IMMORAL TRAFFICKING: INTERNATIONAL CONVENTIONS AND THEIR DEVELOPMENT Sonal Dass B.Sc., L.L.B., L.L.M. Human trafficking in all forms is violation of basic human rights. It is like treating a person as chattel. When human trafficking is for an immoral purpose, it is known as immoral trafficking. Nothing degrades a human being more than when he or she is subjected to immoral trafficking. Although immoral trafficking is existing from ancient time but the society reacted to the problem only from recent past. The paper tries to throw light on some of the remarkable international conventions and their outcome. It also discusses about the lacunae in those conventions. The paper is based on secondary sources of data. Introduction Civilization has a deep connection with morality. A civilized society has a lot of consideration about moral principles, one of which is to have concern about its deprived members. Many of such members of society are subjected to immoral trafficking that is to say trafficking for the purpose of prostitution. Immoral is a vague term, but the most common meaning we consider is illegal sexual act or Prostitution. Prostitution is said to be one of the oldest profession of the world. It is violation of basic human rights. Most tragic part behind this is that a lot of minor children are subjected to this act. Immoral trafficking is a severe form of human trafficking. It is also known as sex trafficking, a trafficking in which humans, mostly women and children are indulged in commercial sex act by force, coercion or fraud. If a person is under 18 years of age, any commercial sex act, whether or not fraud, force or coercion is involved, the act is sex trafficking. 1 The international community responded to the evil and to stop the menace has taken positive steps, the first was signing various conventions embodying the right of protection from immoral trafficking and there after various laws are framed at domestic level too. Early International Conventions The foremost international conference on traffic in women was held in Paris, in the year 1895. In 1904, the first international Agreement for the Suppression of the White Slave Traffic was passed in Paris with representatives from sixteen countries. But the agreement fails to make white slavery synonymous with prostitution because of regulation of prostitution in some countries like France. The agreement addressed international 1 Trafficking Victims Protection Act (TVPA), United States. 1 THE WORLD JOURNAL ON JURISTIC POLITY 2017. ALL RIGHTS RESERVED. WWW.JURIP.ORG
recruitment for prostitution. In the year 1910, the horizons of the International Convention for Suppression of White Slave Traffic was expanded and it include recruitment for prostitution within national boundaries. Later in the year 1921, trafficking in boys was included by the International Convention for the Suppression of Traffic in Women and Children. These conventions and agreements although ban the international traffic in persons but regard prostitution as human rights violation only when it involve the element of exploitation or coercion. So basically these conventions fail to acknowledge economic, social and psychological factors which are the major causes pushing girls and women into prostitution. These conventions acknowledge recruitment for prostitution but do not acknowledge the reasons behind and conditions in prostitution. In the International Convention on the Suppression of Traffic in Women of Full Age 1933, an abolitionist perspective was adopted and states were required to punish anyone who procured or enticed a woman for prostitution regardless of whether she consented for it or not. Then in 1949, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others for the first time declared prostitution and trafficking to be incompatible with the dignity and worth of the human person and to endanger the welfare of the individual, family and the community. The Convention adopted a non-bias attitude towards gender, race, voluntary or forced prostitution. It viewed prostitutes as victims and did not recognize the individual s right to choose to work as a prostitute. 2 Period of Silence After the 1949 Convention, there was a period of silence regarding trafficking issues and the international community was almost quiet towards the problem of trafficking and leaving a few antislavery activists and feminist, there was complete lack of social and political commitment for eradicating the problem. The major reason behind this silence was the cold war which created an international political tension and had eclipsed other international issues. In the year 1956, another international instrument, the Supplementary Convention on the Abolition of Slavery 3 was negotiated which propose to secure the abolition of slavery and of the slave trade, and the Forced Labour Convention of 1930, which banned forced or compulsory labour, by banning debt bondage, serfdom, child marriage, servile marriage and child servitude. However other than this instrument there was no other major development to control trafficking between the year 1950-1975. Origin of Contemporary Anti-Trafficking Movement 2 The Convention, under Article 1 require State parties to punish any person who procures, entices or leads away, for the purpose of prostitution, another person, even with the consent of that person, exploits the prostitution of another person, even with the consent of that person. 3 The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery, 1956. Entered into force 30 April 1957 2 THE WORLD JOURNAL ON JURISTIC POLITY 2017. ALL RIGHTS RESERVED. WWW.JURIP.ORG
