"Uses of CEDAW in Addressing Trafficking in Women"[1]
Shanthi Dairiam, Executive Director

I. INTRODUCTION

The Convention on the Elimination of All Forms of Discrimination Against Women (the CEDAW Convention) as the sole international legal instrument specifically designed to protect women from continuing discrimination and human rights violations offers a wide range of action to be pursued by State parties in combating trafficking in women.

The CEDAW Convention was adopted by the General Assembly of the United Nations in 1979 based on a draft elaborated by the Commission on the Status of Women. In 1981, after 20 states deposited their instruments of ratification, the CEDAW Convention entered into force. The Committee on the Elimination of Discrimination against Women (CEDAW Committee) was subsequently established to monitor the implementation of the CEDAW Convention. Today, 171 State parties have ratified the CEDAW Convention, making it the second-most ratified Convention after the Convention on the Rights of the Child.[2] Due to the nature of some of the provisions, the CEDAW Convention is also the convention with the largest number of reservations.

Consisting of a total of 30 articles, the CEDAW Convention identifies specific areas of life where women do not yet enjoy full equality with men and requires State parties to eliminate such discrimination de jure as well as de facto[3]. Hence, the question arises, how can the CEDAW Convention be used to address the problem of trafficking in women.

From a glance at the individual provisions of the CEDAW Convention, the answer may seem obvious. Recognising the specific vulnerability of women to exploitation, Article 6 of the Convention requires State parties to suppress trafficking in and exploitation of prostitution of women. However, the strength of the CEDAW Convention lies in its framework of discrimination. The CEDAW Convention, taken holistically, provides many answers through different articles, when the problem is framed as discrimination. The CEDAW Committee, through its jurisprudence, has clarified the links between the CEDAW Convention and trafficking against women in General Recommendation No.19[4] and its review of state party reports.

This paper demonstrates a methodology for the application and use of the CEDAW Convention to address the problem of trafficking in women. The approach suggested is not to look for answers in individual articles but to address the problem as an issue of discrimination, drawing on the work of the CEDAW Committee. The individual complaints mechanisms recently introduced through the adoption of the Optional Protocol to the CEDAW Convention present survivors and advocates with an effective tool to address the wider issue of discrimination and is therefore explained in detail in this chapter.

II. THE CEDAW CONVENTION

A. Objectives

The CEDAW Convention aims at guaranteeing full protection of women's human rights. It is the starting point for eliminating discrimination against women in all spheres of life, in the family, in the community and in the workplace. It ensures equal participation in political and public life and aims at lifting cultural and traditional burdens placed on women. By emphasising the position of women both in public and private life, the CEDAW Convention reflects the recognition that women encounter discrimination in law and in fact in all aspects of life. As such, it is the first human rights treaty, which goes beyond imposing state obligation in the field of public life to require State parties to undertake a series of measures to ensure equality in private life. By outlining specific measures to be taken by State parties to achieve this, the CEDAW Convention provides State parties with an agenda for action at the national level and is thus more than simply an international bill of rights for women. As a result, the CEDAW Convention is a unique tool to ensure full and equal participation and enjoyment of rights of women in all spheres of life, thus reducing their vulnerability to abuse and exploitation.

B. Key Provisions

The CEDAW Convention highlights measures to be undertaken by State parties to end discrimination in 14 substantive articles covering three aspects of life of women. In short, these are civil and political rights and the legal status of women, reproductive rights and non-discrimination on the basis of culture and tradition. By ratifying the CEDAW Convention, State parties chose to be bound by these obligations. A substantial amount of these are relevant to combating trafficking if this struggle is placed within the framework of discrimination.

First of all, the CEDAW Convention explains the concept of discrimination.

This definition spells out in detail the meaning of discrimination against women. It highlights three ways in which different treatment on the grounds of gender can constitute discrimination:

As a result, any act of restriction, exclusion or distinction, whether intentional or unintentional, that impedes the recognition of women's human rights or denies women the exercise of any such right is discrimination. This definition is applicable to all provisions of the CEDAW Convention.

To realise the full protection and enjoyment of human rights of women, Article 6 requires State parties to undertake measures to suppress traffic in and exploitation of prostitution of women, as this impedes the exercise of their human rights.

 

This article spells out obligations placed on State parties to take action in various areas, including, but not limited to, national legislation. In fact, State obligation extends to other areas such as law enforcement as well as underlying issues, for instance social and economic factors, which render women vulnerable to exploitation.

However, to guarantee a multi-faceted approach to combating trafficking, it is recommended not to make use of one particular CEDAW Convention provision alone, but to use the CEDAW Convention as a whole and place the problem of trafficking in women within the wider context of discrimination against women.

As a first step, this requires showing trafficking against women is indeed a form of discrimination. Consequently, we have to establish which rights of women are denied or infringed over the course of the trafficking cycle. Breaking down the trafficking cycle into separate human rights violations reveals which human rights of women are infringed when women are deceived or lured into leaving their home out of economic despair or simply have no other option, when their passports are seized and they are forced to perform a job they never wanted or subject to conditions never agreed to. This, in turn, allows us to seek a wide range of remedies. The comprehensiveness of the CEDAW Convention becomes an appropriate instrument to address the wide-ranging issues that need to be tackled when dealing with trafficking.

In establishing which rights are violated during the course of the trafficking process, it is useful to turn to the General Recommendations espoused by the CEDAW Committee. Article 21 of the CEDAW Convention permits the CEDAW Committee to make suggestions and general recommendations based on the examination of State reports. However, in practice, the CEDAW Committee has made General Recommendations to all State parties on specific measures as warranted by the CEDAW Convention.

General Recommendation No.19 covers the issue of gender-based violence - a human rights violation not explicitly included in the CEDAW Convention. Paragraphs 6 and 7 clarify, however, that all forms of gender-based violence is discrimination and spells out the rights denied to women when they experience gender-based violence.

