How Women rights are violated in Nepal

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Hum Rights Rev (2010) 11:491–513
DOI 10.1007/s12142-010-0162-y
Cross-Border Trafficking in Nepal and India—Violating
Women’s Rights
Tameshnie Deane
Published online: 15 April 2010
# Springer Science+Business Media B.V. 2010
Abstract Human trafficking is both a human rights violation and the fastest
growing criminal industry in the world. This article examines cross-border
trafficking of girls and women in Nepal to India. It gives a brief explanation of
what is meant by trafficking and then looks at the reasons behind trafficking. In
Nepal, women and children are trafficked internally and to India and the Middle East
for commercial sexual exploitation or forced marriage, as well as to India and within
the country for involuntary servitude as child soldiers, domestic servants, circus
entertainment, and factory workers. Nepal and India are both signatories to
international conventions and bound by domestic law to combat trafficking, and
yet, this scourge continues. There are many laws in place, both in Nepal and India,
which regulate the trafficking and prostituting of girls and women. This article looks
at how effective these laws and regulations actually are and will look at the reasons
for the continuation of trafficking. Despite the formal recognition of girl trafficking
as a major problem and the existence of laws to curtail it, trafficking continues. The
major problem with Nepal’s and India’s domestic laws is in the lack of enforcement.
Finally, this article will look at ways to fight trafficking and make the governments
of India and Nepal more effective in their fight against trafficking.
Keywords Trafficking . Commercial sexual exploitation . Slavery . Sale of humans .
Human rights
List of Acronyms
CATW
Coalition for trafficking in women
CEDAW Convention on the elimination of all forms of discrimination against women
CRS
Congressional Research Service
ECOSOC United Nations Economic and Social Council
HRW
Human Rights Watch
T. Deane (*)
Department of Criminal and Procedural Law, College of Law, University of South Africa,
PO Box 392 Unisa 0003, South Africa
e-mail: Deanet@unisa.ac.za
492
ICCPR
ICESCR
ILO
IOM
IPC
NGO
OHCHR
UBINIG
UN
UNICEF
UNIFEM
UNODC
US
USAID
SAARC
T. Deane
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights
International Labor Organization
International Organization for Migration
Indian Penal Code
Non-governmental organization
Office of the High Commissioner for Human Rights
Unnayan Bikalper Nitinirdharoni Gobeshona (Policy Research for
Development Alternatives)
United Nations
United Nations Children’s Fund
United Nations Development Fund for Women
United Nations Office on Drugs and Crime
United States
United States Agency International Development
South Asian Association for Regional Cooperation
Background
Human trafficking is a complex and widespread problem. It is the world’s third
largest organized crime after drugs and arms trafficking (US Department of State
2009). Both men and women are victims of trafficking, but the primary victims
worldwide are women and girls who are made particularly vulnerable to this practice
due to the persistent inequalities they face in status and opportunity.1 Trafficking in
persons is an increasing problem that involves both sexual exploitation (Asia
Foundation 2008) and labor exploitation of its victims (Library of Congress 1991).
The majority of women and girls are trafficked for the purpose of sexual exploitation
(UNIFEM 1998). This article focuses on trafficking of women and girls because
they make up the largest proportion of trafficked persons (UNODC 2009) and “the
effective suppression of trafficking in women and girls for the sex trade is a matter of
pressing international concern”.2 Trafficking in women is a complex issue with
many factors that affect a woman’s decision to go abroad. Perhaps one strong factor
arises out of a desperate economic situation, which impacts the availability of
suitable employment for women more severely than for men.3 Although trafficking
seems to imply people moving across continents, most exploitation takes place “inhouse.” It has been reported that intra-regional and domestic trafficking are the
major forms of trafficking in persons.4 Trafficking in persons must be viewed within
the context of international and national movements and immigrations that
increasingly are being undertaken owing to “economic globalization, the feminiza-
1
US Department of State Trafficking in Persons Report (2007) at http://www.state.gov/g/tip/rls/tiprpt/
2007/. (Trafficking Report 2007). Traffickers primarily target women because they are disproportionately
affected by poverty and discrimination, some of the factors that hamper their access to employment,
educational opportunities, and other resources.
2
Beijing Platform for Action The Fourth World Conference on Women (1995) chap. I para 122.
3
At http://www.adb.org/Human-Trafficking/adb-ht-asia.asp.
