This submission is made on behalf of 12 civil society organizations and individuals working on issues concerning gender, sexuality and migration from different perspectives. We commend the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) for addressing the pressing issue of migrants’ rights to liberty and freedom from arbitrary detention and welcome the opportunity to provide inputs to the Draft General comment No. 5 (2020) on migrants’ rights to liberty and freedom from arbitrary detention in a very critical time given the COVID-19, discriminatory government response against the migrant workers during the pandemic and worryingly increasing incidents and crackdown against migrant workers globally. We believe that integrating a clear intersectional and gender analysis will further strengthen the draft general recommendation and set out some analysis and recommendation below for the Committee’s consideration.
This submission urges the Committee to clearly recognize that any deprivation of liberty resulting from discriminatory laws, regulation and policies or their discriminatory application is by definition arbitrary and breaches the right of equal protection before the law. Discriminatory laws, policies and regulations addressing migration and beyond have a disproportionate negative impact on migrant women, adolescents, sex workers, people living with HIV, lesbian, gay, bisexual, transgender, gender non-conforming and intersex persons, persons with disabilities, and anyone who is perceived to have transgressed sexual and gender norms. In the context of migration and detention, such individuals and groups are more likely to suffer compounded rights violations. As a result, States cannot hold them in detention in relation to migratory measures and must always provide alternatives to detention.
The suggested changes to the General Recommendation proposed in this document are based on following overarching principles, a) the framework for any legislation, policy or programme including criminal laws to address trafficking should respect, protect and fulfill human rights and fundamental freedoms, b) prevention and elimination of human rights violations including trafficking is achieved by addressing root causes which include patriarchal norms c) any anti-trafficking measures undertaken should be in consultation with and participation of women and persons affected d) upholding women’s and girls’ autonomy should be the goal of all anti-trafficking measures.
This submission argues that the concept of trafficking should be debunked to give way to policies that ensure migrant rights and address migrant labour. In doing this, it deals with the definition of trafficking in the Convention and its consequent impact on women and girls, especially in the context of migration. The CEDAW Committee now has an opportunity to reframe the understanding of state obligations and standards on the issue of trafficking from a gender perspective, so that it is grounded in human rights and upholds bodily autonomy of women and girls.
This submission suggests the Committee (1) develops a comprehensive interpretation that recognizes the inextricable connection amongst the rights to peaceful assembly (ICCPR 21), freedom of expression (19), and freedom of association (22) and; (2) implements the strict tests of necessity and proportionality for restrictions of these rights. The lack of a cross-cutting standard for the restriction of these rights particularly affects those who are perceived to have transgressed sexual and gender norms.