During the process of trafficking women, most, if not all of the above rights are violated. As a result, the definition of gender-based violence applies to trafficking in women. As such, trafficking constitutes discrimination against women. Consequently, many articles of the CEDAW Convention are applicable in relation to the rights violated.

In order to identify which articles are relevant, it is mandatory to look at the different levels of discrimination that constitute trafficking and closely analyse the circumstances surrounding and contributing to trafficking. For this we have to distinguish three stages (before, during and after) of the trafficking cycle during which women experience discrimination:

Discrimination is evident in all these aspects and they have to be addressed in a comprehensive manner. This approach prevents us from reducing the actions to combat trafficking to the immediate issues of rescue, repatriation and rehabilitation but helps us look at the social context that facilitates trafficking. It helps us further to look at the long-term issues of discrimination resulting in the denial of life chances to women that perpetuates the vulnerability of women to trafficking.

The denial-of-rights-approach compels us to not only provide services for the relief and rehabilitation of trafficked women, but to take additional punitive action against those responsible for the denial of rights and draw on accountability of those obligated to be duty holders to prevent trafficking, to punish traffickers and to provide other forms of remedies for survivors of trafficking. This approach is crucial for the deterrence of trafficking. If programmes to combat trafficking stop at rescue and rehabilitation initiatives, then nothing is being done about the nexus of collusion between law enforcers, traffickers, state officials and receivers of trafficked persons acting with impunity. The fact that nothing is done about them gives them the power to continue their criminal activity. Secondly, as a long-term measure, it is also imperative to engage in advocacy that will focus on the larger issue of the disadvantaged position of women such as their unmet needs for economic independence and their devaluation that puts them at risk of being trafficked.

Hence not only do we have to view trafficking in itself as discrimination but we also have to consider the discrimination that women face because they are women, which intensifies their vulnerability to trafficking. The CEDAW Convention has great relevance when this approach is taken.

What are the concrete issues to consider? The Foundation for Women and The Global Alliance against Traffic in Women, both based in Thailand, have mentioned the following factors and circumstances that need to be addressed. They include factors contributing to the vulnerable circumstances of women which increase their risk of being trafficked, abusive brokerage practices and deception during recruitment for work, abusive and exploitative work conditions, lack of support services for repatriation, and issues to be addressed regarding asylum seekers in receiving countries.

1. Causes of female labour migration and women entering the sex industry

2. Factors that facilitate trafficking: vulnerable circumstances of women

3. Forms of abuses

4. Problems upon returning home

C. Obligations for State Parties arising under the CEDAW Convention

All of the above issues including economic, social and cultural factors relevant for effective prevention and successful repatriation are part and parcel of the problems pertaining to trafficking against women. Therefore, the obligation to eliminate discrimination against women placed on State parties by the CEDAW Convention is applicable in its entirety. In addition, it is useful to refer to General Recommendation No.19 and to identify its relevant sections.

We have seen earlier that Article 1 of the CEDAW Convention and the definition of discrimination is central to the analysis of trafficking in women. More importantly, the prohibition of discrimination under the CEDAW Convention is not restricted to action by or on behalf of the state. Rather, the State has to ensure there is no discrimination by any person, organisation or enterprise - thereby extending State obligation into the private sphere of life. Furthermore, State parties are also responsible for modifying or abolishing existing customs or practices that constitute discrimination against women (Article 2e and f). Consequently, the responsibility to take action against all acts of abuse perpetrated by recruiting agents and unscrupulous employers falls on the State.

Secondly, Articles 3 and 4 require State parties to the CEDAW Convention to take all appropriate measures including changes in law and policy to ensure the full advancement of women as well as temporary special measures to accelerate women's de facto equality.

In the context of combating trafficking, such measures cover public information campaigns on the risks of trafficking and other preventive measures and extend to providing adequate support services for rehabilitation of victims and survivors of trafficking, half way houses and other refuges.

Thirdly, Article 5 obligates State parties to strive to eliminate traditional attitudes, which see women as inferior to men. This reflects the recognition that even if women's legal status is equal to that of men's, there is another level of discrimination which has to be eliminated: discrimination in the private sphere through adherence to cultural stereotypes and social patterns of behaviour.

Finally, several other substantive articles apply. These are, as mentioned earlier, the duty of State parties to suppress all forms of trafficking in women (Article 6), the obligation to ensure equality of women in the field of employment (Article 11), the right to equality in access to health facilities (Article 12), the responsibility of State parties to ensure equal development for rural women (Article 14), the right to equality before the law (Article 15) and equality in the family (Article 16).

In addition, sections of General Recommendation No.19 have great relevance and applicability in establishing measures to be taken in combating trafficking. Reference to the General Recommendation is important because it identifies a range of specific actions that need to be taken by the state to fulfill its obligation to respect, protect and fulfil women's rights. Its provisions complement the statement of rights and obligations contained in the CEDAW Convention. For example:

D. Implementing and Monitoring the CEDAW Convention

In line with monitoring systems of other international human rights treaties, Article 17 of the CEDAW Convention establishes the CEDAW Committee, which monitors the progress individual State parties have made in implementing their obligations arising under the CEDAW Convention. This takes place primarily by examining reports, which these states have submitted to the CEDAW Committee.

For a comprehensive understanding of the process and dynamics of the review, this section will explain the review procedure and consider the issues that emerge from the various stages of the review as suggestions and recommendations to combat trafficking in women.

The CEDAW Committee meets for a period of two weeks each year to discuss reports submitted by State parties, based on which it will suggest and recommend further action to be taken. In addition to state reports, the CEDAW Committee may also consider reports by United Nations specialised agencies as well as information from non-governmental organisations (NGOs). Through the Economic and Social Council, the CEDAW Committee reports once a year to the United Nations General Assembly as well as the Commission on the Status of Women.

