Preventing Trafficking in Persons by Addressing Demand, Schemes and Mind Maps of Business

Download Preventing Trafficking in Persons by Addressing Demand and more Schemes and Mind Maps Business in PDF only on Docsity! Preventing Trafficking in Persons by Addressing Demand ICAT Inter-Agency Coordination Group against Trafficking in Persons September 2014 Acknowledgements The Inter-Agency Coordination Group against Trafficking in Persons (ICAT) was set up in 2007 in response to a United Nations Economic and Social Council (ECOSOC) resolution in 2006 (2006/27) requesting intergovernmental agencies to work together to strengthen technical assistance provided to countries in the area of human trafficking. A resolution of the UN General Assembly in March 2007 confirmed the importance of eliminating “gaps and overlaps” in the anti-trafficking efforts of intergovernmental agencies and requested the UN Secretary-General to develop interagency coordination further in order “to enhance cooperation and coordination and facilitate a holistic and comprehensive approach by the international community to the problem of trafficking in persons” (A/RES/61/180). As a policy forum, ICAT aims to facilitate a holistic and comprehensive approach by the international community to preventing and combating trafficking in persons including protection and support of victims of trafficking. In response to this mandate, ICAT is committed to publishing a series of five issue papers, each examining one key issue that has been identified and agreed by ICAT’s member organisations as a critical challenge to address for the international community to succeed in the fight against trafficking in persons in the coming decade. The planned series of ICAT papers provides an opportunity for international organizations to speak with one voice and is intended to serve as a catalyst for the promotion of common strategic priorities and greater policy and programmatic coherence. An overview paper titled, The next decade: Promoting common priorities and greater coherence in the fight against human trafficking, covering the summary of the five themes was launched in May 2012 in New York at an event hosted by ICAT and co- sponsored by the Mission of Sweden together with the Association of South East Asian Nations (ASEAN). The first issue paper of the series, titled the International Legal Frameworks concerning Trafficking in Persons, was published in 2013. The second issue paper, titled Preventing trafficking in persons by addressing demand, is the result of inter-agency teamwork benefiting from the extensive experience of the members of the ICAT Working Group, comprising ILO, IOM, OHCHR, UNHCR, UNICEF and UNODC, coming together to contribute in a collegial manner their experiences and institutional expertise in the advancement of a common cause – to enhance coherence in addressing the issue of human trafficking. The following colleagues from each member agency of the ICAT Working Group are acknowledged for their contribution: Ariel Riva (UNHCR), Beate Andrees (ILO), Houtan Homayounpour (ILO), Jonathan Martens (IOM), Katharina Peschke (UNODC), Kerry Neal (UNICEF), Martin Fowke (UNODC), Mathieu Luciano (IOM), Michela Macchiavello (IOM), Sumbul Rizvi (UNHCR), Szilvia Petkov (UNODC/ICAT secretariat) and Youla Haddadin (OHCHR). Phil Marshall, independent consultant, assisted in the drafting process towards the realization of this paper. The paper has not been formally edited. The paper was realized through a generous financial contribution provided by the Government of Sweden. ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 3 and includes suggestions on possible steps to be taken with regard to each strategy. Part III consists of concluding comments, incorporating a brief summary of main recommendations. 1.1 Demand in a “Trafficking in Persons” context The UN Trafficking in Persons Protocol refers to a general form of “demand that fosters all forms of exploitation of persons”, suggesting that such exploitation, in turn, leads to trafficking in persons. 4 The term ‘demand’ in the context of trafficking in persons is still subject to different interpretations, however. A review of the literature suggests that treatment of the concept is diverse, and the use of terms around demand and supply not always consistent with how these concepts are understood in economic theory. 5 In a general economic sense, demand refers to the amount of a good or service that a consumer or group of consumers will want to purchase at a given price. Consumers will generally want to buy more of a good or service as price decreases. Demand can also be affected by factors such as the price of substitute goods and complementary goods. Importantly for this paper, the legality of the good or service also affects the level of demand. The demand for pirated goods such as DVDs or counterfeit clothes, for example, will be affected by the price and quality of the original legal good in relation to the price and quality of the pirated version, but also by the perceived likelihood of being caught, as well as the perceived social acceptability of buying pirated products. The demand for labour in general refers to the decision of employers to employ a certain number of workers. It is known as a “derived demand” in that it derives, and is ultimately reliant upon, the customers’ demand for a final good or service. In other words, employers hire workers because there is a demand from customers to buy a good or a service that will be produced by the workers. This derived demand can be direct when the final customer buys the good or service produced by the workers. Examples would include services ranging from domestic help to a haircut, and goods such as a mobile phone. Alternatively, derived demand can be indirect, where workers are part of a value chain, producing an input into the production of another good. An example would be the production of silicon chips that are used in the production of mobile phones. In order to maximise profit, businesses will, in simplistic terms, seek to produce goods and/or services at the lowest possible cost and sell them at the highest price. 1.1.1 Employers In many environments, the costs of labour are regulated by laws on minimum wages. Basic working conditions including hours, safety conditions and leave entitlements are also regulated. Where such wages and conditions are not adequately governed or enforced, unscrupulous employers have an opportunity to reduce their costs by exploiting their labour force. The demand that fosters all forms of labour exploitation can lead to people being trafficked 4 Article 9, subparagraph 5, of the UN Trafficking in Persons Protocol requires States Parties to “adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking”. 5 See B. Anderson and J. O’Connell-Davidson, Is Trafficking in Human Beings Demand Driven? A Multi-Country Pilot Study, IOM Migration Research Series, Geneva, 2003; and E. Pearson, The Mekong Challenge, Human Trafficking: Redefining Demand, Destination factors in the trafficking of children and young women in the Mekong sub-region, Mekong Sub-regional Project to Combat Trafficking in Children and Women, ILO, Bangkok, 2005. ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 4 for the exploitation of their labour. While minimising production costs is conventional business practice, unscrupulous businesses can do so unethically and generally illegally by, for example, not paying wages, requiring excessive and unpaid overtime, denying employee benefits or otherwise failing to meet basic health and safety standards in environments that are often dirty, difficult, or dangerous. When these practices are combined with the presence of binding factors – ranging from debt to withholding of documents to threats and violence – so that a worker has no realistic option to leave this situation, this can amount to forced labour and/or trafficking. Generally, demand for labour exploitation comes from unscrupulous employers at the end of the trafficking chain, across a range of different sectors but it may also come from brokers or agents, or from a trafficking network involving several actors at different points along the trafficking process. The involvement of intermediaries can also lead to trafficking being present even where the end employer is not demanding cheap, exploitable labour or knowingly complicit in illegal practice. Recruitment agents for example, may trap workers through the imposition of large and illegal debt, compounded by inflated interest rates that allow them to appropriate the earnings of these workers over an extended period of time. 1.1.2 Consumers To be profitable, exploiters of trafficked labour must have a market for the goods or services produced by this labour. With regard to goods produced by trafficked persons, these may be either an end product purchased by a consumer, or an intermediary product to be sold to another company for further production. It is important to highlight that end consumers are generally not directly complicit in supporting labour exploitation, usually lacking sufficient knowledge on which to make an informed choice. In the absence of information about the existence of trafficking in persons for labour exploitation in the production process, there is nothing that distinguishes demand for goods and/or services produced by trafficked victims from the general behaviour of consumers with budget constraints. Similarly, many companies may not be aware of exploitative labour practices at lower levels of their value chains, which are often long and complex. At the same time, the preference of both businesses and end consumers for products at the lowest cost can contribute to incentives for exploitative labour practices. While most goods involving exploitative labour practices are produced far away and out of the sight of those who buy them, the situation is different in the case of services. A person who uses the services of a trafficked victim generally comes into direct contact with that person. In the case of trafficking for domestic servitude, for example, the “consumer” of these services is usually the employer or the family of the employer and will generally be knowledgeable about the situation of the trafficked victim and complicit in his or her exploitation. 1.2 The international legal framework on demand As elaborated in the first ICAT paper on “the International Legal Frameworks concerning Trafficking in Persons” 6 there are a range of key legal instruments, addressing trafficking in persons. Besides the UN Trafficking in Persons Protocol, in which for the first time the international community defined “trafficking in persons”, several other international instruments are of particular relevance. 6 ICAT, The International Legal Frameworks concerning Trafficking in Persons”6, Vienna October 2012, point 2.3 at pages 4-5. ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 5 The Convention on the Elimination of all forms of Discrimination against Women requires state parties to take all appropriate measures, including legislation to suppress all forms of traffic in women and exploitation of prostitution of women. Similarly, the Convention on the Rights of the Child requires state parties to take all appropriate measures to ‘combat the illicit transfer and non-return of children abroad’ and to recognize the right of the child to be protected from economic exploitation. The newly adopted ILO Protocol to Convention 29 on forced labour also provides details of a number of “measures to be taken for the prevention of forced or compulsory labour”, which include “supporting due diligence by both the public and private sectors to prevent and respond to risks of forced or compulsory labour.” Of the instruments listed above, only the Trafficking in Persons Protocol explicitly addresses “demand”. It requires States parties to take action to prevent trafficking in persons by inter alia discouraging demand, but there is a lack of precision about the nature of the measures to be taken. The Protocol itself does not offer specific guidance (referring to “legislative or other measures, such as educational, social or cultural measures”) and the interpretative notes for the official record (travaux préparatoires) do not add anything on this point. 7 However, since the adoption of the above Protocol, further guidance has been elaborated on interpreting its approach to addressing demand. In particular, the Legislative Guide on the UN Trafficking in Persons Protocol 8 points out that “[D]emand reduction…could be achieved in part through legislative or other measures targeting those who knowingly use or take advantage of the services of victims of exploitation”. More recently, the UN Global Plan of Action to Combat Trafficking in Persons (2010) includes several articles suggesting action to discourage demand, including one referring to the need for “measures at national level to combat trafficking for labour exploitation” as well as the importance of educating consumers. 9 Various regional instruments, strategies and plans to combat trafficking in persons similarly suggest that action should be taken to discourage demand, but few provide more detailed guidance on what this entails. The Working Group on Trafficking in Persons of the Conference of the Parties to the UN Convention against Transnational Organized Crime (TIP Working Group) has reviewed some of the measures that can be taken to discourage demand and in 2010 adopted the following recommendation: “States parties should adopt and strengthen practices aimed at discouraging demand for exploitative services, including considering measures to regulate, register and license private 7 UN General Assembly, Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, Addendum to the Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime on the work of its first to eleventh sessions, UN General Assembly document A/55/383/Add.1 (3 November 2000). 8 UNODC, Legislative Guide for the Implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, paragraph 74, in: Legislative Guides for the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols thereto, UN, New York, 2004. 9 United Nations Global Plan of Action to Combat Trafficking in Persons, UN General Assembly resolution 64/293, UN document A/RES/64/293 (12 August 2010). Article 22 calls on States to “adopt and implement specific measures at the national level to combat trafficking for labour exploitation and strive to educate consumers on those measures”. ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 8 Against this background, there remains a tendency in some quarters to hope that supply-side interventions – which are generally easier to implement (and often less threatening to the status quo) – will be sufficient to reduce the magnitude of the trafficking problem. 2 Strategies to address demand in the context of trafficking in persons for labour exploitation This section analyses different strategies and approaches to addressing demand that contributes to trafficking in persons and other exploitative practices in terms of: explaining how these measures affect demand; outlining the current situation concerning such measures; highlighting some of the challenges involved; and identifying steps that need to be taken to advance beyond the status quo. While this paper focuses on demand-side interventions, it should be reiterated that anti- trafficking in persons initiatives need to address the full spectrum of the trafficking process, including both supply and demand. Furthermore, all strategies and measures presented in this chapter should be framed in a human rights-based perspective, which is normatively based on international human rights standards, and operationally directed towards promoting and protecting the rights of victims of trafficking. Therefore, the criminal justice systems’ responses to trafficking in persons should primarily identify victims of trafficking, including those exploited in forced labour, as rights-holders, and should address all the rights they are entitled to. For example, general protection measures for victims of trafficking are not sufficient for those who fear persecution 16 or other serious human rights abuses and cannot return home; such victims are entitled to the additional rights provided by international refugee law, such as protection against refoulement. 17 The UN Recommended Principles and Guidelines on Human Rights and Human Trafficking have suggested a distinction between the causes and factors that shape demand, and the demand itself. This distinction becomes necessary when considering the roles and responsibilities of different actors, including of countries of origin and destination countries. Countries of origin may rely heavily on the remittances of overseas works, and may be reluctant to interfere with a system that brings economic benefits, although it might be clear that some of their citizens are subject to exploitation. On the other hand, the demand generated at destination is derived from the financial benefits generated from the exploitation of foreign workers, who are, in some cases, deliberately not protected by law. It is also important to draw attention to the fact that the supply generates its own demand; the availability of cheap and exploitable labour can itself help generate demand. The paper has not explicitly examined issues of demand related to the particular phenomena of trafficking in children for labour exploitation. The specific legal obligations of States with regard to the prevention and response to child trafficking are the subject of a large body of analysis by academics, civil society and governments, which is too large in scope to be covered in this paper. However, it should be noted that any holistic, multi-disciplinary and 16 Notably, the connection between international refugee law and human trafficking is two-fold: (1) recognized refugees may be especially vulnerable to being trafficked; and (2) human trafficking may, in certain circumstances, create new refugees. UNHCR, The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked, 7 April 2006, p.3, available at: http://www.unhcr.org/443b626b2.html. 17 UNHCR, Considerations on the Issues of Human Trafficking From the Perspective of International Refugee Law and UNHCR’s Mandate, March 2009, p. 2, available at: http://www.unhcr.org/4ae6b66e9.html. ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 9 human rights-based approach to combating trafficking in human beings will of necessity ensure that child rights are integral to the overall normative human rights framework used to frame strategies and measures. While there has been a lack of clarity about what constitutes ‘demand’, it seems that it is not so much a more detailed definition that is required, but broader consensus about the full set of options that can be taken to effectively discourage demand both directly and indirectly, along with a willingness to implement, monitor and evaluate the measures concerned. With this in mind, possible measures to address demand have been grouped into the following categories, drawing on the above recommendation of the Working Group on Trafficking in Persons: 1. Criminal justice responses which serve to reduce demand that fosters trafficking for labour exploitation by raising the costs of using such labour; 2. Measures and mechanisms to improve labour conditions in sectors vulnerable to the use of victims trafficked for labour exploitation, through strengthening and enforcing labour standards and regulations; 3. Action against exploitation associated with the migration process, including through better regulation of private recruitment agencies and better protection of migrant and refugee workers; 4. Private sector initiatives to address exploitative labour practices within supply chains; 5. Consumer-based action against products made from trafficked labour; and 6. Addressing the root causes and contributing factors, including social norms that enable exploitative practices to flourish. 2.1 Criminal justice responses to trafficking in persons for labour exploitation How criminal justice responses affect demand For the criminals involved, trafficking in persons for the purpose of exploiting their labour is ultimately a business. It thrives because the perceived rewards involved outweigh the perceived risks. Effective criminal justice responses affect demand by increasing the costs to traffickers through measures including imprisonment and asset confiscation. 18 Current situation and challenges Despite considerable efforts to strengthen the criminal justice response to trafficking worldwide, the number of prosecutions and convictions remains miniscule in relation to the size of the problem and in comparison to the response to other forms of crime. As noted in the previous section, ILO conservatively estimates that there are 20.9 million people in forced labour situations. 19 Yet worldwide convictions for labour trafficking in 2012 amounted to 518. 20 Even assuming that not all forced labour cases involve trafficking (and that some forced labour convictions are thus likely secured under other laws), this figure is extraordinarily low and suggests impunity for many of those involved. Further, reports on convictions for trafficking in persons do not generally include information on whether more than one link in the trafficking network has been targeted. In fact, the tendency to assess progress in prosecutions based on overall numbers favours the targeting of 18 The key components of an effective criminal justice response to trafficking are well documented elsewhere,and will not be addressed in detail here. See for example Anne Gallagher and Paul Holmes, P. (1 September 2008). "Developing an Effective Criminal Justice Response to Human Trafficking: Lessons From the Front Line". International Criminal Justice Review 18 (3): 318–343. 