Centre for Criminology
The University of Hong Kong
19 February 2000
Australian Institute of Criminology
GPO Box 2944, Canberra 2601, Australia
phone: +61-2-6260 9205
fax: +61-2-6260 9203
For a large number of people, somewhere else looks better. It is said that if you live in Somalia, Egypt looks pretty good. If you live in Egypt, Greece looks pretty good. If you live in Greece, Belgium looks pretty good. If you live in Belgium, Canada looks pretty good.
Of course, not everybody thinks this way, but for many, the grass is greener elsewhere, and a significant political challenge for most countries is to run an immigration program that meets that country's objectives and allows that country sovereignty over an important set of decisions - the ability to choose who may or may not enter and the right to maintain the integrity of the immigration program.
The 1993/1994 international migration population is estimated to be approximately 100 million people, about 2% of the current world population (Lohrmann cited in IOM 1995, 10).
The smuggling and trafficking of human beings has increased throughout the world, owing to the globalisation process and other factors. The problem is exacerbated in size and seriousness by the growing involvement of organised crime groups. The smuggling of migrants by these organised crime groups disrupts established immigration policies of destination countries and often involves human rights abuses. The exploitative nature of the treatment of the victims of trafficking often amounts to new forms of slavery.
Domestic efforts to improve institutional capacity to match the technical competence of sophisticated criminals may be limited by a lack of resources or political will, human resistance to change or corruption. Furthermore, domestic efforts are generally concentrated within national borders. Regional and/or international cooperation is needed to address the transnational elements of organised crime.
The Draft UN Convention against Transnational Organised Crime and its Protocols
The United Nations is concerned about the human rights violations involved in traditional and modern forms of slavery, such as trafficking in persons, and especially trafficking in women and children. The suppression of slavery, whether in the form of the classical slave trade, or the so-called modern forms of slavery and slavery-like practices, is one of the longest-standing objectives of the United Nations. Moreover, new instruments are currently being developed to prevent and combat all forms of smuggling and trafficking in human beings, and to promote the fight against transnational organised crime involved in trafficking networks.
By Resolution 53/111 of 9 December 1998, the General Assembly established an Ad Hoc Committee open to all States for the purpose of elaborating a new international Convention against Transnational Organised Crime (the draft Convention), and to elaborate three additional instruments. Two Protocols are expressly devoted to reinforcing international cooperation against the smuggling of migrants and trafficking in human beings. The focus of the Optional Protocol relating to trafficking in migrants is on the prevention and suppression of smuggling of migrants by sea, with special attention being paid to the distinction between the criminalisation of trafficking and the protection of victims of that activity (UN General Assembly 1999, 4). The focus of the Protocol on trafficking in persons is on trafficking in women and children.
The UN Global Program
In order to better enable governments and the international community to respond to the worldwide problems of human smuggling and trafficking, the United Nations Office for Drug Control and Crime Prevention (UNODCCP)1 in March 1999 launched the Global Program Against Trafficking in Human Beings. The Program aims to bring to the forefront the involvement of organised crime groups in human smuggling and trafficking, and promote the development of effective criminal justice responses to these problems. The Global Program, consisting of policy-oriented research and targeted technical cooperation, was developed by the Centre for International Crime Prevention (CICP) and the United Nations Interregional Crime and Justice Research Institute (UNICRI). CICP is in charge of technical cooperation activities, UNICRI is in charge of developing standardised research methodology and of coordinating research in the various projects to be carried out under the Global Program.
1 See United Nations, Centre for International Crime Prevention (CICP), United Nations Interregional Crime and Justice Research Institute (UNICRI), Global Program Against Trafficking in Human Beings, United Nations, 1999.
The Global Program will collect data on different routes for smuggling and trafficking human beings, and the structures and modalities used for transporting and subsequently exploiting them. A global inventory of best practices used in addressing organised crime involvement in smuggling and trafficking, including special legislation and institutional arrangements, will be created.
