamental obligation of States under the ICESCR is to “take steps ... individually and through international assistance and cooperation, with a view to achieving progressively the full realization of the rights recognized in the...Covenant”.122 States are the duty-bearers under international human rights law. According to the OHCHR, a states obligation to “take steps” is one of the most important aspects of this statement.123 The steps would involve adopting legislative measures addressing the issues and providing “judicial remedies 117 Gaon op cit (n23). Letters to Prime Minister op cit (n147). 119 Aengst op cit (n51). 120 The trafficking of young Nepali girls violates five articles of the CRC: the illicit transfer of children abroad (11), economic exploitation (32), sexual exploitation (34), sale and trafficking of children (35), and the torture and inhumane and degrading treatment (37). 121 Trafficking Report 2007 op cit (n2). 122 Article 2(1) of the International Covenant on Economic, Social and Cultural Rights 1966, emphasis added. 123 Human Rights Advocacy op cit (2008) 19. 118 Cross-border trafficking in Nepal and India 511 with respect to rights which may, in accordance with the national legal system, be considered justiciable.”124 Furthermore, Nepal and India must adopt the Palermo Protocol definition of trafficking, to include those who are trafficked for purposes other than prostitution. The importance of the Palermo Protocol is that it recognizes the need for a combined approach that integrates effective prevention of trafficking with the prosecution of traffickers and the protection of human rights and assistance to victims of trafficking. Despite the formal recognition of girl trafficking as a major problem and the existence of laws to curtail it, trafficking continues and is even on the increase. The major problem with Nepal’s and India’s domestic laws is in the lack of enforcement (USAID Report 2009). 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(UNODC What is Human Trafficking) South African Government Information What is Human Trafficking (2009) at http://www.info.gov.za/ issues/humantrafficking/what/background.htm#ftnref2 UNODC UN Global Initiative to Fight Human Trafficking - An Overview (2008) at 5 ILO Subregional Information System on Child Labor, National Legislation and Policies Against Child Labor in Nepal (2009) athttp://www.ilo.org/public/english/region/asro/newdelhi/ipec/responses/nepal/ national.htm South Asian Law School Forum Regional Study for the Harmonization of Anti-Trafficking Legal Framework in India, Bangladesh and Nepal with International Standards (2007) 58. (South Asian Law School Forum) McGill E Combating Trafficking Of Women and Children In South Asia (2002) Asian Development Bank (5948) 37 Chudar K Women Trafficking in Nepal (2009) at http://www.paralumun.com/issuesnepal.htm Cross-border trafficking in Nepal and India 513 US Report Human Trafficking: Nepal Official Complicity Serious (2009) Nair PM et al Trafficking in Women and Children in India (2005) 192. (Nair) Human Rights Watch Letters to Prime Minister of Nepal (2009) at http://www.hrw.org/en/news/2009/03/ 09/letter-prime-minister-pushpa-kumar-dahal-nepal. (Letters to Prime Minister) Khatri N Nepal – The Problems of Trafficking of Women and Children (1999) 1 Merinews Human Trafficking in India (July 20, 2009) at http://www.merinews.com/article/humantrafficking-in-india/15776590.shtml Robert IF India’s Shame: Sexual Slavery and Political Corruption Are Leading to an AIDS Catastrophe The Nation (April, 8 1996) US Department of State Government of India Trafficking in Persons Report 2008 (June 4, 2008) UBINIG Trafficking in Women and Children: The Cases of Bangladesh (1995) 9 One Women Women’s Situation in Nepal (2007) at http://www.onlinewomeninpolitics.org/womensit/nepl.pdf Nigam S The Scourge of Human Trafficking in India - Achievements of Anti-Trafficking Methods in Five States (2008) Human Rights Watch and Advocacy Forum Waiting for Justice: Unpunished Crimes from Nepal's Armed Conflict (2008). (Waiting for Justice) ILO Supporting the Time-Bound Initiative in Nepal- The IPEC Core Bound TBP Programme (2001). Singh J India Defends Trafficking Record BBC News Delhi (2007) at http://news.bbc.co.uk/2/hi/ south_asia/6749983.stm Kumar C Women Trafficking in Nepal (2001) USAID Report India on US Trafficking Watch List for Fifth Year (2009) Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Pakistan Journal of Women's Studies: Alam-e-Niswan Vol.16, Nos.1&2, 2009, pp.225-233, ISSN: 1024-1256 WORKING BEYOND BORDERS: PUSH OF POVERTY ON MIGRANT WOMEN IN NEPAL Chandra Bhadra, Women’s Studies Program, Tribhuvan University, Nepal. Abstract This paper is based on a research work conducted by the author and funded by the Asia-Pacific Research and Training Network on Trade/ United Nations Economic and Social Commission for Asia and the Pacific (ARTNeT/UNESCAP) and World Trade Organization (WTO) as a short-term policy research on trade in 2007. The research titled, “A Study on Nepalese Women’s International Labor Migration and the Impact of their Remittance on Poverty Reduction” was funded in the area of trade covering the movement of natural persons.1 In this paper gender issue related arguments are incorporated which are not dealt with in the research report. Introduction In Nepal the feminization of poverty is the leading cause of the migration of women for work beyond borders. The brunt of poverty falls disproportionately upon women due to gender discrimination. Women tend to experience greater livelihood insecurity for their families and tend to opt for employment in the global market. Nevertheless for women, migration is not as easy as it is for men due to gender constraints. On the one hand, the ‘protectionist approach’ of the State through imposition of restrictions on women’s migration leads to women seeking irregular channels and getting into physical, psychological and labour rights related vulnerabilities. On the other hand, in spite of contributing to poverty reduction, due to women taking irregular channels they are unrecorded, hence not recognized as economic contributors in the national accounting. 