This document presents a substantive critique of CEDAW General Recommendation no. 38, grounded in intersectional feminist principles. It aims to provide an analytical framework to all those engaged in the global fight against trafficking, particularly representatives of social movements conducting advocacy for the progressive interpretation and domestic implementation of international human rights standards on trafficking.
The critique is set out in the form of annotations highlighted in red, amber, and green, made to the text of the General Recommendation. Annotations in red signify severe regressions in CEDAW standards that will have adverse human rights impacts on rights-holder groups such as sex workers or trafficked persons; annotations in amber signify ambiguous provisions that may contribute to adverse human rights impacts; and annotations in green signify progress, annotations in gray signify critique of IWRAW in the Asia-Pacific region of CEDAW General Recommendation no. 38.
The analysis set out in the pages below is based on lessons we have learned from listening to and working in close partnership with the sex workers’ rights movement. We are also grateful to partners in the labour rights, migrants’ rights and women’s rights movements who have accompanied us in our efforts to hold the line against regression of human rights standards concerning trafficking and attempt to bring transparency and accountability to standard-setting processes. Despite the setback that this General Recommendation presents, we are hopeful that moving forward we will be met with more allies who will join us in uplifting voices and narratives that have been discounted by this document and advocate for progressive, cohesive and rights-affirming legal responses to trafficking.
Committee on the Elimination of Discrimination
General recommendation No. 38 (2020) on trafficking in women and girls in the context of global migration
II. Objectives and scope
III. Legal framework
Article 6 of the Convention is based on Article 8 of the 1967 United Nations Declaration on the Elimination of Discrimination against Women, which provides that ‘All appropriate measures, including legislation, shall be taken to combat all forms of traffic in women and exploitation prostitution of women’. International law on this question was codified and developed by the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of Others. This legal basis requires that Article 6 be read as an indivisible provision, which links trafficking and sexual exploitation.
This paragraph is arguably the most regressive provision of this general recommendation as it not only situates the legal basis of the GR in the anti-human-rights, racist, colonial, patriarchal and archaic 1949 Convention on Trafficking, but also vitiates 51 years of progress on legal standard setting on trafficking achieved by the Palermo Protocol which, despite its shortcomings, recognises that trafficking occurs for a wide variety of purposes not limited to exploitation of prostitution or other forms of sexual exploitation.
The UN Special Rapporteur on Violence against Women, its Causes and Consequences succinctly summed up the problems with the 1949 Convention on Trafficking in her report on voluntary migration and trafficking in women:
“The Convention does not take a human rights approach. It does not regard women as independent actors endowed with rights and reason; rather, the Convention views them as vulnerable beings in need of protection from the ‘evils of prostitution’. As such, the 1949 Convention does very little to protect women from and provide remedies for the human rights violations committed in the course of trafficking, thereby increasing trafficked women’s marginalization and vulnerability to human rights violations.” [Violence against women, its causes and consequences - Report of the Special Rapporteur, E/CN.4/2000/68, 29 February 2000]
In addition to its anti-human-rights stance, the 1949 Convention has its underpinnings in the racist and colonial lineage of the international treaties enacted in the early 20th century to address the problem of ‘white slavery’. [Addressing International Human Trafficking in Women and Children for Commercial Sexual Exploitation in the 21st century, Cherif M. Bassiouni, Daniel Rothenberg, Ethel Higonnet, Cynthia Farenga, Augustus Sol Invictus, Dans Revue internationale de droit pénal 2010/3-4 (Vol. 81), pages 417 to 491. Available at: https://www.cairn.info/revue-internationale-de-droit-penal-2010-3-page-417.htm]
14. Trafficking and sexual exploitation in women and girls is a human rights violation and can be a threat to international peace and security. The positive obligation of States parties to prohibit trafficking is reinforced by international criminal law, including the Rome Statute of the International Criminal Court which recognizes that enslavement, sexual slavery and enforced prostitution may be crimes within the jurisdiction of the Court.
Paragraph 14 addresses trafficking and sexual exploitation in women and girls in conjunction, without substantiating why there is a deviation from Article 6 of CEDAW which refers to ‘Trafficking and exploitation of prostitution’. Further, there is no substantiation provided for departing from the standard set in Article 6 nor is it clear why the general recommendation seeks to address ‘sexual exploitation in the context of global migration’. This is puzzling because the concept note and draft general recommendation preceding this document, present no information regarding the intention of the CEDAW Committee to address either exploitation of prostitution or sexual exploitation as part of this general recommendation. The arbitrary inclusion of the term ‘sexual exploitation’ in various places in the general recommendation completely nullifies the consultative process carried out by the CEDAW Committee between 2018 and 2020, which was based on the assumption that the general recommendation seeks to address trafficking in women and girls in the context of global migration and not trafficking and sexual exploitation in women and girls in the context of global migration.
The general recommendation employs the terms trafficking and sexual exploitation throughout this text without explanation.