4
UNODC (2009) op cit (n 6).
Cross-border trafficking in Nepal and India
493
tion of migration, armed conflict, the breakdown or reconfiguration of the State, and
the transformation of political boundaries” (Coomaraswamy 1997).
Trafficking in Nepal to India
The Kingdom of Nepal is a landlocked country bordered to the north by the People’s
Republic of China, and to the south, east, and west by the Republic of India (United
Nations Development Program 2008). The trafficking problem is particularly acute
in Nepal, with 42% of its citizens living below the poverty line (Horizons The Asia
Foundation 2001). Human trafficking is both a human rights violation and the fastest
growing criminal industry in the world (Bechard 2006). The international trade in
human beings is on the increase, and the trafficking of hundreds of thousands of
women and girls for forced prostitution is one of the most difficult to fight. In South
Asia, Nepal remains the top country that carries the burden of worldwide child and
women trafficking5 followed by India.6 India is the biggest foreign destination for
victims (Thaindian News 2009), with an estimated 10,000–15,000 Nepali women
and girls being sold there annually.7 Over the years, India has emerged as a source,
destination, and transit country for human trafficking.8 The incidences of crossborder trafficking, especially women and children trafficked between Nepal–India,
has been on the increase in recent years (Choudhury 2009).
In Nepal, women and children are trafficked internally and to India9 and the
Middle East for commercial sexual exploitation or forced marriage, as well as to
India and within the country for involuntary servitude as child soldiers, domestic
servants, and/or factory workers.10 This is what is referred to as a modern-day form
of slavery.11 Nepalese women are trafficked to India and to countries of the Middle
East mainly for commercial sexual exploitation (Gaon et al. 2006). Young girls,
usually between the ages of 9 and 16 years, are sold across the border to brothels in
India, where prostitution is legal.12 They often have to work between 14 and 18 h/day
offering commercial sex for which they are not paid. The trafficking of girls from
Nepal into India for the principle purpose of prostitution is perhaps the busiest “slave
traffic” of its kind anywhere in the world (McGirk 1997).
5
At Population Council http://www.popcouncil.org/countries/nepal.asp (2002–2008).
Thaindian News India Becoming Hub Of Child Sex Abuse: Apex Court (January 29, 2010) at http://www.
thaindian.com/newsportal/uncategorized/india-becoming-hub-of-child-sex-abuse-apexcourt_100311709.
html#ixzz0fxcEh8vp
7
Thaindian News India Has Failed To Implement Human Trafficking Laws (June 19, 2009).
8
Trafficking Report 2009 op cit (n 1).
9
Thaindian News June 17, 2009 op cit (n16).
10
UNODC (2009) op cit (n 6). According to the report the most common form of human trafficking is
sexual exploitation which makes up 79% of the victim population, followed by forced labor at 18% which
is less frequently detected and reported than trafficking for sexual exploitation.
11
US Office to Monitor and Combat Trafficking Trafficking in Persons Report (2005). The current UN
definition of “slavery” is comprehensive. In addition to traditional slavery and the slave trade, these abuses
include, but are not limited to the sale of children, child prostitution, pornography, child labor, the use of
children in armed conflicts, debt bondage, the traffic in persons and in the sale of human organs and the
exploitation of prostitution. See also UN Fact Sheet Contemporary Forms of Slavery (2005) V(14).
12
Thaindian News June 17, 2009 op cit (n16).
6
494
T. Deane
Extent of Human Trafficking
Human trafficking not only deprives people of their human rights and freedom but
also increases global health risks, and it fuels growing networks of organized
crime.13 One question that repeatedly arises in discussions of trafficking concerns
the extent of trafficking. Estimates of the number of trafficked persons vary
widely.14 The disparity can be clarified in part by the fact that since trafficking
involves various illegal activities, there are no official statistics available. However,
the disparity is also the consequence of widely differing interpretations of what it
means to be trafficked. For example, those who believe that all women who are
brought to another country to work as prostitutes are trafficked will definitely have
much larger numbers of trafficked persons than those countries that accept that a
woman can consent to work as a prostitute (Canadian Council for Refugees 2009).
