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THE RESPONSIBILITY of the STATES UNDER INTERNATIONAL HUMAN RIGHTS LAW to ADDRESS the Trafflcklng in NEPALESE GIRLS INTO PROSTITU

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THE RESPONSIBILITY of the STATES UNDER INTERNATIONAL HUMAN RIGHTS LAW to ADDRESS the Trafflcklng in NEPALESE GIRLS INTO PROSTITU THE RESPONSIBILITY OF THE STATES UNDER INTERNATIONAL HUMAN RIGHTS LAW TO ADDRESS THE TRAFFlCKlNG iN NEPALESE GIRLS INTO PROSTITUTION Kumar Regrni A thesis submitted in confomity with the requirements for the degree of Master of Laws Graduate Department of the Faculty of Law University of Toronto O Copyright by Kurnar Regmi, 2001 National Library Bibliothèque nationale 1*1 ofCanada du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 WeYington Street 395. nie Wellington Ottawa ON KlAON4 OüawaW KlAW Canada canada The author has granted a non- L'auteur a accordé une licence non exclusive licence alïowhg the exclusive permettant à la Naboaal Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or seU reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/fJm, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or otheIWise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. THE RESPONSIBILITY OF THE STATES UNDER INTERNATIONAL HUMAN RIGHTS LAW TO ADDRESS THE TRAFFICKING IN NEPALESE GIRLS INTO PROSTITUTION Master of Laws, 200 1 Kurnar Regmi Faculty of Law University of Toronto Abstract Trafficking in girls into prostitution is a global probiem and has been destroying the lives of thousands of innocent victims resulting in physical and mental violence and various kinds of diseases. It violates the human rights of the victims, many of which are non-derogable under any circumstances. Nepalese victirns trafficked into prostitution are a group of such victims who have been trafficked in brothels in India in large number every year because of the grim socio-legal discrimination at home. The apathy, neglect and discrimination practices by the States (Nepal and India), including the judiciary, on this problem have further increased suffering of the victims. This thesis argues that as parties to the various international human rights laws, it is the responsibility of Nepal and India to fulfill their comrnitments by making their national laws effective in order to prevent traficking and protect human rights of the victims without any discrimination. Acknowledgements First of all, 1 would like to thank al1 those inspiring individuals who have been fighting against trafficking in girlslwomen into prostitution on every possible front under difficult circumstances. They are the ones who have helped me understand the socio-legal injustices and pain and suffering of the victims, which eventually led me to undertake this research. 1 would like to thank the University of Toronto for providing me the "Reproductive Health Law Feilowship", which enabled me to undertake this project. 1 am thankhi to my supervisor Professor Rebecca J. Cook for her thoughtful and appropriate suggestions without which this thesis would not have corne to the present shape. 1 am also thankhi to Professor Bernard M. Dickens for taking his time and reading my thesis. Finally, 1 am indebted to Shiva Kumar Giri and my wife and colleague Sonali Regmi, who have from the beginning thoroughly read drafls of my thesis and made valuable suggestions even when they had little time to spare fiom their own academic engagements. Table of Contents Introduction Chapter One- The Causes 1. A brief historical accounts of the problem -.3 Causes of trafficking in Nepalese girls Chapter Two- Human Rights Consequences of Trafficking 1. Introduction -.3 Violation of non-derogable rights 2.1 Right to life 2.2 Ri@ against slavery and servitude 2.3 Right against torture or cruel, inhuman or degrading treatment 2.4 Right to recognition as a person before the law 3. Violation of other human rights 3.1 Right to non-discrimination 3.2 Right to highest attainable standard of physical and mental health 3.2.1 Violation of physical health 3.2.2 Violation of mental health 3.3 Right to many and found a family 4. Conclusion Chapter Three: National Law Against Trafficking 1. Introduction 2. Nepalese laws 2.1 Constitutional provision 2.2 Muluki Ain (Country Code) against traficking 2.3 Special Act against traficking 2.4 Other relevant legal provisions 2.5 Judicial interpretation 2.6 Recent developments 3. Indian Iaws 3.1 Laws against trafficking 3.2 Other laws prohibiting trafficking 3.3 Rehabilitation & health services 3-4 Judicial interpretation 4. Conclusion Chapter Four- International Law Against Trafficking 1. Introduction -.7 Responsibilities of the State under the international human rights law 2.1 Preventing traficking and punishing traffickers 2.2 Protecting hurnan rights of the victims 2.2.1 Protecting rights of trafficked victims afTected with HIVIAIDS 2.3 Providing remedies, including compensation, health services and rehabili tation 3. Receni developments 4. Conclusion Conclusion Traficking in