Mag.a Julia Planitzer Exposé

Transcription

1 Mag.a Julia Planitzer Exposé The Council of Europe Convention on Action against Trafficking in Human Beings and its impact on strengthening a Human Rights Based Approach to Trafficking in Human Beings Supervisor: Univ. Prof. Dr. Manfred Nowak Dissertation subject: Fundamental and Human Rights 1

2 1. Research Proposal a. Background: Statement of the Problem Trafficking in human beings enjoys high attention in international politics. Relevant actors on international, regional and national level elaborate on various strategies, including policies and legislation against trafficking in human beings. Often, trafficking in human beings is referred to as contemporary form of slavery and even more often it is pointed out that trafficking in human beings constitutes a grave human rights violation. As also stated in the preamble of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 1, effective action to combat trafficking in human beings includes the protection of the victim s human rights. Although pointed out in its preamble, the Palermo Protocol remains weak in this regard and gives States a considerable discretion in questions of the provision of assistance to the victim or residence. Current State s strategies focus on the prosecution of traffickers and disregard the protection of victim s human rights. Trafficking for the purpose of sexual exploitation is still the most discussed form, neglecting other forms of trafficking in human beings such as the exploitation of labour. In order to combat trafficking in human beings a holistic and integrated approach is needed which builds on the respect and promotion of human rights as its fundament in order to respond to it effectively. 2 The OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking 3 give guidance on a HRBA to trafficking in human beings, but as not being legally binding they do not show applicable human rights norms which leads to the fact that the obligations imposed upon States are not clear. 4 A step towards an application of a human rights based approach (HRBA) to trafficking in human beings is the adoption of the Council of Europe Convention on Action against Trafficking in Human Beings. 5 The Council of Europe Convention on the one hand follows a primarily victim-oriented approach and on the other hand intends to combine the human rights perspective with an effective criminalization of trafficking and is based on the recognition of trafficking in human beings as a violation of human rights. 33 member States ratified this convention in the meantime and an enhanced application of a HRBA in national strategies, including policies and legislation, against trafficking in human beings should be distinguishable. In order to move from the mere acknowledgement to an effective application of a HRBA in trafficking in human beings, numerous obstacles have to be overcome. b. Literature Review Obokata offers a comprehensive overview of trafficking in human beings and its relations to human rights. Among others he elaborates the obligations and accountability of non-state actors as well as of States. A human rights framework for trafficking in human beings is elaborated. Regarding the obligations of States, Obokata 1 Supplementing the United Nations Convention against Transnational Organized Crime, G.A. Res. A/55/25, Annex II, adopted 15 November 2000, [hereinafter Palermo Protocol]. 2 Report of the EU Experts Group on Trafficking in Human Beings, Brussels, 2004, p OHCHR, 2002, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1. 4 Obokata, 2006, Trafficking of Human Beings from a Human Rights Perspective, p CETS N 197, adopted 3 May 2005, [hereinafter Council of Europe Convention]. 2