According to the United Nations (UN), approximately four million women,
children, and men are victims of international trafficking each year.15 Millions more
are trafficked within their own countries. 16 It is estimated that between 7,000 and
10,000 girls, between the ages of 9 to 16 years, are trafficked each month from
Nepal to India (World News 2009). Over 200,000 girls have been trafficked to
India’s red light areas alone.17 In Nepal and around the world, trafficking has
become a highly profitable business (Hughes 1999). On a daily basis, the country
receives children from Bangladesh and Nepal and sends the women and children to
Middle Eastern countries (CATW 2007). An estimated 7,000 Nepalese women and
girls are trafficked for prostitution to the Asia Pacific area alone (CATW-Asia Pacific
and Philippine 1997). India, along with Thailand and the Philippines, has 1.3 million
children in its sex-trade centers. The children come from relatively poorer areas and
are trafficked to somewhat richer ones (Wadhwa 1998). In cross-border trafficking,
India is regarded as a “sending, receiving and transit nation” (Sinha 2006). A large
number of boys are being trafficked from Nepal to India, but unlike women
trafficking, which is mostly done to force them into prostitution, boys are being
trafficked primarily for cheap labor.18
Reasons for Trafficking
In order to take the right steps to combat human trafficking, the knowledge around
its nature, the underlying conditions, as well as the profiles of traffickers and victims
need to be improved.19 The UN Office on Drugs and Crime (UNODC)20 points out
that trafficking in persons is usually described in terms of the supply and demand
13
Trafficking Report 2009 op cit (n 1) at 1.
At http://www.ccrweb.ca/trafficking/learn.htm.
15
International Organization for Migration Counter-Trafficking Database—78 Countries, 1999–2006
(2006) at http://www.iom.int/jahia/Jahia/pid/748. (IOM Database)
16
UNODC Global Report of Trafficking In Persons (2009) at 6.
17
Ibid.
18
At http://www.mahilaweb.org/footer/news/apr_02/kathmandu_post.
19
UNODC 2008 op cit (n 35) at 11.
20
At http://www.unodc.org/unodc/en/about-unodc/index.html.
14
Cross-border trafficking in Nepal and India
495
factors that lead children and adults to leave or be removed from their place of origin
to a foreign place. Both supply and demand factors are usually seen as factors in
society that make people particularly vulnerable to human trafficking. For most
people, a powerful supply factor is the belief that there are better prospects in
another place. The supply factors as indicated below include, but are not limited to,
the following.
Supply Factors
Poverty, coupled with high unemployment rates, is the major factor contributing
towards a persons’ vulnerability to being trafficked.21 Due to high and persistent
unemployment, widespread poverty or a lack of economic opportunities, traffickers
use promises of higher wages and better working conditions in foreign countries to
tempt individuals.22 Families that see no economic opportunities within their
communities will occasionally place their children with families and friends in areas
where they believe the prospects for worthwhile employment may be greater.
Children in these communities are easy prey for traffickers who promise them trade
and work opportunities (Salah 2001). Trafficking can arise out of a variety of
situations such as commercial sexual exploitation, forced labor, under the pretext of
false marriages, adoption and crime and the direct selling of children into
prostitution by their families (Benninger-Budel et al. 1999). Traffickers lure innocent
women from Nepal with false promises of a job or marriage and sell them in
different brothels in India (Koirala 2004). These circumstances provide an “easy
passage in and out of India for organized human trafficking syndicates to operate
undetected” (The Morung Express 2009). Poverty-stricken parents have also sold
their children to traffickers to get out of debt and the poverty they face (Fitzgibbon
2003). Poverty and hunger also place women and children in situations where they
are forced to exchange sex for food, shelter, and survival (Pamela and Ken 2001).
According to the UN23 classification on the status of women in Nepal, the country
was shown as a rigidly patriarchic society, and in almost all phases of life, women
were commonly subordinate to men in the context of their access to knowledge,
economic resources, and political power, as well as their personal autonomy in the
process of decision making (Lewis 1991). The trafficking of young girls and women
is, therefore, linked to the low cultural and economic status in their lives (Aengst
2001). Since they have these limited economic opportunities, girls are especially
vulnerable to being trafficked unsuspectingly and in most cases forcibly.24
Other reasons for the high rate of trafficking can be attributed to the fact that in
Nepal and India, child marriage is accepted and considered the best way of acquiring
girls for prostitution.25 Parents themselves sometimes sell their daughters, while
husbands of trafficked women sell their unwanted wives to brothels for
approximately US$200 to $600. Parents sell their daughters because there is a
cultural preference for boy children. Girls are considered an additional economic
21
Trafficking Report 2009 op cit (n 1) 26.
