Prabha Kotiswaran Reviews the UNODC Report on South Asia
Responses to Human Trafficking in Bangladesh, India, Nepal and Sri Lanka Legal and Policy Review
UNODC, Regional Office for South Asia
Dr. Sarasu Esther Thomas
International law has witnessed considerable activity around the issue of trafficking in the past decade. Particularly significant is the adoption by the UN of the 2000 United Nations Protocol to Prevent, Suppress and Punish Trafficking Against Persons, Especially Women and Children (“UN Protocol”) supplementing the 2000 United Nations Convention Against Transnational Organized Crime. In the less than ten years since the UN Protocol was adopted, no less than 147 states are party to the UN Convention, while117 are also signatories to the UN Protocol. Further, given the regional nature of much trafficking, states have also begun to develop regional legal instruments to target trafficking. Against this backdrop and given the anecdotal information of the resistance of South Asian governments to the UN Protocol, it is useful to assess the state of anti-trafficking law in South Asia.
Undertaken for the Regional Office of UNODC in South Asia under the United Nations Global Initiative to Fight Human Trafficking, the 2011 report Responses to Human Trafficking in Bangladesh, India, Nepal and Sri Lanka Legal and Policy Review (hereinafter “Review”) is possibly the first comparative report assessing the legal and policy frameworks of many of the countries in the South Asian region. At the outset, it fills a major gap in the literature and is valuable for this very reason. Yet, for reasons not explained in the Review, there is a glaring omission of a major South Asian jurisdiction, namely, of Pakistan. There are of course other countries, which form part of the regional-political entity South Asian Association for Regional Cooperation (SAARC) such as Afghanistan, Bhutan and Maldives, which are also not considered in the Review.
The Review suggests that the domestic legal regimes of Bangladesh, India, Nepal and Sri Lanka against trafficking leave much to be desired. To begin with, not all of them are even signatories to the UN Protocol. More significantly, the regional definition of trafficking as embodied in the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002, is at odds with the definition set forth in the UN Protocol to the extent it defines trafficking in terms of “moving, selling or buying of women and children for prostitution” with or without their consent. Thus the SAARC Convention narrows the UN Protocol definition of trafficking by applying it only to women and children rather than also including men, for the purposes of prostitution rather than employment in other labor sectors and by ignoring the possibility of voluntary migration.
This situation is repeated in each of the domestic legal settings (3, 11, 21, 22, 54, 59). None of the four South Asian countries have a comprehensive law dealing with trafficking. Neither do they define trafficking in terms of the UN Protocol. When trafficking is explicitly dealt with, it tends to be in the context of anti-sex work criminal laws (as in India) or laws dealing with violence against women (Bangladesh). Occasionally, trafficking for other purposes such as organ trafficking is acknowledged and rendered illegal (Nepal). Yet, they also equate sex work with trafficking (Bangladesh, Nepal). Thus, it is clear that in the South Asian context, trafficking is very much associated with sex trafficking and sex work. In a sense, this is somewhat predictable. Indeed the preoccupation and sex panic around sex work is what ultimately drove the UN Protocol negotiations and the considerable resources states are now devoting to this problem.
Yet, if we understood trafficking in the most general terms as coerced migration for purposes of exploitation and want to make anti-trafficking law meaningful, we need to go beyond untethering domestic anti-trafficking law from its preoccupation with sex work. The Review makes a beginning in this respect when its lists the range of “miscellaneous” laws in each jurisdiction that could be thought to be dealing with trafficking. Perhaps as testimony to the colonial legal pasts of the four jurisdictions, these laws could be categorized into the following categories. The first category is of general criminal laws, which deriving from the Indian Penal Code, 1860 contain offences relating to kidnapping/abduction, slavery, buying and selling girls for purposes of prostitution and unlawful compulsory labor. To the extent that exploitative labor practices are of considerable vintage dating back from the days of slavery, these criminal laws reflect the prohibition of such practices. The Sri Lankan Penal Code is the only criminal code, which has incorporated in 2006 a broadly phrased offence against modern trafficking by drawing on the UN Protocol. The second category of laws deals with vulnerable subjects like children therefore covering issues of juvenile justice and child labor or bonded laborers or members of the scheduled caste and tribes who are enticed or sexually exploited. The third category of laws deals with foreign migration meant to address the exploitative practices, that more recent waves of South Asian migrants have faced when traveling to the Middle-East in particular for work. While this overview provided by the Review of the range of laws that could be used against trafficking is useful, the Review could have offered a sharper analysis of more recent laws in each of the four jurisdictions against coerced migration for exploitative work. Given the high levels of internal trafficking in countries like India, laws passed in the 1970s to deal with coerced internal migration such as the Inter-State Migrant Workers’ Act in India could have been considered. Similarly, the Review considers laws relating to foreign migration in some countries but not others (e.g. Emigration Act in India).
