Refugee Watch-30-Boundaries

Let us look at what propels people in South Asia to move from their habitats, and how States have accommodated these movements. South Asia represents diverse languages and cultures, which have been formed historically by the entry of traders, warriors or even religious mendicants. Its boundaries have been cast and recast to cut across identities of family, clan and ethnicity. A further typography of migration suggests that in the last century movements have resulted from conflicts – communal or ethnic violence, in which families were divided and sub-divided. Conflicts or political oppression have led to refugees seeking political asylum and a safe shelter. South Asia has witnessed massive movements of population across newly created borders. In 1947 and 1971 people were compelled to flee on account of religious riots or military violence. Later, as states have continued to exist in a state of suspended animosity, minorities faced with political intimidation, legal discrimination or social exclusion, have had to flee their homes. Demographic changes have divided families and communities, and these divisions have induced waves of movements across borders. Recognition to political “migrants’ was given by the Nehru Pact in 1952 and the Simla Pact in 1974. The first recognized the status of refugees following partition, and the second approved the transfer of Pakistani citizens from Bangladesh to Pakistan after the war of liberation.

We have also known of cases of individuals escaping from repressive regimes – particularly writers, reporters, intellectuals, political activists. They too have been forced to move. A famous scientist had to leave Pakistan because he was an Ahmadiya, a religious sect whose citizenship rights were taken away by the State. Fortunately he found sanctuary in a leading institution in Trieste and could contribute to scientific knowledge. Poets and writers have had to leave Bangladesh and India, under social censure or administrative oppression. The loss has been that of the host country.

In recent years, patterns of global migration have shifted significantly, and economic necessity has become a prime cause. Globalization has contributed to a phenomenal number of people seeking livelihoods across borders. Migratory flows are an outcome of sharpening imbalances within countries and between countries, and they pursue global capital. While states are entitled to regulate their borders, it is important to realize that demand in growth led societies will inevitably induce the movement of supply from stagnant economies or resource poor countries. New conceptual categories have been attached to migration: contract or temporary migration, long term settlement migration, documented or regular migration, and irregular or undocumented migration. Forced migration or trafficking implies use of force or fraud that is used to deceive men, women and children into moving away from a familiar habitat.

Each process involves an element of force and compulsion, each is susceptible to a degree of victimization. Even though demand acts as a pull factor, these movements are susceptible to controls that enmesh them in circles of insecurity, deny their right to livelihood, to cultural identity and to bodily integrity.

The new world they enter is not hospitable. Documented workers from Bangladesh have been ghettoized into low paid work in many countries of the Middle East and South East Asia. Even when they have entered legally they are subject to numerous forms of exploitation by their employers and law enforcement agencies. While states are entitled to regulate borders they cannot be totally oblivious of their obligations to the rights to life and liberty. Yet, countries of origin have so far been unable to protect their own citizens, and the bilateral treaties they have signed with labour importing countries have sadly omitted any guarantees for workers. Thus the worker loses his/her rights of stay.

For an example of this let us look at the boom period in Malaysia’s development in the nineties. Cases were reported, in the media, of workers of Indonesian and Bangladeshi origin, who were kept forcibly in detention centres. Tanaganita, a Malaysian human rights organization published an investigative report on the use of torture and other human rights abuses in detention centres. Evidence from workers showed that they had been made “illegal” by commercial practices that were intended to control their labour. For example, it was a common practice for employers to retain workers’ passports, which curtailed their freedom of movement. If they dared to venture out they were arrested by the police, because they had no papers on them, which was a requirement of the law. The end result was that that they found themselves in detention or were returned summarily to their home country without their savings, salaries or compensation for loss of jobs.

Women, currently make up about one half of the world’s current migrant population. It is only in recent years that a growing number of women from Bangladesh have taken overseas jobs. The demand has come mainly from the Middle East. But the conditions of work have not been particularly salutary and Bangladeshi embassies have had to cope with many complaints from women workers. Rather than negotiate on behalf of the workers the government saw fit, in 1997, to ban the overseas employment of women for domestic work. This restriction was lifted subsequently, but women’s decisions to work overseas were subordinated to family approval, etc.