3 differs between four obligations applicable to all States: obligations to 1) prohibit trafficking and related acts; 2) investigate, prosecute and punish traffickers; 3) protect victims of trafficking; and 4) address the causes and consequences of the practice. 6 In order to further promote the human rights framework he emphasises that human rights obligations of States need to be further articulated. 7 Rijken 8 recently adopts the same categories of state obligations as Obokata does and additionally recommends disconnecting victim protection from migration law and criminal law. The mere fact that a person might be a trafficked person shall be sufficient to provide the person with assistance and protection. Consequently Rijken suggests elaborating a Victim agency with a Victim Assistance and Protection Package (VAPP) 9. This VAPP should contain measures, which are recognized in specific instruments on trafficking in human beings such as the Council of Europe Convention. Collateral Damage 10 analyses the human rights impact of anti-trafficking measures in eight States and discovered numerous harmful effects of these measures. Many of these measures are based on the Palermo Protocol. In light of the measures taken the report holds that it is difficult to believe that most governments know what they are committing themselves to when they agree to use a human rights approach. 11 The intended research tries to provide a clear articulation of the human rights obligations of States relevant to trafficking in human beings. This might lead to the conclusion that anti-trafficking measures should in a first place be based on human rights obligations and then focus on obligations derived from specific anti-trafficking instruments. c. Purpose of Research The purpose of the research will be to assess the current state of application of a HRBA to trafficking in human beings. As indicated above, the application faces obstacles and the intention will be to show in how far the adoption and the ratification by States of the Council of Europe Convention contributes to a strengthened application of a HRBA to trafficking in human beings. In a first step the elements of a HRBA to trafficking in human beings and existing State s obligations need to be identified. Next step will be to analyse whether the Council of Europe Convention covers all elements of a HRBA to trafficking in human beings. Afterwards the implementation of the Council of Europe Convention at national level will be analysed. For this the work of the Group of Experts on Action against Trafficking in Human Beings (GRETA) will be of utmost importance. GRETA is the monitoring body of the Council of Europe Convention and is currently conducting its first round of evaluation of the implementation of the convention by the State Parties. Finally, after elaborating upon the HRBA to trafficking in human beings and the Council of Europe Convention, the impact of the Convention will be analysed. The research will turn to assessing whether this convention is contributing to the empowerment of trafficked persons and persons being at risk to be trafficked. Based on selected elements of the HRBA to trafficking in human beings, the impact of the Council of Europe 6 Obokata, 2006, p Obokata, 2006, p Rijken, 2009, A human rights based approach to trafficking in human beings. 9 Rijken, 2009, p GAATW, 2007, Collateral Damage - The Impact of Anti-Trafficking Measures on Human Rights around the World. 11 GAATW, 2007, p. 7. 3

4 Convention on a strengthened HRBA to anti-trafficking policies will be assessed. The research will assess to what extent specific anti-trafficking instruments, which lead then to specific national anti-trafficking strategies, contribute to an enhanced HRBA to trafficking in human beings at the national level. d. Research Questions and Proposed Outline The overall research question will be: Does the Council of Europe Convention on Action against Trafficking in Human Beings lead towards a strengthened HRBA to trafficking in human beings? In order to be able to identify answers to this question the following sub-questions are suggested: What are elements of a HRBA to trafficking in human beings? To which extent are the elements of a HRBA to trafficking in human beings included in the Council of Europe Convention? To which extent is the Council of Europe Convention implemented at national level? Which impact has the Council of Europe Convention on the HRBA to trafficking in human beings? In chapter 1 the elements of a HRBA to trafficking in human beings need to be identified. Focus will be placed on the human rights obligations States have with regard to the protection of trafficked persons and the prevention of trafficking in human beings. Part of this step will be comprised of an elaboration of key elements of the HRBA to trafficking in human beings, which should support the following assessment of the Council of Europe Convention and the national case studies in the next chapters. Chapter 2 forms the example of a legally binding regional instrument on trafficking in human beings that claims to follow a HRBA. An assessment to which extent the Council of Europe Convention is covering the elements of a HRBA to trafficking in human beings will be conducted. In chapter 3 the implementation of specific obligations of the Council of Europe Convention in three States, which signed and ratified the convention (Austria, Georgia and Romania), will be analysed. In all three states the convention entered into force at the same and earliest possible time (February 2008). One non-eu member is chosen in order to address also the so called disconnection clause 12 for the Member States of the EU and to show which impact its application among EU Member States can have. Additionally in this part will be elaborated whether the ratification of the Council of Europe Convention in the selected countries has led to a change of anti-trafficking policies, towards a HRBA to trafficking in human beings. Again, the focus should be on protection of trafficked persons and the prevention of trafficking in human beings. 12 The Council of Europe Convention states in Art. 40 para. 3, that Parties which are members of the European Union shall, in their mutual relations, apply Community and European Union rules in so far as there are Community or European Union rules governing the particular subject concerned and applicable to the specific case. 4

