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International Law

Abused, trafficked, unwanted: A view on the U.S. migration policy development

Ingrid Stephanie Noriega

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The US Department of State’s Trafficking In Persons (TIP) Report was started in 2001 as a diplomatic means for the United States to communicate with other foreign governments on goals towards eliminating human trafficking. TIP is meant to facilitate dialogue with nations for anti-trafficking initiatives, as well as find resources on prevention, prosecution, and protection programs of human trafficking, highlighting the United States as a global leader in human rights and law enforcement. The TIP Report ranks countries based on a Tiers model (“2017 Trafficking in Persons Report”). The policy outputs and policy outcomes of TIP have been continuously debated within government, advocacy groups, and law enforcement (Kraft 6).

There are various critiques on the given Tiers system the Department of State’s Trafficking in Persons Report (TIP) has used in the previous years. In the “Accountability Over Politics: Scrutinizing the Trafficking in Persons Report” hearing before the Subcommittee on Africa Global Health, Global Human Rights, and International Organizations of the Committee of Foreign Affairs through the House of Representatives during the 114th Congress, David Abramowitz, the Managing Director of Policy and Government Relations of Humanity United Action, has expressed concern on the Tiers model. Abramowitz believes Malaysia is exemplary of a nation praised for the betterment of the human trafficking when undoubtedly there is no accountability for the mass graves incident of 2015, where 130 dead bodies were found (United States 32). Ineffective measures of the tiers in the TIP Report reduce the diplomatic effectiveness of the mechanism, as embodied in both Thailand and Malaysia. Increased effort towards reform of Malaysia and Thailand’s legal framework is needed. This could be achieved through the State Department, more specifically the embassies in Bangkok and Kuala Lampur and the Department’s East Asia and Pacific Bureau. Congressional action could assist in the reform as well (United States 33).

In the Committee on Foreign Affairs’ “Nomination of Rex Tillerson To Be Secretary of State,” one of the commentaries to the Secretary of State included the notion that the current administration allowed political consideration to manipulate expert recommendations of the State Department’s human rights and trafficking professionals, which contributed to the ‘politically-driven’ upgrade of countries like that of Cuba and Malaysia from the Tier 3 category to the Tier 2 Watch List (United States). According to the Honorable Susan Coppedge, Ambassador-at-Large for the Office to Monitor Trafficking in Persons of the US Department of State, as stated during the Committee on Foreign Relation’s hearing for Review of the 2017 Trafficking in Persons Report, law enforcement services should be provided to human trafficking victims. Government involvement tends to instill fear in victims. In defense of Malaysia status change from Tier 2 watch to Tier 2, as prompted by Mr. Cardin, Coppedge states Malaysia has had quadrupled trafficking investigations increases from 158 to 581, as well as improvements in law enforcement measures on trafficking. Additionally, Senator Robert Menendez had been successful in uncovering the waiver report for Malaysia as well as other countries that are not allowed for disclosure by the Department of State. The Honorable John J. Sullivan, Deputy Secretary of State for the US Department of State, noted Ukraine’s improvement to Tier 2 status as well as China’s ineffectiveness to end slavery and trafficking downgraded it to Tier 3 (United States). Previous concerns and criticism regarding TIP from the “Demanding Accountability: Evaluating the 2015 Trafficking in Persons Report”, House of Representatives hearing include concern on grade inflation and favoritism for certain countries through the Department of State tier ranking of the TIP.

To further elaborate upon the TIP Tier model, Tier 1 would include nations that meet the minimum standards to combat human trafficking, Tier 2 would include those making noticeable efforts towards the minimum standards, and Tier 3 would include those not making minimum standards and in danger of receiving sanctions, respectively (United States 2). Cuba had been noted as Tier 2 status for 2015, even with the legal permission for prostitution of 16 year old girls, being a top destination in the Western Hemisphere for child sex tourism, and not criminalizing labor trafficking (United States 3). Uzbekistan’s government incites forced labor in the cotton industry on a daily basis, making it rather undeserving of Tier 2 status (United States 4). India as a Tier 2 is undeserving of its ranking as well, since it had been preventing trafficking victims and families whom had obtained T-visas to leave India (United States 27-28).

As professor Anis H. Bajrektarevic rightfully observed in his revealing work on the Justice-Home Affairs diplomacy, a very corruption (public sector of) is an elementary part of any THB business. “It is a (hidden and) seemingly victimless tradeoff between influence and gain” – as professor brilliantly defines corruption, that ‘runs the engine’.

Hence, as founded by the United States Government Accountability Office (GAO), from the representation of the Trafficking Victims in Persons Act of 2000, federal agencies have inspected allegations of trafficking crimes, provided training and executed state and local initiatives to support investigations and prosecutions, and established organizational structures, agency-level goals, plans, or strategies. For instance, agencies have trained both new and current staff on investigating and prosecuting trafficking in persons crimes through their agency training academies and centers, provided Web-based training, and developed and disseminated guidance on case pursuance. Agencies have also made training initiatives at the state and local law enforcement levels, nongovernmental organizations, and the general public through a toll-free complaint line, newsletters, national conferences, and model legislation. Some agencies have established special units for continuing their antitrafficking duties. Federal agencies coordinate across agencies’ investigations and prosecutions of trafficking crimes on a case-by-case basis, premised on individual needs per case, and established relationships among law enforcement officials across agencies.

The Department of Justice and Department of Health Services officials recognize the need to increase United States efforts to combat trafficking through more practical and cooperative strategies to identify trafficking victims. Previous GAO efforts on interagency relationship prove a strategic framework with shared goals, mutually reinforcing approaches, and compatible policies and actions to function across agency boundaries helps improve and sustain relationships among federal agencies dealing with national and cross agency jurisdiction issues (“Human Trafficking: A Strategic Framework Could Help Enhance the Interagency Collaboration Needed to Effectively Combat Trafficking Crimes.”). Based on 2016 data collection from the GAO, it is questionable as to whether provisions are being fully effective.