The 1970s and 1980s witnessed various national and international women s movements and various forums for discussions opened. At the international platform, the United Nations International Decade for Women (1976-1985) catalysed activism and research on a range of issues affecting women around the world. The creation of UN Commission on the Status of Women and International Women s Year Conference in Mexico City provided platform to raise the issues of international sexual slavery and forced prostitution. In the year 1979, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) addressed the problem of discrimination in women and also directed the states to take measures to prevent all forms of prostitution and traffic in women. The various Conventions and agreements help the later human rights movements to combat trafficking and help in the development of certain norms to push the notion that women s rights are human rights. The various International Women s Conferences held by the UN brought various key developments in regard to women s rights. Some of them are - 1. States attention was directed to the women s legal status and family practices that reinforces structures of gender inequality. 2. It was recognized that women all over the world face discrimination and inequality. 3. Various women s human rights NGO s came into existence who identified women s rights as human rights. With Vienna World Conference on Human Rights 1993 Violence against women became the key issue among the activist all over the world. Activist concentrates on the issue of trafficking for sexual exploitation with the campaign violence against women gaining momentum into the mid- 1990s. Contemporary Efforts for Addressing Human Trafficking The Palermo protocol Italy again witnessed the deep disagreements in the various women human rights movement regarding the relationship between trafficking and prostitution. The Palermo Protocol reflects only a weak international consensus on this transnational problem. During the Vienna Process, one group of states, expresses the view that any distinction between voluntary and forced prostitution should be taken as morally unacceptable and kept the point that coercion or consent for sex work should be taken as unnecessary and the definition of trafficking should include all migration for sex work; but at the same time the other group of states protests that excluding the element of consent or coercion for migration for the purpose of sex work will unnecessarily lengthened the definition of trafficking and divert the attention from the real problem. The Palermo Protocol in the definition of trafficking makes the element of coercion or force essential part, and thereby deviances from abolitionist stance of the 1949 convention. The States were free to recognize and regulate voluntary prostitution. The Protocol also fails to provide many strong human right protections to trafficking victims. The Protocol seems to permit States to enact laws to protect themselves against transnational organized crime. The Protocol provides a mechanism for States to criminalize trafficking and prosecute traffickers and therefore is commonly described as protector of states rather than protector of victims. 3 THE WORLD JOURNAL ON JURISTIC POLITY 2017. ALL RIGHTS RESERVED. WWW.JURIP.ORG
The Ascendancy of Trafficking as an Issue in the 1990s Some of the issues of human trafficking in this period was different from previous. The main was that women knew that the job offered to them was in sex industry but the conditions of work informed to them were lied about. As pointed by Doezema 4 Recent research indicates that today s stereotypical trafficking victims bears a little resemblance to women migrating for work in these sex industry as did her historical counterpart, the white slave. The majority of trafficking victims are aware that the jobs offered to them are in the sex industry, but are lied to about the conditions they will work under. Yet policies to eradicate trafficking continue to be based on the notion of the innocent unwilling victim, and often combine efforts designed to protect innocent women with those designed to punish bad women: i.e., prostitutes. The Re-Emergence of White Slave Image In 1991, with the collapse of Soviet Union and destabilization of Central and Eastern Europe and the end of the cold war an intense interest in human trafficking generated in Western Countries because of the fear of mass migration from the Soviet Union and Eastern Europe to Western Europe. Although there