Officially, the parties in the review process are the State party concerned and the CEDAW Committee. However, NGOs participate unofficially and provide valuable information to the CEDAW Committee, which helps to evaluate state performance in fulfilling state obligations under the CEDAW Convention. By stating problems and issues addressed by the state in question in direct relation to the article concerned, NGO reports, called shadow reports, can be extremely useful in assessing the factual situation of women in a particular country.[5]

All State parties to the CEDAW Convention are obligated to submit a report to the CEDAW Committee one year after ratification of or accession to the treaty. This report is called initial report and serves as a baseline for assessing progress in implementation. Thereafter, State parties are required to report on measures taken to implement the provisions as stipulated in the CEDAW Convention in a periodic report once every four years. In ratifying or acceding to the CEDAW Convention, all State parties have accepted these reporting obligations. However, resource and time constraints as well as lack of capacity present difficult challenges for compliance with this obligation. To overcome these challenges, State parties can ensure effortless collection of information from various ministries and government agencies by designating a reporting agency and ensuring effective collaboration of all agencies involved. It is furthermore suggested to include NGO's in this process, as they may be able to share a wide range of resources. To facilitate reporting in a consistent manner, the CEDAW Committee has established guidelines for State parties compiling reports. Accordingly, an initial report is best divided into two parts, one on the country's political, legal and social framework as a general introduction on areas and measures identified to implement the CEDAW Convention, and another on steps taken to comply with individual articles of the CEDAW Convention. To improve the timeliness and adequacy of reports submitted by State parties, the United Nations Division for the Advancement of Women organises training courses for government officials.[6] In addition, the United Nations Centre for Human Rights conducts training on reporting obligations under all major international human rights treaties, one of which is the CEDAW Convention.

In order to review periodic reports in a timely manner, the CEDAW Committee established a pre-session working group, which drafts questions based on the first reading of the State party's written report. These questions are sent to the reporting state six months in advance. This mechanism was introduced to allow reporting states to adequately prepare their replies. At the face-to-face review, the State party concerned is expected to present an oral report based on its written report combined with the answers to the questions of the pre-session working group. In this phase of the review, the CEDAW Committee engages in a constructive dialogue with the representatives of the State party concerned. The examination of State parties' reports is not intended as an adversarial procedure, which explains why the CEDAW Committee only points out in which areas the reporting state falls short of implementing the CEDAW Convention provisions through a series of questions and comments instead of exposing clear cut violations of the CEDAW Convention. Consequently, the review process is similar to an exchange of information and ideas resulting in a set of written conclusions and recommendations to the State Party concerned. These are called Concluding Comments.

In highlighting the reviews of four countries, the periodic reports of China and Thailand as countries of origin of trafficked women and that of Sweden and the Netherlands as receiving countries, this section will summarise relevant NGO information and issues that have emerged from relevant portions of these State reports. These countries have been chosen as examples, as it is vital to look at issues to be addressed at both ends and to hold both sets of states accountable[7] in addressing the problem of trafficking in women.

1. China[8]

During the CEDAW Committee session in January 1999, the CEDAW Committee reviewed the Third and Fourth periodic report of China. In addition to the steps taken to implement the CEDAW Convention as stated in the state reports, NGOs raised several issues with regard to trafficking in women in their shadow report.

1. 1. Issues raised by NGOs in the shadow report[9]

The numbers of reports of women and girls trafficked into the sex industry, domestic servitude, sham marriages, sweatshops and begging in the cities have been growing since the late 1980s and the incidence of kidnapping and selling of women in China's rural region has been on the rise since the beginning of that decade. A high proportion of women are trafficked domestically while there is also trafficking to other Asian countries including Cambodia, Singapore, Malaysia, Hong Kong, Japan and Taiwan. Many transit through Thailand. Domestic trafficking takes place for the purposes of selling women into slavery to men who cannot find wives and for the purposes of the sex industry. The reason for the former practice lies in the fact that China has a shortage of women resulting from son preference. There have also been reports of women from Vietnam, and North Korea being trafficked into China and sold as "wives."

Most sources report that organised crime groups in China, Hong Kong and Taiwan play a major role in trafficking.

Victims are subject to extreme forms of abuse and slave-like conditions. Attempts at understanding trafficking and the social mobilisation to fight it are severely limited in part because of the restriction on the reporting of negative news.

Traditional attitudes mean that women and girls who have been trafficked and raped are forced to engage in prostitution, as they may not be able to return to their families. Services catering to trafficked women are often insufficient.

The vast majority of trafficked women are from rural impoverished families. As with all undocumented persons, there are major difficulties in repatriating trafficking victims from the countries in the region. In general, no distinction is made between trafficking victims, including minors, and other illegal immigrants/emigrants, either by the receiving country or the country of origin. If women and girls seek to return through the same illegal channels that brought them there, they usually have to pay a large sum of money to be transported back to China.

The process for rehabilitation is long and complicated, rehabilitation and reintegration services are lacking in China.

Enforcement of anti-trafficking laws is highly erratic and heavily dependent on the will of the local authorities. Traffickers and purchasers of women frequently rely on the collusion or active involvement of officials.

The continuance of the trafficking trade is attributed to economic factors, persistence of feudal customs, regional disparities in wealth, insufficient crackdown on traffickers, lenient punishment of purchasers and the collusion of officials.

1.2. Dialogue between the State party and the CEDAW Committee during the review

The CEDAW Committee expressed concern regarding the levels of poverty experienced by women, unemployment among women and the adverse effect of the economic reform on women. The CEDAW Committee was also concerned regarding the effect of the economic reform on social services. Further concerns were illiteracy among women, the education of girls and the lack of women in leadership positions. The CEDAW Committee enquired whether the definition of discrimination was included in the law and was also concerned about law enforcement. In particular, the Committee raised issues around the adequacy of legal remedies to protect the personal rights of women and in particular the rights of rural women as well as to protect women in the context of crime committed against them including trafficking and prostitution. The CEDAW Committee wanted to know the extent of violence against women, especially domestic violence, and the measures taken by the government to eradicate the stereotyping of women.

