Vulnerabilising the trafficked child: Structural violence of governance practices in the EU and ASEAN

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Faculty of Philosphy and Social Sciences Université Libre de Bruxelles, Brussels, Belgium

Graduate School of Asia-Pacific Studies Waseda University, Tokyo, Japan

Vulnerabilising the trafficked child:

Structural violence of governance practices in the EU and ASEAN

Élisa Narminio

Thesis directed by Professor Julien JEANDESBOZ (ULB, REPI) and Professor Paul BACON (Waseda, SILS)

Thesis submitted in September 2020*

Members of the Jury:

Prof. Paul BACON, SILS Waseda

Prof. Julien JEANDESBOZ, REPI ULB (Secretary) Prof. Yasushi KATSUMA, GSAPS Waseda

Prof. Hélène THIOLLET, CNRS, CERI Sciences Po Prof. Anne WEYEMBERGH, REPI ULB (Chair)

* This research received funding from the European Union's Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie Grant Agreement N°722826, and benefitted from the Van Buuren-Jaumotte-Demoulin Award.

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To my treasures, And to the children that this work is about, May your inner light always be a beacon in the night.

To my wonderful family, With love and gratitude.

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Acknowledgements

Friederich Nietzsche wrote, “What matters is not eternal life but eternal vivacity”.

This manuscript owes much to relationships extending far beyond the past years of work.

Wonderful family members, friends, mentors, colleagues, chance encounters have pushed me to strive towards intellectual “vivacity”, by encouraging me to question my beliefs, sharpen my thoughts and see life through different lenses. Deciding whom to thank is thus a daunting task; I mention only a few of the very many people I am grateful to.

I am fortunate to have supervisors who have been considerate of my deep personal interests, feeding my research through their intellectual generosity and reeling me in when it was time to stop opening up new horizons. They have always been there for me when I needed them, and left me to my own devices the rest of the time. I am immensely grateful to you, Julien Jeandesboz and Paul Bacon, for your invaluable feedback, infallible support and benevolence. Anne Weyembergh was not my official supervisor on this PhD, however she has been there since the start of this adventure, and has followed my journey with great attentiveness to my intellectual growth and personal wellbeing. I am lucky to have had these three very fine human beings as academic mentors.

To the colleagues and friends I have worked closely with in my formative years, as a public policy advisor and during my PhD, I owe a huge debt of gratitude. In the order of our first meeting, I would in particular like to thank Philippe Delaveau, Marie-José Louveau, Gabriel Saad, Paul Garapon, Klara Issak, Sheena Shah, George Lawson, Kimberly Hutchings, Benjamin Martill, Christine Chinkin, Konstantina Davaki, Philipp Paech, Claire Marzo, Laurence Brunet, Eloise Todd, David McNair, Frederik Ponjaert, Chloé Brière, Virginie Guiraudon, Mario Telò, Yasushi Katsuma, Christian Olsson, Elisa Lopez Lucia. They have all, unwittingly perhaps, contributed to shaping my voice through their passion, inspiration, insightful suggestions, rigorous critiques and comradeship.

This research project would never have materialised without the valuable intellectual and logistical input of a great many people. I acknowledge my debt to the numerous activists, policy-makers, aid workers, academics, journalists, lawyers, corporate actors, social workers, members of the police, government officials, traffickees – many of whom may not be named to safeguard anonymity – who gave their time so generously.

Their judgments and the facts they provided helped form my own opinion by challenging preconceived notions. My hope is that my attempt to add fresh data and perspectives to debates on the complex forces impeding more efficient anti-trafficking policies could in turn contribute to easing their practice.

The GEM-STONES community, under the aegis of funding from the European Union's Horizon 2020 research and innovation programme, has provided both a stimulating and enjoyable environment to conduct my research in, by bringing together a group of enthusiastic fellow students, academics and practitioners from over the world, and practitioners. Ulla Härmäla and Frederik Ponjaert have been of constant support, whatever the issue they were faced with. Professor Katsuma and managers at Waseda University deserve a special mention for going above and beyond their responsibilities. Not only have Akihiko Niiho and Megumi Ohashi helped me find housing and a place at a public nursery for my baby boy when we moved to Tokyo, they have also invited my little family into their house, and through many acts of kindness, such as bringing fever strips and compotes when my baby was ill, made us feel a little less estranged and so much more at home. Criss- crossing Europe and Southeast Asia to conduct research and attend conferences, navigating the administrative hurdles of several countries and changing homes no less than seven times

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over the past three years with two babies in tow would never have been possible without the gracious support of those colleagues.

My friends and family have been an essential anchorage. Marion, Frederik, Viggo and Endza Mergam-Alecian, Marion, Alvaro and Ulysse Cosi, and more recently Elisa and Nicolas: thank you for the bubble of joy and comfort you have provided for me in Brussels. It has been a privilege to spend so many cozy evenings with you and wake up to freshly squeezed juice and glitter on my hands. I miss those times spent together, and look forward to the next. Many close friends, be they in France, Lesotho or Japan, have been supportive of this work. They tolerated the cycles of my absences and never failed to provide much needed laughter – whether sipping tea in a park, joking around dinner, moving furniture or chasing chicken. You know who you are. Particular thoughts go to Sophie Aumas, Sheena Shah, Akiko Inuzuka, Charles Barbet, Jules Vanier, Elizabeth Laborde, Xavier Hubert, Johanna Benoist, Camille Montjaret, Bastien Pachoud, Anand Raichoor, Valentine Perret, Julien Lacabanne, Lucie Meurice, Romain Thibault and Emilie Tachdjian.

My beloved family is the bedrock on which all else depends. Although it is poor compensation for their constant kindness by my side, especially because they would probably prefer a book that is less obsessed with violence, I dedicate this work to my family, with immense tenderness and appreciation.