There are certain other blind spots in the Review that I will allude to. First, the UN Protocol presumes that trafficking is driven by organized crime, which may not be sociologically true in the South Asian context. Hence despite the repeated reference in the Review to the fact that South Asian laws do not provide adequately for organized crime apart from some general principles of criminal liability, we might ask whether this might not simply be the result of a factual disjuncture in way trafficking is organised in South Asia and in the West. This points to a larger problem within the Review. Given the dearth of comparative work in South Asia on trafficking, I hoped very much that the Review would marshal literature from the four jurisdictions to problematize our preconceived notions of trafficking by illustrating the range of trafficking scenarios in South Asia. Instead, sadly the Review draws heavily on the US TIP reports for describing the trafficking problem in the four countries. This is problematic given the poor empirical basis of the TIP reports historically speaking. This is also tied into the silence within the Review on the impetus for the recent passage of anti-trafficking laws in countries like Bangladesh (Women and Children Repression Prevention Act, 2000) and Nepal (Trafficking in Persons and Transportation (Control) Act, 2007). After all, if the South Asian region has so far shown little interest in conforming domestic law to the UN Protocol. Some indication here of the pressures that South Asian governments may have felt in response to their ranking by the US Trafficking in Persons Report under the Victims of Trafficking and Violence Protection Act, 2000 might have been useful.
In conclusion, the Review usefully documents contemporary legal developments around trafficking in Bangladesh, India, Nepal and Sri Lanka. It focuses on constitutional legal frameworks in these countries, their domestic statutory law and judicial pronouncements. This understanding of domestic law becomes critical as international organizations like UNODC and ILO point to the conceptual ambiguities that have haunted the Protocol, its definitions and its operationalization. In other words, the diffusion of the UN Protocol will depend largely on how domestic law builds on the core legal concepts central to the UN Protocol namely of the mode of trafficking and the coercion and exploitation involved in the process. It is indeed unfortunate that the true spirit of the UN Protocol has not been realised in the laws of Bangladesh, India, Nepal and Sri Lanka given their inordinate emphasis on prostitution rather than other trafficking into other labor sectors. It is very much hoped that these countries will in the future expand their understanding of trafficking drawing on their high levels of internal migration and outward migration levels to articulate a vision of anti-trafficking law from the perspective of developing countries. Countries like Nepal have already shown that they can build higher levels of procedural safeguards for victims of trafficking and the adjudication system (such as through Trafficking in Persons and Transportation (Control) Act, 2007) when compared to international law.
 G.A. Res. 25, Annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49 (Vol. I) (2001).
 Transnational Organized Crime, G.A. Res. 53/111, U.N. GAOR, 53rd Sess., 85th plen. Mtg., U.N. Doc. A/RES/53/111 (1998).
 Anne Gallagher, Human Rights and Human Trafficking: A Quagmire or Firm Ground? A Response to James Hathaway, 49 Va. J. Int’l L. 789, pp (2009); Janie A. Chuang, Rescuing Trafficking from I supra note_, Capture: Prostitution Reform and Anti-Trafficking Law and Policy, 158 U. Pa. L. Rev. 1655, pp (2010), 15.
 Bangladesh is not a signatory to the UN Convention or the UN Protocol. Nepal is signatory to the UN Convention but not the UN Protocol. Sri Lanka was the only country as of the date of publication of the Review that had signed and ratified the UN Convention and signed the UN Protocol. India meanwhile had signed the UN Convention and UN Protocol but has only recently ratified the UN Protocol.
 Thus engaging a person with or without consideration is an offence as is having sexual intercourse with a prostitute under the Trafficking in Persons and Transportation (Control) Act, 2007
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- Prabha Kotiswaran, University of London