1 For the detailed report please visit: www.unescap.org/tid/artnet/pub/wp4407.pdf 226 Chandra Bhadra National Debate on Women Working Beyond Borders As stated above the main cause of Nepalese women migrating beyond borders for work is the “feminization of poverty” and that migration for women is problematic in the country of origin, in the country of transit and in the country of employment. On the one end the outcome of women’s migration for work is very positive in terms of poverty reduction through remittances. On the other end women’s migration for work has the uttermost negative consequence of becoming prey to sexual abuses, sexually transmitted diseases or resultant death. So, the issue of women’s migration for work beyond borders has been a very contentious national debate for the past decade. Even within the women’s movement this debate has splitting and opposite lines of arguments. One stream of women’s movement has a ‘protectionist approach’, while the other stream has taken a ‘rights based approach’ to their advocacies. The debate reached its height when the Patriarchal State inevitably took side of the protectionists’ advocacy and imposed a ban on the migration of women in certain instances in 1998, in the pretext of protecting women’s dignity. Nonetheless, persistent advocacy of the women’s movement that took ‘rights based approach’ finally became successful when the Foreign Employment Act – 2007 stipulated gender equality and the empowerment of migrant women workers. Poverty as the Main Cause of Migration The study showed that poverty/financial constraints in the family to be the principle cause for women migrating beyond borders for work. More and more women from poorer households are found to migrate in recent days than in the past. It is found that lower the household income, higher the proportion of women’s remittance in total household income. In some cases, women’s remittances cover 100% of the total household income. It indicates that in these families women’s remittance is the only financial option for family’s survival. Majority of women from poor households took loans from various sources for financing the migration and in many instances in prohibitively high interest rates. In addition, they are also found to sell or mortgage their houses and/or jewelleries to finance the migration. Country of Employment and Types of Jobs Majority (64%) of Nepalese women are found to be employed in domestic work. Among those employed in domestic work an overwhelming majority was found to be employed in Gulf countries (75% among returnee and 53% among current migrants). It is an irony that in 1998 the government had put a ban on women to migrate to Gulf countries for domestic works. Nonetheless, women had no option but to migrate to these restricted countries for domestic works. It instigated irregularity in women’s migration resulting in vulnerability during migration and risks of the violation of labour rights in the country of employment. Working Beyond Borders 227 Furthermore, the concentration of Nepalese women in domestic work and the increasing trend of them migrating for domestic work indicated that there is the interplay of demand and supply in the global trade for domestic care services. More and more women in industrialized and Petro-rich countries are substituting their household care work with migrant women and using their own time in paid market work and/or for leisure. This dynamics of the ‘women to women substitution’ of services in the ‘care economy’ is interesting in the sense of having socio-economic and psycho-cultural implications on families of both the receiving and the country of the origin. Nepalese women are concentrated in domestic work in foreign land due to lack of education and other marketable skills. Girls and women are coerced to perform the household care activities prescribed as their “social reproductive role”. This creates a coercive-advantage for them as an extension of their care skills “from home to the global market”. Domestic work especially the domestic care services happens in the informal sector, where the arm of labour laws and regulations has not yet reached. This puts Nepalese migrant women in double-jeopardy in terms of the violation of their labour rights both within Nepal and in the country of employment. At the national level their right to employment and the choice of profession are violated because of the restrictions imposed on their migration to Gulf countries for domestic care work. Women migrate anyway due to the push factor of the poverty at home and the pull factor of the demand for their labour in the global market. When they migrate in spite of the ban