19 ILO, op. cit. 20 US Department of State, Trafficking in Persons Report, 2013, p. 46. ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 10 minor players, who are more plentiful and generally have a lower likelihood of avoiding conviction. These minor players are often replaceable links in the trafficking chain, as a result of which even successful prosecutions may fail to impact significantly on the long-term profitability of the trafficking business. There are a number of challenges to an effective criminal justice response to trafficking in persons. In the first instance, many cases are simply not identified. A lack of clear identification mechanisms and guidelines is often compounded by limited incentives for victims to come forward, both in terms of benefits in the legal process, and services and protection available to them. 21 In addition, trafficking in persons is a complex crime, presenting challenges for even the most developed and well-resourced criminal justice systems, and unduly placing a heavy emphasis on the testimony of victims, many of whom have a range of reasons 22 not to give evidence against their traffickers. Collaboration is often required between national actors without established cooperation practices, as well as across international borders. 23 The limited resources generally available to many law enforcement bodies and the perception that trafficking in persons is difficult to prosecute may lead to investigators not placing a priority on this crime, particularly where the victims are foreign nationals. Finally, as with all forms of organised crime, complicity and corruption undermine investigations in many parts of the world. Clearly, those who profit most from trafficking in persons have both the greatest means and the most need to engage in corruptive practices. Overall, current criminal justice processes are not optimised towards making trafficking in persons an uneconomic criminal business. Even within the constraints noted above, however, greater emphasis on the financial aspects of this crime would serve to reduce the incentives for engaging in this criminal business and thus the demand for trafficked labour. Steps to be taken to address demand in relation to criminal justice responses There are steps that can be taken to better and more consistently align criminal justice responses with the objective of making trafficking an unprofitable economic undertaking. In particular, measurements of progress in this area are currently heavily focused on prosecution numbers rather than, for example, quality of prosecutions and the extent to which trafficking networks have been disrupted. Further, globally, financial investigations and penalties are exceptional rather than commonplace, in criminal justice responses to human trafficking. Specific steps in this area might include: a. Greater action against entire trafficking networks rather than just individual players. Enhanced action is needed against networks or, in other words, the full breadth of criminal actors involved in a trafficking incident. This, in turn, would be better enabled by establishing, as a common practice, reporting on and analysis of the proportion of criminal 21 In some cases, services provided to victims may actively discourage them from coming forward. These include detention through placement in a closed shelter and the prospect of being returned to their place of origin, often against their wishes. For further discussion on this issue see Gallagher, A. and Pearson, E. (2008). Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, http://ssrn.com/abstract=1239745 22 The complexity of trafficking also compels the implementation of differentiated procedures for uniquely vulnerable victims, such as persons in need of international protection. UNHCR, Refugee Protection and Mixed Migration: The 10-Point Plan in action, February 2011, available at: http://www.refworld.org/docid/4d9430ea2.html 23 See, e.g., UNHCR, Smuggling and Trafficking From the East and Horn of Africa, Strategy and Regional Plan of Action, Element 2, p.8, available at: http://www.refworld.org/pdfid/51d175314.pdf. ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 13 Fundamental Rights Agency noted that “in the majority of EU Member States, irregular residence does not nullify a person’s rights as a worker and the effects of labour law, although due to an absence of case law, the situation is often unclear or subject to different interpretations. In at least 19 countries, entitlements to fair remuneration apply to all workers, including migrants in an irregular situation.” 30 In practice, however, trafficked workers are usually reluctant to report abuse to authorities for fear of deportation. The fundamental rights of workers, including the elimination of forced labour, are often also referenced in trade agreements, by financial institutions, voluntary initiatives and in international agreements negotiated between multinational enterprises and global unions. 31 In this regard, the 1998 ILO Declaration states that “labour standards should not be used for protectionist purposes”, thus securing the competitive advantage of developing countries 32 However, the 2008 ILO Declaration on Social Justice for a Fair Globalization balances this statement by providing that the “violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage”. 33 This means that, while the ILO labour standards are not meant to be an impediment to trade liberalization, they should by all means be implemented and enforced. Steps to be taken to address demand in relation to labour standards The strengthening and effective implementation of international labour standards, for all workers and across all seekers, can go a long way in addressing demand aspects of human trafficking by creating an environment where the risks and costs associated with non- compliance with labour laws are higher than the potential profits. Countering trafficking in persons for labour exploitation requires not just stronger action against employers found to be in breach of these laws and standards but also measures to ensure that the rights of workers, including migrant and refugee workers, are protected, respected and fulfilled, and they have access to effective remedies for exploitation and abuse, regardless of their legal status. Specific steps in this area might include: a. Ensuring that the fundamental principles and rights at work are reflected and applied in national laws and extend to all workers regardless of their migration status or any other factors, and that mechanisms exist to enforce them. 34 This includes adopting safeguards against any unlawful or unethical discrimination in the workplace, including ensuring that migrant and refugee workers are treated in the same way as national workers, in line with the obligation to protect and promote the human rights of all persons within the jurisdiction of States. 30 http://fra.europa.eu/sites/default/files/fra_uploads/1827- FRA_2011_Migrants_in_an_irregular_situation_EN.pdf 31 ILO: Fundamental principles and rights at work. From commitment to action, Recurrent discussion under the ILO Declaration on Social Justice for a Fair Globalization and the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, International Labour conference, 101 st Session, 2012, Geneva. 