In close cooperation with respective governments, NGOs and other institutions concerned, a series of "demonstration projects" will be developed in selected countries. The demonstration projects will assist governments in:
Undocumented migration involves persons entering a country that is not their country of origin, without the proper authority. When migrants are assisted in this process by a third party or parties, it is generally referred to as smuggling or trafficking. There are various definitions of these terms but I will use those recently suggested by the United Nations in the Global Program Against Trafficking in Human Beings. That is:
Trafficking is a more complicated concept, in that it requires consideration not only of the manner in which a migrant entered the country but also their working conditions, and whether the migrant consented to the irregular entry and/or these working conditions. Trafficking and more voluntary forms of undocumented migration are best thought of as a continuum, with room for considerable variation between the extremes (Figure 1). It is frequently difficult to establish whether there were elements of deception and/or coercion, and whether these were sufficient to elevate the situation from one of voluntary undocumented migration, to trafficking.
In Australia, as in most countries of the world, limited evidence is available about the incidence and nature of human trafficking. Statistical data provides very few insights into the incidence of human trafficking to Australia. There are several reasons for this, including the following:
We therefore have a cocktail of people wishing to:
Some of these pay large sums of money to illegal operators and undertake dangerous journeys.
This part of the cocktail involves:
Another part of the cocktail involved law enforcement officials:
The cocktail, therefore has three types of ingredients:
The Philippine Situation
The Philippines is presently the second largest exporter of labour in the world, second only to Mexico. Overseas employment was first allowed by the Philippine government in 1974 as a temporary solution for unemployment and a tight balance of payments. Since this time, millions of Filipinos have travelled abroad in search of better employment opportunities (Go 1996, 159; Yukawa 1). Go notes that:
Initially, migration from the Philippines was to developed countries outside of Asia. However, the remarkable growth of countries such as Japan, Hong Kong and Singapore, resulted in a dramatic increase in intra-regional migration in Asia. It has been noted that:
In the 1990s, the desire to work abroad continues to be fuelled by economic problems in the Philippines. The Philippine economy has suffered from the combined effects of the recent financial crisis in Asia, and the downturn in primary production caused by El Nino. According to Salvador, a World Bank survey indicated that, as a result of these two crises:
In addition to the large numbers of Filipinos who have used legal mechanisms to obtain employment overseas, large numbers of Filipinos work abroad in undocumented situations. In 1999, the Philippine Department of Foreign Affairs estimated that 7 million Filipinos are now working overseas, 3 million of whom are undocumented (Briefing by Department of Foreign Affairs). The International Labour Organisation has estimated that in 1997, there were 4,668,800 Filipinos with regular status abroad, and 1,776,600 Filipino workers of irregular status abroad (SEAPAT).
Factors that have been identified as encouraging illegal immigration from the Philippines include bureaucratic delays and the cost of processing applications (Pillai 1996, 143). Employers might also find the prospect of hiring an illegal worker more attractive in countries, such as Singapore, where employers of legal migrant workers are required to pay large cash bonds to the government.
Methods of Departure and Entry
Generally speaking, a prospective migrant may seek to exit or enter a country legally or illegally. There are many possible combinations, and these may be further complicated by the involvement of organised crime groups. Beare (1999, 25-26) has categorised the possible combinations, which are not mutually exclusive, as follows:
With respect to entry to the destination country, migrants can use legal channels, such as legitimate work permits, tourist visas, or if the destination country is a member of ASEAN, there is no requirement for the Filipino migrant to have a visa if their intended stay is less than 30 days. Some Filipino workers use the ASEAN countries as a jump-off point for further migration to third countries. Cyprus and the former Yugoslavia have also been identified as major transit points for the transport of migrants to the USA and Western Europe (Briefing by the Commission for Filipino's Overseas).
Migrants can enter destination countries through illegal methods, including the 'escort' system noted previously, or through the use of fraudulent documents. There is generally a fee for such services. According to Tigno (1999), Filipinos pay traffickers or brokers around US$3400 to gain illegal entry to Malaysia. Part of this recruitment sum is taken as a percentage from the salary on a monthly basis, once the migrant is in the destination country. The fees paid by Filipinos to go to Taiwan are around US$1500-1800, depending on the current exchange rate (Tigno 1999).