5 Based on the outcomes of chapters 1-3, in chapter 4 the question of whether the Council of Europe Convention is containing an added value with regard to its obligations. Additionally, the implementation on national level will be assessed. Finally, conclusions will be drawn up which should discuss possible strategies towards an implementation of a strengthened HRBA to trafficking in human beings. e. Research Methodology The first part will consist of a legal analysis of human rights norms and principles and relevant jurisprudence. This will be complemented by an in-depth analysis of the literature on international human rights law relevant to trafficking in human beings. The second part contains an examination of the Council of Europe Convention and an analysis of the application of HRBA to trafficking in human beings in this convention. Additionally, expert interviews with different actors, such as representatives of the NGOs, the Council of Europe and members of GRETA might be necessary. In order to be able to elaborate on the actual impact of this instrument on an enhanced application of a HRBA to trafficking in human beings, three national case studies will be conducted in the third part. The analysis of the impact of the Council of Europe Convention in practice needs sociological research. As Sana and Thelle regarding the fulfilment of human rights put it, knowledge of the legal framework has to be supplemented by knowledge obtained by methods belonging to different social sciences. 13 Within a few-country comparison 14 the strengthened application of a HRBA to trafficking in human beings will be assessed. The selection of the three countries is determined by the dates of signature, ratification and entry into force of the convention. These dates are similar in the chosen countries and the convention entered into force in all three countries at the earliest possible time. Additionally, one country is a non-eu member. All three case studies follow the same structure and the structure will be partly based on the methodology elaborated in the RIGHT guide 15, which is a tool to assess the human rights impact of anti-trafficking policies. These case studies focus on specific elements of the HRBA to trafficking in human beings. Based on defined criteria, two to three elements will be chosen. Preliminary criteria can be the following: The element is part of the HRBA to trafficking in Human Beings. Secondly the element, such as assistance to trafficked persons, is laid down in the Palermo Protocol. But reflecting a prosecution emphasis, States are only asked to consider adopting measures by the Palermo Protocol. 16 Thirdly, this element turned into an obligation for States which ratified the Council of Europe Convention. In all three case studies, the impact of the Council of Europe Convention will be assessed based on the same two to three defined elements. Following the methodology of the RighT Guide, interviews with representatives of three different groups will be conducted. These groups will be firstly the government and secondly the groups, which might be affected by the policy. Regarding the third group, the impact of the element on the protection of the human rights of trafficked persons is targeted. Interviews with NGOs will be conducted, which work with trafficked persons. Interviews will be semi-structured and follow an interview guide Sana, Thelle,2009, in Coomans, Gruenfeld, Kamminga, Methods of Human Rights Research, p Landman, 2009 in Coomans, Gruenfeld, Kamminga, Methods of Human Rights Research, p Aim for Human Rights, Wijers, Chew, 2010, The RighT Guide. 16 Haynes, 2004, p Bryman, 2008, Social research methods, p

6 2. Timeline 1 st year Analysing existing literature on trafficking in human beings and HRBA Research on methodology and following courses on social research methodology 2 nd year Elaborating an overview of elements of the HRBA to trafficking in human beings with focus on the protection of trafficked persons and prevention of trafficking in human beings Developing a list of key elements of the HRBA to trafficking in human beings Analysing the extent of the HRBA adopted in the Council of Europe Convention Implementation of the Council of Europe Convention: Conducting country analysis Planned publication covering the impact of the Council of Europe Convention on the HRBA in national legislation with a focus on protection of trafficked persons and prevention of trafficking in human beings 3 rd year Analysing the added value of the Council of Europe Convention Analysing possible ways of strengthening the HRBA to trafficking in human beings Elaborating conclusions Writing up the thesis Planned publication covering the discussion on possible benefits of framing trafficking in human beings in a broader context and impacts of specific antitrafficking instruments 3. Bibliography Aim for Human Rights, Wijers, M., Chew, L. (2010) The RighT Guide A tool to assess the human rights impact of anti-trafficking laws and policies. Bryman, A. (2008) Social research methods (3 rd ed) New York: Oxford University Press. Coomans, F., Gruenfeld F., Kamminga M. T. (eds.) (2009) Methods of Human Rights Research. Antwerp: Intersentia. Experts Group on Trafficking in Human Beings (2004) Report of 22 December Brussels: European Commission, Directorate-General Justice, Freedom and Security. Experts Group on Trafficking in Human Beings (2010) Opinion No 6/2010 on the Decision of the European Court of Human Rights in the Case of Rantsev v. Cyprus and Russia. Brussels: European Commission, Directorate-General for Home Affairs. Experts Group on Trafficking in Human Beings (2010) Opinion No 7/2010 Proposal for a European Strategy and Priority Actions on combating and preventing trafficking in human beings (THB) and protecting the rights of trafficked and exploited persons. Brussels: European Commission, Directorate-General for Home Affairs. 6