32 This issue has been further clarified by ILO’sThe 2008 Social Justice Declaration which notes “that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage and that labour standards should not be used for protectionist trade purposes.” (A.iv). 33 ILO Declaration on Social Justice for a Fair Globalization, http://www.ilo.org/wcmsp5/groups/public/---dgreports/--- cabinet/documents/genericdocument/wcms_099766.pdf , page 11. 34 ILO Declaration on Fundamental Principles and Rights at Work (1998), http://www.ilo.org/declaration/lang--en/index.htm . ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 14 b. Ensuring that all forms of work, notably domestic work, are covered by labour laws, and that these laws apply to all workers including refugees as well as regular and irregular migrant workers. This should be complemented by strengthened legislative protection for highly vulnerable individuals, such as children, migrant workers, and domestic workers. Particular focus needs to be on areas receiving a high concentration of mixed migration flows, and sectors where informal labour arrangements are common despite legal regulations, such as agriculture and construction. c. Providing an enhanced mandate and greater capacity for labour inspectorates. Labour inspectors “should be able to travel rapidly and safely over the whole of the national territory, including in remote areas where workers are more like to be exploited”. 35 Closer collaboration and coordination between labour inspectors and law enforcement authorities is also crucial, keeping in mind the overall objective for labour inspections of protecting the rights and interests of all workers and improving working conditions. Finally, labour inspectorates should be adequately resourced and staffed, and have sufficient legal and administrative authority to be able to initiate pro-active investigations and monitoring of workplaces independent of other branches of law enforcement such as police or border guards. d. Encouraging the establishment of workers’ organizations that include migrant and refugee workers, even those with an irregular legal status. 36 This includes ensuring that national laws guarantee employees the right to collective bargaining and freedom of association. e. Ensure exploited workers, including migrant and refugee workers, have access to redress for infringement of their rights. This includes providing the right for all workers to pursue civil claims against their employers and supporting them to access this right. It further includes the elimination of such measures that deter workers from coming forward, such as the mandatory return of workers to their country of origin. 2.3 Reducing exploitative labour practices in the migration process How action against exploitative migration practices affects demand Efforts to address exploitation of workers also need to focus on the workplace itself, and not only on the paths that workers take to arrive at their jobs, as this is one of the major ways through which workers are placed and, in particular, maintained in a situation of exploitation. Not all trafficked victims are physically restricted from leaving their exploitative labour situation. Many are kept in place through threats, fraud, deception, as well as the abuse of their vulnerability in general, or because of debt incurred in migration processes. Limiting the opportunities for exploitation in the migration process will reduce the extent to which the 35 General Survey of 2012, paras 321, 322. 36 See COMMIT (Coordinated Mekong Ministerial Initiative against Trafficking), Recommended Guidelines for Migrant Recruitment Policy and Practice in the Mekong Sub-Region, ILO, 2008; OHCHR, op.cit.; and OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, An agenda for prevention: trafficking for labour exploitation, 2011 Annual Report of the OSCE Special Representative, Vienna, 2011. ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 15 often legitimate demand for migrant workers is met by exploitative practice that can amount to trafficking in persons. Current Situation and challenges International standards on the protection of migrant workers include clear provisions on the protection of migrant workers from deception and exploitation during the migration process but their ratification and implementation rates are comparatively low. 37 There is currently a lack of adequate regulation, monitoring and redress involved in many migration practices, including for those migrating through legal channels. This helps turn a legitimate demand for migrant labour into an opportunity for criminals to exploit workers during the migration process, often at more than one point. The nature of relationships between migrant workers and brokers means this can sometimes take place without the knowledge of the employer. As highlighted in the previous section, irregular migration creates particularly easy targets for exploiters, as any complaint is likely to be met with the threat of deportation – resulting, in some cases, from direct collaboration between exploiters and law enforcement. A lack of regular migration channels such as access to asylum procedures can place displaced persons or migrants in situations of vulnerability, and make them prey to exploitative practices, regardless of whether their recruitment is organised by a broker or agency in the country of origin. This is of particular concern in sectors where there is a high demand for inexpensive labour (and which tend to be dominated by women, such as domestic work and care-giving). Ensuring that migration policies are in line with labour market realities and international law is therefore a crucial step in reducing the enabling environment for exploitation in the migration process. At the same time, regular migration channels do not provide a guarantee against trafficking in persons for labour exploitation. Illegal migration charges, combined with excessive interest rates on loans to pay these charges, can place workers in a position where they cannot leave their situation of exploitation as they would then have no way of repaying the debt they owed. Recent research on workers migrating legally found that 92% of migrants required loans for their migration and 57% paid more than they were legally required to. 38 Even where charges are within the legal limit, legal channels are often more costly, which can result in more debt and sometimes more risk. Further, some migration programmes require workers to pay a sizeable deposit as a guarantee that they will fulfil their contract and workers usually have to borrow to pay this deposit. Although the desire for employers to have such a guarantee is understandable, this is another factor that can make it difficult for a worker to leave an exploitative situation. In addition to these challenges many labour migration programmes tie visas to particular employers and/or mandate employers to hold visa and passports of the workers. This means that they are not free to leave on the one hand, and may face summary deportation on the other due to their lack of appropriate documents. The potential for unscrupulous