CONCEPT NOTE OF SEA COURT ON HUMAN TRAFFICKING, MIGRATION AND HIV

I. Background:

The proposed Southeast Asia Court of Women on HIV, Human Trafficking and Migration being organised by UNDP and AWHRC in collaboration with several organisations and networks in the region, will be an attempt to draw the attention of the States and the civil society to the connections between HIV, human trafficking and migration.

This Court is part of the process of the Courts of Women, a global movement that seeks to relook at rights and other notions of justice from the lives and life visions of women – particularly from the Global South. The Asian Women Human Rights Council, in its work with issues related to violence against women since its inception in 1986, initiated the Courts in Asia as conceived by Corinne Kumar, the founder of AWHRC and the Secretary General of El Taller International. More than 30 Courts of Women have been held since then, in different regions of the world – Asia, Arab, Africa, Central and South America. The issues have been diverse and also specific to the regions they have been held in – from the violence of poverty, globalization and development, the violence of cultures, caste and racism to the violence of military sexual slavery, nuclearisation and of all wars.

The Courts of Women seeks to relook at these issues, reflecting the violence of our times, through its unique methodology of weaving together the personal with the political, the rational and the objective with the intuitive and the subjective and the logical with the lyrical. Inviting us to connect with these deeper and varied levels of knowledge, it urges us to reimagine jurisprudence that drawing from and also going beyond the limitations of the politics and processes of the nation state, seeks to understand and respond to the roots of the violence of our times in terms of its history and its context.

The UNDP Regional HIV and Development Programme for Asia and the Pacific has been actively engaged in collective efforts to reduce the vulnerabilities of people, particularly women and girls to HIV and human trafficking in the context of migration. A recently completed three year regional project on human trafficking and HIV in South Asia highlights the tremendous contribution made by the Programme to enhance the region’s capacity to respond effectively to the issues through rights-based and gender sensitive approaches especially in developing capacities of key stakeholders including women and girls and survivors of trafficking.

This specific Court on HIV, Human Trafficking and Migration will take into account the experiences and lessons learnt from two earlier Courts done by AWHRC and UNDP in partnership with several other groups in the region i.e. the South Asia Court on Trafficking and HIV held in 2003 in Dhaka, Bangladesh; and the Asia Pacific Court of Women on HIV, Inheritance and Property Rights held in 2007 in Colombo, Sri Lanka. It seeks to build upon and root these learnings in the specific context of South East Asia.

II. The Rationale:

Human trafficking and HIV are serious issues of concern globally. Southeast Asia contributes to one third of the total global figures for human trafficking. (Note: data source not stated in the first draft). The region serves as source, transit and destination areas for itself and other parts of the globe.

However while it is a fact that vulnerability to HIV increases in the context of trafficking, it is crucial that we are able to look at the changing context for migration, an age old human activity, that is creating newer avenues for trafficking and the attendant violence it generates, particularly for women and children. In contemporary times, human insecurities have been triggered by persecution, armed conflicts and the consequent forced displacement on the one hand and the new globalised economic order and its specific forms of poverty, underdevelopment, unemployment, inequities and environmental destruction that is pushing people to search for new sources of livelihood and survival and better life options.

However, we see also that this intense and escalating migration flow of people from all walks of life is characterised by increasing vulnerability, abuse and labour exploitation. Female migrant labour is gendered – and women are brought to work in informal sectors that are unregulated and unprotected. Vulnerability to trafficking is increasing for instance when there is abuse or labour exploitation of migrant workers by their employers. Women and girls, as well as men and boys, are trafficked annually for various purposes such as marriage, sweatshop labour, factory work, domestic and construction work, sexual exploitation and other purposes.

Women’s multi-layered vulnerability is exploited by traffickers. The slavery and slavery like work conditions of trafficked women increase their vulnerability to the spread of HIV infection and AIDS. Sexually exploited trafficked persons – women, transgender and children- are coerced into work situations with the likelihood of unsafe sexual practices.

In its responses, the states have largely looked at the issue purely as a law and order problem without looking at the larger context for these vulnerabilities resulting finally in revictimising the victim.