7 Follmar-Otto, P. (2007) Menschenrechtliche Instrumente gegen Menschenhandel in German Institute for Human Rights et al (eds.), Jahrbuch Menschenrechte 2008, Berlin: Suhrkamp. Follmar-Otto, P., Rabe, H. (2009) Human Trafficking in Germany Strengthening Victim s Human Rights, German Institute for Human Rights. GAATW (Global Alliance Against Traffic in Women) (2007) Collateral Damage - The Impact of Anti-Trafficking Measures on Human Rights around the World. Bangkok. GAATW (2010) Feeling good about feeling bad. A Global Review of Evaluation in Anti- Trafficking Initiatives. Bangkok. Gallagher, A. (2006) Recent Legal Developments in the Field of Human Trafficking: A Critical Review of the 2005 European Convention and Related Instruments, pp in European Journal of Migration and Law 8. Gallagher, A. (2008) Using International Human Rights Law to Better Protect Victims of Human Trafficking: The Prohibitions on Slavery, Servitude, Forced Labor and Debt Bondage, pp in L.N. Sadat, M.P. Scarf, The Theory and Practice of International Criminal Law: Essays in Honour of M. Cherif Bassiouni, Leiden: Martinus Nijhoff. Gallagher, A. (2009) Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway, pp in Virginia Journal of International Law, Volume 49, Number 4. Gekht, A. (2008) Shared but Differentiated Responsibility: Integration of International Obligations in Fight Against Trafficking in Human Beings, pp in Denver Journal of International Law and Policy, Volume 37, Number 1. Grabenwarter, C. (2009) Europäische Menschenrechtskonvention (4 th ed). Vienna: Manz. Hanyes, D.F. (2004) Used, Abused, Arrested and Deported: Extending Immigration Benefits to Protect the Victims of Trafficking and to Secure the Prosecution of Traffickers, pp in Human Rights Quarterly, Volume 26, Number 2. Obokata, T. (2006) Trafficking of Human Beings from a Human Rights Perspective Towards a Holistic Approach. Leiden: Martinus Nijhoff Publishers. OHCHR (2010) Recommended Principles and Guidelines on Human Rights and Human Trafficking Commentary. Geneva: UN. Perrin, B. (2010) Just Passing Through? International Legal Obligations and Policies of Transit Countries in Combating Trafficking in Persons, pp in European Journal of Criminology 7 (1). Rijken, C. (2009) A human rights based approach to trafficking in human beings, pp in Security and Human Rights, Volume 20, Number 3. 7

8 Rijken, C., de Volder E. (2009) The European Union s Struggle to Realize a Human Rights-Based Approach to Trafficking in Human Beings. A Call on the EU to Take THB- Sensitive Action in Relevant Areas of Law, pp in Connecticut Journal of International Law, Volume 25. Uhl, B. H. (2010) Lost in implementation? Human rights rhetoric and violations a critical review of current European anti-trafficking policies, pp in Security and Human Rights 2010, Number 2. United Nations Inter-Agency Project on Human Trafficking (2008) Guide to Ethics and Human Rights in Counter-Trafficking - Ethical Standards for Counter-Trafficking Research and Programming. Bangkok. 8