“For 91 provisions, all responsible federal entities reported taking action to implement this provision. For 11 provisions, all responsible federal entities reported that they had not taken action to implement the provision. For 2 provisions, at least one of the responsible federal entities reported that they had not taken action to implement the provision or they did not provide a response. For 1 provision, none of the responsible federal entities provided a response (“Human Trafficking: Implementation of Related Statutory Provisions, Law Enforcement Efforts, and Grant Funding”).”

The above provisions covered topics address human trafficking and related affairs, inclusive of victim services, management and information sharing, and procedural training. Agency officials gave various explanations for why there were no arrangements to implement provisions for which they were chosen as the lead or co-lead. To be rather frank, in three cases, officials cited funding was not appropriated for the activity. Federal, state, and local law enforcement officials and prosecutors interviewed by the GAO reported properly investigating and prosecuting human trafficking cases is challenging for many reasons, including lack of victim collaboration, limited available services for victims, and the problematic nature of identifying human trafficking victims. According to these representatives, victim service programs, such as those that offer mental health and substance abuse services, have helped improve victim cooperation.

The availability of services is limited. Federal, state, and local agencies have taken or are taking actions to address these challenges, such as increasing the obtain ability of victim services through grants and executing both training and public awareness initiatives. GAO identified 42 grant programs with awards made in 2014 and 2015 that may be used to combat human trafficking or to assist victims of human trafficking, 15 of which are planned for these purposes only. Although there are similarities among human trafficking grant programs, federal agencies have recognized processes to help avert unnecessary duplication. For instance, in response to endorsements in a previous GAO report, the Department of Justice requires grant candidates to expose any federal grants they are currently operating under as well as federal grants for which they have applied. Additionally, agencies participating in the grant making committee of the Senior Policy Operating Group (SPOG), an entity through which federal agencies unify their efforts to combat human trafficking, share grant solicitations as well as information on proposed grant awards. The SPOG effort allows other agencies to remark on proposed grant awards and determine whether they plan to award funding to the same organization (“Human Trafficking: Implementation of Related Statutory Provisions, Law Enforcement Efforts, and Grant Funding”).

On the issue of child soldiers, The House Committee on Foreign Affairs 2017 hearing, “Winning the Fight Against Human Trafficking: The Frederick Douglas Reauthorization Act,” affirms that child soldiers are largely affected by the human trafficking industry. The United States has been involved in helping curtail the use of child soldiers. The United States had ratified the United Nations treaty of 2002 which banned the use of children in conflicts. By mandate of ratification, all armed services branched implemented rules to not have underage soldiers in combat. United States’ action on this matter was exemplary for other militaries to follow suite. In 2008, Congress had adopted the Child Soldiers Prevention Act as part of the Trafficking Victims Protection Reauthorization Act of 2008. Nevertheless, within the United States there is still a prevalence of sex trafficking of girls. The Federal Bureau of Investigation (FBI) had reported 60 percent nationwide range of trafficked girls were either from foster care or group homes. More transparency will be required for the allocation of funds towards improving efforts on the issue of child soldiers. The Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act authorizes $130 million over four years to prevent human trafficking, protect victims, and better prosecution in the United States and overseas. The act limits the time a nation could be on the Tier 2 watchlist (United States).

In the “Child Soldier Prevention Act of 2017, H.R. 1191”, sponsored by Representative Christopher Smith in the 115th Congress, it was mentioned that Congress’ Victims of Trafficking and Violence Protections Act of 2000 would probably be the pivotal achievement on the issue of child soldiers. With the Trafficking Victims Protection Act (TVPA) of 2000, Congress made the Child Soldiers Prevention Act (CSPA) of 2008 part of the TVPA. Regulations included the TIP Report to have a listing of foreign governments which recruit and utilize child soldiers in their militias or government funded armed groups. The 2017 TIP Report identifies the Democratic Republic of the Congo, Mali, Nigeria, Somalia, South Sudan, Sudan, Syria, and Yemen as nations on the CSPA list (“Child Soldier Prevention Act of 2017” 7). TVPA restrictions on grants to nations began with TIP Report 2003 (“Child Soldier Prevention Act of 2017” 14).

Nations whom have used child soldiers as listed in the most recent TIP report are prohibited from receiving various forms of security assistance, including defense articles, global military education and training, peacekeeping operations programs, military financing, and the issuing of licenses for direct commercial sales of military equipment for child soldier recruitment purposes (“Child Soldier Prevention Act of 2017” 18-19). Relevant legislation oversight on the TIP Report includes closed hearings on the topic of human trafficking, commonly held by the Committee on Foreign Relations, in anticipation of the TIP’s yearly release as well as commentaries post-publication in public hearings.

The House Foreign Affairs Committee, specifically its Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations, has also hosted hearings on the TIP Report (“Child Soldier Prevention Act of 2017” 31). A bill from the 115th Congress to further modify requirements associated with the TIP Report, include H.R. 2200, the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017, which passed the House on July 12, 2017, and contains several changes to the TIP Report’s country ranking process. Other bills introduced in the 115th Congress that, if passed, would modify requirements associated with the TIP Report include H.R. 436, the Human Trafficking Prioritization Act, S. 377, the Trafficking in Persons Report Integrity Act, H.R. 1191, the Child Soldier Prevention Act of 2017 and H.R. 2219 and S. 952, the End Banking for Human Traffickers Act of 2017 (“Child Soldier Prevention Act of 2017” 31).