The State Party representative acknowledged that China was not entirely free from the remnants of the feudal age, and despite tremendous efforts by the Government to protect women and promote their full participation in development, the country was confronting a sobering reality of extensive female illiteracy, rural poverty and an increased incidence of domestic violence.

He pointed out that due to the structural adjustment in the economic reform and development towards a socialist market economy, the number of laid-off women workers had increased, and it was difficult for them to be rehired.

Because of their loss of independence and economic income, some women's status at home had become lower, which in turn had led to a greater frequency of family disputes, accompanied by domestic violence or family break-ups.

He further explained that employers of some private businesses and jointly or solely foreign- funded operations had ignored the provision of labour protection for women in favour of profits instead.

The Government was now undertaking vigorous measures to address the problems associated with the economic reform.

The review also brought up the fact that disrespect for and discrimination against women, as well as violations of their rights and interests, are not uncommon, and the overall talents and abilities of China's women also need further improvement.

It was discussed that violence against women had increased in recent years, and was manifested mainly by domestic violence, social violence - like trafficking, kidnapping, rape, and forced prostitution - and violence against women in the work place.

Poor economic development and women's reliance on men was an economic reason for domestic violence, as was the neglect by some people of their family responsibility; in some remote and poverty-stricken rural areas, some mercenary marriages as well as those formed on the basis of an arbitrary decision of a third party had also led to domestic violence.

The representative explained that at present, victims of domestic violence in both urban and rural areas could seek help from the police station, neighbourhood office or public security committee.

The representative also said that prostitution was illegal in China, and when seised by the police, both the prostitute and the client received the administrative penalty for violating public security, including administrative detention and the imposition of a fine; there was no law in China permitting the opening of a brothel, and organising, forcing, seducing, sheltering or introducing a woman to prostitution or introducing a man to engage in whoring was a crime;

Over the years, the Chinese Government had devoted itself to the protection of women's human rights and legal interests through legislation, and it had been giving much more importance to the crackdown on trafficking.

It was reported that regarding women's personal rights, all law enforcement departments had been taking tough measures and had organised special crackdowns on criminal activities of causing injury or death of women. As a result of those efforts, the cases of trafficking in women and children had been reduced in the last five years.

It was further reported that the Chinese Government has dedicated itself to developing the economy, strengthening the legal system, eliminating all backward ideas that discriminate against women and fulfilling the strategic objectives of the Beijing Declaration and Platform for Action.

The representative explained that the Women's Act of 1992 did not contain a specific definition of discrimination, however its stipulations fully expressed the principle of combating gender-based discrimination.

Since the promulgation of the Law on the Protection of the Rights and Interests of Women, the National People's Congress had conducted two inspections on enforcement of the law.

Despite the further protection and strengthening of women's rights since the promulgation of the women's law, the representative acknowledged that some problems deserved continued serious attention, such as the shortfall of women in politics, the difficulties for laid-off female workers, and the rise of domestic violence. There was still a long way to go before the various forms of discrimination against women could be eliminated and gender equality could be fully realised. However, China had the determination and the confidence to reach that lofty goal and it welcomed the support of the international community.

The representative stated that the main measures undertaken by the Government to modify stereotyping of women included advocacy and educational campaigns, training and education programmes, and the elaboration of the programme for the development of Chinese women from 2001 to 2010. To encourage women to receive higher education, attention was given to the nurturing and building up of a sense of gender equality among students in primary schools, middle schools and universities. Girls were encouraged to engage in experiments and activities relating to science and technology, and to take non-traditional subjects.

He also stated that Chinese women today faced bitter clashes between family responsibilities and competition for employment. In the tide of a market economy, women in China did not want to lag behind, a member of the Chinese delegation told the CEDAW Committee. Yet, Chinese women still needed to balance their traditional social and family roles with their emerging presence in the nation's development.

Several members of the CEDAW Committee expressed concern that such deep-seated prejudices would impede implementation of the CEDAW Convention. The challenges stemming from the economic transition, along with the sheer size of the population, were daunting. Those problems included illiteracy, unemployment, trafficking and the gap in development between rural and urban areas.

One CEDAW Committee member supported a holistic approach to the problems, and expressed disappointment that the most senior government organ to address women's issues was a national working committee on women and children. Had the CEDAW Convention ever been invoked? she asked. There were measures to fight trafficking, but those laws needed to be enforced. Meanwhile, the Chinese Government had no laws on domestic violence, and no shelters for the victims of such abuse. Also absent was labour protection in private enterprise and its enforcement for women who were particularly vulnerable to exploitation as a result of the new economic reforms. The legislation to deal with the problem of land ownership had seemed appropriate, but the de facto situation was very different. Even today, when women in China changed their marital status, they lost their rights to land.

The status of illegal children, many of them girls, was also a deep concern. Those were apparently unregistered and, therefore, officially non-existent. Thus, they were not entitled to education or health care or any other basic necessities.

The CEDAW Committee stated it had heard of consistent reports of abuse of power by local officials in implementing their policies, including serious violations of human rights. She had heard about forced abortions and sterilisations; about the detention of citizens in order to implement the family planning policy; and about housing that had been demolished to punish those who had exceeded the quotas. While the Government claimed it did not condone such measures, it needed to make clear that those measures were prohibited. Moreover, it must take administrative or other sanctions against officials operating outside their authority.

If, as the Government had said, sex-elected abortion and the abandonment of children were illegal, it needed to prohibit those activities. The CEDAW Committee pointed out that to break the cycle of violence and introduce the discourse of human rights into Chinese culture, the Chinese government was asked to "just read the Convention; read it again and again and again, and think about what it means".

1.3. Concluding comments

(a) General matters pertaining to discrimination and the status of women

The CEDAW Committee notes that the persistence of prejudice and stereotypical attitudes concerning the role of women and men in the family and in society, based on views of male superiority and the subordination of women, constitutes a serious impediment to the full implementation of the CEDAW Convention.

