FOCUS June 2005 Volume 40

South Asian Convention against Trafficking

The South Asian Association for Regional Cooperation (SAARC) adopted on 5 January 2002 the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution. But the SAARC member states have failed to ratify it so far.

The issue of trafficking figured in the SAARC discussions in the 1997 SAARC Summit in Male, Maldives. The then heads of government expressed concern on the trafficking of women and children within and between countries. They pledged to coordinate their efforts and take effective measures to address this problem.

After the signing of the Convention in 2002, SAARC heads of government "expressed their collective resolve to treat the trafficking in women and children for commercial sexual exploitation as a criminal offence of a serious nature." While the heads of government declared in the 12th Summit in Islamabad in 2004 that member-states should "move towards an early ratification" of the Convention, the call has not yet been heeded.

The Convention defines trafficking as "the moving, selling or buying of 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."

It provides that "State Parties to the Convention, in their respective territories, shall provide for punishment of any person who keeps, maintains or manages or knowingly finances or takes part in the financing of a place used for the purpose of trafficking and knowingly lets or rents a building or other place or any part thereof for the purpose of trafficking." (Article III)

In trying offences under the Convention, "judicial authorities in Member States shall ensure that the confidentiality of the child and women victims is maintained and that they are provided appropriate counselling and legal assistance." (Article V)

Cooperation among member-states shall cover the following:

1. "mutual legal assistance in respect of investigations, inquiries, trials or other proceedings in the requesting State in respect of offences under the Convention," (Article VI [1])
2. treatment of the offences referred to in the Convention as "extraditable offences in any extradition treaty" which has been or may be concluded, between any of the Parties to the Convention. (Article VII [2])
3. exchange, "on a regular basis, information in respect of agencies, institutions and individuals who are involved in trafficking in the region and also identify methods and routes used by the traffickers through land, water or air. The information so furnished shall include information of the offenders , their fingerprints, photographs, methods of operation, police records and records of conviction." (Article VIII [5])

Prevention and rehabilitation measures are also provided for in the Convention.

The Convention provides that State parties "shall promote awareness, inter-alia, through the use of the media, of the problem of trafficking in Women and Children and its underlying causes including the projection of negative images of women." (Article VIII [8])

The Convention has a whole article on care, treatment, rehabilitation and repatriation of the victims. Article IX provides the following:

1. The State Parties to the Convention shall work out modalities for repatriation of the victims to the country of origin.
2. Pending the completion of arrangements for the repatriation of victims of cross-border trafficking, the State Parties to the Convention shall make suitable provisions for their care and maintenance. The provision of legal advice and health care facilities shall also be made available to such victims.
3. The State Parties to the Convention shall establish protective homes or shelters for rehabilitation of victims of trafficking. Suitable provisions shall also be made for granting legal advice, counselling, job training and health care facilities for the victims.
4. The State Parties to the Convention may also authorise the recognised non-governmental organisations to establish such protective homes or shelters for providing suitable care and maintenance for the victims of trafficking.
5. The State Parties to the Convention shall encourage recognised non-governmental organisations in efforts aimed at prevention, intervention and rehabilitation, including through the establishment of such protective homes or shelters for providing suitable care and maintenance for the victims of trafficking.

The Convention is complemented by the SAARC Social Charter, which is "in effect encompassing a broad range of targets to be achieved across the region in the areas of poverty alleviation, population stabilization, empowerment of women, youth mobilization, human resources development, promotion of health and nutrition, protection of children etc."^[1] This document was adopted during the 2004 Summit in Islamabad.

One provision of the Social Charter explicitly supports the Convention:

5. States Parties re-affirm their commitment to effectively implement the SAARC Convention on Combating the Trafficking of Women and Children for Prostitution and to combat and suppress all forms of traffic in women and exploitation of women, including through the cooperation of appropriate sections of the civil society. (Article V)

But this provision, as well as the rest of the provisions of the Social Charter will not be operative unless the Convention itself has been ratified and implemented.

Criticism

The Convention is being criticized on a number of points. By and large, there is a unanimous view among anti-trafficking groups that the Convention should not be limited to trafficking for prostitution purposes. They suggest the inclusion in the Convention of trafficking for other reasons including exploitative labor.

While the Convention was still being formulated, groups involved in anti-trafficking work had proposed amendments to the draft convention. One forum on trafficking declared in 1998 that the draft Convention needs to broaden the scope and notion of trafficking. Trafficking takes place for a range of ultimate purposes, not only for the purpose of prostitution. It is crucial to recognise that the main motive of the trafficker is profit through trade, however that profit [may accrue] - whether from sale to brothels to adoption homes, for camel jockeying, forced marriage, begging, bonded and forced labour, organ trade etc. The use to which the trafficked persons are put depends on the exploitative global trading, and the demand and supply trends as dictated by the market economy. ^[2]

The forum further stressed that

The Convention must recognise that due to hard social, cultural, religious, political and economic pressures, women are forced to migrate in search of options for livelihood. Any move to combat trafficking must not interfere with women's right to mobility. The Convention must not become an instrument to restrict or control the voluntary movement of women from one country to another. Issues of trafficking and migration must be separated. A distinction between the two can only be made if the elements and motives of trafficking are defined clearly.

The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which entered into force in September 2003, provides an example of how the Convention's coverage can be broadened. The UN Protocol links trafficking to exploitation which "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."

Whether or not SAARC would agree to amend the signed Convention is uncertain. But the criticisms on the Convention are worth considering.^[3]

Endnotes

1. See SAARC website.

2. Memorandum to theHonourable Members of the Standing Committee of the 10th SAARC Summit, SAARC People's Forum : Combating Trafficking inWomen and Children and Ensuring Food Security, Colombo, Sri Lanka, July 25-26, 1998,

3. See also Save the Children Nepal; and www.fwld.org.np/csaarc.html

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