Human Trafficking and Nepal Position

Human trafficking is not only a crime against individuals, but it is a serious violation of human rights that demands a strong and coordinated effort from the global community. In human trafficking, there is the recruitment, transportation, transfer, harboring, or receipt of people through force, fraud, or deception, with the aim of exploiting them for profit[1]. Human trafficking constituent of three elements; The Act, The Means, and The purpose. Here, the act is the recruitment, transportation, transfer, harboring or receipt of people by means of threat or use of force, coercion, abduction, fraud, deception, or abuse of power in a vulnerable marginalized community. And the purpose behind it clearly illustrated by our nation’s law; human trafficking is the trade of humans in which the purpose is to sell or purchase a person for prostitution, forced labor, extracting human organs, slavery, or involuntary servitude[2]. In human trafficking, traffickers treat human beings as commodities to be bought and sold and trafficking by its nature is a serious crime there is the aim of exploitation[3]. The essay will first outline the exploitation nature of human trafficking into sex trafficking and labour trafficking. Secondly, the essay will identify the reasons why human trafficking is happening. Thirdly this essay will provide parameters of who is being victimized in this human trafficking, the second world’s largest criminal activity. In human trafficking, all ages men, women, and children having different backgrounds can become prey of the traffickers and it happens in every region of the globe. Fourth, this essay will outline the main issue of human trafficking: indirect human rights violations by the state’s failure to protect its citizens by trafficking and not having effective investigations and conducting of laws.

The range of human trafficking exploitative purposes is not only just sexual exploitation but also labour exploitation. Sexual exploitation has an association with prostitution. It includes activities such as prostitution, pornography, and sexual slavery. In the case of Bishnu Thapa v. NG, Bishnu Thapa took the victim (minor) from the victim’s residence by means of enticement and inducement into her custody for prostitution. Then, she tempted and threatened the victim to have physical relations with different men without consent for economic purposes[4]. Due to a lack of resources, fear of retribution and social stigma; victims of sexual exploitation are often subjected to physical, psychological, and emotional abuse and are not able to escape the cycle of exploitation[5].

On the other hand, Forced or compulsory labour means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself/herself voluntarily[6]. It is a form of modern slavery which involves physical or economic coercion and deprives people of their freedom and dignity. Looking back to history, Lord Mansfield subjected slavery was unsupported and illegal by common law in the case of Somerset v. Stewart (1772) and made an application before the Court of King’s Bench for a writ of habeas corpus[7]. And forced labour is prohibited by international law such as the ILO Protocol to the Forced Labour Convention 2014 (P29) supplemented by the Abolition of Forced Labour Convention, 1957. Globally, 49.6 million people are in modern slavery either forced to labour or forced to marriage against their will. And there are approximately 27.6 million people in forced labour of which 6.3 million are in forced commercial sexual exploitation, 11.8 million women and girls, and more than 3.3 million children are in forced labour[8]. The service sector like massage centers, dance bars, restaurants, and highway hawking are common exploiters of human trafficking[9]. However, forced labour is formed of modern slavery but in agricultural-based forced labour there is some traditional exploitation like Kamaiya, Haliya, and Haruwa, and construction section-based forced labour is most prevalent in the garment, carpet, and brick factories[10]. It is inappropriate that individuals are being subjected to forced labour or sexual exploitation and it is a severe structure of exploitation that made people surrender to being forced to work against their will which directly undermines the principles of equality and justice.

Human trafficking is a complex issue with many hidden reasons, and it is important to point out these hidden reasons to effectively combat human trafficking and provide support to victims. Every year thousands of people travel to their own countries and abroad to seek a better life and most of them run away from a life of poverty and lack of job opportunities. In Nepal, 83% of people above 15 years of age engaged in economic activities but only 16.9% get their wages whereas 83.1% are self-employed. The underemployment rate is 50% in cities and 27% in rural areas of Nepal[11]. Due to unemployment, Ram Prasad Gurung misrepresently showed the victim’s; greed for wealth and property, succumbed to the temptation then got married, and planned to take her to Bombay in India for trafficking[12]. And human traffickers make fake promises of job opportunities, and better life with education to influence and coerce their victims. These factors and globalization have made it possible that every year thousands of men, women and children fall into the hand of traffickers[13]. In the case of Jit Bahadur Sunar v. NG; The Appellant took his daughter (Plaintiff) and son to his workplace in Kanpur, India. He told his daughter to go with him to Lucknow for her treatment. Then, He raped his daughter by forcefully giving threats and talked to an Indian guy to sell his daughter at a high price but fortunately, she ran away with the help of her mother[14]. Similarly, In Lok Bahadur Karki v. NG, The Appellant shows various temptations to the victim and forces her into marriage by pretending to educate her and give good life. After that, he was arrested in Arjundhara while forcibly taking the victim to India for trafficking[15].