imposed, their migration becomes irregular, unrecorded, unrecognized and unprotected by the State. In these instances migrant women’s labour rights are violated. Returnee migrants reported cases of excessive workload (57%); denial of adequate food (21%); denial of decent shelter (19%); denial of health and medical care (28%); denial of holidays (40%); denial of contacts with family members (28%); denial of payment as contracted (21%); verbal abuse (38%); humiliation (31%); physical abuse (14%); and sexual abuse (6%). Majority of migrants have identified female employer as the perpetrator of violence except for the sexual abuse. Interestingly though, they assigned equal responsibility to both men and women as perpetrator of sexual violence reporting that female became accomplices in males’ sexual violation of migrant women. Remittance and its Usage What happens in the family and the household when women remit their income from foreign employment enduring all the adversities? Women’s remittances are found to be used mainly for poverty reduction such as education, food, clothing, health care and the repayment of loan. Noteworthy is that the top most priority for the use of remittance was for children’s education to be followed by the use for food. Many saved in the bank, invested in land and invested in business as a 228 Chandra Bhadra hedge against poverty. Contrary to many who believe that remittances are wasted in unproductive use and conspicuous consumption, only 2.8% of the respondents are found to use women’s remittances in social and religious spending and/or entertainment. Women’s remittances are also found to be used for improvement in the quality of life. Women bought new household equipments and kitchen materials, shifted to clean cooking fuels and bought labour saving cooking utensils. They are also found to improve their homes through electrification, buying new furniture, connecting piped drinking water and improve sanitation. A few women invested their remittances in productive enterprises making use of the human capital they developed during their work in foreign lands. Impact on Overall Poverty Reduction Poverty analysis was performed through Pre-Post tests and significance tests were performed using paired t-test. There was a significant impact of women’s remittances on poverty reduction. Poverty indicators used in this analysis were inadequacies/adequacies in food, housing, clothing, schooling for boys and schooling for girls, medical care, social expenses, religious expenses, land and income. In this analysis education for boys and girls were disaggregated to look at the differential impact on boys and girls’ education. Additionally inadequacies on social and religious expenses was also included in this analysis as inability to maintain social and religious functions in Nepal is an indicator of poverty and many families get socially excluded for their inability to maintain social/religious obligations. Nepal being an agricultural country inadequacy of land is an important indicator of poverty. Returnee migrants’ response indicate that in addition to making significant impact on the basic needs of food, housing, clothing, health and education; their remittances have increased families’ ability to spend money on social and religious functions. Similarly, the families are able to expand their land ownership and the household income has increased tremendously. Interestingly qualitative information received from focus group discussions indicate that the improvement in the educational status of boys is more towards the quality of schooling; that remittances of women helped sons or brothers to shift to more expensive and better quality private schools from public schools (government schools) and/or move to cities for better schooling. While for daughters or younger sisters it is more towards having access to schooling meaning mothers’ or older sisters’ remittances are used for meeting basic expenses in local schools. Migrants reported that their daughters or younger sisters would not have opportunities of education if they had not migrated for work and remitted to the families. Working Beyond Borders 229 Impact on Children Respondents and researchers were in tears when the issue of children came during focusgroup discussions, especially when the pain of ‘mother-child separation’ and ‘mother-child distancing’ were revived. Majority migrants were found to be married and mothers of small children. Seventy five percent of migrants were married, with 65% still married and 10% widowed, separated or divorced. During focus group discussions returnee migrants reported that they took foreign employment to give a better life to their children. Nevertheless, when mothers migrate what happens to the children back at home? At what age do mothers leave their children to migrate out for employment? Do children suffer when mothers are absent from home? These are paradoxical key questions. The age of the youngest child during migration was found to be as young as one month old. Twenty five percent of returnee migrants reported that their youngest child was less than two years old when they left the child; 38% reported that their youngest child was between the ages of 3-6 years old and another 25% reported their youngest child to be 7-12 years old. So, 88% of returnee migrants reported that their youngest child was less than 12 years old when they left home. Similarly, family