In a statement at the 114th Congress, at a House of Representatives hearing entitled “Get It Right This Time: A Victims-Centered Trafficking in Persons Report,” the following is established:

“ While democracy does not guarantee the absence of slavery, and some struggling democracies and even democratic regimes have effectively fought trafficking, autocracy and weak or ‘emerging’ democracies are less equipped to tackle this horrific human rights challenge. Respecting the human rights, fundamental freedoms, and dignity in full of women, people in prostitution, and migrants, holding traffickers fully to account, and expunging corruption as the catalyst of human trafficking, are matters of governing justly. In particular, an independent judiciary, the rule of law, and a dynamic civil society are the markings of governments that are governing justly, and central to the success of modern day abolition efforts (United States 2).”

Witness protection under the Ministry of Justice had been found to be favorable, however there were still unaccounted for occurrences in Thailand. In 2015, Thailand did not allow traffickers’ ships on land, allowing criminals to escape via ocean routes. There were also unaccounted for Rohingya passengers refused entry. A ‘push-back’ policy does not assist with combating human trafficking (United States 21). As the Myanmar elections were not free nor fair, political circumstances only escalate the higher risks of the Rohingya for human trafficking (United States 28-29).

Referencing the 114th Congress House of Representatives Committee on Foreign Affairs hearing “Accountability Over Politics: Scrutinizing the Trafficking In Persons Report”, a statement released by Secretary of State John Kerry focused on the three P’s of the TIP report: prosecuting traffickers, protecting and empowering victims, and preventing future trafficking crimes. The honorable Susan Coppedge, Ambassador-at-Large to the Department of State, voiced concern for the protection of domestic workers as well as ‘corrupt or complicit officials’ whom benefit from trafficking (United States 5). TIP staff members work in conjunction with individuals at embassies, posts abroad, and the US Department of State regional offices (United States 7). Coppedge asserts housing for girls rescued from trafficking should be provided by the United States (United States 20). There is only a small amount of prosecutions and convictions on foreign labor trafficking in the United States, which needs to be reformed. More to protect unaccompanied undocumented children, as well as further address roots of the problem, need to be made feasible (United States 30).

Bills relevant to TIP include the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017, H.R. 2200 (“Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017”), The Trafficking in Persons Report Integrity Act, S. 377 (“Trafficking in Persons Report Integrity Act”), The Child Soldier Prevention Act of 2017, H.R. 1191 (“Child Soldier Prevention Act of 2017”), the End Banking for Human Traffickers Act of 2017, H.R. 2219 (“End Banking for Human Traffickers Act of 2017”), and the End Banking for Human Traffickers Act of 2017, S. 952 (“End Banking for Human Traffickers Act of 2017”).

The Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017, H.R. 2200, sponsored by Christopher Smith April 2017, had twenty-nine cosponsors from House of Representatives, which ensured approval through the House of Representatives. The twenty-nine cosponsors were Representatives Karen Bass, Edward R. Royce, Sheila Jackson Lee, Susan W. Brooks, Lois Frankel, Ann Wagner, Tony Cardenas, Ted Poe, Ryan A. Costello, David N. Cicilline, Brad Sherman, Daniel M. Donovan, Jr., Patrick Meehan, Lynn Jenkins, Susan A. Davis, Salud O. Carbajal, Gwen Moore, Dwight Evans, Denny Heck, James P. McGovern, Tulsi Gabbard, Alcee L. Hastings, Raul M. Grijalva, Kristi L. Noem, Barbara Comstock, Luke Messer, David Young, Erik Paulsen, and Carolyn B. Maloney. This bill states that instead of only the President, the Secretary of Health and Human Services has the authority to award grants to local education agencies, in partnership with nonprofit agencies for awareness services. H.R. 2200 further ensures priority funding for lodging and accommodation purposes that lack policies on child sexual exploitation, and calls for making certain the United States does not fund human trafficking. H.R. 2200 calls upon credible evidence on nations’ human trafficking reform progress. Additionally, airport personnel should identify and report human trafficking victims (“Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017”).

The Trafficking in Persons Report Integrity Act, S.377, was introduced in 2017 by Senator Robert Menendez, and cosponsored by five Senators, including Marco Rubio, Tim Kaine, Cory Gardner, Rob Portman, and Christopher Coons. The bill aims to amend the Trafficking Victims Protection Act of 2000 to clarify standards upon which countries are held accountable for the TIP Report tier ranking model, as well as other purposes related to concrete measures taken towards ending human trafficking. The S.377 amendment includes identifying ‘concrete actions’ and ‘credible evidence’ towards improving the epidemic of human trafficking. Additionally, reports on the amounts of loans towards Tier 2 and Tier 3 countries are to be submitted to the Chairman and Ranking Member of the Committee of Foreign Relations sections in the Senate as well as the House of Representatives, to be distributed by the Secretary of the Treasury (“Trafficking in Persons Report Integrity Act”).

The Child Soldier Prevention Act of 2017, H.R. 1191, was sponsored by Representative Christopher Smith, and cosponsored by Representatives Frederica Wilson, Randy Hultgren, James P. McGovern, and Randy K. Weber, Sr. The purpose of this bill would be to ensure operative enactment of the Child Soldier Prevention Act of 2008 and hold régimes responsible for having children part of armed conflict, whether that may be as soldiers, servants, or sex slaves. H.R. 1191 also prohibits the selling of armament to nations that look favorably upon the utilization of child soldiers (“Child Soldier Prevention Act of 2017”).