IV. Root causes of trafficking in women and girls
18. Identifying, addressing and eliminating the following root causes are key to States parties’ obligations to prevent trafficking and sexual exploitation in women and girls in the context of global migration: (a) systemic gender-based discrimination creating the economic and social injustice experienced disproportionately by women and girls; (b) situations of conflicts and humanitarian emergencies, including, consequent displacement; (c) discrimination in migration and asylum regimes; and, (d) the demand that fosters exploitation and leads to trafficking
Paragraph 18 introduces the state obligation to prevent sexual exploitation in women and girls in the context of global migration. As before, there is no substantiation provided for the deviation from the standard set in Article 6 or the concept note setting out the scope of the general recommendation.
Furthermore, the formulation of paragraph 18d is inconsistent with the internationally agreed language of the UN Trafficking Protocol, which in Article 9 (5) obliges states to “discourage the demand that fosters […] exploitation […] that leads to trafficking.” In other words, in international law it is exploitation that leads to trafficking – not demand. The GR’s incomprehensible departure from a carefully crafted provision in international law risks creating even more confusion about an already confusing and misunderstood term.
19.Criminal law alone is unable to address or redress the crime of trafficking due to uneven harmonization of laws, including the definition of trafficking both between countries and within countries, complexity of the financial operations, powerlessness of justice systems which are often corrupt, underfunded and under resourced to fight against powerful trafficking nets. An effective anti-trafficking response ensuring women and girls are able to exercise their fundamental rights must therefore engage all substantive provisions of the Convention read within the international human rights treaty framework
Paragraph 19 represents a step forward as it recognises the limits of criminal law in addressing trafficking and invokes all the substantive articles of CEDAW to provide a comprehensive response to trafficking.
Note that this progress, however, is overturned in subsequent recommendations seeking prosecution of ‘those on the demand side’, a legal measure that is documented to increase the vulnerability of sex workers to violence including through abuse of the criminal justice system and whose weaknesses this paragraph points out. Evidence of this has been established through research carried out in Canada, France and Sweden.
B. Discrimination in migration and asylum regimes
27.Visa regimes may be responsible for creating an economic and legal dependency on an employer or spouse, creating the conditions for exploitation and for sponsors to operate with impunity. Temporary or seasonal work in which migrant women are often engaged may not offer pathways to more regular, long-term or permanent employment and often does not offer unemployment protection, healthcare and access to other gender-responsive social protection and essential services. Notably, sex-specific migration bans or restrictions, designed to ‘protect women from trafficking’, often heighten the risk of women becoming victims of trafficking as they seek alternative ways to migrate.
Paragraph 27 represents progress in CEDAW standards as it expressly recognises the role of discriminatory visa regimes that contribute to increasing women’s vulnerability to trafficking.
C. Demand that fosters exploitation and leads to trafficking
In this section title, the general recommendation once again deviates from the international law standard set in the UN Trafficking Protocol which sets out that exploitation, not ‘demand’, leads to trafficking.
30.Sexual exploitation persists due to States parties’ failure to effectively discourage the demand that fosters exploitation and leads to trafficking. Persisting norms and stereotypes regarding male domination, the need to assert male control or power, enforce patriarchal gender roles, male sexual entitlement, coercion and control which drive the demand for sexual exploitation of women and girls. Massive financial gains with few risks due to the impunity are still widespread. Paragraph 5 of Article 9 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime obliges states to adopt or strengthen legislative or other measures to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking. The need to address the demand that fosters sexual exploitation is especially important in the context of digital technology which exposes potential victims to increased risk of trafficking.
31.In the context of labour as a form of trafficking in women and girls, demand for trafficking persists due to insufficient regulatory environment. Where workers are organized and where labour standards for wages, working hours and conditions, and health and safety, are monitored and enforced, where economic and social rights, as well as changes to tax laws so States can finance the public services that women need are adequately implemented, demand for the labour or services of trafficked persons is markedly lower.
This note concerns paragraphs 30 & 31. Paragraph 30 postulates somewhat obviously that the patriarchy drives the demand for sexual exploitation of women and girls. By deviating from the scope of Article 6 while the meaning of the term ‘sexual exploitation’ remains cloudy, the general recommendation opens the doors to causing acute harm to sex workers. Misinterpretation and misapplication of this provision is likely to grossly increase the vulnerability of sex workers to human rights abuses.
Further, it is unclear why the general recommendation distinguishes between the driving factors for trafficking for labour exploitation in the sex industry and other labour sectors (paragraph 31). Patriarchal attitudes and gender stereotypes are the cause of devaluation of women’s work which leads to trafficking and labour exploitation. Equally, the absence of regulatory frameworks, which clearly define what sexual exploitation is without conflating it with sex work, contributes to creating impunity for violation of women’s rights in this context.
A. Addressing the root causes of trafficking in women and girls
54.Strengthen implementation of a labour rights framework:
Paragraph 54 sets out the most promising provisions of this general recommendation. By calling on States to enact comprehensive labour law protections guaranteed to women irrespective of their migration status or their location in the informal or formal economy, as well as recognising the necessity of ensuring corporate accountability for rights violations in the context of trafficking, this paragraph lays the foundation for addressing the structural causes of trafficking embedded in the neoliberal economic model. This provision should be utilised by all workers in informal and precarious work, including those in the sex industry, to seek strong labour law protection of their rights.