Last year the government itself decided to recruit women from the ranks of Ansars (or village police) for employment as domestic workers in the Middle East. But their experiences of exploitation and even violence has again brought to surface the contradictions between state policies that promote migration as a means for absorbing surplus labour and earning foreign exchange but without ensuring security to their citizens. Many of the Ansar women complained of sexual harassment and assaults, and the government response was to bring them back home without registering any complaints. They came back home without their salaries, but this did not stop others from seeking work outside. Some moved through legal channels, enduring loans for the high cost of overseas employment. Others passed through invisible paths, which emphasized the insecurities that induced women to move into vulnerable work situations. There is sufficient evidence to show that bans are not likely to be absolutely effective and the result of any prohibitive policy has encouraged movements to be illegalised. The costs for migrants becomes even higher.

Bangladesh is a signatory to the UN Convention on the Rights of Migrants and their Families, but the Convention itself is without teeth since none of the receiving countries has agreed to its ratification. Bilateral agreements with Malaysia, Saudi Arabia and other states have generally been limited to numbers and period of stay of workers, but not to ensure protection of workers. State policies and other institutional arrangements seem inadequate to ensure their security during their stay overseas. In a large number of cases, private traders have made overseas employment a profitable business at the cost of workers. Even where migration takes place willingly, force and compulsion often determine conditions of stay and employment. The power of capital has been superimposed on the rights of migrant workers.

Under bilateral treaties migrants find little protection, as they are subject to the laws of the receiving country. Emigration from Bangladesh is governed by the 1982 Emigration Ordinance. The latter deals with the process of recruitment, licensing of recruiting agents, emigration procedures, minimum standards for wages and service condition, charges for recruitment, malpractice, enforcement machinery etc. None of these address violations of rights that may take place in receiving countries nor have they protected the right to freedom of movement. Successive governments in Bangladesh have tried to circumvent these rights by banning their employment overseas or demanding guardian approval. In other words, women migrants are treated as dependents. Restrictions and bans on their employment without the capacity for implementation have resulted in undocumented flows of women workers. The Ministry of Labour and Employment has held consultations for formulations of a policy but this has not yet been approved or submitted to Parliament.

Movements within South Asia are even more problematic. Even though borders have historically been flexible and open, boundaries have been cast and recast to cut across identities of family, clan and ethnicity. Given the intimate kinship connections that transcend boundaries, South Asian states could have facilitated travel within the region. But inter-state relations are steeped in protectionism, so that tourist visas are difficult to obtain and work permits are non-existent. The conventional response of states in South Asia has been to guard its borders and criminalize movements under the Foreigners’ Act. There has been little legislative intervention on behalf of the victim of migration, whether the act was voluntary or forced.

Border movements within South Asia deny individuals the right to livelihood, to cultural identity and to bodily integrity. This is what makes them vulnerable to a trade in bodies, sometimes to expulsion, and often to exploitation. A migrant, whether documented or undocumented, seeks a space for survival in an unfriendly environment. Often people crossing borders are not even aware of their trespass across borderlines.

Migration from Bangladesh to West Bengal and other parts of India has been prompted by a wide range of reasons. The war of independence inspired a large-scale migration. Fear and intimidation have often led to a quiet exchange of minorities along borders and across borders. The search for livelihood has been compelling factor. Women have also seen in this an escape from oppressive relations in marriage or to escape social stigmas in their own village. Seasonal migration for work or trade has become a regular practice along some borderlines.

When migrants move from citizenship without freedom or choice to residence without citizenship they pass through such circles of insecurity. They do so by taking risks of social isolation, accepting unknown terms of employment or trusting agents.

There are many anecdotal examples to illustrate this journey from one circle of insecurity to another. From oral histories of women victims of trafficking we know that they left their homes when economic deprivation, social discrimination and violence made their lives intolerable. In many cases they were tempted by offers of marriage or paid work by a family member or a friend. Or the move became a family’s strategy for survival. Social factors that reinforce gender hierarchies, such as inequality in marriage rights, dowry demands, polygamous marriages, domestic violence were common reasons for leaving their villages. A study of several border villages in Rajshahi found that young girls were lured with promises of marriage, but found themselves as bonded labour in glass factories in Uttar Pradesh in India.

There are also stories of women from Bangladesh engaged in sex work in Sonagachi and Kolkotta. While their conditions are known to be oppressive, some of them at least were able to invest their savings in real estate in their hometowns and move back into anonymity. They thus evaded both official controls and social stigmas.