The End Banking for Human Traffickers Act of 2017, H.R. 2219, was sponsored by Representative Edward Royce, and cosponsored by Representatives William Keating, Carolyn Maloney, Mia Love, Patrick Meehan, Brian Fitzpatrick, and Kyrsten Sinema. H.R. 2219 aims for including the financial industry to assist with combating human trafficking. The purpose would be to resolve and ensure financial accountability of funding towards human trafficking through means such as the Interagency Task Force to Monitor and Combat Human Trafficking (“End Banking for Human Traffickers Act of 2017”). H.R. 2219 is not to be confused with S.952, which is of the same bill title. The End Banking for Human Traffickers Act of 2017, S. 952, was sponsored by Senator Elizabeth Warren, and cosponsored by Senators James Lankford and Marco Rubio. S. 952 is an amendment to the Victims of Trafficking and Violence Protection Act of 2000 to include the Secretary of the Treasury within the President’s Interagency Task Force to Monitor and Combat Trafficking. This task force is responsible to submitting recommendations to Congress for revising anti-money laundering programs to target money washing found in the human trafficking industry. The Federal Financial Institutions Examinations Council examines processes to improve anti-money laundering programs to combat human trafficking actions and referrals for potential human trafficking cases to the appropriate law enforcement agencies. S. 952 also establishes that the Department of Justice must report both efforts to eliminate money laundering on to human trafficking, and the quantity of formal examinations, custodies, allegations, and criminal offenses in money washing cases related to human trafficking (“End Banking for Human Traffickers Act of 2017”).

Overall, the TIP Report of 2017 of the Department of State has shown improvement from previous report versions, but is still in need of amendments to address misdemeanors found within the Tier ranking system of nations as well as preferential agreements on the issue of allocation of funding. In defense of efforts made by the Department of State, on September 14, 2017, the Department awarded $25 million to the Global Fund to End Modern Slavery, through the Office to Combat and Monitor Trafficking of Persons. The Global Fund to End Modern Slavery is a non-profit organization focused on developing public-private partnerships to decrease modern slavery (Tillerson). However, a true dedication to the cause of human trafficking, although wanted by many advocacy member groups as well as Congressional members, is a decision today mainly influenced by the executive branch’s priorities. As Secretary of State Rex Tillerson stated in his nomination hearing, “Nomination of Rex Tillerson To Be Secretary of State”, his commitment to end human trafficking is only to the extent that is compliant with the policies and law preferences of President-elect Donald Trump. This response was given various times throughout the report, inclusive of a specific interlude question on the seafood industry, raising numbers of illegal, unreported and unregulated fishing, the need for transparency measures in the fishing industry, and human trafficking (United States). More information on United States’ legislation on the TIP Report could be found if there were public accessibility to Closed Hearings’ materials as well as other confidential material Congressional staffers have access to, such as that of the “CLOSED: Preparing for the Trafficking in Persons Report” of June 2017 (United States).

Ingrid Stephanie Noriega is junior specialist in International Relations, Latina of an immense passion for human rights, democratic accountability, and conflict resolution studies as it relates to international development for the Latin America and Middle East – regions of her proefessional focus

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International Law

The United Nations: Expectations vs Reality

Javier Delgado Rivera

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“Alarm bells are still ringing. We face a world of trouble.” This was the distressing warning given by António Guterres, the United Nations (U.N.) Secretary-General, during his remarks to the U.N. General Assembly at the start of the year.

2018 was indeed a harsh year. The U.N. is always expected to play an appeasing role wherever peace and security are under threat. But the organization does not always have enough clout to silence the guns. As a result, last year the U.N. was unable to help bring stability in places like Afghanistan, Myanmar’s Rakhine State, Eastern Ukraine or between Israel and Palestine, to name just a few trouble spots. In the last two cases, disagreements in the Security Council help perpetuate current deadlocks.

On top of this, last year the U.N. refugee agency in the Occupied Palestine Territories (known as UNRWA) faced an unprecedented financial crisis after the U.S. cut its $300 million contribution. (The Agency was able to make up for the shortfall through additional donations from other countries and institutions). Yet the financial footing of the Agency remains so precarious that its chief has just requested US$ 1.2 billion to fund aid programs for 5.4 million Palestine refugees across the Middle East.

But 2018 was not all gloomy for the multilateral organization. Last year saw the adoption of the U.N.-led Global Compact for Migration. This non-binding pact, signed by 164 countries (out of 193 U.N. member states) in December, aims at strengthening regional and international collaboration in the management of migration flows. Claiming that it would obstruct efforts to control migration, the U.S., Israel, several E.U. countries and Australia did not join the accord. In early January, Brazil announced that it will abandon the accord.

The U.N. can also take some credit for forcing North Korea into the negotiating table. Last June’s summit in Singapore between the country’s leader Kim Jong-un and U.S. President Donald Trump came at the back of the harshest sanctions the U.N. Security Council has ever imposed on the Asian country. Moreover, an unusual visit in December 2017 by the then U.N. political chief to North Korea paved the way for the easing of tensions. Yet as Washington and Pyongyang gear up for a second summit in late February, a recent U.N. report claims that North Korea’s nuclear and ballistic missile programs “remain intact” and its leaders are dispersing missile assembly and testing facilities to prevent “decapitation” strikes.

On a housekeeping note, a recent important highlight has been the reform of the organization’s Resident Coordinator system. In January 1st U.N. country-offices gained more autonomy from headquarters, so that decision-making in development assistance, among other crucial work, can be done closer to the people that need it. This is part of a major restructuring of the U.N. system, which in addition to its international development area encompasses U.N. management and the organization’s peace and security pillar.

All while the U.N. Secretariat achieves, for the very first time, gender parity in its senior management positions – although the same cannot yet be said of other levels and departments.

The 2019 menu: frictions, priorities and conflicts

The year 2019 kicked off with the opening a major area of friction among key U.N. member states. In mid-January Palestine ­(a U.N. non-member observer state) took the 2019 chair of the G77 group of developing countries plus China. The U.S. and Israel objected to the move, which they saw as allowing the Palestinians to act more like a full U.N. member state this year. The G77 is currently comprised of 134 states and was established to sharpen the negotiating capacity of its members on economic matters.