Thank you, Marc, for always being supportive of my projects, whilst reminding me to not take it all too seriously. Maëlys and Léandre, my treasures, my endless all, you are a source of daily inspiration and happiness. I hope you will one day understand why your mommy spent so much time working instead of playing. Aurélien and Rahel, without your four-star writing retreat, with gourmet meals and all, I wouldn’t have made it over the finish line. Finally, to my parents, Nadine and Adriano: you deserve special recognition. More through example than through words, you taught me the importance of both tenacity and curiosity; you have given me roots and a haven in tempestuous times, whilst giving me wings to explore my own world. You have shown great patience and support throughout this journey – much more so than any of us had envisaged would be necessary. Over the past three years, you have hopped on planes and opened your door to rowdy toddlers to help us navigate geographical separations, transcontinental moves and a pandemic. Your premium Extreme Babysitting Services and immense devotion throughout my life have made this thesis possible.

It truly takes a village.

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4.1.1. Governing movement: Child migrant mobility in a globalized world ... 196 4.1.2. Regional politics of migration management: Child traffickees and boundary crises and the borders of utilitarianism in the EU and ASEAN ... 202 4.2. Transfers of illegitimacy and variations in legitimacy: (Im)Material child trafficking accelerators ... 209

4.2.1. “Transfers of illegitimacy”: child traffickees, from victims to foes ... 210 4.2.2. Norms, variations and (il)legitimacy: The migration apparatus and the vulnerabilization of child traffickees ... 218 4.3. Captures: Child traffickees and the structural violence of the migration apparatus ... 226 4.3.1. Hard Times for These Journeys: Transborder recruitment schemes and the capture of child traffickees in ASEAN ... 227 4.3.2. Capturing vital forces: the intersection between states’ reliance on cheap labour and children’s labour migration journey’s ... 233 Conclusion. The nexus between violence, exploitation and agency ... 238

P

^ART

3. T

HE PRIVATE SECTOR AND CHILD TRAFFICKING

:

S

TRUCTURAL VIOLENCE OF GLOBAL VALUE CHAINS IN THE

EU

AND

ASEAN ... 242

Introduction ... 244 Chapter 5. Child Trafficking Inc.: MNEs’ business models and loci of exploitation ... 248

Introduction ... 250 5.1. Small hands, big profits: child trafficking in multinational enterprises’ global value chains ... 250

5.1.1. Children's presence on GVCs: MNEs approaches to child labour, forced labour and trafficking ... 251 5.1.2. Labour intensive, price sensitive: geographical and sectorial risks of child trafficking in GVCs ... 252 5.1.3 Challenging the hyperbole of criminal networks: children’s routes to exploitation in GVCs ... 257 5.2. Child trafficking and deep supply chain transparency: where the rubber meets the road ... 264

5.2.1. Structures of business supply chains: the case of the apparel industry ... 265 5.2.2. The dark confines of MNEs’ GVCs: lengthy, complex and beyond control? .. 270 5.2.3. Greasing the wheels of the global economy: the economic value created by forced child labour in global supply chains ... 273 5.3. MNEs’ unequal reactions to anti-trafficking on their GVCs: perceptions, engagement and adjustments ... 279

5.3.1. Perceptions: “You don’t want to be in an NGO report” ... 279 5.3.2. Denial and obstruction: “The economics for child trafficking aren’t there” .. 282

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5.3.3. Transformation: "If it’s just our quaint code, it’s difficult, but if it’s the law…”

... 285

Conclusion. Global economy, local exploitation ... 290

Chapter 6. The road to Anti-Trafficking Inc.: Transformative tipping points for socially sustainable global value chains ... 292

6.1. From nudges to disclose to MNEs’ obligation to conduct due diligence on their GVCs: A shift to the legal enforcement of MNEs’ anti-trafficking governance? ... 295

6.1.1. “It just made the peak a little higher”: the limited effects of nudges and voluntary schemes ... 295

6.1.2. Legal provisions on MNEs' anti-trafficking responsibilities in Southeast Asian countries: insufficient to curb exploitation ... 296

6.1.3. Regulating business conducts through constraint: new laws and public governance measures in Europe's States and Union on child exploitation in GVCs 301 6.2. Power dynamics in MNEs’ GVCs as vectors of norm transmission: leveraging power structures to achieve the implementation of anti-(child)trafficking policies ... 307

6.2.1. Collective initiatives: multi-stakeholder partnerships and sectoral agreements ... 309

6.2.2. Dyadic relations of buyers-suppliers and consumer-MNE: regulative ripple effects ... 312

6.2.3. “It has to come down to the bottom-line”: economic sanctions for States, the cases of the EU Yellow Card and US TIP downgrading in Thailand ... 316

6.3. Anti-Trafficking Inc.: Taking control over (the deep tiers of) GVCs ... 321

6.3.1. The reliance on NGOs as investigators and upholders of justice: hybrid governance 3.0 ... 322

6.3.2. Borrowing reliability and power-purchase: the temptation of green labels, the risk of blue washing ... 325

6.3.3. Conducting due diligence: new models, new apps ... 328

6.4. Deterrence and remediation in practice: routes to fair, free and safe employment for exploited children ... 336

6.4.1. Child trafficking remediation processes: much ado about nothing? ... 336

6.4.2. The push for the “employer-pays (recruitment fees)” principle ... 338

6.4.3. The search for increased control over sourcing: insourcing and supply chain shortening ... 342

Conclusion. Talking the talk, loitering the walk? ... 346

G

ENERAL

C

ONCLUSION

: B

REWING FAVOURABLE WINDS

... 348

S

OURCES

... 360

List of interviews ... 360

Works cited ... 362

A

NNEXES

... 388

Maps ... 388

Map of ASEAN ... 388

Map of the EU ... 389

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Formal interview questionnaires ... 390