Also, human trafficking as a global issue that is perpetuated by various factors including weak legislation and corruption. Weak laws and ineffective enforcement create an environment where traffickers can operate with impunity, making it easier for traffickers to exploit and enslave their victims across different countries[16]. It seems that human trafficking not only happens from Nepal to India and China but is also can observe in other third countries such as Gulf and Middle East countries, African countries, Australia, Europe, and the American continent. Mainly there is the exploitation of labour migrants in the Gulf and Middle East Countries, human smuggling with fake promises sent to the USA and the transportation of Nepali women to African Countries for commercial sex work and entertainment purposes. A victim from Sindhupalchok after being unable to fulfil her basic needs for survival was transported to Kuwait in the name of foreign employment by a broker. But there her employer seizes her passport and was forced to do the heavy workload and sexually exploited her for three years[17]. Corruption as another main reason at various levels of government, including border control and law enforcement organizations, can facilitate human trafficking by allowing traffickers to operate with impunity. If corrupt officials may actively participate in or turn a blind eye to the activities of traffickers, then it surely undermines efforts to stop human trafficking[18].

In countries like Nepal, India, and Pakistan, the devaluation of women and children through traditional and cultural practices and attitudes, early child marriage and lack of birth registration make them more vulnerable to trafficking as compared to men. According to the International Labour Organization (ILO), 51% of human trafficking victims are women, 21% are men and 28% are children (20% girls and 8% boys)[19]. And, according to the NHRC report 2019, it can be estimated that approximately 35,000 individuals including 15,000 men, 15,000 women and 5,000 children were subjected to human trafficking in Nepal[20]. Women and girls are often targeted for sexual exploitation, however, the trafficking of men or boys for sexual exploitation is largely under-reported. Because of the more hidden nature of male prostitution, cultural and gendered stereotypes that discount the probability of male sexual exploitation, and inadequate legal and reporting systems that might not correctly identify victims[21]. Children are also particularly unguarded to human trafficking because they can be easily manipulated and coerced. In March 2019, NHRC-Nepal informed that 18-year-old Neha, who had been missing for 2 years ago was staying at a Rajya Mahila Sadan in Jaipur, India. Similarly, a 16-year-old minor girl from Rupandehi who might have been trafficked was found sheltered at Prayas Child Centre, New Delhi[22].

The risk of being trafficked is higher for some certain groups, including migrants, refugees, people living in poverty, and members of marginalized communities. Poor women’s refugees and minor girls from Albania; almost 600 out of 3,266 are potential victims of trafficking into the UK. They all have nightmares of oppression and brutality. Some of these children, who were the victims of rapes, already have their own little children[23]. Additionally, members of marginalized groups like the Roma population, people with impairments, and LGBTIQ people are more likely to be targeted by traffickers because of their vulnerability. The socioeconomic vulnerabilities of Romani people include structural forms of ethnic and gender discrimination, poverty and social exclusion which result in low education, high unemployment and domestic violence affecting primarily women and children[24]. Due to this reason, Romani women and girls are more vulnerable to trafficking and exploitation.

State failure is a significant factor that comes up with human trafficking. When a state lacks the capacity or will to enforce laws and protect its citizens, it creates opportunities for criminal networks to engage in trafficking[25]. Fragile border security play’s main role in human trafficking and allows traffickers to proceed with their victims across the border. After the 1950 Indo-Nepal Treaty of Peace and Friendship, it allows bilateral agreement on trade between Nepal and India with an open border. Due to this reason, it is relatively easier for Nepalese people to migrate to India. Also, between Nepal and India, there is a high exchange rate mobility for employment, marriage, trade, and investment[26]. So, it is a prevalent reason that the Indo-Nepal border is one of the most occupied human trafficking gateways in the world. A 2015 earthquake in Nepal, extremely shattered the whole social and economic system. During that period, due to a lack of political will and political support for anti-trafficking movements, deficient legislation & law enforcement, and rigorous corruption; the number of Nepalese being trafficked across the border had risen sharply[27]. And the increase in both legal and illegal immigration between the Indo-Nepal border makes it unchallenging for human traffickers to blend in and avoid detection. In the case of NG v. Shova Badi, When the victim went to Sallibazar, she met the defendant, and the defendant asked the victim to accompany her to Botechaur for her work. The defendant boarded a bus to Babai and fed the victim bananas to make her unconscious then trafficked her to Delhi, India[28]. Here state failed to protect its citizens which is an indirect violation of human rights by the state.

The trafficking of human beings for sexual exploitation and labour exploitation is a crime against humanity and a violation of the inalienable and indivisible human rights that are inherent to every individual by birth. Victims rarely come front to seek help and support due to fear of traffickers and language barriers. Almost a ¾ part of human trafficking victims are women and girls. Women and girls are mostly subjected to sexual exploitation whereas men and boys are in forced labour. Every year rate of human trafficking has risen sharply due to poverty, weak legislation, lack of education and law enforcement, unemployment, political instability, and conflict. Due to gender discrimination and discrimination in marginalized communities; women, people with disabilities, and LGBTIQ are particularly vulnerable to being trafficked. It is a moral outrage to exploit vulnerable individuals as a commodity for profit and to prevent human trafficking society and state bodies should work together parallelly. States’ first priority should be the promotion of socioeconomic, and political stability, creating job opportunities, easy access to education, launching skill development programmes and addressing discrimination against minorities. Additionally, state governments and the international community must be addressed the human trafficking issue through sustained efforts to increase border law enforcement, provide support for victims and raise public awareness.