In late January, at the World Economic Forum in Davos, António Guterres outlined his three priorities: 1) to prove to those reluctant to multilateralism that the U.N. is a vital actor to solve global problems; 2) to simplify and make the U.N. administration more transparent; and, 3) to show the added value of the organization.

These priorities represent just the tip of the U.N. iceberg. During 2019, the UN will have to accelerate efforts to achieve the Sustainable Development Goals (SDGs). As Guterres himself put it, “we need a sharper focus on what works in reducing poverty and inequality, and in delivering strong and inclusive economies while safeguarding the environment.” On this topic, a key date will be September 23rd, as Guterres will convene a Climate Action Summit in New York to mobilize public and private action to, among other objectives, increase financing to combat climate change: “the defining issue of our time,” as Guterres likes to describe it.

But it is Syria, where one the most lethal conflicts after the II World War is still being waged, that poses one of the greatest immediate challenges for the organization. The Norwegian Geir O. Pedersen, Guterres’ new Special Envoy for Syria, will try to mediate a political solution to a conflict in which the regime of Bashar al-Assad, with the support of Russia and Iran, has prevailed after a civil war that has already claimed more than 500,000 lives.

Further south, in Yemen, where the world’s worst humanitarian crisis has been unfolding since 2015, a U.N.-brokered ceasefire (last month’s Stockholm Agreement) has so far avoided a devastating full-fledged military confrontation in the key port city of Hodeida.

Although it is Africa where most of the U.N. peace and security work focuses. With volatility reigning in countries like Libya, Mali, South Sudan, Somalia, the Central African Republic and the Democratic Republic of the Congo, the continent hosts seven of the current fourteen U.N. peacekeeping missions.

And if all this were not enough, the current presidential crisis in Venezuela has again reopened the same fractures at the Security Council (i.e. Russia and China opposed to any type of foreign interference) that prevented the organ from taking action in places like Syria and Ukraine.

Somehow naively, the U.N. is always expected to resolve the most pressing crises that erupt around the world. As we have seen, the reality is very different. And 2019 will not be an exception.

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International Law

The normative context in defining ‘refugees’

Janakan Muthukumar

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Photo Credit: © UNHCR/Ivor Prickett

Contextual challenges in recognizing refugees

The Refugee Convention articulates that for any person to be qualified to be a refugee that person must have been outside from the country of his nationality due to the fact of a well-founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group or for having a particular political opinion. However, the Convention also in its stand approves that any person who has already been considered as a refugee under any treaty arrangements prior to this Convention would also be considered as refugees. The definition provided in the Convention is comprehensive, in a way that considers the cultural changes, and the interpretation includes the fear of persecution not only by the state actors but also by non-state actors.

However, there are also a number of restrictions, such as if a person voluntarily re-availed him or herself of the protection of his/her country of nationality, or has voluntarily reacquired the nationality of their state, the definition of refugees would not be applicable.  Further, if the state ceased to exist under the ‘cessation’ clauses, although according to the UNHCR, such clause required to be invoked sparingly, there is a possibility where the person may not fit within the definition provided by the Convention.  Nonetheless, the provision in the Convention so far has been interpreted broadly, in a way that the refugee status will not be considered to be ceased as long as the situation in the state of origin remains a danger.

Irrespective of these restrictions, the Convention remains as the central pillar, customarily interpreted in reflecting its objective and purpose of it – protecting individuals in need. Although in cases the general instability was found as a factor which is inconsistent to the prevent cessation of status, particularly due to the effect of persecution, it has also been considered as a viable internal alternative, which demonstrates that the customary interpretation of the Convention is limited. In other cases, the general instability was found as a ground for subsidiary protection that said, although the Convention fails to provide the required protection, still the state is obliged to grant such protection. Further, the Convention contemplates that irrespective of the condition of persecution remains a qualification, an individual could still qualify as a refugee given the fact there are compelling reasons arising from the previous persecution, commonly referred as ‘exemption from cessation.’ This exception applies only to the ‘statutory’ refugees, i.e. individuals who are eligible as refugees under the Article 1A (1) of the Convention: who were prior to the Convention were recognized as refugees. Further, the state practice is also contributing in extending the ‘exemption from cessation’ in protecting Convention refugees, irrespective of the fact, that the UNHCR noted clearly that such interpretation is not required by the Convention.

Nonetheless, the extent of the state practice creates now the customary norm, requiring this application, to be a purposive one. However, limitation applies under the exclusion clauses from the protection of non-refoulment to anyone qualify as a refugee under the serious reasons for consideration for have committed a crime against peace, war crime or crime against humanity or poses a compelling threat to national security or public order to the security of the country of refuge, where the individual who has already qualified as a refugee would subsequently lose the status. Note, however the exclusion clauses themselves have exceptions, such as child soldiers, decided in the case of AG v Zaoui by the Supreme Court of New Zealand, reflected on refoulment that goes hand and hand with the jus cogens status on preventing torture, noted that “[t]he prohibition on refoulment to torture has the  status of a peremptory norm or jus cogens with the consequence that article 33.2 [of the Refugee Convention] would now be void to the extent that it allows for [refoulment in such circumstances].” This implication of flexible application of the Convention was not only followed throughout the judicial decisions but also by legislative actions such as by the Council of Europe on the Recommendation 773, which recommended the European Union members to apply the definition of refugee liberally as amended by the Protocol of the Convention.