members of the currently migrating women reported that 55% of women left their children when the youngest child was less than 12 years old; with 4% leaving the youngest child of less than 1 year old, 11% leaving the youngest child between the ages of 1-2 years, a fourth (25%) leaving their youngest child between the ages of 3-6 years and 17% leaving their youngest child between the ages of 7-12 years. If women have migrated with so much pain in their heart leaving their children back at home; then what sort of impact migration and remittance has made on children’s status? To find this out pre-post test on recall basis were done on children’s education, health care, psychology and life style. Mothers’ migration impacted children in a mixed way. Material impacts on opportunities for education, health care and life style have significant positive impact. Nonetheless children were found to have negative impact psychologically. Upon their return back home, mothers found their long absence from home had distanced their children from them; especially when the children were left at very young ages. For mothers this was the most painful experience of their migration for work. Household members of currently migrating women reported of children missing their mothers really badly and behaving in erratic ways. As household members are the direct observers of children’s psychology and behaviour during the absence of mothers, this 230 Chandra Bhadra result is very telling about the distancing of mother-child relationship and the impact on child psychology and behaviour. Interestingly, the impact of women’s remittance on the education of the girl child was found to be mixed. Positive impact was the opportunity of education otherwise they would not have if mothers/older sisters had not migrated for work and remitted to the family. About a fifth of the respondents, however, reported of girls’ schooling being hampered; especially the eldest daughters of migrant mothers were found to have increased workload. They had less time for studies due to increased workload. In few instances girls were found to leave school to take over mothers’ or elder sisters’ roles in the household. Transformation in the Perception of Gender Role When women returned back home, they could experience positive change in love and respect towards them from family members and members of their communities especially in their ‘earner’ and ‘provider’ role. This has resulted in migrant women expressing; “Now we do not regret anymore that we are born as women. We feel even women’s life is worthwhile when we earn and support our families as men do. We have disproved the Nepalese saying that ‘daughter’s birth is a bad fate’ by standing on our own feet and supporting families financially”. Impact on Self-Esteem and Human Capital Formation In spite of all the difficulties and pain migrants have to go through in their migration process and employment, the changes they have experienced within themselves and the opportunity to discover themselves as human beings is tremendous. In a psychological test devised to measure the change in migrant women’s self-esteem, negative emotions and feelings like fear, insecurity, sadness and dependency have reduced significantly after their migration and employment in foreign land; and the positive emotions and feelings have increased in terms of the feeling of being loved, happiness, confidence, independence and self-worth. To be able to earn, support the family financially and having the freedom of financial decision making has helped them towards the feeling of independence. Getting out of the narrow spheres of homes, communities and the country and travelling to foreign lands, observing and experiencing different life-styles, seeing places, meeting with people from different parts of the world and interacting with them in foreign languages have increased their confidence tremendously. As mentioned above they now find themselves as worthy as men. As a benefit of migration, women reported of their human capital formation, which they brought home as “social remittance”. Their human capital in terms of training, language, skills, knowledge and information has improved tremendously. Quite a few women now have become foreign language teachers. Some have opened up restaurants with the training and skills they improved in foreign land. Some have opened beauty Working Beyond Borders 231 parlours. Some are running hotels partnering with friends and families. Having travelled to foreign countries has increased their knowledge and information, and now they are able to tell others about the customs, traditions, language, climate, etc., of the countries they have worked. They have learned to use computers and use the internet and emails. Additionally, they try to listen to news and get latest information about the countries they have travelled and worked in. Recommendations Recognizing the contribution made by women’s remittances in overall poverty reduction and realizing the gender concerns involved in international migration and foreign employment there is a need of ‘gender mainstreaming’ in national and international trade, migration, labour and development policies. The international development community need to recognize that international trade of women’s labor is an effective and direct way of reducing poverty; hence revisit the international development aid policies and practices. Both