employers to address any complaints simply by calling in immigration authorities is clear. Some systems, such as the Kefala system in place in many Middle Eastern States, specifically require that foreign employees must give their visas and passports to their employer, making it effectively 37 UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; ILO Migration for Employment Convention (Revised), 1949 (No. 97) and Migrant Workers (supplementary Provisions) Convention, 1975 (No. 143) 38 The same study found that 7% of migrant workers faced contract substitution. Vietnam Department of Labour/ World Bank, 2012. World Bank Summary Report on the Situation of Returning Migrant Workers in Vietnam, Hanoi ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 18 is willing to buy the goods these workers produce. In most cases, the immediate buyer of such goods is another company. Consequently, the behaviour of buying companies, particularly those at the top of a supply chain, could be an important determinant of labour standards lower down the chain. Current situation and challenges The past decade has seen efforts to establish common minimum human rights standards to be observed by businesses, with a focus on building consensus on the measures businesses should take. Most of these are general measures rather than specific to trafficking in persons. In 2000, the Global Compact was launched following a call to action addressed to business leaders by the then UN Secretary-General Kofi Annan. 44 The Compact is a voluntary initiative that asks companies to commit “to embrace, support and enact, within their sphere of influence, a set of core values in the areas of human rights, labour standards, the environment, and anti-corruption”. 45 Those companies participating in the Compact commit to respect ten principles, one of which is “the elimination of all forms of forced and compulsory labour”, implicitly requiring the companies concerned to act against trafficking in persons. Companies also commit to issue an annual Communication on Progress which is a public disclosure to stakeholders on progress made in implementing the ten principles and in supporting broader UN development goals. However, there is no dedicated, independent mechanism for monitoring participants’ performance in this regard. More recently, the UN Guiding Principles for the Implementation of the United Nations ‘Protect, Respect and Remedy’ Framework have clarified the standard of responsibility for business with regard to human rights. 46 Endorsed by the UN Human Rights Council in June 2011, 47 the Guiding Principles, emphasise “the corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved”. They also highlight the State’s duty to protect against “human rights abuses by third parties, including business enterprises, through appropriate policies, regulation, and adjudication.” 48 The Guiding Principles require States to ensure that those affected by business-related human rights abuse have access to effective remedy, and that business enterprises remediate any human rights violations they have caused or contributed to. The Principles have been fully incorporated in the updated OECD Guidelines on Multinational Enterprises, as well as in other relevant global governance frameworks. A number of other codes of conduct and related initiatives by businesses include a commitment to avoid the use of forced labour but, like the Global Compact, do not refer explicitly to trafficking in persons (some of the first codes were prepared in the 1990s, before 44 General information about the UN Global Compact is available on its website, http://www.unglobalcompact.org. 45 UN Global Compact Office, Corporate Sustainability in the World Economy, February 2011, accessed on 20 August 2012 at http://www.unglobalcompact.org/docs/news_events/8.1/GC_brochure_FINAL.pdf. 46 Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UN document A/HRC/17/31 (21 March 2011). 47 Established by UN Human Rights Council resolution 17/4, ‘Human rights and transnational corporations and other business enterprises’, UN document A/HRC/RES/17/4, 6 July 2011. 48 Guiding Principles on Business and Human Rights, op. cit., Introduction, paragraph 6. ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 19 the UN trafficking in persons Protocol was adopted). 49 Some further initiatives have been reported in the 2012 Report of the Secretariat to the Conference of Parties to the United Nations Convention on Transnational Organized Crime entitled “Best practices for addressing the demand for labour, services or goods that foster the exploitation of others” 50 and the 2013 Background note prepared by the Secretariat to the Working Group on Trafficking in Persons entitled: “Good practices and tools for reducing demand for trafficking in persons, including by fostering public-private partnerships”. 51 Challenges to greater business action against forced labour and trafficking in persons remain in three respects: the commitment of companies to address issues in their supply chains; their ability to address such issues; and the extent to which the problem will not simply be displaced. In terms of commitment, despite the acknowledged seriousness of the exploitation experienced by victims, businesses around the world have been relatively reluctant to focus specific attention on trafficking in persons, in contrast, for example, to the relatively energetic approach taken in the late 1990s to protect themselves against accusations of exploiting child labour. 52 Overall, various private sector initiatives exist. However, more consistent and independent monitoring systems are still required, particularly at the lower parts of the supply chain. Given the complexity of supply chains, some businesses question the extent to which they can realistically, actively identify issues down to the bottom of the supply chain. However, the bargaining power of companies at the top of the supply chain should not be underestimated. There are already examples where companies have simply refused to buy from suppliers who cannot substantiate the origins of their components, a powerful incentive to the supplier to improve transparency. Challenges are also emerging to the view that there is more money to be made by exploiting workers than by treating them properly. Happy, motivated workers are generally more productive and workers who are not exhausted are also less likely to cause accidents or produce work below an acceptable quality. There is also lower risk of staff turnover, which is particularly relevant for employers who face labour shortages. As well as enhancing the image of the companies concerned (and reducing the risk of reputational damage), these improvements in productivity, production quality and human resource management can potentially offset additional costs in fully complying with labour regulations. Steps to be taken to address demand in relation to the private sector Moves to focus on the whole production supply chain represent a significant step in addressing the demand for exploitable labour, aided by increasing corporate acknowledgement that sustainable supply chain management means building considerations into supplier selection that go beyond price and short-term reliability of supply. Specific steps in this area could include: 49 In 2010, for example, the International Organisation of Employers published a position paper on forced labour which includes guidance for employers on how to assess and prevent the risk of forced labour. 