were already many Asian and African women practicing prostitution in Europe but suddenly the issue of trafficking for sexual exploitation gain momentum. The reason behind this was that the new trafficking victims were more recognizable to politician and people 5. The white slave image was unconsciously invoked which resonated with activists and advocates in the west. However, the main issues behind trafficking like high rates of unemployment, abuse in families, limited opportunities for legal migration etc. was still ignored and no concrete remedies were suggested. Immoral Trafficking in United States The United States has been the destination country for human trafficking for forced labour and prostitution. The United States government maintains that 80% of trafficking in the world is for prostitution and more than 50% of the victims are minors. 6 The majority of prosecutions that the US Department of Justice has handled have been for forced prostitution. 7 The United States has always been the destination country for migrants from all over the world. The peculiar feature of human trafficking in US is that most of the victims are duped by recruiters in their home communities by people of their own family, 4 Jo Doezema, Loose Women or Lost Women? The re-emergence of the myth of white slavery in contemporary discourses of trafficking in women, 5 Jahic, G. & Finckenauer, J.O. Trends Organ Crim(2005) 8:24doi:10.1007/s12117-005-103-7 6 US Department of State, 2008 7 US Department of Justice,2007 4 THE WORLD JOURNAL ON JURISTIC POLITY 2017. ALL RIGHTS RESERVED. WWW.JURIP.ORG
neighbourhood, ethnic groups 8. This is one of the reasons the victims are reluctant in taking help of law enforcement agencies. The psychological coercion that victims faces when the recruiters or traffickers knows their family is much more powerful as they are always under the pressure that their family members might be hurt if they raise their voice against the recruiters. Steps to Combat Human Trafficking The activism against human trafficking gain momentum in the year 1995, when President Bill Clinton established the President s Inter-Agency Council on Women (PICW) within the Department of State in order to create a mechanism to carry out commitments with the Beijing Women s Conference. In the year 1998, January, at Washington DC, a round table entitled The Meaning of Trafficking in Persons: A Human Rights Perspective was sponsored by the International Human Rights Law Group now called Global Rights; the purpose of which was to define trafficking in persons and to formulate a conceptual framework for properly responding to the issue of trafficking. The round table has framed trafficking in a descriptive way. It has connected trafficking with prostitution and also with various kinds of exploitive and abusive labour situations. A proper frame work, like crime prevention, social welfare, protection of rights and prevention through international development had been proposed in the round table. On 8 March 1998 International Women s Day, President Clinton issued an Executive Order on Trafficking in Women and Children setting out a comprehensive and integrated policy framework of domestic and foreign anti-trafficking initiatives. The Order prescribes establishment of bilateral working relationships with several countries and spur the drafting of the Palermo Protocol. The Executive Order also outlined an implicit normative framework for how the US government and international organizations should address trafficking for the next decade, prescribing 3 important ways to combat trafficking: prevention of trafficking, protection of victims and prosecution of traffickers (3Ps). In the year 1999, legislation on sex trafficking was enacted, and in late 2000 President Clinton signed the Trafficking Victims Protection Act (TVPA) into law. Trafficking Victims Protection Act has forced United States norms into international arena, because the TVPA includes a sanction regime, which is used as a foreign policy tool, it reaches beyond the US borders to influence anti-trafficking policy abroad. India and Immoral Trafficking Prostitution in India existed from ancient time. In old times there was a customary practice of making the eldest girl child as devadasi, Joginis and Venkatasins in the states of Andhra- 8 Bales and Lize (2005,p.27), in a report on human trafficking in the US, found that in 8 of the 12 cases that they studied the victims were recruited by a person from their neighbourhood, family or ethnic group lured them to the US. 5 THE WORLD JOURNAL ON JURISTIC POLITY 2017. ALL RIGHTS RESERVED. WWW.JURIP.ORG