Demand for seasonal labour provides an incentive for temporary movements. Case studies have documented how young women and children move across the river from Rajshahi to Maldah to harvest beetle nuts or wheat in the chars or marshlands of West Bengal. Their daily movements are visible to the naked eye, and most of them are not hindered from working. Their labour is organized by informal agents. When some of them don’t return home, it is assumed that they were egged on by promises of work or marriage further west.

But the rationale of the market is not evident to state forces and the policing of borders makes them into sources of extortion or oppression. For example, you must all have heard about the snake charmers or bedays, who, two years ago, were pushed back and forth into No Man’s Land by border police on both sides, without a care for their physical survival. The bedays are a gypsy community in Bangladesh, and they live and travel in boats. In certain seasons they travel over land and cross the border into India where fairs and melas offer a demand for their medication or other skills. The border guards who have strict orders to preserve the inviolability of national borders, allow for no in between arrangements. In South Asia we have not come to accept the particular gypsy culture as in Europe, where the Romanis are free to move from one country to another, they have even earned the right to vote. In South Asia, the bedays, snake charmers by profession and boat people by habitat can do neither one nor the other. Oblivious of this they seek customers on both sides of the border. The BSF commanders had as little compassion in pushing back the bedays into Bangladesh as the BDR commanders in keeping them out. This happened two or three years ago, when a few Beday families found themselves suspended in No Man’s Land, with no water and no food, until some private organization came to their help and international publicity made it possible for them to go back to their village.

Movements across Bangladesh’s land borders have inspired the creation of numerous services on both sides of the border. Guides, rest houses, moneychangers have become profitable businesses and sources of extortion. In addition borders and boundaries stimulate corruption of border guards or local officials. Hostility of local residents is a source of isolation. Discovery does not lead to their protection but rather to more trials of repatriation, rejection by their families and community, and alienation. Inspite of these obstructions, for people living in poverty, migration is often equated with the pursuit of a mythical golden deer.

 Since the eighties diverse women’s movements have drawn upon their experiences of gendered violence to identify the implications of undocumented migration and trafficking for human rights of women. One of the outcomes has been a near universal acceptance of the Palermo Protocol[i] which redefined concepts of trafficking as forcible or coercive movements, and as a denial of freedom and choice. The definition delinked the act of trafficking from prostitution. This new approach has of course sparked off a debate within the women’s movements between the concept that links trafficking to prostitution and criminalizes all forms of sex work as forced, and the other concept of distinguishing between the exploitation of trafficking from the exploitation implicit in sex work. It is now acknowledged that trafficking itself leads to different kinds of oppression not only in prostitution or sex work.

In raising these debates women have campaigned for policies that address the root causes of why women, children and men are lured into trafficking and migration – such as economic poverty, political oppression and family violence. They have succeeded in transferring the focus of international law on the mode of movement, criminalizing the use of force and accepting the need to create conditions that prevent trafficking and protect the victims of trafficking.

In the international arena human trafficking has moved from the margins to the mainstream of international political discourse. Human rights are recognized as central to the causes and vulnerability factors that contribute to trafficking. Responses from regional and international institutions have shown a better understanding of the phenomenon. Thus the 1949 Convention on Suppression of Trafficking for prostitution found it “incompatible with human dignity and a threat to the welfare of the individual, family and community.”

Article 6 of CEDAW gave a broad direction to “suppress all forms of trafficking in exploitation of the prostitution of women.” It thus did not depart from the conventional link between trafficking and prostitution and its application was left vague. While the Treaty did not allude specifically to violence against women, the General Recommendation of 1992 argued that Article 1 of CEDAW included gender based violence which made specific reference to trafficking as a form of violence.

The Declaration on Violence against Women (1993) which was adopted at Vienna (1993) and the Beijing Platform of Action (1995) took the demands of the women’s movements further by including all forms of gender based violence in the family, community and violence perpetrated by the State. The appointment of the Special Rapporteur on Violence against Women led to her reports that clarified the concept of trafficking to the act of “force, fraud, deception in the movement of persons”. The adoption of the supplementary to the Palermo Protocol, titled “Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2003)” aimed to prevent and combat trafficking in persons, particularly women and children; protect and assist the victims of trafficking, with respect for their human rights; and promote cooperation between state parties to meet these goals. This has considerably widened the scope of the issue of violence beyond its sexual connotations. More recently the appointment of a UN Rapporteur on Trafficking has enlarged the scope for registering complaints and documenting the incidence of trafficking.

