December 2001, Vol. 7, No. 4

Human Rights
Anti-trafficking Policies and Programs in Nepal
May Infringe on Women's Rights

While there has been no systematic research to determine the true magnitude of trafficking (see definition below) in Nepal, most observers believe that thousands of women and girls are trafficked from Nepal to India and other neighboring countries every year, often for prostitution. Women and children who are trafficked face abuse, exploitation, and a high risk of infection by HIV/AIDS. The Nepali government has established laws and programs to counter trafficking; nongovernmental organizations in Nepal have also targeted the crime. Recent research undertaken by the Population Council’s Horizons program in conjunction with the Asia Foundation, however, reveals that many trafficking policies and programs may inadvertently infringe on the human rights of women who wish to migrate.

Around the world, the Horizons program conducts operations research to understand the types of interventions that prevent the spread of HIV and other sexually transmitted infections, deliver care and support, and mitigate the effects of AIDS.

The investigators examined national laws as well as documents produced by anti-trafficking projects, interviewed key policymakers, program managers, and activists, surveyed nearly 1,300 adolescent girls, and held focus group discussions with community members.

They discovered that there is no consistent definition of trafficking in law and policy documents in Nepal, which leads to confusion about what activities
constitute trafficking. The current anti-trafficking law, for example, forbids the “buying and selling” of human beings for any purpose, but it does not cover recruitment by deception for the purposes of exploitative labor other than prostitution. It further confuses the issue by including “encouraging” or “persuading” a woman to engage in prostitution within the definition of trafficking, even without an element of deception or coercion.

The researchers recommend that definitions of the trafficking of women include the element of deception or coercion—the absence of informed consent. Without such precision, they contend, laws can be interpreted to deny women the right to assistance in voluntary migration, because assisting a woman’s migration could be considered trafficking. Imprecise laws can also lead to situations in which women who choose to work in the sex trade may be “rescued” against their will.

A new reform bill now under consideration includes exploitative labor and enslavement within its definition of trafficking. It also, however, defines trafficking as prostitution, sexual abuse, rape, kidnapping, and pornography—an approach that troubles some observers. Each of these issues, the researchers argue, raises distinct and separate concerns and requires clear, precise, and elaborate definitions and rules of procedure and practice.

Trafficking or migration?
A common approach to controlling trafficking in Nepal is to limit women’s migration. While specific anti-trafficking legislation does not mention migration, Nepal’s Foreign Employment Act limits the international migration of women. Trafficking-prevention messages disseminated by nongovernmental organizations take a similarly negative position on migration. They use frightening messages to discourage women from leaving their villages, rather than giving them practical advice on overcoming the difficult circumstances they may want to escape.

Many Nepali women would like to migrate. About 40 percent of the adolescent girls surveyed said that they did not want to live permanently in their villages; 85 percent of these girls expressed a desire to travel to urban areas. Many of the circumstances that are believed to lead to trafficking—widespread poverty, the low status of women and girls, and other social inequities—are also reasons women and children often seek to migrate.

“This research shows that well-meaning responses to the problem of trafficking may actually be violating the rights of the very people they are intended to help,” says Population Council researcher Celine Costello Daly, a lead investigator on the study. “The lack of conceptual clarity about what trafficking is and is not affects all aspects of interventions.”

The investigators developed a number of recommendations based on their findings, one of which is a call for much more empirical research. There are no solid data on the magnitude of trafficking in Nepal, the determinants and processes of trafficking, and the needs of trafficked persons who return. Gathering such basic information should be given high priority. Similarly, interventions such as interception strategies are seldom systematically assessed and, thus, their rate of success is not known. There have been reports, however, of women and girls being prevented from crossing the border despite their vehement protestations that they are traveling of their own free will.

The support services for returned trafficked girls and women must also be evaluated and improved. Returnees are often assumed by community members to be immoral and at fault in their own trafficking. They are also frequently thought to be infected with HIV, and they may in fact be living with HIV/AIDS. Thus, they face a double stigma and require care and support to meet these challenges. Many trafficked persons may have initially left home because of dysfunctional situations, and may not be able to return to their families safely. Family assessment, therefore, should be improved, along with residential care for girls and women who cannot return home.

Finally, anti-trafficking interventions need to be re-focused so that they do not infringe upon the human rights of women who wish to migrate but who are at risk of trafficking. Rather than attempting to frighten women into remaining at home, interventions could provide support systems to permit safe migration and to help women once they reach their destinations.

The researchers believe that HIV/AIDS policies and programs in Nepal offer an excellent model for anti-trafficking policies and programs. Both HIV/AIDS and trafficking-control programs work with vulnerable and powerless populations, deal with stigma and discrimination against people infected with or affected by HIV, and require similar rights-based responses. For example, Nepal’s HIV/AIDS Strategic Plan recognizes that migration can create conditions that facilitate the spread of HIV. Rather than advocating that migration be limited, however, it calls for interventions to address the spread of HIV without compromising the right to freedom of movement and the right to seek a better standard of living.

Sources
Costello Daly, Celine, Vaishali Sharma Mehendra, Pankaja Bhattarai, Nick Langton, Jyoti Sanghera, Catrin Evans, Ratna Kapur, Dilli Ram Dahal, and Siobhan Crowley. 2001. “Prevention of trafficking and the care and support of trafficked persons: In the context of an emerging HIV/AIDS epidemic in Nepal.” Joint report of Horizons and The Asia Foundation. New Delhi, India: Population Council. (PDF)

“Trafficking and human rights in Nepal: Community perceptions and policy and program responses.” 2001. Joint research summary of Horizons and The Asia Foundation. Washington, DC: Population Council. (PDF)

Outside funding
United States Agency for International Development

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