Research questionnaire, Thailand, 2018 ... 390

Interview answer sheet, Thailand, 2018 ... 394

Guidelines for ideal and acceptable answers, Thailand, 2018 ... 398

Research questionnaire, private sector, 2020 ... 402

Scientific activities ... 405

Conferences attended, 2016-2020 ... 405

Additional scientific activities, 2016-2020 ... 406

Roundtable report, “EU-ASEAN Cooperation on Security Threats” ... 407

Published articles 2019-2020 ... 412

E. Narminio. “Child Trafficking Inc.: States and multinationals, partners in (anti-)crime?”, GAATW Anti-Trafficking Review, 2020 (accepted with minor revisions). ... 412

E. Narminio. “What norms become in use: Emergence, clustering, and applications of the child trafficking norm”, Journal of Asia-Pacific Studies 40, 2020. ... 412

P. Bacon, E. Narminio. “The framing power of ASEAN with regard to human rights and democracy”, in Framing Power Europe? EU External Action On Democracy and Human Rights in a Competitive World, eds R. Marchetti and N. Levrat. Routledge: 2021. ... 426

C. Carta, E. Narminio. “The Human Factor: Accounting for Texts and Contexts in the analysis of Foreign Policy and International Relations”. International Studies Perspectives (accepted). ... 440

E. Narminio, C. Carta. “Discourse Analysis: Breaking down ideational boundaries in social sciences”, in Research Methods in the Social Sciences: A A-Z of Key Concepts, edited by Jean-Frédéric Morin, Christian Olsson and Ece Özlem Atikcan, Oxford University Press, 2020 ... 461

E. Narminio. “Child Prostitution; Sex Work” in The SAGE Encyclopedia of Children and Childhood Studies,eds Erica Burman and Daniel Thomas Cook. SAGE: 2020. ... 467

E. Narminio. Book Review: The Routledge Handbook of Justice and Home Affairs Research by Ariadna Ripoll Servent and Florian Trauner (eds). New Journal of European Criminal Law 1-3. 2019. ... 473

Policy Brief, “The vulnerabilisation of trafficked children: escaping the structural violence of governance practices in the European Union ... 475

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List of figures and tables

Figures

Figure 1: Data on the criminal activity of child trafficking ... 20

Figure 2: Share of children among the total number of detected victims in the different regions, by country ... 21

Figure 3: Child trafficking flows in ASEAN ... 25

Figure 4: Article 2, Directive 2011/36/EU ... 92

Figure 5: Influential stakeholders in the governance of child trafficking in the EU and ASEAN ... 116

Figure 6: View of what constitutes trafficking by thirty-seven people working in the field of anti- trafficking (based on ten case studies from the field) ... 122

Figure 7: Visualisation of the child trafficking norm cluster – single value model ... 133

Figure 8: Visualisation of the child trafficking norm cluster – multiple value model ... 133

Figure 9: Schematic representations of children’s risk of falling into trafficking during their migration routes through South-East Asia – open scenario ... 257

Figure 10: Routes to trafficking – scenario 1: Vithu’s migration route, from Cambodia to Kantang, Southern Thailand ... 261

Figure 11: Routes to trafficking – scenario 2: Khurshida’s migration route, from Myanmar to Mukdahan, North Eastern Thailand ... 263

Figure 12: Schematic diagram of a generic global value chain processes and interdependence ... 266

Figure 13: Description of a typical GVC in the textile-apparel industry ... 268

Figure 14: Monthly wages of workers in the apparel sector ... 269

Figure 15: Estimates of child labour and value added for domestic demand and exported goods in East and South East Asia (excluding China) ... 275

Figure 16: Child labour in agricultural exports (downstream perspective) and export industries using child labour in agriculture (upstream perspective) – global perspective ... 277

Figure 17: Litigation relating to corporations’ due diligence on their supply chains ... 305

Figure 18: Power in global value chains ... 308

Figure 19: Tech Against Trafficking, Interactive map of anti-trafficking tech tools ... 332

Tables Table 1: Evolution of United Nations Membership ... 60

Table 2: International treaties containing human trafficking provisions ... 73

Table 3: The Palermo Protocol’s Article 3(a): defining trafficking in persons and children ... 76

Table 4: History of the European Union and Council of Europe framework on child trafficking ... 88

Table 5: Additional sectoral European Union legislation containing provisions on child trafficking ... 89

Table 6: Legislative framework of child trafficking in ASEAN Member States ... 103

Table 7: Summary of findings on EU child trafficking projects in Southeast Asia ... 107

Table 8: Summary of case law on child trafficking referenced on the UNODC SHERLOC Database ... 126

Table 9: Case law example, trafficking of two fourteen-year old girls in Albania ... 127

Table 10: Documented occurrences, by industry, of child labour and forced child labour in South East Asian countries of focus ... 253

Table 11: Child labour in export industries in East and South East Asia (excluding China) ... 276

Table 12: European Union and Member States’ national laws on corporate accountability and liability for child exploitation in GVCs ... 302

Table 13: International treaties containing human trafficking provisions ... 415

Table 14: The Palermo Protocol’s Article 3(a): defining trafficking in persons and children ... 417

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List of acronyms and abbreviations

ACTIP Action Pour Les Enfants

ASE Aide Sociale à l’Enfance (French Child Welfare Services) ASEAN Association of Southeast Asian Nations

ASEANAPOL Inter-Asean Police

BKA Bundeskriminalamt (German Federal Criminal Police)

BNRM Bureau National Rapporteur Mensenhandel (Bureau of the Dutch National Rapporteur on Trafficking in Human Beings)

CETS Child Exploitation Tracking System CoE Council of Europe

COMMIT Coordinated Mekong Ministerial Initiative against Trafficking

CSEA Continental South-East Asia (Cambodia, Laos, Myanmar, Thailand, Vietnam) CSR Corporate social responsibility

CT Child Trafficking

CTM Counter-Trafficking Module [database]