The CEDAW Committee is concerned that the Government's approach to the implementation of the Convention has an apparent focus on the protection of women rather than on their empowerment. Thus, the central machinery responsible for government policy is the National Working Committee on Women and Children, perpetuating the identification of women with children. Likewise, labour laws and regulations overemphasise the protection of women.

The CEDAW Committee recommends that the Government re-examine its approach to realising gender equality, with an emphasis on the human rights framework of the CEDAW Convention and the empowerment of women. The Government should encourage a countrywide social dialogue that advocates equality between women and men, and a comprehensive public campaign aimed at changing traditional attitudes.

The Women's Law does not contain a definition of discrimination against women. It is also concerned that the Women's Law does not provide for effective remedies in cases of violation of the law. It is unclear whether the CEDAW Convention can be, or ever has been, invoked in a court of law, and what the outcome of such cases might have been.

The CEDAW Committee recommends that the Government adopt legislation that expressly prohibits gender discrimination, including unintentional and indirect discrimination, in accordance with the definition in Article 1 of the CEDAW Convention. It also recommends that the Government improve the availability of means of redress, including legal remedies, under the Women's Law. The Government should provide legal aid to women who suffer discrimination in its various forms, to assist them in the realisation of their rights. It should also widely publicise all these measures so that adequate enforcement of the law can be ensured. The CEDAW Committee recommends further that the Government adopt measures and allocate resources at both the central and provincial levels to monitor implementation of the various laws on gender equality.

The CEDAW Committee notes with concern the adverse impact of economic restructuring on women in the transition from a planned economy to a market economy, and in particular the gender-specific consequences for women's employment and re-employment. The rising unemployment of women, difficulties in finding new employment, the lack of enforcement of labour laws for women workers and the continuing categorisation of certain jobs as unsuitable for women are of particular concern. The CEDAW Committee is concerned that retraining of unemployed women for jobs in the service sector may lead to further gender segregation of the labour market, with women being trapped in low-wage sectors. The CEDAW Committee notes with concern that women are faced with age discrimination as they seek re-employment. It is also concerned that an overemphasis on the protection of, rather than equal opportunities for, women in the labour market perpetuates stereotypes and creates additional obstacles for women competing in a market economy. The CEDAW Committee notes that the situation of women workers in special economic zones also remains a concern.

The CEDAW Committee urges the Government to analyse, from a gender perspective, the effects of its economic policies, and to take steps to mitigate and counteract their negative effects on women. In addition to enforcing existing labour laws, the CEDAW Committee invites the Government to increase women's means of redress against discrimination and inequality at work, including by promoting the recognition of women's right to participate in workers' organisations and their right to strike.

The CEDAW Committee is concerned about the consequences of women's loss of employment, or of interrupted employment, on women's rights to housing, health care and social security.

The CEDAW Committee considers that the gap between the situation of women in urban areas and those in rural and remote areas constitutes a major obstacle to the full implementation of the CEDAW Convention.

The CEDAW Committee is concerned about the disproportionate persistence of illiteracy among rural women and among ethnic and religious minorities. It recommends that the Government adopt a specific time frame, with budgetary and resource allocation, for the achievement of universal literacy and primary education.

The CEDAW Committee is concerned about the growing disparity in the male/female sex ratio at birth as an unintended consequence of the population policy, owing to the discriminatory tradition of son preference. The shortage of females may also have long-term implications regarding trafficking in women.

The CEDAW Committee is concerned about illegal practices of sex-selective abortion, female infanticide and the non-registration and abandonment of female children. Furthermore, it is concerned about the status of "out-of-plan" and unregistered children, many of them girls, who may be officially non-existent and thus not entitled to education, health care or other social benefit. The Government should address linkages between economic security in old age and its family planning policies. In addition, it should take all appropriate measures to modify and eliminate son preference, inter alia, by expanding educational and employment opportunities for women in rural areas, enforce laws against sex-selective abortion, female infanticide and abandonment of children and remove all legal disabilities form "out-of-plan" and unregistered children.

(b) Specific to trafficking

The CEDAW Committee expresses concern about reports in some localities of officials who are involved or colluding in the trade in women, including through payment from prostitutes and urges the government to investigate and to prosecute all guilty parties.

The CEDAW Committee is concerned that prostitution, which is often a result of poverty and economic deprivation, is illegal in China.

The CEDAW Committee urges decriminalisation of prostitution and measures for the rehabilitation and reintegration of prostitution including provision of health services.

A reading of the issues raised in the NGO shadow report provides an overview of the problem of trafficking in women and children in China. In its review of progress in China, the CEDAW Committee takes up some of the issues and suggests social services for survivors of trafficking be provided by the government. It also urges the government to take action in connection with allegations of officials colluding in trafficking in women.

Now that these issues have been established as areas mandating action, it becomes clear which article is applicable in this context. Identifying elements of the problem of trafficking and relating them to a particular article of the CEDAW Convention is essential in combating trafficking in women through the use of the CEDAW Convention. For example, where collusion between traffickers and state officials exists, Article 2(d) must be used to challenge this collusion. This article reads:
(...) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (…)

2. Thailand[10]

During the Committee session in January 1999, the CEDAW Committee reviewed the Second and Third periodic report of Thailand. In addition to the steps taken to implement the CEDAW Convention as stated in the state reports, NGOs raised several issues with regard to trafficking in women in their shadow report.

2. 1. Issues raised by NGOs in the shadow report[11]

Thailand is a country of origin, transit and destination for trafficking in women. It is difficult to make any reliable estimate of the number of trafficked persons, as it is an illegal activity, it is not recorded in any official statistics and the absence of a clear definition adds to the problem.

The trafficking of women in Thailand is closely connected with female labour migration and migration for sex work both domestically and cross-border.