Once in the destination country, Filipino workers who were otherwise in the country legally may become undocumented, either because of overstay, or through taking up employment in contravention of their tourist visa.
According to the Department of Foreign Affairs, the escort system is also commonly used to transport illegal migrants into the Philippines (Briefing by Department of Foreign Affairs). This suggests the presence of considerable degree of corruption within certain departments and at the airports. Indeed, senior staff of BI openly acknowledge that corruption is widespread within the Bureau. The Bureau of Immigration is currently undertaking an all-out drive against corruption. To this end, attempts are being made to computerise the Bureau. To date, attempts have been met with some internal resistance, and a lack of resources (Briefing by the Bureau of Immigration).
There is evidence of document fraud in the Philippines. In 1998, 4200 passports were reported stolen in the province of Isabella, while 1240 were allegedly lost in the Department of Foreign Affairs Office in Lucena. There is also evidence of document fraud facilitated by travel agencies (Salvador 1999, 7). According to the Italian Embassy in Manila, there are many travel agencies that can prepare fake documents, such as bank certificates, titles of property, permits to work and registration to courses, in order to obtain an Italian visa. For example, in July 1999, a group of 23 Filipinos submitted applications for tourist visa‚s to the Italian Embassy, enclosing fake documentation. When they were separately interrogated, they responded that they had paid 200,000 pesos (approximately US$5000) to the travel agency for the documentation. Their families had sold property and contracted loans in order to meet these fees (Press Release by the Italian Embassy in the Philippines).
Filipinos can also travel to other countries, where they can avail themselves of short-term no-visa requirements, and wait for fraudulent documents to be produced. In some cases, specialist traders abroad can produce a passport for a customer within 48 hours - either by photo-substituting a stolen passport, or using forged documents. In other cases, however, obtaining a fraudulent passport can take months, so illegal migrants hide out while they wait for their false documents.
Trafficking in Women
Trends in Female Migration
A considerable amount of research has been undertaken into the issue of the feminisation of migration from the Philippines. With respect to documented female overseas Filipino workers (OFWs), it is known that:
Less is known about female undocumented workers. It is estimated that there are at least equal numbers of undocumented and documented female OFWs. Undocumented migration by Filipino women appears to be concentrated in certain destination countries. For example, there are no recent reports of undocumented female Filipino workers in the Middle East, other than Kuwait. There are, however, reports of undocumented female OFWs in Japan, Singapore, Hong Kong, Italy and Germany. It is likely that women who choose to migrate through illegal channels will have most success at finding employment in sectors that are unregulated, such as work that takes place in private homes, the sex industry or small businesses.
It has been argued that the concentration of female OFWs, documented and undocumented, in domestic service has particular implications for their vulnerability to abuse and maltreatment. Cheng has noted that domestic workers generally work alone, in private households. Unlike a factory or shop floor, the domestic workplace is a private place, not open to scrutiny or regulation. According to Wong:
Domestic workers usually have little private space, as they generally live with their employers. This lack of privacy, combined with the power imbalance of being a foreign domestic worker in another person's home, can have a profound psychological impact on domestic workers. Furthermore, some employers exploit the power imbalance, verbally, physically or sexually abusing domestic workers, who may have little or no support networks and no opportunity for redress. According to Cheng, many domestic workers:
It has also been argued that the concentration of Filipino women in the entertainment industry presents particular risks to these migrants. According to the Coalition Against Trafficking in Women:
The case studies also highlight the manner in which people become particularly vulnerable once overseas. According to the report, main factors include:
In addition to organised crime involvement, smuggling and trafficking also raise the issue of human rights abuses. A quantitative and qualitative study of 300 illegal migrants from the People's Republic of China living in New York city made some frightening discoveries. The study found that 191 of the 300 survey subjects were locked up in a 'safe-house' upon their arrival in America, generally for about 7 days. The study found that, contrary to the perception of the authorities, that illegal migrants become indentured workers, paying off debts over a long period of time, organisers, or 'snakeheads' are in fact unwilling to enter into these sorts of arrangements. Their common practice is to demand that migrants pay the entire smuggling fee immediately upon arrival in America. Migrants who cannot deliver the money immediately are detained, harassed and subjected to violence by debt collectors, until the migrants family or friends comes up with the money. The study noted reports of migrants having their fingers chopped off, and mailed to relatives, to urge them to pay - and of female migrants being raped while their families back in China were on the phone, so that the family would be forced to come up with the money in a hurry (Chin 1997).