Evolution of a definition under the customary international law

As discussed above although the Convention has not amended explicitly in revising the definition of refugees, it has been customarily broadly interpreted as to justify the object and purpose. Although there has been an argument that the definition of refugees does not appear under the customary international law, but under treaty law, authors alike Hailbronner believes that the international obligation to grant protection to the victim is a ‘wishful legal thinking’, thus reflection through the state practice is a viable option. The American Society of International Law also produced that the human rights instruments are required to be read as a whole, thus protection prescribed in the Convention could be applicable to persons who enjoy any sort of non-refoulment. Thus, non-refoulment is a general principle, which Bazo also agrees that any individual who has the right to be protected under the international law must be covered by the definition of refugees. However, these arguments would be only valid if there are an extensive state practice and opinio juris to support the argument.

Regarding the state practice in expanding the definition of refugees, the reason for the primary expansion is because of civil wars, ethnic and communal conflicts and natural disasters, and of the acceptance that the international law can expand itself through custom. The Statue of the International Court of Justice prescribes that ‘evidence of a general practice accepted as law is law’ based on two elements: state practice which is described as a widespread and consistent practice of the states and opinio juris, the subjective belief of the state that engages in that practice, believing it as a requirement, not as an option. In this context, the statistics reveal that according to the UNHCR around 9 million individuals who have been identified as refugees, deserve protection, which from the state practice guidance provided in the case of North Sea Continental Shelf and of the history of the states to recognize and receive refugees to their respected nations represent the widespread practice, further be recognized not only through the subjective believe that it is the responsibility to protect refugees under the outgrown opinion juris, but also an international obligation under the treaty provisions such as Conventions Against Torture (CAT), and of the peremptory norm, jus cogens.

Defining Refugee through International Agreements

Although number of international instruments address the refugees in various stands, the Convention of the Organization of African Unity (OAU) on Refugees expands the definition of refugees includes, the people who displace due to the ‘external aggression, occupation, foreign domination or events seriously disturbing public order.’ Although there have been arguments that the intention of the drafters of the Convention was reflecting the post-colonial context, the fact that the Convention was signed by a number of largest recipients of refugees including Kenya, Uganda, Sudan, Zambia, Egypt and Tanzania makes the validity of the claim of the Convention in expanding the definition of refugees. In one step further, the states such as South Africa, Tanzania and Uganda adopted the Convention into their municipal laws impacts on the state practice, form a customary international law in expanding the scope of the definition of refugees. As such, the Bangkok Principles on the Asian -African Legal Consultive Organization also claims similar expansion in the definition of refugees, specially accepts the concept of refugees sur place, also claims the definition to cover any individual who was expelled from a state where his or her life or liberty is threatened for the reasons of race, colour, nationality, ethnic origins, etc.

The Cartagena Declaration focused on the forced migrants in Central and South America noted that Article 1(2) of the OAU Convention as the starting point of defining refugees, the declaration was although not legally binding in nature, endorsed by the Organization of American States, the UNHCR Executive Committee, further cited in the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americans. It was signed and ratified by most of the American states, including Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua and Venezuela. The Mercosur Rio de Janeiro Declaration further provided expanded definition includes not only to the individual whose life is threatened for the reasons of race, colour and nationality etc., as provided in the previously discussed declarations, but also the victims of a generalized violation of human rights. The declaration itself expresses the state practice by accepting the geographically diverse practice to support the existence of the customary international law.

The Refugee Convention, its Protocol of 1967, and the Protocol relating to the Status of Refugees 2001 attribute the expanded version of the definition of refugees, also affirms the important of the human rights and regional refugee protection instruments which by doing it expresses the obligation of the states to carry the burden for the stronger existence of opinio juris.

There has been also the subsidiary protection provided in the international agreements based on the context of persecution, often those individuals protected are referred as de facto refugees: the refugees who need are seen as legitimate, however, they would not qualify under the Convention. However, looking at the intention of the drafters of the Convention, it is expressed that the provisions of the Convention can be interpreted in a way to cover these expanded group of persons. However, there has been debate about this status, which was particularly addressed by the European Union in the context when considering the minimum standard of the directive failed to cover subsidiary protection. Although the directive models the Article 1(F) of the Convention, there has been no legal obligation to follow the terms, nor required to be supplemented by humanitarian assistance. Nonetheless, there are a number of international treaties calls for the subsidiary protection, such as the International Covenant on Civil and Political Rights (ICCPR) and the CAT in particular, the Article 3 which prohibits refoulment of a person, ‘where there are substantial grounds for believing that he would be in danger of being subject to torture.’

The European Convention on Human Rights and the American and African Charters make similar provisions on torture, establishes that the protection must be given to an individual when he is in ‘real risk.’ The EU Minimum Standards Directive 2004 particularly requires the member states to receive asylum application on the basis of the subsidiary protection who cannot go back to the country of origin because of serious harm, which includes death penalty or execution, torture and inhuman treatment or any other form of serious and individual threat to the civilian’s life by indiscriminate violence caused by the international or non- international armed conflict.

The state practice and the opinio juris have also been recognized in the context of refugees by the practice and mandate of the UNHCR that contributes to the formation of customary international law. It is because the organization embodies the state practice through being represented by the state delegates, or where the state cites the mandate of the organization being supervisory expresses opinio juris that the legal standards applied by the organization are accurate and the delegation by the states to the UNHCR could determine the status of refugees. In this context, the practice of the UNHCR cannot be dismissed, a representative opinio juris that is effective.

The Council of Europe through its Recommendation 18 of 2001 and by case laws such as in the case of Elgafaji v. Staatssecretaris van Justitie, Case C-465/07, 2009 E.C.R., argues for the qualification for the subsidiary protection which does not require to be a specifically targeted for harsh treatment, but as far is it fulfill ‘serious and individual treat’ due to the indiscriminate violence. It is to note that the EU did not broaden the definition of refugees, but provides legal standings for subsidiary protection, an expression of the opinio juris for the subsidiary protection.

