In March 2018, the UN committee for the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) began drafting a general recommendation on trafficking in women and girls in the context of global migration. The goal of this document is to provide clear guidance for signatories of the convention regarding their obligations under Article 6, which simply states that “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”

The drafting process started in November 2018 with the publication of a concept note. This sets out in broad terms how the committee understands and analyses the issue of trafficking in women and girls and provides a framework for future discussions on the subject with all relevant stakeholders. The limitations in the framing of this crucial, and the concept note received detailed scrutiny both from civil society and academics.

In the intervening months, the International Women's Rights Action Watch Asia Pacific (our organisation), the Global Alliance Against Traffic in Women, and members of the Sex Workers Inclusive Feminist Alliance have been mobilising with allies in the labour rights, migrants’ rights, sex workers’ rights and women’s rights movements to ensure that the general recommendation responds to the lived realities of trafficked persons and persons adversely impacted by existing anti-trafficking laws, policies and practices.

As part of this advocacy process, we recently submitted a joint response endorsed by eighteen organisations and individuals to the call for comments on the first draft of the general recommendation (published in May 2020). The draft general recommendation covers the legal framework for protecting victims of trafficking; the root causes of trafficking; victim identification, assistance, and protection; and victims’ access to justice. However, the premise of the draft and the assumptions it replicates continue to be a cause for concern.

Beware oversimplification

The mandate of the committee requires it to focus on trafficking in women and girls, rather than trafficking in general. While it is important to draw attention to the gender dimensions of trafficking and respond to it as a manifestation of gender-based discrimination and gender-based structural inequality, the committee must guard against using analysis and language that exceptionalises, sensationalises and stigmatises women and girls impacted by trafficking. To do otherwise will result in obscuring the full scope of trafficking in persons, undermine gender-sensitive approaches to trafficking in persons, and result in under-identification of men and boys who are victims of trafficking.

In relation to this, it is also important for the committee to clarify that sexual exploitation is the most widely reported form of trafficking, but that there are other significant forms of exploitation such as forced labour and domestic servitude that require redress. The committee must also expressly clarify that the term sexual exploitation as referred to in the general recommendation does not include sex work. Failure to make these clarifications will perpetuate the harmful notion that all trafficking is sex trafficking and result in the unfair targeting of sex workers under the guise of anti-trafficking laws, policies and practices.

Our joint response further suggests that the committee locate trafficking issues within a broader global political and economic context. This is necessary to ensure that states address the structural causes of trafficking rather than focus all their efforts on law enforcement responses to individual cases. In the absence of efforts to address the structural causes of trafficking, measures to address its gender-specific dimensions will be rendered meaningless. Relatedly, we commend the committee for recognising the structural links between labour exploitation and trafficking, but encourage it to recognise labour exploitation as one of the root causes of trafficking. Given this structural connection, we encourage the committee to ensure that its progressive recommendations to ensure labour rights protection for migrant women workers extend to all women workers regardless of migration status.

Guard against collateral damage

In line with CEDAW’s full body of observations on Article 6, which do not indicate blanket support for criminalisation strategies to discourage demand for trafficking, we encourage the committee to deemphasise punishment of users on the demand side and of trafficked individuals. Specifically, we request that the committee delete a provision that recommends criminal punishment for users of goods and services that result from trafficking in persons, since this type of punishment has immense adverse human rights impacts on sex workers. We also encourage the committee to remove references to the ‘demand side’ since this phrase is liable to be misapplied to target sex workers and also might distract from criminalisation of traffickers themselves.

We strongly support the committee’s recommendation to decriminalise irregular entry for trafficked women and girls, and we request that the committee alter its language to support non-criminalisation/non-punishment for any crimes, including sex work, committed in the course of being trafficked. This broader protection for women and girls is necessary to guard against the abuse of criminal, administrative, and immigration laws. Overall, we express concern that a focus on penal legislation might apply a criminal justice approach to issues that might be better served by other approaches, particularly labour justice and social justice approaches.

In terms of oversight and accountability, we commend the committee’s responsiveness to issues of corporate transparency and due diligence laws that can impose sanctions. However, we request updating the language of the draft to ensure that a dedicated regulatory body can engage in effective monitoring and compliance, as well as impose sanctions. To further bolster accountability, we request that the committee instruct states to establish laws that provide a civil cause of action for workers in global supply chains who suffer harm due to non-fulfilment of mandatory due diligence laws. Finally, we encourage the committee to recommend cross-agency collaboration in criminal investigations of trafficking cases, including to confiscate all forms of proceeds gained through trafficking, in order to mitigate the possibility of perpetrators moving their assets out of the reach of enforcement agencies.

The most pressing challenge for the committee as it goes into the final stage of deliberations before the adoption of the general recommendation is to ensure that the general recommendation is relevant and responsive to the human rights challenges of a post-COVID-19 world. Due to COVID-19, movement is likely to be restricted for an extended period of time, changing the shape of migration. The devastating economic consequences of COVID-19 and attendant lockdowns are also likely to put more people at risk of rights violations as they search for opportunities. Restrictions on migration across borders deny people, particularly people from the Global South, access to legal routes. As a result, many turn to third parties to facilitate their movement in search of work and/or refuge overseas, which leaves them highly vulnerable to trafficking. The general recommendation must address and facilitate the removal of structural inequalities in border controls, a necessary step for eliminating trafficking in the context of migration.

This article and the joint submission referenced therein is based on an analysis of the draft general recommendation on trafficking in women in the context of global migration prepared by the Sex Workers Inclusive Feminist Alliance (SWIFA).