Many types of routes are used by those involved in trafficking. In many countries, trafficking by land is the most common method, but is not applicable in Australia. Trafficking by sea is difficult to detect, though increased surveillance is making detection more likely. The most common transportation is by air, arriving with false documents.
Andreas Schloenhardt (1999) has described the spectrum of traffickers:
While not all undocumented migration is facilitated by organised crime, Beare notes that some operations epitomise the sophisticated end of criminal operations. The characteristics of these operations include:
Three main law enforcement agencies are involved in dealing with people smuggling and trafficking, the Australian Federal Police, the Australian Customs Service, and the Department of Immigration and Multicultural Affairs.
Each deals with a different part of the system, and as such co-operation is essential.
Australia makes use of a number of strategies to minimise undocumented migration, including:
The Australian government has taken a number of innovative steps to deter organisers from participating in human smuggling and trafficking. The theory is to make human smuggling and trafficking a high risk, low gain activity, so that organised crime groups will be deterred from undertaking such activity.
The Australian institute of criminology has just published a report documenting all of the initiatives of the Commonwealth government. These cover law enforcement activities, legislation and international co-operation. (Fiona David AIC Research and Public Policy series, no 24, Feb. 2000)
Recent initiatives include the introduction of:
The law in Australia was recently amended, to include statutory offences of "slavery" and "sexual servitude" (Criminal Cose Amendment (Slavery and Sexual Servitude) Act 1999, came into force 21 September 1999). Under Australia's Federal system of government, it is necessary to have both Commonwealth and State offences. The Commonwealth law targets slavery, sexual servitude and deceptive recruiting with an international connection. It is proposed that the States and Territories will introduce equivalent legislation, to allow them to target local cases of deceptive recruiting and sexual servitude, where there is no known overseas connection.
"Organised People Smuggling"
A new offence of "organised people smuggling" has recently been enacted. This offence carries a maximum penalty of 20 years imprisonment. Previously, prosecutors and judges were frustrated by legislation that only permitted penalties of up to 2 years imprisonment. This penalty was not proving to be a significant deterrent for people smugglers, when weighed up against the huge financial incentives involved.
Draft Legislation: Increased Powers for Coastwatch
Draft legislation has recently been introduced into Parliament that will strengthen Australia's maritime investigatory and enforcement powers against both Australian and foreign flag vessels (Border Protection Bill, second reading 21 October 1999).
If the Bill is passed,
Although not immediately connected, Australia's response to child sex tourism demonstrates Australia's contribution to one particular global problem, and given the global nature of trafficking, indicates that law enforcement and legal co-operation can be achieved.
Australia has legislation that criminalises activities associated with child-sex tourism, for example, sexual intercourse or other sexual conduct with a child under the age of 16, while outside Australia - or the facilitation of such conduct, for example, by assisting a person to travel outside Australia in order to commit such an offence (Crimes Act 1914 (Cth)). The maximum penalty is 17 years imprisonment. The legislation makes provision for the use of video-link evidence, in certain circumstances, where the witness is located overseas.
Human smuggling and trafficking are matters of increasing concern to the Australian government. Recent interceptions of vessels attempting to smuggle people to Australia have highlighted the increasing sophistication of people smuggling operations, and the involvement of organised crime groups in this activity. While it is not clear whether the increase in people smuggling is matched by a similar increase in human trafficking to Australia, there are indications that undocumented migrants, including those who have overstayed their visas, entered on fraudulent documentation, or even been smuggled into the country undetected, are vulnerable to exploitation by traffickers.