Factors for female labour migration include, the collapse of rural livelihood, daughters being pressured to migrate to fulfil the family's economic needs and in some instances being encouraged/pressured by parents to enter sex industry, traditional values which place an obligation on daughters to care for the family.

Trafficking occurs for different purposes including different forms of forced labour, servile marriage and forced prostitution. The contexts of trafficking are also related to the issue of illegal migration, illegal migrant workers and illegal work. Opportunities for work for women are limited to low paid jobs with substandard working conditions. While increasing number of women seek to migrate overseas for work the channels for official work contract are limited. All of this is in turn linked to low education, gender roles and gender ideology. Other contexts are demand for services in the sex industry, violence in the family and failure of the marriage, lack of social support for women in difficult circumstances and complicity of government officials.

Despite changes in the laws on prostitution to target brothel owners and procurer of girls into the sex industry, in practice only a few of such people have been prosecuted.

The Suppression of Trafficking in Women and Children Act lacks concrete measures or procedures that compel concerned government agencies in handling cases of trafficking with a view of providing assistance to victims of trafficking rather than punishing them as illegal migrants.

Limited cooperation has been initiated between Thailand as a country of origin and countries of destination where Thai women are trafficked into in terms of detecting the trafficking network and in terms of assisting victims of trafficking.

2.2. Dialogue between the State party and the CEDAW Committee during the review[12]

The concerns of the CEDAW Committee included the effectiveness of the implementation of provisions in the constitution to prohibit discrimination against women on the basis of sex and marital status,[13] the measures to change attitudes that reinforce stereotypes or lead to stereotyping with respect to girls and women, the government efforts to address negative attitudes towards girls who wish to study or work in non-traditional areas, details of the legislation, including the Act on the Prevention of Traffic in Women and Children, adopted by the Government of Thailand to prevent prostitution[14] and trafficking in women and girls, the implementation of this legislation and the obstacles to its implementation and the sanctions for trafficking. The CEDAW Committee also wanted to know the extent of sex tourism in Thailand and the measures, including laws, to address sex tourism, laws and policies aimed at protecting girls and women from labour agencies involved in trafficking, methods employed to estimate the numbers of women trafficked abroad as well as methods for monitoring patterns of immigration and emigration and the major obstacles to the elimination of trafficking in women.

While the new Constitution was impressive in its steps forward in the areas of anti-discrimination and employment equality, the CEDAW Committee deplored the absence of any definition of discrimination, as defined in article 1 of the CEDAW Convention. Thus, the treaty did not have the force of a legal instrument in Thailand.

Concerning the legality of the CEDAW Convention in Thailand, the State party representative said that none of the international legal instruments had legal status in the country. Rather, they were being used as a reference point to change existing laws and regulations, and had been successful in many instances.

The representative noted that in 1988 anti-discrimination legislation had been proposed but had been rejected by legislators because the new constitution prohibited discrimination on the basis of sex. Since the submission of Thailand's report, there had been significant changes related to the problems of exploitative commercial sex and trafficking of women and children The representative elaborated on three revised laws: the Prostitution Prevention and Suppression Act of 1996; the Prevention and Suppression of Trafficking in Women and Children of 1997; and the Penal Code Amendment Act. In addition, the National Commission on Women's Affairs was in the process of formulating the National Plan of Action for Trafficking of Women and Children, to deal with illegal women migrants who were trafficked into Thailand, using Thailand as a receiving, transiting or sending country. It was reported that enforcement of these laws is a major problem.

While there was a need for an anti-discrimination code in Thailand, there were many difficulties being faced in that regard, she said. For the time being, the National Youth Bureau was trying to come up with one comprehensive code for children's rights. If that were successful, then an anti-discrimination code for women would be pursued.

Although there is no legal definition of discrimination in Thailand, according to the report, the influence of the CEDAW Convention has led to it being widely accepted as a de facto standard, and the definition used in the CEDAW Convention is expected to be used in drafting the proposed anti-discrimination law. In 1994, following campaigns by non-governmental organisations (NGOs) and the National Commission on Women's Affairs, a provision specifically providing for equality between men and women was re-incorporated in the Thai Constitution. While all de jure discrimination against women by the Government has now been abolished (with the exception of within the police and armed forces), considerable de facto discrimination remains. Overall, women tend to be concentrated in lower status and lower paid positions, which reflects historical inequalities in access to education, but also their higher level of involvement in the informal sectors of the economy.

Regarding legislation, the CEDAW Committee recommended that there should be a comprehensive anti-discrimination law for the entire country. Since the Thai representative had stated that a children's code was being pursued first, it would be crucial to include a definition of discrimination that covered both intentional and unintentional discrimination. Unless that definition was included, the Government would only skim the surface of discrimination, and not reach the hidden areas.

As stated in the State party report, the exploitation of prostitution and trafficking in women are major human rights problems in Thailand. Deep-rooted social attitudes such as the condoning of prostitution by men and women as a male privilege, and the daughter's duty to take care of her family make it very difficult to implement appropriate measures, which can be used to effectively suppress them. Such attitudes are difficult to change. The Women's Commission (NCWA) and NGOs have been working towards enactment of a new law, which will further strengthen penalties and renew the State's prohibition of child prostitution.

A further problem arises from the very high value still placed on a woman's virginity. This may leave a girl or woman, who has been abused within her family, involved in an illicit relationship or who has been raped, with very low self-esteem and feeling her future fate is not important, making her an easy victim for traffickers.

The representative continued that to ensure women and girls have an alternate source of income, vocational training is being provided, particularly in areas known to be important sources of sex workers, to try to assist vulnerable women and girls to remain in their villages and earn a reasonable income. It is hoped that family education programmes, such as that focusing on "One Man, One Wife", will also help reduce the demand for commercial sex services.