DPKO Department of Peace Keeping Operations ECA European Court of Auditors

ECJ European Court of Justice

ECHR European Court/Convention on Human Rights

ECPAT End Child Prostitution, Child Pornography and the Trafficking of Children

EU European Union

EUROPOL European Police Office

GCM United Nations Global Compact for Migration

GVC Global value chain (closely related to global supplychain) ICT Information and communication technology

IJM International Justice Mission ILO International Labour Organization INTERPOL International Criminal Police Organization IO International organisation

IOM International Organization for Migration IR International Relations

MNE Multinational enterprise NGO Nongovernmental organization

OHCHR United Nations Office of the High Commissioner for Human Rights OSCE Organization for Security and Cooperation in Europe

Palermo United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children

SEA Southeast Asia

SHERLOC UNODC database for Sharing Electronic Resources and Laws On Crime TVPA Trafficking Victims Protection Act

UIA Union of International Associations

UN United Nations

UNCRC United Nations Convention on the Rights of the Child UNDP United Nations Development Program

UNESCO United Nations Educational, Scientific and Cultural Organization UNGA United Nations General Assembly

UN.GIFT United Nations Global Initiative to Fight Human Trafficking UNHCR United Nations High Commissioner for Refugees

UNICEF United Nations Children’s Fund

UNICRI United Nations Interregional Crime and Justice Research Institute UNIFEM United Nations Development Fund for Women

UNODC United Nations Office on Drugs and Crime

UNOHCHR United Nations Office for the High Commission on Human Rights US United States of America

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General Introduction

Darkness cannot drive out darkness: only light can do that.

― Martin Luther King Jr., A Testament of Hope Men can co-exist on condition that they recognize each other as being equally, though differently, human, but they can also coexist by denying each other a comparable degree of humanity, and thus establishing a system of subordination.

― Claude Lévi-Strauss, Tristes Tropiques

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Inception of the research project

The road to a research project

The concern with children on the move and with varying forms and degrees of violence experienced by people has been with me since I was a little girl. The more specific issue this manuscript grapples with – the transborder trafficking of children – is the result of a maturation process that started during my studies in comparative literature and in international relations, as I conducted research on the 1994 genocide in Rwanda and later on child soldiers in the Kivu region. My interest in child trafficking took a more definite shape in my professional life as an adviser in public policy, when I was confronted, in 2012, with the first discussions on the challenges of the early implementation of Directive 2011/36/EU of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting its victims. This short genesis is important, because it has in many ways shaped the initial conceptualisation of my project, and has also had an influence on the results presented in the following pages. By providing readers with a background on the inception of the project, I wish to give perspective on the maturation of my object of study.

Through my eclectic academic and professional background as a comparatist and a public policy practitioner, I have developed a practical understanding of the potential for efficient implementation contained in transborder cooperation, a sensitivity to the symbolic and performative reach of language, as well as an appetite for giving voice to stakeholders rarely heard in IR studies on child trafficking: the children that are the object of policies.

These considerations led me to initially design this project to combine two levels of analysis:

one focusing on the police and justice cooperation within and between the EU and ASEAN, adopting a comparative approach, and a second level of anthropological work with former child traffickees. The anthropological work with children had to be set aside – hopefully for a future project – because of feasibility issues surrounding lengthy fieldwork in the context of this particular PhD set-up. With regards to police and justice cooperation, although initiatives seem to be underway, the mutism surrounding inter-regional cooperation proved a very real barrier to research, despite direct connections and influential introductions. As for comparative regionalism, I soon discovered that despite a prevalent discourse in the policy-making realm about regional cooperation and normative influence, the reality has far lesser reach. This has led me, throughout my fieldwork, to question my object of study, confront preconceptions and existing findings in the literature, and come to grips with some

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of the limits of current knowledge on, and approaches to, child trafficking in academia.

These practical hurdles and empirical findings have had a direct influence on the construction of my project and the way I approach my object of study. Naturally drawn to speaking with stakeholders from all sectors of society, be it public authorities, civil society, corporate actors, or passers-by, it became soon self-evident to me that not only were children’s voices absent in the debates surrounding the child trafficking norm, but the private sector, despite its centre-stage position in trafficking for the purpose of labour exploitation, was rarely considered a sparring partner by the stakeholders more traditionally considered as “units of analysis” in political science (state institutions, international organisations, regional organisations, NGOs). The conviction, which was soon backed by more detailed fieldwork, that the private sector not only had a hand in child trafficking, but could also hold the key to the scaling up of anti-trafficking initiatives, has shaped a large part of this research project, as the reader will discover in the coming pages.

Performative discourses and self-reflexivity on the concepts used

In a study that seeks to question the norm of child trafficking as a potential vehicle of the structural violence that child traffickees are subjected to, it may seem paradoxical to indulge in vocabulary that is similar to the actors purporting this structural violence. It is a caveat that must be acknowledged here: the critical reading of the norm cannot fully depart from the normative framework that it seeks to deconstruct. The semiotics widely accepted on my object of study therefore inherently contain a tension between the framework that it upholds, and the critical reading that unfolds in the coming pages. In order to steer clear as much as possible from the institutional lingo that upholds structural violence towards child traffickees, I attempt to resist as much as possible the urge to speak in stakeholders’ terms.

For the sake of clarity, and in order to mitigate the adherence to a specific framing, the terminologies “trafficking in human beings” (European terminology), “trafficking in persons”

(international and American nomenclature) and “human trafficking” (largely used in everyday speech) are used interchangeably; the term “modern slavery”, although widely used in British and international context, is avoided however, for the questionable historical superimposition it denotes. In addition, the terms “victims”, emphasized mainly in legal documents, and “survivors”, preferred by most practitioners to refer to the resilience of the persons who have been exploited, are used alongside the term “child traffickees”, which I

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coined to display a form of neutrality on the issue of agency of the children involved in those processes.