Normative restrictions on the definition of refugees

Although the above discussion expresses that the definition of refugees has been expanded in a way to cover individuals, not just those facing the risk of persecution, there are also the existence of the negative impact of the customary international law that narrows the definition, particularly when there is a treaty provision which contrasts to the intention of the customary international law in this matter in particular.

One method the states adopted in narrowing the scope of the application of refugee law is by interpreting the territorial application of the Convention, which affects the determination of when an individual is outside his country of nationality. For an example, the US Supreme Court ruled that the Convention is not applicable outside the territory of the United States, whereas Russia interpreted in the same manner, along with interpreting the definition of territory.

The second method is by providing alternative relocation. Courts found when there is a possibility for the individual to relocate within the state of nationality, the application for refugee status can be rejected. However, in this context states found it from two approaches. First is to see whether there is genuine access to the areas of domestic protection, where the state can ensure the protection is meaningful, and the protection is not unpredictable. The second approach is comparing the situation of the area where the individual currently situated and the characteristic of the proposed area of protection, which is the approach the UK finds through the case laws since the first approach does not go along with the EU Council Directive 2004/83/EC.

The third method of the states enforce is applying the third country or safe country of origin tests to refuse the claims for asylum, in the basis that if the individual is coming from a country that has been deemed safe, then there is no requirement to provide asylum.

The fourth method is enforcing prohibitions on applying for recognition of refugee status through regulations under certain circumstances. Although it in first hand appears as it does not narrow the definition of refugees, but the fact the burden of proof is placed on the applicant that he has no disqualifying act or condition such as in the cases of terrorist suspects, such as in the case of Bundesrepublik Deutschland v. B, Case C- 57/09, 1990 E.C.R. and Bundesrepublik Deutschland v. D., Case C-101/09, 2010, severely affects the scope of being defined as a legitimate refugee. Further, broadly interpreting the acceptable criteria that the Convention spells out for refusing the refugee status, have certainly undermined the scope of the Convention, that indirectly impact in the definition and scope of refugees.

The fifth method is providing diplomatic assurances while refusing to accept the refugees, which is still remaining controversial. It was argued against by the UN Special Rapporteur on Torture as an ineffective approach has been used by states. The MOU signed by the UK with Jordan, Libya and Lebanon to provide blanket assurance is a clear example of it, which the Council of European Commissioner for Human Rights argued that “[t]he weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances, there is clearly an acknowledged risk of torture or ill-treatment.”

In these contexts, this essay concludes that although normatively the definition of refugees has extended, the governments have been using different mechanisms in restricting the scope of it by not willfully restrict the definition, or contrast the customary international law, but by going around the definition, that has substantially weakened the entire legal scope of the extension of the definition so far has been built up by the customary international law.

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International Law

Human Trafficking in South Asia: Combating Crimes against Women

Dr. Nafees Ahmad

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Human trafficking is a lucrative crime with instant results, an offence of grave circumvention of human existentialism and a slap on the global security wall. While confronting human trafficking still remains an unfulfilled obligation of the international community as it is a global problem. However, SAARC has also committed to stamping it out while realizing its causes such as rampant poverty, inaccessible healthcare, gender discrimination, class conflicts, and minority injustices. South Asia is a region that is encountered with challenges of human rights such as prevention of human trafficking in women and children for prostitution, devising legal protection for children and evolving mechanism for combating terrorism. In South Asia, human rights discourse has become more intense in the wake of external castigation of its human rights record. Indeed, many Western governments and human rights watchdog institutions perceive South Asia as a reservoir of multi-dimensional discrimination in every walk of life. SAARC governments are mired in human rights transgressions contrary to their constitutional vision, mandate, and the rule of law, democracy, and good governance. South Asian consciousness against corruption, respect for governance institutions, human dignity, and probity in public and private life have been depleting at a pace that has not been experienced before.

Norberto Bobbio—an Italian philosopher—rightly expressed that the supremacy of human rights in present political and legal discourse as a revolutionary upsetting of the primordial practices in ruminating the primary task of moral philosophy to evolve in the designing of a compendium of duties instead of rights. From Two Tablets of Moses to Cicero’ De officiis including Immanuel Kant’s Sittenlehre which was construed as an edifice of duties raising the question in Kant’s second Critique is not “What are my rights?” but it posed “What should I do?” Therefore, the human rights situations of SAARC region cannot be assessed in total disregard of its historical and regional circumstances, nor can it be analyzed as per the preconceived model, tradition or standard of another region. Therefore, people of South Asia derived their viewpoints on human rights issues from their historical circumstances and practical experiences and formulated relevant policies and laws. However, Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000):

“Trafficking in Persons’ shall mean the recruitment, transportation, transfer, harbouring and receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of 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 shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

In this context, it is everyday human rights issues that determine the directions in which people are capable of living their lives in South Asia and elsewhere, they are of tremendous significance not only to all of us as individuals but also to us as members of South Asian society. Therefore, everyday human rights issues should be central to our collective social memory and practice just like certain international and domestic human rights events, victories, abuses and personages. The challenge, however, lies in trying to make these everyday issues attractive and newsworthy enough to capture people’s attention. What role can media play in illuminating these everyday human rights issues? Let’s try critically to analyze the questions arising out of the “SAARC Convention on Combating and Prevention of Trafficking in Women and Children for Prostitution”, the strengthening and enforcing of SAARC Convention on Promotion of the Child Welfare in South Asia and SAARC Regional Convention on Suppression of Terrorism in the light of on-going conceptual deliberations.