These advances in the international arena thus have called upon states to :

1. criminalise trafficking

2. quickly and accurately identify victims of trafficking

3. investigate and prosecute trafficking cases with due diligence

4. provide victims with support and protection

5. provide special protection for child victims

6. cooperate internationally and regionally in preventing, investigating and prosecuting the perpetrator of trafficking.

Some of these international concerns have found their way into regional conventions such as in Europe.[ii] Within the South Asian region, the outcome of several years of debate has resulted in the “SAARC Convention on Combating Trafficking in Women and Children for Prostitution”. Unfortunately the title and definition continue to link trafficking to prostitution, although experience has shown that women moving from one country to another are subjected to different forms of oppression, in different occupations – not always sexual –. However, its provisions for social care of victims mark an advance for rehabilitation of victims through job location, legal assistance and health care and to accord minimum standard humanitarian treatment to trafficked persons, consistent with human rights standards.

But SAARC member states have made little progress in protocols and legislation to endorse these commitments into national legislation and move towards their implementation. The provision of repatriation is a problematic one since it does not necessarily take into account the choice of the victim. If she is discovered years after she left the country it is possible that she may not want to go back to her original home. But the Convention does not make allowance for a person’s option to stay on in the country of destination.

An experience of a legal aid organization in a case of repatriation demonstrated the difficulties of this condition. A married woman who had been kidnapped from Dhaka, was discovered in a shelter home in Karachi. When she expressed her wish to go back to her husband, efforts were made to locate him, and it was found that he had remarried. Both husband and the wife in Karachi agreed that she should return back to her husband. She found herself alienated after staying away for a few years in a foreign country, and repatriation brought its own sorrows of rehabilitation and adjustment. It would have suited her best if she could have been given a work permit and allowed to travel back with confidence to her own country rather than as a dependent upon an unwilling husband.

Rescue operations also tend to leave women and children in protection homes or correction homes which confine inmates rather than become means of exit. The UN Rapporteur on Violence against Women found the conditions in corrective homes as barely habitable.[iii] Rehabilitation itself becomes temporary and the reforms intended do not deal with rights. On the contrary they treat women as dependents in need of protection. In most South Asian countries the judiciary too has taken a protectionist approach towards trafficking, confining women to protection of their guardians or a public shelter.

Activism by several women’s groups in each country and their networking across borders has helped in the rescue and repatriation of women victims of trafficking to their home country but it is not certain whether their rehabilitation and reintegration has been in deference to women’s rights and choice.

National regimes on people’s movements have been punitive rather than protective. Even though the demand from global capital for low cost migrant labour is on the increase, controls have been reinforced at the cost of human rights.

In South Asia, regulatory legislation such as the Foreigners’ Act has restricted entry. Penalties provided in Penal Codes drafted 200 years ago for kidnapping, abduction, slavery etc., seem outdated today. These laws have often been used for expulsion or even to obtain court orders. They have tended to act against the victim rather than to support her. Penal codes have provided penalties for kidnapping, abduction, slavery etc., but national policies have ignored the needs of the victims. Human rights have therefore been absent in addressing the issue of forced migration and trafficking.

Recent legislation has not been very progressive. It has tended to victimize the victim of trafficking and has deflected attention from the main concern with use of force or fraud implicit in the crime of trafficking. An Indian legal analyst has argued that the “Immoral Trafficking (Prevention) Act 1956 does little to tackle the principle concern with trafficking of persons into situations of exploitation”. It is also argued that limiting the definition of trafficking in persons only to the purpose of prostitution deflects from the violations inherent in the act of trafficking. Further conflating women and children as victims tends to digress from the specifics of the act. [iv]

In Bangladesh too, legislation on Violence against Women and Children (1955) which has undergone several amendments in 2000 and 2003 has authorized capital punishment for traffickers, which according to legal experts makes convictions more difficult. [v]

In terms of policies and programs, governments in South Asia have set up a few shelters but they offer few facilities for women to opt out into independence. Governments lack the capabilities and have relied upon NGOs and women’s organization to ensure humanitarian support to victims in rescuing, rehabilitation and reintegration of victims.