Outline of the General Introduction

This general introduction will start by analysing the “child trafficking” norm in light of its socio-anthropological realities and geographical anchorage. This will allow us, in a second part of the introduction, to give perspective to the academic literature grappling with the different aspects of child trafficking, and provide a literature review of the findings and blind spots currently affecting this field of research. The literature review enables us to clearly see that the issue of child trafficking and of the effects of anti-trafficking policies on children is not a question that is very much dealt with in the political science literature (European Union studies and International relations in particular), and when it is dealt with, the assumption is that by necessities these policies protect children. Three heuristic limitations are particularly salient: despite an increasing number of publications on the topic, little attention has been paid to, firstly, child victims of human trafficking, in particular where they are subjected to labour exploitation; secondly, the links between international, regional and national understandings of the child trafficking norm, and the possible distortion between original intent and implementation; thirdly, the impacts of anti- trafficking policies on the children concerned. The third section of the introduction presents the framework of the research project, consisting of the research questions and the associated analytical and methodological framework chosen to implement the research. In substance, the present research project analyses the governance practices arising from the current legal and political frameworks aimed at reducing the trafficking of children in the European Union (EU) and the Association of Southeast Asian Nations (ASEAN), and the effects produced by those anti-trafficking policies on the children concerned. It asks what is at stake when children, in the name of protection, are made into subjects of control, by originally placing this enquiry within the framework of a comparison between measures adopted in the EU and in ASEAN. Such a comparative outlook is infrequent in the literature on anti-trafficking policies or child trafficking. The argument deployed is that, as a result of legal and policy choices, as well as institutional structures on which the child governance apparatuses rest, child traffickees are subjected to structural violence. On the analytical level, the section will serve to clarify the logic that led me to mobilise, within the framework

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of a reflection on child trafficking laws and policies, the notion of the apparatus deployed by Michel Foucault. I will also set out the methods used to operationalize the hypotheses and research questions presented above, and specify the different sources mobilised during the research, and their articulation.

Constructing the object of “child trafficking”: judicialisation and politicisation of human exploitation in the EU and ASEAN

Although trafficking in human beings is not a new phenomenon, it has in recent years acquired a grave dimension worldwide in the context of globalisation (D’Cunha 2002;

IOM 2007). Recent mediatised news stories have brought the issue of child exploitation and child “selling” to the fore: the sting operation of charity Terre des Hommes has highlighted the extent of child sexual exploitation, whilst the “blonde angel” attracted attention to abusive “adoption” procedures. Debates on the legality of prostitution have further fuelled discussions about the best legal and policy protections to offer women and men, girls and boys, who are traded in the sex industry against their consent. The object of “child trafficking” has been constructed around a panic on the exploitation of innocent souls, in particular seen as concerning young girls forced into commercial sexual exploitation. This heritage carries over into global data gathering on child trafficking and the global debates on the most adequate legal and policy frameworks to be adopted to stem child trafficking.

Figure 1: Data on the criminal activity of child trafficking

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The global context of child trafficking: data and flows

Child trafficking is one of the most pressing transnational issues in need of a robust international legal and policy response. It is considered the third largest, second most profitable and fastest growing criminal industry globally (Marinova and James 2012), benefitting from a “merchandise” that can be sold numerous times (ILO 2014) within this USD 150 billion industry (UNODC 2018).

An estimated 3 to 4 million people fall victim to traffickers every year, 25-50% of them children (UNODC 2016, 2019 see Figure 2). The scope of the phenomenon of child trafficking is difficult to measure precisely due to its hidden nature and the lack of reliable, consistent data. Existing data is often difficult to compare due to methodological differences or conflicting definitions, and is not systematically disaggregated by age of the victim.

However sources such as the UNODC or UNICEF estimate that there are over one million children trafficked annually representing up to 50% of all trafficking victims and that this number is increasing (UNODC 2006; 2018; UNICEF n.d.). As of January 2019, global estimates where children are concerned still reference the ILO's estimate of 1.2 million children being trafficked each year (ILO 2002). This is due to the fact that, although recent research has produced information on the form and nature of trafficking in children, the magnitude of the phenomenon is difficult to apprehend. The most recent Global Report on Trafficking in Persons 2018 produced by the United Nations Office on Drugs and Crime maps the share of children subjected to human trafficking, based on data provided by national authorities.

Data is available for some of the countries examined in this study, in particular Laos (over 50% of TIP victims are children), Thailand (30-50%), Myanmar (less than 30% - this however is in conflict with the reports coming from the experts working in the field and interviewed in Bangkok in November 2018); United Kingdom (30-50%), France, The Netherlands, Belgium (below 30%) (UNODC 2018). This confirms the trends outlined above.

Figure 2: Share of children among the total number of detected victims in the different regions, by country

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Source: UNODC data from 2016 (or most recent) (UNODC 2018).

The most common form of exploitation for detected cases of trafficking is sexual exploitation (59% globally according to UNODC 2018, down from 79% in UNODC 2010).

However, this hides two biases: firstly, the data hides serious regional disparities, with labour exploitation and sexual exploitation being detected in nearly equal proportions in South and Central Asia, for instance (UNODC 2018, 29; no disaggregated data by age or specific SEA region); secondly, sexual exploitation often being easier to detect than other forms of trafficking, the data extrapolated from detected cases don’t paint a precise picture of what is actually happening on the ground. Conversations with practitioners are illuminating in that respect. Whilst in France, “child sex trafficking is the priority” due to a

“lesser demand for labour trafficking”, as a consequence of “legislation on labour law that is one of the most repressive in Europe”, “trafficking for labour exploitation is a problem in other regions, such as Thailand in Southeast Asia” (Interview 7). Indeed, the sentiment of a senior trafficking professional from the ILO in Bangkok is that “the movement of children into the sex industry has been vastly over-focused on. I don’t think it’s a huge movement in terms of numbers. I’m not convinced by any of the data. Sex trafficking seems to be decreasing quite significantly. It doesn’t mean that there is no trafficking occurring, but that it’s probably more child sex abuse [getting] scooped up under the framework of trafficking”, whilst child trafficking for labour exploitation remains largely unfocused on (Interview 26) due to the structural, historical, methodological and conceptual biases described above.