Human trafficking comes with a modern visage that derives its contours from antiquity and known as modern day slavery. Human trafficking is resorted by employing fraud, force, and coercion for prostitution, debt bondage, forced labour. Age and gender barriers are irrelevant in human trafficking as it is evident from the trafficked women of all ages, men, young children and teenagers. However, human trafficking is a global issue that has been affecting Global North and Global South countries alike and attained the proportions of organized crime. Human trafficking in women and children for prostitution has become a global trend and an offense that has been mushrooming and affecting almost every nook and corner of the world both as sources of passage or destination country. As per the UNODC (United Nations Office on Drugs and Crimes), victims from at least 127 countries have been recognized, and it is projected that a criminal is exploiting more than 2.4 million people at any given time. The ILO expects that there are 2.4 billion people in the world at any given time involved in forced labour and subjected to exploitation due to human trafficking. Around 800,000 women and children are trafficked every year across international borders out of which 80% are ending in forced prostitution. This projection does not include those trafficked within their own countries or missing children. Human trafficking in women and children for prostitution is a grave violation of human rights and has been regarded as a modern form of slavery. The United Nations projects that the trafficking of women and children for forced prostitution in Asia has victimized more than 30 million people. According to the OECD Reports, the human trafficking industry ranks among the top three highest grossing illegal criminal industries along with illicit drugs and arms. The study shows that over 160 countries across the world are known to be affected by human trafficking. It means that human trafficking is a terrible global reality and statistics adumbrated above would bleed the heart of every right-thinking person.

Thus, human trafficking poses an extreme threat to human rights and human dignity of considerable people in various parts of the world. It stays one of the least understood forms of transnational crime, with significant gaps existing in both the data on the incidence as well as differences in the ability of lawmakers to appropriately address the problem in their respective countries. Human trafficking is a life-threatening violation of human rights because of the involuntary manner in which trafficked victims are entrapped, transported, recruited and subsequently subjected to abuses and exploitation. The UN Office on Drugs and Crime, Regional Office for South Asia, (UNODC-ROSA) and the UN Women, South Asia signed a Memorandum of Understanding under which they committed to strengthening the present levels of cooperation in dealing with the organized crime of human trafficking in the eight SAARC countries. According to Article 1 of the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002 “trafficking” denotes that the:

“moving, selling or buying women and children for prostitution within and outside a country for monetary or other considerations with or without the consent of the person subjected to trafficking.”

Unfortunately, there is no universal definition of trafficking, and the SAARC domestic laws even now lack a shared understanding of trafficking. Although India has a specific law on trafficking, but it does not define trafficking; it represents “prostitution” to have the usual attributes of trafficking for sexual exploitation. However, to determine the efficacy of criminal justice systems in South Asia and their effectiveness in addressing trafficking, it is essential to compare the standards in South Asia to the UNTOC standards as embodied in the Trafficking Protocol. The Protocol is reasonably comprehensive regarding looking at a variety of strategies to combat cross-border trafficking. Therefore, these gaps have raised several questions which have to be attended such as:

How to identify the administrative weaknesses in the enforcement system of anti-trafficking mechanism on a comparatively footing in South Asia?

Why there is a low number of arrest, prosecutions, and convictions for human trafficking in SAARC jurisdictions?

What are the reasons for insignificant legal integration of human rights, gender and child rights in domestic anti-trafficking laws and policies in SAARC countries?

What is the threshold of repressive state protection, prevention efforts in trafficking prone areas in SAARC jurisdictions?

Human trafficking encompasses recruitment, transfer, transportation, harbouring of persons through the use of duress, force, fraud, or coercion for exploitation. Economic inequalities, social disparities, and politico-cultural conflicts have led to the human mobility within all SAARC jurisdictions and across the borders in South Asia. Globalization has encouraged free movement of capital, technology transfer, expert exchanges, and sex service tours. Socioeconomic dependency, gender disparity, Illiteracy, cultural stereotypes, violence, social stigmatization, and endemic poverty inter-aliasociological deprivation of women and children in power-sharing, non-negotiable situations that have pandered to the emergence and mushrooming of the commodious problem of women trafficking in the entire SAARC region. This alarming spread of sex trafficking has fuelled the spread of HIV infection in South Asia, posing a unique and severe threat to community health, poverty alleviation and other crucial aspects of human development. Although the SAARC Convention on Trafficking in Women and Children has been a significant breakthrough, most of the SAARC countries do not have anti-trafficking legislation or means to protect the victims. Therefore, SAARC countries must make a concerted effort to treat women trafficking victims as “victims” of human rights transgressions in all their anti-trafficking policies and practices.

Abolition of women trafficking is inescapably a long-term process that involves a catena of causes like poverty, education, gender inequality, minority rights, and healthcare along with dismantling the actions of criminal syndicates. By its very nature, women trafficking for prostitution are a surreptitious crime for which adequate and comparable statistical data is rarely available. As of January 2017, 170 nation-states have ratified the Additional Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children to the UN Convention against Transnational Organized Crime which was adopted in 2000 (also known as Palermo Protocol) and India has even ratified it. The Palermo Protocol was the first international legally binding instrument with an agreed definition of human trafficking. However, there is an urgent necessity for greater collaboration between security agencies of South Asian countries to protect the victims. The key challenges to human trafficking in South Asia are porous borders, growing trade links, incoherent approach, lingual hurdles and time-consuming process of identification, verification, coordination, and implementation. Thus, it highlights the need for greater collaboration and assistance to rehabilitate and rescue victims of trafficking. At the same time, the UNODC South Asia must assist SAARC countries to develop comprehensive and sustainable responses to trafficking in persons. Such interventions include the prosecution of perpetrators, protection, and assistance of victims and, most importantly, prevention measures. SAARC jurisdictions countries have to have a unified and integrated action against human trafficking in the spirit of shared responsibility.

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