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[1] United Nations Office Of Drugs and Crime – https://www.unodc.org/documents/humantrafficking/Toolkit-files/08-58296_tool_9-2.pdf.

[2] Human Trafficking and Transportation (Control) Act, 2064, § 4, No.5, Acts of Parliament, 2064 (Nepal).

[3] Rantsev v. Cyprus and Russia, App. No.25965/04 (Jan. 7, 2010). https://hudoc.echr.coe.int/eng?i=002-1142.

[4] Bishnu Thapa v. Nepal Government, NKP (2077) Decision No. 10617 (Supreme Court of Nepal) 2077/06/16.

[5] Ruchika Jha, Prostitution, Slavery & Human Trafficking: The worldwide practices of eliminating it, Law Times Journal (2020).

[6] ILO Forced Labour Convention, 1930 (No.29).

[7] Legal Legacy: May 14, 1772-Lord Mansfield in England Rules Slavery Unsupported by Common Law (14 May 2016) https://legallegacy.wordpress.com/2016/05/14/may-14-1772-lord-mansfield-in-england-rules-slavery-unsupported-by-common-law/.

[8] Global Estimates of Modern Slavery: Forced Labour and Forced Marriage, Geneva, (September 2022).

[9] Human Trafficking in Massage Businesses: A Deeply Manipulated Sense of "Choice", Polaris Blog   https://polarisproject.org/blog/2018/06/human-trafficking-in-massage-parlors-a-deeply-manipulated-sense-of-choice/ (Jan.25, 2023, 8:13 AM).

[10] Fighting Bonded Labour In Nepal, (ILO Newsroom, 2013), https://www.ilo.org/global/about-the-ilo/mission-and-objectives/features/WCMS_218496/lang--en/index.htm

[11] Nepal Labor Force Survey III (2018), Central Bureau of Statistics, Nepal

[12] Nepal Government v. Ramprasad Gurung, NKP (2076) Decision No. 10410 (Supreme Court of Nepal) 2076/09/02.

[13]Sashi Punam, HUMAN TRAFFICKING: CAUSES AND IMPLICATION (Research gate Jan. 2018).

[14] Jit Bahadur Sunar v. Nepal Government, NKP (2077) Decision No. 10657 (Supreme Court of Nepal) 2077/03/07.

[15] Lok Bahadur Karki v. Nepal Government, NKP (2071) Decision No. 9346 (Supreme Court of Nepal) 2071/10/19.

[16] UKEssays: Should the Government be Blamed for the Increase in Human Trafficking? (November 2018) https://www.ukessays.com/essays/criminology/should-the-government-be-blamed-for-increase-in-human-trafficking-criminology-essay.php

[17] Centre For Awareness Promotion (CAP) Nepal https://www.capnepal.org/blog/

[18] UNODC: The Role of Corruption in Trafficking in Persons, United Nations, Vienna (2011).

[19] UNODC elaboration of national data: Majority of trafficking victims are women and girls; one-third children (22 Dec 2016) https://www.un.org/sustainabledevelopment/blog/2016/12/report-majority-of-trafficking-victims-are-women-and-girls-one-third-children/

[20] National Human Rights Commission: National Report on Trafficking in persons in Nepal, publication no.245, Page no. 79 (2019) https://www.nhrcnepal.org/uploads/publication/TIP_Report_2019_compressed.pdf.

[21] World Vision Australia: Trafficking and Sexual Exploitation (2012) https://eurcenter.net/wp-content/uploads/2020/04/Trafficking-and-sexual-exploitation-fact-sheet.pdf

[22] National Human Rights Commission: National Report on Trafficking in persons in Nepal, publication no.245, Page no. 29 (2019).

[23] Reeta Chakrabarti. (2017)'Human trafficking: Poor women and girls targeted in Albania', BBC NEWS (22 Feb. 2017) https://www.bbc.com/news/world-europe-39047787 (Accessed: 28 January 2023).

[24] European Roma Rights Centre (ERRC) and People in Need: "Breaking The Silence”, 41-56 (March 2011)

[25] Malloch, M. and Rigby, P. “Criminalising Victims of Human Trafficking: State Responses and Punitive Practices,” Edinburgh University Press, 175–193 (2016).

[26] GK Today: 1950 Indo- Nepal Treaty of Peace and Friendship (August 4, 2014) gktoday.in/topic/1950-indo-nepal-treaty-peace-friendship/ (Accessed: 1February 2023).

[27] Violeta Santos Moura, Spirit Me Away: The women and girls lost to trafficking in Nepal, ALJAZEERA (8 Mar 2020) https://www.aljazeera.com/gallery/2020/3/8/spirit-me-away-the-women-and-girls-lost-to-trafficking-in-nepal/

[28] Nepal Government v. Shova Badi NKP (2076) Decision No. 10274 (Supreme Court Of Nepal) 2076/04/09.