All countries are affected, either as countries of origin, transit or destination, sometimes as all three. Most of the trafficking in children happens at the national or regional

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level, although trafficking across continents is also common and concerns approximately 800,000 people (adults and children) every year, according to the International Organisation for Migration, 80% of whom are trafficked through official border crossing points (IOM 2018). Southeast Asia is a region of destination, origin and transit, and represents a third of global flows of trafficked women and children (IOM 2018). The European Union’s Member States are primarily – but not solely – countries of destination. The UNODC notes: “Since 2010, there has been a significant and steady increase in the share of victims detected within their own country’s borders. The share of identified domestic victims has more than doubled over the last few years, from 27 per cent to 58 per cent in 2016. This marked increase could reflect an increased volume of people trafficked in their own countries. In countries characterized to be more typically destinations of cross border trafficking, this may be the result of improved controls at borders, hence more difficulties to traffic victims from abroad. In typical origin countries, improved border controls could also result in more victims being intercepted during the process to be transferred abroad” (UNODC 2018, 41).

The variability of information found on the number of child traffickees and trafficking flows are largely attributed to the lack of consensus on the delineation of what constitutes a case of child trafficking¹. The scope of the phenomenon of child trafficking is difficult to measure precisely due to its hidden nature (van Reisen and Stefanovic 2004, 11–

13; FRA 2009, 54), is difficult to compare due to methodological differences (FRA 2009, 54), and is not systematically disaggregated by age of the victim (Arnold and Bertone 2002;

Melrose 2002). Studies on human trafficking have long tended to make it a prevalent issue of sex trafficking. More recent studies recognize the methodological, cognitive and practical biases towards the detection of commercial sexual exploitation over labour trafficking:

“Along with women and girls, both adult men and boys are also the victims of trafficking (…) but the trafficking cases of men are extremely underreported” (Makisaka 2010). This impacts the understanding of data and flows, and has direct consequences on anti-child trafficking responses in the field (Interview 17). Fieldwork conducted for this study, and which will be described in more detail below, has contributed to consolidating a mapping of intra-regional and inter-regional flows of trafficked minors, the trajectories of whom are not disaggregated from the adults in existing studies, through a bottom-up perspective based on the observations from a variety of practitioners in Southeast Asia. Practitioners working with child traffickees in Southeast Asia indeed unanimously stress the hub that Thailand

1 This will be explored in detail in “2.3. Meanings-in-use and uses of meaning: Performative effects of language on child trafficking”, p.106.

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constitutes in the region, both as a destination country for child traffickees and as a country of transit for further transborder trafficking to Malaysia, Indonesia, Singapore and outside of the region, in particular to the European Union (UNODC 2018). The centrality of Thailand in the Southeast Asian child trafficking ecosystem is linked to its general centrality, the relative economic poverty of neighbouring countries, and the porosity of the mountainous borders between Laos, Myanmar and Thailand in particular (some interpretations also extend this frontier to include Vietnam and the Chinese Yunnan region), which has been dubbed the

“golden triangle” (Interview 27). Figure 3 below presents an overview of intra-regional and inter-regional child trafficking flows between the two regions of concern to this study.

The lack of data is a general problem globally on child trafficking, with even deeper roots in Southeast Asia, as a lot of children are not registered at birth (UNICEF 2013). In Laos, this lack of birth registration concerns half of the families (Interview 17). “A lot of actors are doing small surveys. For instance, the Ship-to Shore project surveyed 400 people using snowballing techniques, which doesn't give you the most valid data to start with. The results of this baseline study is used to say that there hadn’t been much child trafficking in fishing sector. The problem, then, is that it becomes a fact” (Interview 21), whereas the reality is very different. “When I went to the [IOM] field office in Ranong, I walked into three households; in the second, there was a 16-year-old boy working on a fishing vessel, seemingly under conditions of trafficking” (Interview 21). The lack of data is common across many countries. The problem is that, precisely because the lack of data and difficult access to facts on child trafficking, findings are often extrapolated too quickly, shaping the narrative about what is going on.

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Figure 3: Child trafficking flows in ASEAN

Source: Analysis of interviews conducted in Thailand, November 2018.

The socio-anthropology of child trafficking

A socio-anthropological inquiry into child trafficking leads us to reflect on the specific vulnerabilities of children to trafficking, the environments that are conducive to

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creating vulnerabilities to trafficking through specific push and pull factors, and the prevalence of the types exploitation child traffickees are confronted to.

There is no typical profile of children subjected to child trafficking. Boys and girls, adolescents and young children from all countries and backgrounds are affected. Trafficking for commercial sexual exploitation is slightly different. Anthropological research conducted on commercial sexual exploitation stress that physical attractiveness, young (virgin) children believed to be safe from sexually transmitted diseases, young boys, etc. are particularly sought after in certain environments and trigger higher purchasing prices (Troshynski and Blank 2016). The broader framework of transborder child trafficking covers a broad spectrum, from “legitimate economic migration and employment practices to completely illegal activities” (Interview 27). Although the push and pull factors are largely the same for minor and adult victims, and are amplified by the fact that the risk of being caught is small for traffickers due to inadequate policies and/or their implementation, children present particular vulnerabilities inherent to their age, level of maturity, experience and level of information. Research has shown that specific vulnerability factors make children more prone to trafficking (Lusk and Lucas 2009). Risks can be categorized into family-related factors (poverty, social exclusion, absence of parental figures, low levels of education, …), child-specific factors (homelessness, peer pressure, absence of legal identity, obligation to support one-self or one’s family, being a victim of child abuse or child labour, …), socio- economic related factors (high poverty and unemployment levels, movements of people, high population density, …) and environment-related factors (existence of child labour or prostitution tourism, corruption and organised crime, consumerism, proximity of armed conflict zone, …) (Europol 2011)². Specific life circumstances render children more prone to trafficking, in particular those who have been exposed to domestic violence and/or have a very low family income, as well as: runaway youth having experienced former abuse and coming from broken families (specifically in high income countries). In Southeast Asia, the literature and fieldwork show that the top three factors leading children into trafficking are

2 Common push and pull factors for children and adults falling into trafficking factors have been listed by Europol (2011) and the European Commission website (Montoro 2013), and include:

• Common push factors: social and economic circumstances in countries of origin (family problems, lack of employment opportunities or lack of education, inequality in the labour market, exposure to violent and abusive situations, poverty, marginalisation, economic exclusion, armed conflicts, social and gender inequality, discrimination against ethnic minorities, infringements of children's rights, …);

• Common pull factors: demand in richer countries/urban areas especially for prostitution and cheap labour, general higher living standards and employment opportunities, presence of established diaspora communities, differences between national/regional legislation.