(a) Introduce, strengthen and enforce employment legislation designed to protect all women workers, including migrant workers, irrespective of their documentation status, level of skill or the sector in which they work, or whether they are in the formal or informal economy, duration of their employment, and to minimize the opportunities for exploitation by providing very clear protections, including localized living wage requirements, overtime pay, health and safety, social protection, and decent working conditions, equal pay for work of equal value, particularly in unregulated, informal or unmonitored economic sectors that rely on migrant labour;
(b) Ensure adequately resourcing, increase the number and strengthen the capacity, mandate and investigative powers of labour inspectors to undertake gender-responsive, safe, ethical and confidential inspections and to systematically recognize and report breaches of labour laws and presumed cases of trafficking in women and girls uncovered during both routine and unscheduled inspections, particularly in highly-feminized sectors and including of migrant workers’ seasonal and informal workplaces and accommodation, agricultural farms, and, where appropriate, private households;
(c) Establish firewalls among reporting of presumed trafficking arising from labour inspections, victims’ use of public services, including healthcare services’ or other monitoring mechanisms and immigration and/or criminal law enforcement for illegal labour;
(d) Encourage businesses to establish safe and anonymous grievance mechanisms for all workers, in cooperation with workers representatives, that are gender-sensitive, to ensure their labour rights are upheld and can be accessed without fear of retaliation;
(e) Enforce adequate legal sanctions against employers engaging in abusive employment and labour practices;
(f) Provide assistance and training to businesses to ensure compliance with human rights and labour standards, particularly targeting industries known to be hubs, entry-points or channels for trafficking;
(iii) Addressing the demand that fosters exploitation and leads to trafficking
61.Discourage the demand that fosters exploitation of prostitution and leads to human trafficking
In paragraph 61, the general recommendation makes the first and only mention of a measure to discourage the demand that fosters exploitation of prostitution and leads to human trafficking. The scope of this measure is not at all clear and the consequent ambiguity creates the possibility of it being misinterpreted and misapplied to conflate trafficking and sex work, and thereby cause grave harm to sex workers.
63.Prevent and address Trafficking in all business operations, public procurement, and corporate supply chains by:
(a) Investigate, prosecute and convict all perpetrators involved in the trafficking of persons, including those on the demand side;
(b) Provide, by law, a civil cause of action in both the country of operation and the country of corporation, for workers in global supply chains who suffer harm due to non-fulfilment of mandatory due diligence laws;
(c) Encourage businesses and public agencies to ensure that a dedicated regulatory body in which workers and their representatives are represented has the power and resources to proactively investigate and monitor compliance with mandatory due diligence laws and sanction non-compliant entities;
(d) Conducting, and/or funding, awareness raising campaigns to inform consumers and customers of products and services that may involve exploitative labour, including unethical recruitment practices and slave labour, and where to report suspicions of criminal activities.
Paragraph 63 (a) is yet another vaguely formulated provision that could cause significant harm to sex workers. The throwaway mention of persons involved in the demand side of trafficking is liable to be misapplied to criminalise sex workers and their clients.
B. Upholding victims’ rights
(i) Victim identification
Address the adverse collateral effects of anti-trafficking efforts by ensuring that innocent women and girls are not arbitrarily arrested, abused and falsely charged, particularly women from marginalized groups and women in prostitution, including through any raids conducted by law enforcement authorities with a view to dismantling trafficking networks.
By qualifying rights protection for women in the context of anti-trafficking efforts with the word ‘innocent’, the general recommendation reinforces patriarchal and discriminatory gender stereotypes.
(iii) Non-criminalization and non-conditionality
The section addressing non-criminalisation and non-conditionality potentially sets out the most progressive provisions in the general recommendation as it gives full recognition to the reality that the criminal justice system in most instances leads to further victimisation of trafficked women. It also sets out comprehensive measures that take into account the range of factors that impact women’s right of access to justice in the context of trafficking.
98.Ensure that all women and girl victims of trafficking, without exception, are not subject to arrest, charge, detention, prosecution or penalty or are otherwise punished for irregular entry or stay in countries of transit and destination, absence of documentation, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as victims of trafficking. The non-punishment principle must:
(a) Be enshrined in legislation and implemented through proper training to ensure responders are able to identify trafficking victims for such relief;
(b) Not compel victims to provide evidence or testimony in exchange for immunity from prosecution redress or services;
(c) Provide recourse for trafficking victims to clear their criminal records in cases where they have been convicted of crimes that were committed as a direct consequence of being a victim of trafficking.
F. Treaty ratification or accession
(h) 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.
By calling on States to ratify the 1949 Convention, the general recommendation is endorsing its colonial, racist and patriarchal underpinnings and regressing its own standards on trafficking.
First published on iwraw-ap.org