It has been eight years since the UN adopted the Convention on Transnational Organized Crime and its two supplementary protocols – the Protocol to Prevent Suppress and Punish Trafficking in Persons, especially women and children and the Protocol on Migrant Smuggling. Many states parties in destination countries have responded to the Trafficking Protocol by establishing legal frameworks aimed at restricting immigration and enforcing tighter border controls and which oftentimes result in restricting the movement of women who wish to migrate for work or in “profiling” certain types of women. This immigration policy has driven many women who have dreams of migrating for work to get the assistance of traffickers.

Another area of concern on migration policy is the practice of mandatory testing for HIV which has become a requirement for certain States of destination countries for migrant workers as a pre-condition of employment. This discriminatory practice could drive away the migrants from the opportunity to access voluntary testing services and be assured that they have the opportunity to receive counseling and treatment depending on the result.

Anti-trafficking GO and NGO practitioners need also to look into the public health impact of anti-trafficking measures such as the “wide net” raids and rescue approach which affect all those who are in the site of prostitution – whether they are trafficked persons, whether they entered to work in the sex industry by their own free will, or due to low economic and social position in society, violent family situations, or other inequitable, patriarchal structures and experiences. This approach disempowers those who are maybe in a better position to negotiate with their clients for safe sex practices by further driving them underground to continue their work and in the process, losing their capacity to negotiate for safe sex.

Another factor in the increasing criminalisation of HIV/ AID workers is the US “anti prostitution pledge” which required NGOs with HIV prevention programs to cut off any work with the sex sector including distribution and training how to negotiate the use of condoms as part of safe sex.

Both HIV/AIDS and human trafficking are becoming serious threats to the health, dignity and lives of young women and children within and across the region. According to the recent reports on HIV/Aids, Southeast Asia has the biggest potential to become the epicenter of the AIDS epidemic globally (Source of data not stated in the first draft). However unless we are able to understand and craft out policy measures that are built around this critical link between HIV, human trafficking and migration, we will end up with measures that drives women towards greater conditions of vulnerability and exploitation.

III. The Process

The Court methodology and its theoretical underpinnings as well as the context and content of the proposed Court was at the centre of a three day workshop organized for the main partners last September 28, 29 and 30, 2008 held in Bangkok, Thailand. The core partners present included AWHRC, El Taller, UNDP, Global Alliance Against Traffic in Women (GAATW), Foundation for Women-Thailand, Shan Women’s Action Network / Women’s League of Burma (Thai/Burma), APN+, Seven Sisters Network on HIV, Legal Support Center for Women and Children – Cambodia, Asian Institute of Technology-Thailand, Yakeba, Migrant Workers Union-Indonesia, Buhay Foundation for Women and the Girl Child- Philippines and Population and Development Association (PDA).

Other main partners were also identified in this preliminary meeting to prepare and plan for a Court that will focus on the linkages between the spread of HIV and AIDS to migration and human trafficking. Among them are ICW, UNIAP , IOM, UNIFEM, ILO, UNODC , PT foundation, Caram Asia and Thailand, and APNSW.

The following are the identified tasks of the core partners of the Court:

- to be the country focal points;

- to mobilize solidarity and support such as messages;

- to identify partners from each country;

- to identify and contact potential jury, expert witness and testifiers;

- to mobilize funds or in kind support;

- to identify translators and to prepare a synopsis of the testimony and send it to AWHRC/UNDP.

The issues were identified and recommendations made as to the names of possible testifiers, expert witnesses and jury members for the Court. It was decided that the participants of the Court will include politicians, policy makers, high-level government officials, judges, police representatives, lawyers, journalists, bi- and multilateral organizations, trade union representatives, media representatives, human rights activists, NGOs and CBOs, survivors of trafficking, migrant workers and people living with HIV, among others.

The context in which the Court will seek to conceive and define the vulnerabilities of women migrant workers and other affected sectors to human trafficking and HIV was also lengthily discussed.

IV. The Contours of the Court

Based on these extensive discussions, the context and content of the Court emerged as follows:

The Context for the Court

When mobility and movement of individuals is restricted by rigid nation state borders imposed by the logic of national security and when insecurity of livelihoods is fragmenting large rural and indigenous communities being displaced by the logic of the development state, the twin vulnerabilities of trafficking and HIV thrive.