The CEDAW Committee pointed out that the court procedure for enforcing the new Constitution seemed weak. In the area of the protection and promotion of employee's rights, the Government did not seem used to making policy changes in the public sector, and there was no relief in the private sector in that regard. The CEDAW Committee emphasised that it was important to introduce new anti-discrimination legislation, the much talked-about issue of trafficking of women and young girls and the human rights of minority groups also called for concrete measures. In addition, the new child labour protection act must be enforced. The new legal age for children to work was 15, but that was still too young.

With regard to the decriminalisation of prostitution, the representative said that, in formal law, the penalties rested only on the commercial sex workers, and not on the pimps and customers. The police went after the workers, not in an attempt to legalise prostitution, but rather to decriminalise it. If the women were over the age of 18 and were not forced into prostitution, then they were charged a fine and let go. The parents of girls forced into prostitution were also subject to imprisonment. The CEDAW Committee asked why the workers were charged at all. It was replied that lawmakers felt that if they were fined, then it would be possible to send them to shelters, where they could receive assistance and education. If they were not charged, then the police would have no basis on which to detain them. The representative agreed that there was a need to address the demand side of trafficking and prostitution.

The State party representative stated that it takes "two to tango" when he spoke on the issue of cross-border prostitution. "We don't like to see those kinds of things", as those had political repercussions and often undermined international relations. Similarly, there were two sides to deal with in order to combat the economic problems: the demand side and the supply side.

The representative also stated his country had actually dared to propose a national symposium on migration to address the cases of undocumented working men, women and children, in an attempt to find ways to manage the flow. The issue had to be handled at the source, and the worse sort had been the traffickers. For that reason, last year the Foreign Affairs Ministry had worked hand in hand with various agencies, particularly the Women's Commission, to treat women and children who had arrived on Thai soil as victims of trafficking, rather than wrongdoers. The slow but successful passage of a related law had been one step forward. The next step was to raise awareness on the other side of the border that trafficking and placing one's children into the oldest profession in the world was not the way to raise them.

The CEDAW Committee noted that with regard to trafficking and prostitution, that there would not be incentives for sex tourism if there were effective controls. Perhaps, what was needed in addition to legislation was the necessary administrative apparatus to raise awareness among the public.

The CEDAW Committee was of the view that it was plain to see there were very traditional ways of looking at things, by the vast majority of the population and possibly also by the authorities, another expert noted. Clearly, women in the country were subordinate to men. In some instances, the national legislation had stipulated equality, but when it came to apply it, social prejudices predominated. Although points had been made on paper, women's rights were not being translated into practice. Examples included the large number of girls who had dropped out of schools and the very strong preference for sons in Thai society.

2.3 Concluding comments

(a) General matters pertaining to discrimination and the status of women

The CEDAW Committee expresses its concern at the lack of effective law enforcement mechanisms and the lack of cases filed by women in the courts on the basis of constitutional guarantees. The CEDAW Committee urges NCWA to study constitutional developments in other countries and practical ways of strengthening the capacity of women to use the Constitution to ensure gender equality.

The CEDAW Committee remains concerned that the CEDAW Convention is not directly applicable in the courts in Thailand and that there is no separate law exclusively dealing with discrimination against women. The absence of a definition of discrimination congruent with the CEDAW Convention in the Constitution is also of serious concern.

The CEDAW Committee recommends the introduction of specific anti-discrimination legislation in compliance with article 1 of the CEDAW Convention.

The CEDAW Committee is concerned that traditional stereotypes of women and men are reflected in some laws and portrayed in school text books and through the media, thereby undermining positive policies relating to gender equality.

The CEDAW Committee urges that a review be made of laws and policies and school text books in order to remove gender stereotypes and to include women's human rights issues. . It also recommends that the media be encouraged to portray girls and women in non-stereotyped ways.

The CEDAW Committee encourages the Government to give full attention to the needs of rural women and to ensure that they benefit from policies and programmes in all areas, in particular access to decision-making, health, education and social services.

Noting the prevailing traditional attitudes affecting the advancement of Thai women, the CEDAW Committee recommends that sensitisation programmes for policy makers, administrators, legal personnel and other professionals involved in the health and education sector be provided.

The CEDAW Committee is concerned about the under representation of women in politics and decision-making structures, including the judicial system. It emphasises the importance of fostering a political and social environment conducive to women's promotion in all sectors of public and private life. The CEDAW Committee recommends the introduction of affirmative action policies or temporary special measures in accordance with article 4, paragraph 1, of the CEDAW Convention, with goals and timetables to address the situation.

The CEDAW Committee emphasises the importance of fostering a political and social environment conducive to women's promotion in all sectors of public and private life. The CEDAW Committee recommends the introduction of affirmative action policies or temporary special measures in accordance with article 4, paragraph 1, of the CEDAW Convention, with goals and timetables to address the situation.

(b) Specific to trafficking

The CEDAW Committee expresses its concern about the status of women migrant workers. In particular, the CEDAW Committee is concerned about cross-border trafficking in women and girls, forced prostitution and the commercial sex industry.

The CEDAW Committee strongly recommends that the Government consider the issue of migration and commercial sex work as a critical human rights issue.

The CEDAW Committee recommends that the Government explore the possibility of cooperation with other countries and coordination with non-governmental organisations when introducing measures to address the issue.

3. Sweden[15]

During the CEDAW Committee session in July 2001, the CEDAW Committee reviewed the fourth and fifth periodic report submitted by Sweden. NGO shadow reports provided useful information in addition to the measures presented by the Government representatives.