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(relative) poverty and the search for livelihoods, unsafe migration channels due to the costs and administrative impracticalities of legal migration routes, and family structure and traditions making children more prone to work and exploitative labour practices [see Question 2, Annex “Research questionnaire, Thailand, 2018”, p.390). One interviewee summarised the susceptibility of children to be subjected to trafficking in those words:

“governments need to disincentivise trafficking; this could be through more accessible and widespread schooling, the development of employment opportunities for the adults, especially in the more rural villages. Part of the problem is that there are no employment opportunities for the adults in some regions, so to make ends meet, it is more common to see child trafficking instances” (Interview 34). Globally, children often experience several risk factors at the same time, termed “poverty plus” by a joint consultation of ILO, UN-GIFT and UNICEF: it describes a situation in which an additional factor to poverty, such as illness, triggers increased vulnerability to trafficking (ILO and IPEC 2009). Likewise, through chain effects, children subjected to child labour are likely to dip in and out of commercial sexual exploitation – which often represents the best-paid option – and vice versa (Mutch 2007).

Social, economic and political structures shape environments that are more or less prone to the flourishing of child trafficking. Government policies, the global economy and male-centric traditions are amongst those structural effects. Government policies define whether trafficking is tackled seriously; neglected due to weak education structures, low salaries, impunity for offenders and traffickers, inadequate support for CPSW victims; or even actively encouraged through the (unofficial) promotion of a lucrative sex industry protected by (corrupt) government officials, either for personal gain or for national financial interests. Researchers have also pointed to the role played by economic factors, in particular that of a globalised economy in the increase of “demand” for sexual services from children (OHCHR 2015), of development policies (austerity, loans, debts, …) in the facilitation of exploitative practices and human trafficking (Farr 2005), and of stark economic disparities, coupled with inadequate migration policies, in enabling a breading ground for debt bondage practices. These societal structures are infused by undercurrent beliefs regarding the place of children, men, women and sexuality. Male-centric assumptions about gender roles and sexuality as a male right are drivers of structurally discriminatory practices. The socio- anthropological reality of child trafficking is thus largely driven by gender stereotypes and representations of childhood.

Lusk and Lucas identify four mechanisms of trafficking: a) debt bondage, the most common, b) false contracts c) chattel slavery, and d) war slavery, which affects

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predominantly children (Lusk and Lucas 2009). Attention also needs to be paid to the modes of recruitment, through manipulation or coercion mainly, that children are most vulnerable to. The commonplace understanding is that of trafficking conducted through deviant criminal strategies. Many children, however, fall under the trafficking banner because of family exploitation, debt bondage further to labour migration, or a host of other, more complex, situations. It is indeed important to note, as the fieldwork in Southeast Asia and Europe delineated in the coming pages shows, that children in Southeast Asia are often recruited by acquaintances, relatives, or trusted intermediaries in the region. They are less frequently recruited by criminal gangs, who are more common in the European context (Interview 7, Interview 30). Most of the times, the children are lured into exploitative situations, and ultimately trafficking, through promises of well-paid jobs and are then kept in trafficking through the exertion of control by deception and the use of violence, or the threat thereof. A more detailed picture is starting to emerge from the research conducted, which will be helpful in understanding with more detail the mechanisms that lead children to – and keep them into – trafficking (see Chapters 2 and 4 for a more in-depth analysis of such mechanisms).

From child exploitation to the legal category of “child trafficking” and the political concept of “modern slavery”

Child trafficking has been the object of increased concern over the past decades. Yet governmental and non-governmental institutions are only starting to assess the gaps of child victims’ protection in the face of this increasing human rights concern and the child trafficking norm has only recently been codified in international legal instruments. 2020 marks the 30^thanniversary of the UN Convention on the Rights of the Child, the 20^th anniversary of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (Palermo Protocol, 2000) and the 5^th year of the existence of the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (ACTIP, 2015). 2021 will see the 10^th year of implementation of the EU Anti- Trafficking Directive (2011/36/EU). Despite growing awareness of the issue and a substantive legal and political arsenal to combat trafficking, numbers continue to rise.

All countries in the EU and ASEAN are affected by child trafficking, be it as states of origin, destination or transit. Deep changes in the social, legal, political and economic structures of society since the late 20^th century have led to a shift away from the

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Westphalian system and towards a “globalisation” of issues traditionally devolved to sovereign states (Agnew and Corbridge 1995; Ruggie 1998; Beck 1999; 2005). The growing cross-border movements of goods and people, whether legal or illicit, have indeed triggered the need for common legal frameworks and transnational policies. This shifting configuration of actors, agencies, themes and initiatives across multiple centres of authority interrogates the “normal” multi-level governance literature premised on static notions of the state (Hooghe and Marks 2003, 233; Stubbs 2005) and stresses the need for a more refined approach to the new actors and management modes of the policy and practice arena (Wihtol de Wenden 2013). Academics and practitioners alike stress the “extraordinary influence [of non-state actors] on outcomes in international politics” (Risse 2002), their provision of collective goods (Beisheim, Campe, and Schäferhoff 2010) and the stark need for more robust interinstitutional collaboration (Rahman 2012; UNICEF n.d.)