The Federal government has implemented legislation and various policies to address the issues of human smuggling and undocumented migration generally. It is likely that these will have 'flow-on' effects to minimise the incidence of human trafficking and to assist the victims of trafficking. Human smuggling and trafficking are, however, transnational activities. As such, they cannot be stopped by the activities of one country alone. Domestic efforts to stem the activities of smugglers and traffickers will have little effect without the cooperation of origin and transit countries. International cooperation, such as the Asian Regional Initiative Against Trafficking in Women and Children, is essential to combat human smuggling and trafficking.
The Bangkok Declaration on Irregular Migration
We, the Ministers and representatives of the Governments of Australia, Bangladesh, Brunei Darussalam, Cambodia, China, Indonesia, Japan, Republic of Korea, Lao PDR, Malaysia, Myanmar, New Zealand, Papua New Guinea, the Philippines, Singapore, Sri Lanka, Thailand, and Vietnam, as well as the Hong Kong Special Administrative Region (hereinafter referred to as "the participating countries and Region"), meeting at the invitation of the Royal Thai Government in Bangkok on 23 April 1999, on the occasion of the International Symposium on Migration, held on 21-23 April 1999, under the chairmanship of H.E. Bhichai Rattakul, Deputy Prime Minister of Thailand, to address the question of international migration, with particular attention to regional cooperation on irregular/undocumented migration:
1. Realizing that international migration is a complex phenomenon which is rooted in human history and is closely associated with social and economic aspirations of each country and region;
2. Recognizing that the process of globalization and liberalization, including the increasing interdependence of economies, has contributed to large flows of people in the Asia-Pacific region, thus providing both opportunity and challenge for governments in the region;
3. Noting that both the supply (push) factor and demand (pull) factor from concerned countries have led to the outflow of migrants from the countries of the region;
4. Being aware that international migration, particularly irregular migration, has increasingly become a major economic, social, humanitarian, political and security concern for a number of countries in the Asia-Pacific region;
5. Noting with concern that the ongoing financial and economic crisis in many Asian countries has led to rising unemployment and other social problems, and has had differing impacts on irregular migrants and on the countries of origin, transit and destination;
6. Noting further that the periodic natural disasters in some Asian countries badly affect their economies and lead to rising unemployment and irregular migration;
7. Gravely concerned by the increasing activities of transnational organized criminal groups and others that profit from smuggling of and trafficking in human beings, especially women and children, without regard to dangerous and inhumane conditions and in flagrant violation of domestic laws and international standards;
8. Underlining that comprehensive, coherent and effective policies on irregular/undocumented migration have to be formulated within the context of a broader regional framework based on a spirit of partnership and common understanding;
9. Noting that over 65 percent of the world's poorest people live in the Asia- Pacific region, hence poverty and differences in level of development among countries in the region remain important causes of irregular migration;
10. Recognizing a need for international cooperation to promote sustained economic growth and sustainable development in the countries of origin as a long-term strategy to address irregular migration;
11. Noting that there is a number of international conventions and instruments dealing with humanitarian issues relating to migration;
12. Respecting the sovereign rights and legitimate interests of each country to safeguard its borders and to develop and implement its own migration/immigration laws, and also recognizing the obligations of the country of origin to accept its nationals back, and the obligation of the countries of transit and destination to provide protection and assistance where appropriate, in accordance with their national laws;
13. Recognizing the important role and contribution of regional consultative mechanisms, such as the Asia Pacific Consultations on Refugees, Displaced Persons, and Migrants, and the Manila Process, on issues relating to irregular migration;
14. Noting with appreciation the participation of countries from various regions, United Nations bodies and specialized agencies, intergovernmental organizations, as well as non-governmental organizations, in sharing their views and experiences in dealing with migration issues;
15. Noting also with appreciation the discussion papers prepared by the Institute for Population and Social Research, Mahidol University, and the International Organization for Migration (IOM), which provided useful points of discussion and recommendations for the management of irregular migration;
16. Acknowledging with gratitude the timely initiative of H.E. Dr. Surin Pitsuwan, Minister of Foreign Affairs of Thailand, the dynamic chairmanship of H.E. Bhichai Rattakul, Deputy Prime Minister of Thailand, as well as the excellent arrangements provided by the Royal Thai Government, with the valuable support of the IOM;