Trafficking Report 2009 op cit (n 1) 7.
23
UNODC 2009 op cit (n6).
24
Wadhwa op cit (n36).
25
Sinha op cit (n37).
22
496
T. Deane
burden as parents must provide a dowry upon marriage26. Due to these limitations,
preferences, and stereotypes, girls in general have limited or no access to education
and healthcare and are more prone to undernourishment, poverty, and illiteracy.27
Trafficking is considered to be such a lucrative business that organizer’s in rural
areas, brokers, and even family members sell girls, and even boys are sold.28
As one of the most rapidly developing nations in the world, there are a variety of
factors that make India a country that is particularly prone to human trafficking.29
One of the reasons is attributed to India’s budding sex industry which makes young
Nepalese women susceptible to trafficking (US Report (Lead) 2009). India’s role in
the international economy has relative advantage in the availability of cheap labor.
This has the effect of decreasing wages and increasing the demand for child labor
and various forms of forced labor. The low wages in an average employment
situation makes the promises of higher paying jobs especially attractive. Therefore,
traffickers, especially those in the commercial sex industry, capitalize and use the
lure of more profitable opportunities to trick women into the profession.30
Another reason for the high rate of trafficking could be attributed to the open
border that Nepal shares with India.31 As the national border between Nepal and
India remains open and unregulated, a number of women and children are trafficked
to Indian brothels (Human Rights Advocacy 2008). Mumbai is one of the major
destinations of trafficking victims, due to the city’s rapid economic growth and
increasing population caused by migration. It would seem that trafficking is made
easy because of the 1,740-mile-long open border between India and Nepal.32 The
open border agreement33 between Nepal and India was designed to facilitate trade
and transit between the two countries but now merely enables traffickers to easily
transport victims from Nepal to India.34 The trade agreement has specified the agreed
routes for mutual trade. But there is no agreement regarding movement of the people
and the agreed routes for movement of people of both countries along the border
(Kansakar 1984). However, the increasing mass departure of Nepalese labor via illegal
means to third countries has further exposed women to human rights violations by
26
Dowry or Dahej is the payment in cash or/and kind by the bride’s family to the bridegroom’s family
along with the giving away of the bride (called Kanyadaan) in Indian marriage. Kanyadanam is an
important part of Hindu marital rites. Kanya means daughter, and dana means gift.
27
Benninger op cit (n44).
28
McGirk op cit (n25).
29
Trafficking Report 2009 op cit (n 1).
30
Trafficking Report 2009 op cit (n 1).
31
Before the signing of the Sugauli Treaty between Nepal and India and subsequent demarcation of the
Nepal India boundary, there existed free and unrestricted movement of people of Nepal and India across
the border. It was almost impossible to control and regulate the movement of people along more than
1,400 km long border. Nevertheless, the main thoroughfare existed for social relations, cultural exchanges
(pilgrimages, festivities, fairs, etc.) and trade and commerce and they constituted the major road junctions
and places for levying customs duties. Nepal–India border is unique in the world in the sense that people
of both the countries can cross it from any point, despite the existence of border check posts at several
locations. The number of check posts meant for carrying out bilateral trade is 22. Police does not patrol the
check posts or paramilitary or military forces of either country; illegal movement of goods and people is a
common feature on both sides of the India–Nepal border. Kansakar VBS Nepal–India Open Border,
Prospects, Problems and Challenges (2001). (Kansakar)
32
Choudhury op cit (n19).
33
Kansakar op cit (n 60).
34
Trafficking Report 2009 op cit (n 1).
Cross-border trafficking in Nepal and India
497
employers. Poverty and conflict-induced displacement35 in Nepal has driven millions
of Nepalese to work abroad. This has led to an increase in the number of people
wanting to leave the country, and this has in turn led to the expansion of opportunities
for traffickers. Effective implementation of anti-trafficking policies can be hampered
by political instability and limited resources (USAID 2009). Authorities of both
countries and non-governmental organizations (NGOs) across the border area between
Nepal and India must develop an effective strategy of border surveillance to prevent
trafficking of women and children.
In most cases, efforts to fight trafficking in persons are usual …
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