The information needed for designing holistic legal and policy approaches are missing, however, as evidenced by the gaps in data identified above and the call by transnational institutions to perform studies on child trafficking and its multi-disciplinary implications³. In addition, despite this legislative arsenal, and due to the nature of human trafficking – and in particular child trafficking –, which often involves the victims in underground activities, there is a problematic point of friction between the status of trafficking victim and criminal, which current policy practices have difficulty to resolve in both the EU and ASEAN. Whilst the international community has established a canvas of anti-trafficking laws and policies, professionals unanimously observe the failure of measures to durably protect children. Hence, instead of receiving protection, trafficking victims are often criminalized, making them even more vulnerable. Whilst ASEAN and the EU include protection measures to a varied degree in their laws and policies, they face a similar conundrum: anti-trafficking efforts are still relatively recent at the global level and policy- makers have yet to take stock of these implementation impediments. Given the transnational nature of a large proportion of human trafficking, cooperation between states and regions is paramount to the success of anti-trafficking measures.

3 See attempts by the EC, invitation to tender HOME/2013/ISEC/PR/014-A2; UNESCO Bangkok’s

“Trafficking Statistics Project”; UNIAP’s 2008 call for human trafficking data; continued references to the TIP report, although it is not based on solid fieldwork (Interview 26); additional survey work constituted by the IOM and the ILO (Interview 21, Interview 26); repeated insistence on discourses on human trafficking about the need for more detailed information (e.g. UN Secretary General in opening remarks on the Global Compact on migration, see Guterres 2017); etc.

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The construction of the object of “child trafficking” as a legal and political norm thus rests on the observation of very concrete practices of exploitation of children, yet a relatively poor understanding of its workings, and a judicialisation and politicisation of human exploitation in the EU and ASEAN that is premised on historical constructions linking it primarily to two angles: the securitization of migration, and the human rights of children.

Deployment of academic perspectives on child trafficking:

explaining the successes and challenges of a complex object of laws and policies

Due to its heterogeneous nature, child trafficking has been the object of studies coming from different scientific disciplines. History, sociology, philosophy, law, medicine and political science have all attempted to dissect the issue and its stakes, through an array tools and concepts specific to each field. As the legal category of “child trafficking” and the discourses around “modern day slavery” have gained increasing traction, and occupied an expanding space, in the public discourses of the media, politicians, and civil society, the political science literature has started to critically examine the political treatment of child trafficking. The interest in the issue of human trafficking has been on the rise in the past decade. Despite this, research has suffered from limitations inherent to silos linked to the different approaches taken on the issue, which are rarely connected: epistemology, children’s rights, security, criminology, migration, … Furthermore, the study of sexual exploitation has been historically favoured. Hence, whilst the international community is starting to take forward legal and policy responses to trafficking, accompanied by regional efforts in the EU and ASEAN to give a practical grounding to international treaties, these measures often lack anchorage, due to the absence of holistic, evidence-based studies linking theory with practical responses. In this section, we will thus explore how the political science literature, abounded by legal, sociological and economic scholarship, has dealt with this normative construct, with the legislative and political arsenal it has given rise to at the global, regional and national levels, and with the effects these structures of governance are having on child traffickees. The literature review below will serve to give an overview of the emergence of the question of child trafficking in the political arena and to reflect on the gaps in current research. In doing so, the current limits of the literature in dealing with this object

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of study will shed light on the way that I have sought to address shortcomings in knowledge through this research project.

Literature review and gap analysis: The child trafficking norm and its diffusion

Trafficking in human beings has traditionally been framed through two different approaches: a) as a threat to national and international security (Bastick and Grimm 2007), encompassing migration and labour laws violation as well as ties with organised crime and corruption; and b) as a human rights issue. The co-existing legal documents and policy practices at the international, European and ASEAN level corroborate this dichotomy (see Chapter 2 for further detail). The literature in this respect has evolved in two different directions: one approach through the rights and the legal construct of the child trafficking norm, one taking stock of the symbolic and political meanings of the norm’s construction.

International legislation on human trafficking in general, and child trafficking in particular, leaves a lot of room for interpretation. Although it may be argued that this is a strategic act to federate as many signatories as possible, it creates considerable confusion on what child trafficking is, and what it is not, as compared to migration, forced migration, smuggling, slavery, servitude, forced labour, exploitation, deception, etc. (see e.g. comments of legal scholar Gallagher 2001: 987; O’Connell Davidson, 2005: 73). Authors such as Anne Gallagher and Elspeth Guild have examined the dilemmas arising from the legal category of human trafficking (e.g. Guild, Basaran, and Allinson 2019; Nanopoulos, Guild, and Weatherhead 2018; A. Gallagher and Holmes 2008; A. T. Gallagher and Surtees 2012), and some scholars have attempted to interrogate the tipping point from law into practice, as well as the philosophical implications of legal categorisation (e.g. Delmas-Marty 2011).

There is a rich academic scholarship on the historic heritage of the child trafficking norm, and its constitution through “moral panic” on female sexuality (Doezema 1999). This critical scholarship, coming from Constructivism, Post-structuralism, Critical theory, Feminism, has produced very rich discussions pointing towards the contradictions permeating the definition of traffickees as being both victims and people who pose a threat (Aradau 2008) and confronting the limits of categorisation and the politics of exclusion that derive from normative constructs of child trafficking in particular (Aradau 2004; Andrijasevic 2007;

Aradau 2008; Andrijasevic 2010; Szörényi 2014). This has provided rich critical scholarship on

Vulnerabilising the trafficked child: Structural violence of governance practices in the EU and ASEAN

Faculty of Philosphy and Social Sciences Université Libre de Bruxelles, Brussels, Belgium

Graduate School of Asia-Pacific Studies Waseda University, Tokyo, Japan