Punitive legislation in many European countries has been directed to controlling movements from East Europe. Perhaps Netherlands is the only country which offers some protection. The US has adopted the Victims of Trafficking and Violence Protection Act of 2000 with adverse consequences for women’s rights. The act authorizes the suspension of non-humanitarian, non-trade related ssistance to any country that does not meet minimum standards for elimination of trafficking. The State Department Trafficking Investigation Report (TIP)[vi] judges countries according to the degree of their compliance with minimum standards prescribed by the US, rather than with humanitarian standards. This Act has had adverse effects with governments rushing into enacting punitive laws, policies and law enforcement mechanisms, that may violate women’s rights. While the enactment of harsh laws in countries such as India and Bangladesh may have raised them in the TIP list, the concern for human rights of trafficked persons has been overlooked.

How far does international law reach across to support women at the grassroots? The Adviser on Trafficking from the Office of the High Commissioner on Human Rights in Geneva underscored the need to acknowledge that trafficking is both a cause and consequence of the violations of human rights, and that guiding principles of the Office of the High Commissioner for Human Rights place protection of human rights at the center of any measures taken to prevent trafficking. Special care has to be taken to ensure that anti-trafficking measures do not adversely affect the human rights and dignity of persons, and in particular the rights of those who have been trafficked or those who are vulnerable to trafficking. States thus have a responsibility to act with due diligence to prevent trafficking, investigate and prosecute trafficking and to assist and protect trafficked persons.”[vii]

It is clear that grass roots experiences of women have influenced international awareness of the need to move beyond legal sanctions and legal punishments towards addressing the root causes that perpetuate gender discrimination, economic disparities and imbalances in power.

Effective mechanisms need to be introduced to monitor the impact of anti-trafficking laws, to provide meaningful education and awareness, to widen employment opportunities, to make rescue, rehabilitation and reintegration sensitive to women’s concerns and to ensure that victims of trafficking are treated as victims of human rights abuses and not as irregular migrants.

National policies therefore need to focus on changes in social and economic relations, to support a woman’s rights so that she can make informed and independent choices. An imperative is that such policies offer:
1. viable livelihoods
2. equality within the family and at the workplace
3. recognition within the community
4. education and facilities for personal advancement

Human rights abuses in cross border trafficking within South Asia can be minimised if movements are rationalized allowing for work permits and temporary stays, so that women’s work is not criminalized. To attract global capital, countries are rushing in to proclaim their prosperity. India is now projected in publicity posters as India Shining or Incredible India. This is also the case in Bangladesh, where Dhaka becomes more developed than the rest of the country. It is inevitable that not all of India or all of Bangladesh will shine and the disparities will induce movements from “Suffering India” and “Suffering Bangladesh” to steal a bit of the shine for themselves. This will inevitably lead to a trafficking trap. A more balanced development for a gender and social just world may be the answer. I leave it to you to consider whether we can take steps towards a more equitable development that will respect human rights and human security.

[i] UN Convention against Transnational Organised Crime (2000)
[ii] Council of Europe Convention on Action against Trafficking in Human Beings and its Explanatory Report, Warsaw, 16.5.2005. http://www.coe.int/trafficking.
[iii] Radhika Coomeraswamy, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences: Mission to Bangladesh, Nepal and India on the Issue of Trafficking of Women and Girls (28 October – 15 November, 2000) United Nations (E/CN.4/2001/73/Add.2, 2001)
[iv] “Trafficking Reform: An Analyses of the Protection of the Rights of Positive People, Children, and Sex Workers”, Feminist Legal Research Centre, New Delhi January 2006..
[v] The Control of oppression on Women and Children (Special Provision) Act, (Act No 18 of 1995), Suppression of Violence against Women and Children Act 2000 (Nari Nirjaton Daman Ain) and Amendments to Suppression of Violence against Women and Children 2003.
[vi] The TIP report for 2005 is available on http://www.state/gov/g/tip/rls/tiprpt/2005/46610.htm
[vii] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, (E/2002/68/Add.1) Principles 1 and 2.