50 http://www.unodc.org/documents/treaties/organized_crime/COP6/CTOC_COP_2012_4/CTOC_COP _2012_4_E.pdf 51 http://www.unodc.org/documents/treaties/organized_crime/2013_CTOC_COP_WG4/CTOC_COP_W G.4_2013_3_E.pdf 52 See Alec Fyfe, The worldwide movement against child labour - Progress and future directions, Geneva, ILO, 2007. ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 20 a. Conducting/requiring independent supply chain audits and workplace monitoring. This should include the monitoring and oversight of external suppliers and the regular internal review of the results of such oversight activities. It is important to ensure the quality and independence of audits, and that these can and do take place unannounced. Accompanying these audits should be strengthened understanding of all actors in the supply chain of trafficking and forced labour issues, and their roles in addressing them. 53 The establishment of a voluntary accreditation and monitoring process for international recruiters could provide the basis for such audits. b. Increasing and strengthening the mechanisms through which cases of abuse, exploitation, trafficking and forced labour can be identified. This would include:  Establishing safe, accessible and reliable communication channels for workers on workers’ rights, access to recourse mechanisms and whistle blower policies; and  Developing a complaints registration mechanism to assist both employees and employers in reporting potentially illegal activities or abuses that have occurred in connection with recruitment activities. c. Defining measures of assistance, compensation and remedy for victims of trafficking for labour exploitation and forced labour. For adult victims, these measures should take into account that compensation for lost earnings and the opportunity to continue work under better conditions are often the highest priorities. For children, measures should include education, vocational training, and counselling programmes. Retrieval of wages for those in irregular situations as well as facilitation in remitting earnings through legal channels would add to victim empowerment. d. Governments rewarding good practices This could be done, for example, by awarding contracts and exports credits only to companies who have disclosed information related to trafficking and have put safeguards in place, and imposing sanctions on those who have been identified as non-compliant. e. Promoting coherence in the measures taken by businesses specifically to stop trafficking in persons and those taken by businesses more generally to respect human rights. To this end, businesses might consider liaising with the Global Compact and the UN Working Group on the issue of human rights and transnational corporations and other business enterprises. 2.5 Consumer action against products made by victims of trafficking for labour exploitation How action by consumers affects demand As noted in the previous section, the trafficking of workers for the purpose of exploitation is only profitable insofar as somebody is willing to buy the goods these workers produce or the services they provide. Ultimately, without demand from the end consumers, there is no profit to be made anywhere in the process. Working with consumers appears to have considerable 53 This should include staff of procurement and finance units, suppliers, sub-contractors and, especially, compliance officers. ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 23 consumers are not actively seeking such information, however, there is a need to increase understanding of the consequences of purchasing decisions based solely on price. Specifically, it is a fact that generally consumers tend to prefer selecting low priced products, principally to meet their needs with a limited budget. There is thus a need to start advocating and raising awareness on the compromise that consumers are willing to accept. To be more precise, the question that consumers need to start posing themselves is ‘what is the cost of low cost’, namely, what are the implications of buying a product at a very low cost? And specifically, is it more important to be able to purchase low cost products or to actually know what is behind the low cost? Specific steps to strengthen consumer action against products made from forced/trafficked labour must combine action to encourage consumers to make ethical purchasing choices with action to increase the information on which they can make these choices. They could include: a. Encouraging consumers to take a more active role in combating exploitative labour practices. At the outset, this could involve building on existing work to encourage consumers to question what is behind the things they buy. Specific actions might include:  Seeking information from retailers on ethical employment conditions within their company and their sub-contractors.  Seeking assurances from retailers that individual consumer products have not been produced by trafficked and exploited migrant labour.  Share information that consumers gather from retailers/producers on social media.  Engaging with ethical consumer groups.  Participating in action to reward ethical labour practices, punish unethical practices.  Advocating to governments for the implementation of labour standards, both internally and in the context of international trade. b. Increasing awareness among consumers of the consequences of their purchasing decisions. c. Improving availability of information for consumers to make an informed choice about the products they are buying. This might include ethical labelling initiatives with independent verification. The label should indicate if the Fundamental Principles and Rights at Work (FPRW) were respected in the process of the production. Consumers could also be engaged in crowd-sourcing information about the origin of products. 2.6 Addressing social norms as a contributing factor to exploitative labour practices How social norms affect demand Trafficking in persons for labour exploitation does not occur in a vacuum but against a background of social norms, which can facilitate or hinder the work of traffickers. Involvement in trafficking requires not just a desire to profit but also a value system that permits the gross exploitation of others. Such values are influenced by social norms. Social norms further affect the behaviour of duty bearers such as law enforcement and labour officials, in responding to trafficking, as well as the level of societal tolerance for trafficking in persons. This includes not just the societies in which the exploitation takes place but also the societies where a desire for cheap products may outweigh concern for the workers who ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 24 produce them. Current Situation and Challenges Discriminatory social norms in relation to exploitative labour practices, including trafficking, are usually grounded in the perception of certain workers as being different, based on factors such as nationality, sex, age, ethnicity, social status