In such a context it is only through the prism of dignity, access to justice, the health and human security of individuals and communities that we should view the organic linkages between migration, trafficking and HIV. For otherwise what can be perpetuated is the regime of a punitive justice that will only revictimise the victim. As we have seen happen with the rescue and rehabilitation policies of some states; or the closing and tightening up of borders all of which can push migration routes underground where trafficking networks prey on the vulnerabilities of those who are seeking better livelihood options.

What therefore needs to be brought to the centre of the Court is the non negotiable right of women to safe mobility and free movement on the one hand and on the other the equally non negotiable right of all communities to secure and sustainable livelihoods.

The Content and Issues for the Court

In the above context therefore the issues that the Court would revolve around include:

1. Visibilising the linkages between migration, trafficking and HIV

2. Recognizing rights of vulnerable communities like sex workers and women in prostitution, migrants, domestic workers, refugees, PLHIV through looking at issues of citizenship, deportation, labour conditions, right to health and treatment for PLHIV etc.

3. Evaluating the human rights and public health impact of anti trafficking legislation that is criminalizing HIV workers and instead of decriminalizing of sex work, restricting women’s mobility instead of ensuring safe mobility etc.

4. Unravelling the root causes of the vulnerability of migration, trafficking and HIV that include:

- the genocidal nature of the dominant development paradigm that is perpetuating and invisibilising poverty; causing irreversible environmental degradation and deepening gender inequities

- the militarised nature of the national security paradigm which is not only legitimising armed conflicts and state violence but also generating new forms of brutalised patriarchies and gendered violence

- the gender blind nature of a culture and polity in which we see plummeting sex ratios and escalating practices like that of multiple brides thanks to population policies like of the one child norm.

Goals and aims of the proposed Court of Women:

Within the framework of the Court as detailed above the goals and aims of the Court as they emerged included the following:

* Advocate for and share widely the issues, concerns and opportunities related to the core theme from the perspective of survivors of trafficking and migrant workers living with HIV.

* Provide a forum for women from different countries in the region to share, reflect and have a deeper understanding of the linkages between HIV, traditional forms of gender discrimination and the more contemporary processes of globalization, poverty, forced migration and marginalization resulting in the increasing vulnerability of women and girls to trafficking and HIV infection.

* Recognize and build upon the strengths, achievements and success stories of trafficking survivors and migrant workers living with HIV who have overcome tremendous difficulties and been empowered to lead a positive life with dignity

* Identify coping and resistance strategies of women affected by customary practices and disempowering norms and values that put them at the risk of trafficking and HIV infection.

* Identify collective means of challenging and transforming discriminatory state and legal policies that are creating and deepening structural inequities towards women and girls in disadvantaged situations.

* Formulate concrete and relevant follow up actions and campaigns at the regional, national and international levels to evolve long term sustainable strategies to address the issue.

* Strengthen regional and national networking among individuals and groups on this issue in order to work for more effective action and advocacy at various levels.

Components of the proposed Court of Women:

* A press conference highlighting the issues on trafficking and HIV in Southeast Asia and the importance of organizing the Court

* A one-day series of roundtable discussions on the day preceding the court, on critical, cutting edge issues related to the core themes that will provide the context for receiving the text and testimonies of the Court.

* The Court on the second day that will hear the testimonies of women survivors, resistors, expert witnesses and jury members to the violence of trafficking, forced migration and HIV/AIDS.

* A follow up meeting following the court on the third day, which will discuss the concrete way to go forward taking the primary issues that emerge both from the roundtables and the Court.

* The media will be engaged throughout the event to maximize the dissemination of critical messages and to influence public opinions and policy.

Expected outputs/outcomes:

* Greater visibility and understanding of the clandestine nature of trafficking, forced migration and HIV in the region

* Increased public, policy and legal debates and attention regarding the dual vulnerability of women and girls to trafficking and HIV and support for survivors of trafficking and those who are forced to migrate for better livelihood options

* Greater integration of HIV elements into policies, strategies and programmes on the prevention of trafficking, care of trafficking survivors and facilitation of safe migration

* Enhanced collaboration and coordination between the anti-trafficking community, rights of migrant workers and HIV/AIDS community to address the three core issues in an integrated fashion

* Highly visible press conferences and public advocacy campaigns both at regional and national levels

* Various publications including a video production