the public sector and private sector financial assistance is recommended for supporting migrant women workers. Public sector financial assistance is for pro-poor women financial policy especially to finance their migration. Private sector financial assistance is for considering women migrant workers as viable and worthy clients; and devising women friendly and pro-poor financial products and accessing them to women migrant workers in the forms of affordable loans, safe and low cost remittance transmission, and opportunities of safety deposits, savings, insurances and investments. In the country of employment, women should be allowed to have periodic communications with families via telephone, emails, etc. To ensure the mother-child rights, paid annual holidays for family visits is recommended. Community support systems can be devised to support families of migrant women workers. Non-government organizations or civil society organizations can facilitate families of migrant women for organized activities to support each other. They can sensitize men about their parenting role and build their capacity for single-parenting. Community day care centres for children of migrant women releases young girls from the responsibilities of child care, so that their education/schooling is not hampered. Similarly, community clubs of children of migrant workers can provide psychological support to migrants’ children. All concerned need to ensure “zero tolerance to violence against migrant women workers” of any kind. This calls for a global policy dialogue from gender perspective on trade, migration and development. In majority cases, international work of Nepalese women involves a “women to women relation” due to them engaged in domestic work. Many a times violation of women’s labour rights and human rights happen in these situations and majority of perpetrators of violence in these situations are also women. 232 Chandra Bhadra Violence happens within private homes and is outside of the supervision of the formal sector labour laws and regulations. These situations calls for the international labour policy to take domestic works into the fold of international labour laws and regulations for protecting migrant workers’ labour rights and human rights. Last but not the least the international women’s movement needs to take this issue into its fold so that “exploitation of women by women” is addressed along with its fight against “exploitation of women by men”. References Adhikari, J., Bhadra, C., Gurung, G., Niroula, B. P. & Seddon, D. (2006). Nepali Women and Foreign Labour Migration. Kathmandu: UNIFEM/NIDS. CBS (2005). Nepal Living Standards Survey 2003/04. Kathmandu: Central Bureau of Statistics. D’Cunha, J. (2003). “Creative Practices and Continuing Challenges in Addressing Migration: The UNIFEM Regional Programme on Empowering Women Migrant Workers in Asia and Other Initiatives”. In UNIFEM-CEDAW Panel on Addressing Women Migrant Workers’ Concerns. New York: UNIFEM. D’Cunha, J. (2005). Claim & Celebrate Women Migrants’ Human Rights through CEDAW. New York: UNIFEM. ESCAP. (2005). Women in International Trade and Migration: Examining the Globalized Provision of Care Services. Gender and Development Discussion Paper Series No. 16. Mareno, C. (2005). “Gender, Remittances and Development”. In the Proceedings for International Conference for Women Leaders: Migration and Gender Issues within the Millennium Development Goals, 25-28 September 2005, Haifa, Israel. MoLTM/UNIFEM/SAMANATA. (2003). Policies, Service Mechanisms and Issues of Nepali Migrant Women Workers. Kathmandu: The Authors. Omelaniuk, I. (2005). “Gender, Poverty Reduction and Migration”. In the Proceedings for International Conference for Women Leaders: Migration and Ge...
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Violation of woman rights in Nepal.
Woman and girls have been trafficked for a very long time in Nepal. The forces behind
the sexual harassment have changed from time to time in history especially with the growth of
the urbanization. Trafficking of the females is a serious crime and more to that a violation of
their rights. This is the moral and international law view of the crime. International law requires
the breakers of the law to be sent away from the community.
Trafficking of the females in Nepal is traced back in the 19th century and has continued
until the present times. Changes in the social-political standings of the country have led to
changes in the forms, types, and reasons of trafficking in the year 1951, internal trafficking
entailed employing young girls as house helps, concubines or in the music industry. When the
Rana regime ended, some Ranas migrated to other cities leaving behind the housemaids. These
housemaids were by then converted to prostitutes later started up their brothels and began
recruiting more young girls.
Trafficking of girls continued even to the next regime. Crimes increased all over the
country form villages to the brothels. The women and girls were highly traded and their profit
was so high. Trafficking law was established to curb the rate of woman sexual harassment I the
year1984.This law did not take root even after introduction this is because, few people protested

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against the malice. This violence is greatly facilitated by these processes, indus...


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