and religion. This discrimination occurs on a range of levels, with varying degrees of subtlety. In almost all countries, for example, there is political capital to be made from criticising migrants, refugees, or stateless people. Also, factors such as the perceived obligations of children to their parents can be distorted and abused by traffickers. As noted in Section 2.2, the perception that domestic labour is not work in the same way as other jobs is another attitude that contributes to exploitation, with workers not seen as having entitlements to regular hours, sick leave, minimum wage and time off. While a small number of anti-TIP programmes involve work to break down barriers and discriminatory attitudes between different groups, such as migrants and local residents, TIP responses have historically shown a marked reluctance to tackle social norms. This is understandable given the sensitivities involved as well as the fact that changes to social norms tend to be long-term in nature. The traditional focus of TIP prevention on potential victims rather than potential perpetrators may also have contributed to a comparative lack of attention to this aspect of the problem. Anti-TIP messages in schools for example tend to focus on people not becoming victims, rather than people not engaging in or tolerating the abuse of others, or encouraging them to avoid slavery-tainted goods. There are, however, examples of effective programmes to influence harmful social norms in other sectors. One such example is in combatting the practice and social acceptance of child marriage in the Bihar region of India. NGOs identified and nurtured positive role models among those actors who had key decision-making roles – fathers, mothers and community leaders who had decided not to allow their daughters to be married young – and supported these role models in networking and communicating their messages to the wider community. Such an approach recognises that, in many cases, social norms are perpetuated not because an individual believes a practice is desirable, but because they perceive that the social cost of ‘bucking the norm’ alone are too high. Connecting individuals and encouraging them to publicly commit to ending a practice diminishes the social costs of not conforming to a social norm, and encourages other individuals to abandon the practice as well. A variety of forums and media can been engaged to this end. Working to eliminate the practice of early marriage in India, for example, UNICEF supported both local NGOs and community groups, and, to a lesser extent, print media and radio, in Bihar and Rajasthan, in developing a comprehensive campaign promoting awareness of the Prohibition of Child Marriage Act of 2006, and relaying positive messages about the benefits of delaying marriage and continuing education for girls. Community awareness meetings, radio spots and shivirs – residential educational camps for girls – were some of the actions utilised. The voices of community leaders, parents and young people were included in both of the above initiatives to reiterate the growing social resistance at all levels to what had until recently been seen as an integral part of the culture. These voices were especially crucial at local level, where people were able to adapt messages and information according to their understanding of the concerns and needs of their peers in the local community. The role of empowered survivors in raising awareness is also to be stressed. 62 62 Delaying Marriage for Girls in India; A Formative Research to Design Interventions for Changing Norms, UNICEF 2011. Available at; http://www.icrw.org/files/publications/Delaying-Marriage-for- Girls-in-India-UNICEF-ICRW.pdf ICAT paper series – Issue 2, Preventing Trafficking in Persons by Addressing Demand 25 Steps to be taken to address demand in terms of social norms There is a growing body of academic work and practical experience that suggests it is possible to address social norms that contribute to tolerance of trafficking in persons and other exploitative labour practices. This requires a guided process of information, persuasion, and mutual deliberation about the advantages and disadvantages of abandoning a norm, spread through existing and created social networks within the community. Specific steps might include: a. Increasing commitment by donors to address the social practices and norms that create tacit approval for labour exploitation of trafficked persons. Donors have the potential to play a key role in supporting social mobilization to engage a wide network of partners and stakeholders around the common cause of ending the use of trafficked labour, but will need to take into account the timeframe for such changes may challenge existing project cycles. Communication for Social Change techniques can be used to engage and empower communities and networks to positively influence and/or reinforce changes in social norms. International governmental organizations can leverage their access to government and policy makers by advocating for platforms for members of marginalized groups to address their concerns and needs to policy makers. b. Building alliances to confront social norms that allow trafficking in persons to flourish. To combat the use of trafficked labour, corporations and factory owners who are committed to ending the use of trafficked persons in their workplaces can be connected with like-minded workers, government officials and unions. As highlighted in the previous section the role in consumer preference and behaviour must also be acknowledged and social norms addressed that involve consumers turning a blind eye to the conditions under which the goods they buy are produced. c. Increased focus in anti-TIP messages on behaviours that contribute to exploitation. At present, anti-TIP messaging is heavily focussed on people not becoming victims. More work could be done in the use of social marketing and participatory communication techniques and tools, to inform and influence individuals, households and opinion leaders to adopt new attitudes and/or behaviours toward exploitative labour practices. Industrial fairs, trade shows and industry publications all provide key venues for peer to peer education by business leaders and corporations to reinforce the message that the use of trafficked labour is unacceptable. 3 Concluding comments The impetus for an increased focus on the demand side of trafficking in persons has come from a number of directions. One is growing concern about the effectiveness of traditional counter-trafficking strategies. These include ‘supply-side’ prevention activities aimed at reducing the vulnerability of potential victims and criminal justice responses focusing primarily on quantity of prosecutions rather than quality and impact. In addition to this concern, there is increasing recognition by business of their role in addressing exploitative practices. This recognition is driven in no small part by consumer interest in exploitation-free goods and services, together with a growing number of avenues through which this interest can be translated into action. Against this background of consumer interest, there is increasingly a case to be made that companies that adopt ethical recruitment and fair labour