Nepalese girls into the commercial sexual exploitation, withinl and outside the country, has been a reality for long tirne.' Mostly invisible to the mainstream society (mainly because of the social taboo attached with issues of sex outside marriage), the dehumanising nature of this exploitation has emerged from the visible socio-legal and cultural discrimination, and economic deprivation suffered by the female population in ~e~al.)This thesis addresses the legal consequences and the responsibilities of the States reiating to the problem of cross-border trafficking in Nepalese girls into prostitution, which mostly involves the transportation of Nepalese young girls, particularly under the age of 18, into the brothels in Indias4 This problem of trafficking in Nepalese girls into the brothels in India is alarmingly high. There are no accurate figures available, however, an infomed source suggests that There are some reports, which suggest that the intemal sex market and exploitation in Nepal has been in rise. As one author has described that, "sex is cheap on Nepal's highways. Demand is high, but it's the supply side that pays the price. Hundreds of women and young girls are risking their heaith and lives in the poorly paid but highly exploitative trade." See Hemlata Rai, "Drive through sex" Ncpal Times (Kathmandu: February 2001 ), see online: http://www.ne~alnews.com.nn/ntimes/feb23-2001 /sexarticle,htm ; see also Linnet Pi ke, "Innocence, Danger and Desire: Representations of Sex Workers in NepaIv(1999) Global Reproductive Hcalth Forum: Re/ Productions, online: h~://www.hsrih.hawarddedu~organizationsheathneSasia/repro/!LI NNET edited.html [hereinafier Sex Worker in Nepal]. ' See Human Right Watch/Asia, Rape For Projir: Traficking ofNepali Girls and Women to in dia!^ Brothels (Human Rights Watch, 1995) [hereinafier Trafficking of NepaIi Girls]; Dinesh Raj Sayatyal, Chclibati Bechbikhan: Samasyu Ra Samadhan (Kathmandu: Unpublished LL.B. Third Year Dissertation subrnitted to Tribhuvan University Nepal, 2000) [translated by author] [hereinafter Chelibati];see also Renu Rajbhandari & Bina yak Rajbhandari, Girls Traflcking: Hidden Grief in Himalaps (Kathmandu: W oman's Re habilitation Centre, 1997) at 7- 1 Z[hereinafter Girls Traficking]. 3 See for the detail discussion on this point, Chapter One, below. at 14-29. ' See specially Girls Trafficking, supra note 2; see generally Red Li& Trafic: The Trade in Nepali Girls, Third Edition (Kathmandu: Agroforestry Basic Health and Cooperativc/Nepal, 1996) [hereinafter Red Ligfit Trafic]; Traficking of Nepali Girls, supra note 2 at 1,4143. more than 200,000 Nepalese girls5 and women are currently working as prostitutes in brothels in India, and about 10,000-1 5,000 &ls6 are traficked annually. Girls who have escaped fiom the brothels in india have described their life full with forced confinement, repeated rape, severe beatings, widespread diseases, unpaid forced labour, and near starvation,' al1 constituting a flagrant violation of basic human rights noms. National laws of Nepal and India have prohibited trafficking in girls into prostitution; however, their limited purposes, considerable shortcomings, and ineffective irnplernentation have exacerbated the problern. Global nature of the problem of traff~ckingin persons, including tralfickiag into prostitution Generally speaking, trafficking in persons suggests the movement of persons fiom one place to another by force or deceit. United Nations estimates that 4 million people are traficked each year8 resulting in USS 7 billion in profits to criminal gro~~s.~The purpose of trafficking in persons, inchding the traficking of women and girls, can be one or more of the slavery like practices, such as prostitution, forced marriage, forced labour (domestic or factory or any See "Girls Traficking: Guard Against Flash Trade", SporIigI~r(Kathmandu Nepal: August 14-20) at 16- 2 1 [hereinafter Guard Açainst]. In the said anicle it was reported that the Maiti Nepal. a ieading non- governmental organisation fightinç against girls traff~cking,has estimated that nurnber of Nepalese girls in Indian's sex industry ranges from 150,000 to 300,000 and half of them are infected by HIV/AIDS. ' Radhika Coomaraswamy UN Speciai Rapporteur on Violence Against Women, "Nepal and India should work to eliminate Traficking" The Karhmandu Pest (Nepal: November 4 2000). The said paper has quoted her as saying " 10,000-15,000 Nepalese girls are traffkked fiom Nepal to lndia every year." 7 See Dinesh Raj Saytyal, Maiti Farkiayaka Cheliharu (Kathmandu: Agroforestry Basic HeaIth and Cooperative/ Nepal, 1999) at 2 1 [translated by author] [hereinafter Mairi FaAiayka]. See Trafficking in Women and Girls, Report of the Secretary General, UN A/103, GA Distr.: General, fi@- fifih session, GA Resolution 52/92 of 12 Dec. 1997, 9 See Joythi Kancis et al. eds.; Trafficking in Women 3 in Focus 30 (OCT. 1998) online: http://www.foreignpoIicy-infocus.ors/briefs/vo13/v3n3Owom.html. other forms).
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