Pradesh, Karnataka and Maharashtra. Although the girls on whom these custom was practiced were known by different names but basically their profession was directly or indirectly same as prostitution. The major reason behind these customs were poverty, religion, reluctance of family to up bring girl child and sexual lust of people who can exploit these girls. Although the girls conditions in most cases remain pathetic but they were never taken as victims. In modern times prostitution has taken form of a profitable business for the pimps and brothel keepers and so a lot of children and women were trafficked for this act. The independent India aims to provide all human rights and constitutional rights to its citizens. The Constitution of India under Article 23 prohibits all forms of exploitation and human trafficking including Prostitution. The Advisory Committee I set up by the order of S.C. in Gaurav Jain case 9 identifies various types of prostitution namely Street walkers, Religious prostitution, Prostitution in brothels, Singing and dancing girls, Customary prostitution, Caste based prostitution 10, Child prostitution, Forced Prostitution, and Voluntary Prostitution. India being a signatory to the International Convention for the Suppression of Traffic in Persons and Exploitation, 1950 11 passed a central law to implement the provisions of the Convention. The Act was amended in the year 1978 and later in 1986 and the name was changed from SITA to the Immoral Traffic (Prevention) Act, 1956. Even after the first amendment the Act was very basic and so considerable changes were made in the year 1986 12. The amendments were- 1. To widen the scope of the Act to cover all persons, whether male or female who are exploited sexually for commercial purposes. 2. More stringent penalties with references to offences against children and minors. 3. Special Police Officer u/s 13, making a search shall be accompanied by atleast 2 women police officers and a woman or girl would be interrogated only by a woman police officer and on her non availability in the presence of a woman social worker. 4. The person coming forward to take the custody of the rescued victim must be investigated by a recognized welfare institution or organization, before she is released. 5. Trafficking police officers will be empowered to investigate offence having inter-state ramifications. 6. Compulsory medical examination of all rescued persons removed from a brothel after a search has been made and rehabilitation of them. 9 Gaurav Jain v. Union of India, (1997) 8 SCC 114 10 The Banchharas of Madhya Pradesh. The male members provide necessary help and services like procuring customers. 11 Passed and signed at New York on 9 May 1950 12 The changes came into enforcement with effect from 26/1/1987. 6 THE WORLD JOURNAL ON JURISTIC POLITY 2017. ALL RIGHTS RESERVED. WWW.JURIP.ORG
7. Cancellation of licence of hotels where children or minors are detected to be used for prostitution. 8. Enabling provisions to empower the Central Government to set up special courts with jurisdiction to try offences which have inter-state ramifications. The ITPA, 1956 acknowledges immoral trafficking as an offense but is silent against prostitution which does not fall under organized crime 13. It overlooks the causes like poverty, customs which forces women into prostitution, whether as organized or unorganized crime. The Act criminalizes only commercialized trafficking for prostitution or other immoral sexual acts. The 64 th Law Commission Report stated that prostitution could not be banned totally. In Ratnamala case 14, it was observed It is no doubt true that what is aimed at under the Act is not abolition of prostitutes and prostitution as such and make it per se a criminal offence or punish a woman because she prostitutes herself, the purport of the enactment was to inhibit or abolish commercialized vice, namely traffic in women and girls for purpose of prostitution as an organized means of living. The outcome is that very few help is provided and the act of immoral trafficking is flourishing in India. One of the reason behind weak laws is inner determination to eradicate the problem. The preamble clearly state that the aim of bringing the Act was to provide law in conformation with the ICSTPE, 1950 for the prevention of immoral trafficking. The Act was framed to show the international community that we care about the convention, whereas the actual reason behind the law should be we care about our people our society. POSCO 15 although provides safeguard to children against sexual offences but is not of much help in case of immoral trafficking. Conclusion The international community has travelled a long way in its fight against immoral trafficking. Most of the countries of the world show their concern by being signatories of the conventions, framing domestic laws and thereby has taken steps for eradication of trafficking. But still the fight requires more dedication, more sincerity, more efforts. The countries should also take positive steps for framing inter-country anti trafficking laws too. The greed of money of few people should not defeat humanity 13 In Vishal Jeet v. Union of India (1990) 3 SCC 318, the court held that the Act deals with not only a social but also a socio-economic problem and therefore the provisions of the legislation are more preventive than punitive. 14 Ratnamala, re (AIR 1962 Mad 31) 15 The Protection of Children from Sexual Offences Act,2012 7 THE WORLD JOURNAL ON JURISTIC POLITY 2017. ALL RIGHTS RESERVED. WWW.JURIP.ORG