Declare as follows:
1. Migration, particularly irregular migration, should be addressed in a comprehensive and balanced manner, considering its causes, manifestations and effects, both positive and negative, in the countries of origin, transit and destination;
2. The orderly management of migration and addressing of irregular migration and trafficking will require the concerted efforts of countries concerned, whether bilaterally, regionally or otherwise, based on sound principles of equality, mutual understanding and respect;
3. Regular migration and irregular migration should not be considered in isolation from each other. In order to achieve the benefits of regular migration and reduce the costs of irregular migration, the capacity of countries to manage movement of people should be enhanced through information sharing and technical and financial assistance. In this context, UNITAR, UNFPA, and IOM, joint sponsors of the International Migration Policy and Law Course (IMPLC), are invited to hold, in the near future, a course for middle to senior government officials from the region;
4. A comprehensive analysis of the social, economic, political and security causes and consequences of irregular migration in the countries of origin, transit and destination should be further developed in order better to understand and manage migration;
5. As the causes of irregular migration are closely related to the issue of development, efforts should be made by the countries concerned to address all relevant factors, with a view to achieving sustained economic growth and sustainable development;
6. Countries of origin, as well as countries of transit and destination, are encouraged to reinforce their efforts to prevent and combat irregular migration by improving their domestic laws and measures, and by promoting educational and information activities for those purposes;
7. Donor countries, international organizations and NGOs are encouraged to continue assistance to developing countries, particularly the least-developed countries, in the region aimed at poverty reduction and social development as one means of reducing irregular migration;
8. The participating countries and region should be encouraged to pass legislation to criminalize smuggling of and trafficking in human beings, especially women and children, in all its forms and purposes, including as sources of cheap labor, and to cooperate as necessary in the prosecution and penalization of all offenders, especially international organized criminal groups;
9. The participating countries and Region should exchange information on migration legislation and procedures for analysis and review, with a view to increasing coordination to effectively combat migrant traffickers;
10. The countries of origin, transit and destination are encouraged to strengthen their channels of dialogue at appropriate levels, with a view to exchanging information and promoting cooperation for resolving the problem of illegal migration and trafficking in human beings;
11. Greater efforts should be made to raise awareness at all levels, including through public information campaigns and advocacy, of the adverse effects of migrant trafficking and related abuse, and of available assistance to victims;
12. Concerned countries, in accordance with their national laws and procedures, should enhance cooperation in ascertaining the identity of undocumented/illegal migrants who seemingly are their citizens, with a view to accelerating their readmission;
13. Timely return of those without right to enter and remain is an important strategy to reduce the attractiveness of trafficking. This can be achieved only through goodwill and full cooperation of countries concerned. Return should be performed in a humane and safe way;
14. Irregular migrants should be granted humanitarian treatment, including appropriate health and other services, while the cases of irregular migration are being handled, according to law. Any unfair treatment towards them should be avoided;
15. The participating countries and Region should each designate and strengthen a national focal point to serve as a mechanism for bilateral, regional and/or multilateral consultations and cooperation on questions of international migration;
16. A feasibility study should be conducted on the need to establish a regional migration arrangement, linked to existing international bodies, to provide technical assistance, capacity building and policy support as well as to serve as an information bank on migration issues for the countries in the Asia-Pacific region. The countries in the region are meanwhile encouraged to utilize and strengthen the already existing bilateral and multilateral arrangements;
17. The participating countries and Region will follow-up on the above mentioned issues of irregular migration at the political and senior official levels in ways which may be deemed appropriate;
18. This document shall be given the widest publicity and dissemination possible to encourage governments, non-governmental organizations, the private sector and civil society to join in a collective regional effort to alleviate the adverse effects of irregular migration and to prevent and combat trafficking of human beings, especially women and children.
23 April 1999