3.1 Issues raised by NGOs in the shadow report[16]

There is no specific legal provision on trafficking; the components of the crime- kidnapping, forced prostitution, slavery are punishable

In 1999 the parliamentary law commission defined trafficking but limited it to forced prostitution and omitted forced labour, marriage, debt bondage

Proposed law on trafficking criminalises the trafficker and not the trafficked but it is a crime only if the woman was unlawfully coerced or deceived or improperly recruited or transported. If the woman agreed to being transported she would be considered an illegal migrant and may be penalised; she may not get protection under the proposed law if she is abused or exploited or trafficked after she enters

Victims of trafficking should not be treated as illegal immigrants; should be given the option of seeking asylum

3.2 Dialogue between the State party and the CEDAW Committee during the review

The CEDAW Committee enquired into legislation Sweden is currently drafting concerning sex-related crimes. This law explicitly criminalising trafficking, but only when it ends in forced prostitution. The CEDAW Committee was concerned that such legislation would be inadequate to address the problem of trafficking, as it would create a narrow definition excluding other forms of trafficking and forced work.

The CEDAW Committee wanted to know whether the Government was collaborating with national, regional and international authorities to make bilateral and multilateral agreements in order to counter cross border trafficking and how the government would improve its investigations to ensure that asylum-seeking procedures were gender-sensitive.

In what way would the Government improve the right to work for legal immigrant women and minority women and what were the measures being taken by the Government to address the issue and status of illegal immigrant women.

The CEDAW Committee also wanted to know the measures in place to train the police, the judiciary and health and education providers on violence against women?

To a question about whether Sweden was a transition or destination when it came to trafficking in women, the State party representative said it was a destination. Some 200 to 500 women were trafficked into Sweden each year. The Government was working very hard to find solutions to that relatively new phenomenon.

Turning to the trafficking in women and children, the representative stated that in December 2000 the European Commission had proposed two framework decisions on trafficking in human beings and their sexual exploitation. A political agreement on the matter was reached during the Swedish presidency of the European Union - inter alia, on common definitions and victim support. One issue that remained to be resolved was the question of penalties. Sweden had also signed the Convention on Transnational Organised Crime and the supplementary protocol to prevent and punish trafficking in persons, the representative added.

The CEDAW Committee wanted to know how trafficked women were protected if they tried to free themselves and whether they would be given asylum.

The representative stated that in 1997, a new protection provision was introduced to the Aliens Act granting residence permits to individuals experiencing a well founded fear of persecution due to their gender or homosexuality. However, a recent survey showed that the new provision had been used in only a very limited number of cases since 1997. To better observe women's need for protection, it was important to train personnel handling asylum investigations. Concerning immigrants, there had been a shift of policy in Sweden, from assimilation to integration, which should be based on the right of every individual to be treated with respect and acceptance on an equal footing. There was an ombudsman against ethnic discrimination, as well as an ombudsman against discrimination on grounds of sexual orientation.

The representative went on to say that studies showed that migrant women faced a higher risk of being subjected to violence than other women. To avoid situations where assaulted immigrant women felt forced to remain in a relationship for fear of expulsion, certain amendments had been made to the Aliens Act last year. As a consequence, the examination process before granting a residence permit was now more stringent. Through interviews and investigations, it was decided, in particular, whether a residence permit should be granted on the basis of an arranged marriage.

It was explained that exploitation of prostitutes had been a criminal offence in Sweden since 1 January 1999. Since then, the number of known female prostitutes appeared to have declined in the country's three largest cities. The new legislation had also had an impact on the trafficking in women for sexual exploitation. On prostitution and pimping, the committee was told such actions, as promoting or exploiting prostitutes were prohibited and punishable under the country's Penal Code. The new amendments also prohibited purchasing the services of prostitutes. Under other amendments, various crime victims had access to counselling and free representation in the court of law. The quality of public support for crime victims was also being improved.

The representative added that the law on prostitution, operational since January 1999, was a positive step, but the representative had mentioned that the number of prostitutes on the streets had decreased while the number of "hidden" prostitutes might have increased. The CEDAW Committee was concerned as to what methodologies were being used to combat that invisible phenomenon?

To the question about concealed prostitution, the representative replied that two thirds of such cases took place indoors, in concealed forms. That called for special measures to address the problem. The Government was considering such actions, including creation of "prostitution centres", in which social workers and health-care professionals would work with prostitutes.

She also added that police could follow customers into brothels, and that was one of the ways to deal with the problem of hidden prostitution.

The CEDAW Committee appreciated the new legislation on violence, which was broad and very positive, punished the client who paid for sexual relations, but they enquired what it would do about pimping? It seemed that those "procurers" were delinquents who took advantage of women and enslaved them.

It was reported that to prevent and counteract trafficking, in human beings Sweden had a set up a working group comprising the Ministry of Justice, Health and Social Welfare, the Foreign Ministry, the Ministry of Industry, Labour and Communication. The working group will coordinate the efforts in this area during the Swedish presidency of the European Union. The National Police Board had been appointed the national reporter for Sweden in accordance with a EU declaration and will inter alia collect information on the extent of trafficking in women in Sweden and other countries, including outside the EU, and consider how such trafficking can be prevented and counteracted.

It surprised the CEDAW Committee, however, that during its presidency of the European Union, Sweden had not taken any initiative towards harmonising legislation on the problem of prostitution. Sweden could have taken the lead in that regard. Hopefully, it would do so in another context.

The representative said that during its European Union presidency, Sweden had not raised the issue of prostitution, because it was not on the agenda of that organisation. Significant differences existed on the issue, and the country was discussing it on a bilateral level. An international conference on prostitution had been held in Stockholm last year, at which various views had been presented. It was important to continue discussing the problem, which could not be separated from the issue of trafficking in people.

3.3 Concluding comments

While welcoming the criminalisation of the purchase of sexual services, the CEDAW Committee expresses concern that this might have increased the incidence of clandestine prostitution, thereby rendering prostitutes more vulnerable. It also expresses concern that Sweden has become a country of destination for trafficked women.

The CEDAW Committee encourages the Government to evaluate the effect of the current policy of criminalising the purchase of sexual services, especially in view of the complete lack of data on clandestine prostitution, which may have incidental effects on the trafficking of women and girls. The CEDAW Committee encourages action in Sweden and, through the Government of Sweden, continued eff