Trafficking in Persons in International Law

Transcription

1 Trafficking in Persons in International Law In international law, the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children [the Trafficking in Persons Protocol], supplementing the Convention against Transnational Organized Crime, which came into existence in 2000, marks the international community s most comprehensive effort to deal with trafficking in persons in its modern forms. The Protocol partly substitutes, partly complements a long list of international treaties dating back to the 1800s that seek to combat various aspects of trafficking in persons. This website outlines the evolution of the Trafficking in Persons Protocol, its purpose and key provisions, and reflects on the implementation and uptake by States Parties. è è è Evolution of International Law relating to Trafficking in Persons Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children Implementation and Uptake Evolution of International Law relating to Trafficking in Persons Throughout the 19th and 20th centuries a great range of international treaties emerged which sought to prevent and combat the exploitation of human beings. Often aimed at or limited to specific categories of persons, these treaties shaped the evolution of international law in this field and explain the direction the Trafficking in Persons Protocol has taken. Five principal areas of international law contributed to the contemporary framework to prevent and combat trafficking in persons, both internationally and domestically. These include slavery, prostitution, labour, human rights, and the rights of the child. The following sections briefly outline each of these five influences. For a complete account and analysis, see Corin Morcom & Andreas Schloenhardt, All About Sex?! The Evolution of Trafficking in Persons in International Law, UQ Human Trafficking Working Group, Research Paper (March 2011). The complete report is available here [pdf]. International anti-slavery conventions From the beginning of the 19th century, the moral condemnation surrounding slavery and the slave trade led to the development of international agreements against these practices, which, today, are recognised as one form of exploitation in the context of trafficking in persons. While early slavery conventions focused on banning the slave trade from Africa, gradually a prohibition of the institution of slavery itself developed, culminating in the 1926 Convention to Suppress the Slave Trade and Slavery, 1 which abolished slavery in all its forms. This Slavery Convention was the first instrument to define both the terms slavery and slave trade and is, today, widely recognised as customary international law. The 1956 UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery further obliges States Parties to adopt all appropriate measures to abolish practices similar 1 Adopted 25 September 1926, 60 LNTS 253 (entered into force 9 March 1927) (hereinafter Slavery Convention).

2 to slavery, including debt bondage, serfdom, servile marriage and the exploitation of children. 2 The abolition and prohibition of slavery has also been recognised in international human rights law. Article 4 of the 1948 Universal Declaration of Human Rights states that [n]o one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Similarly, Article 8 of the 1966 International Covenant on Civil and Political Rights (ICCPR) provides that no one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited; no one shall be held in servitude. 3 International anti-prostitution conventions International anti-prostitution conventions, first conceived in the late 19 th century, focus on the criminalisation of trafficking as an international means to abolish prostitution. This coincided with growing concern about the movement of women throughout Europe and to North America, particularly in regard to the solicitation of Caucasian women into prostitution against their will. The term white slavery was coined at that time thus rendering the term trafficking synonymous with the international movement of women and girls for the purpose of commercial sexual exploitation. For example, Article 1 of the 1904 International Agreement for the Suppression of the White Slave Traffic defines trafficking as the coercive procuring of women or girls abroad for immoral purposes. 4 The 1910 International Convention for the Suppression of the White Slave Traffic leaves this scope unchanged, maintaining the link between trafficking and the commercial sexual exploitation of Caucasian women. 5 The 1921 International Convention for the Suppression of the Traffic in Women and Children further endorses the definition contained in the 1910 Convention thereby retaining an emphasis on prostitution as the exploitative purpose of trafficking whilst omitting the racial reference to white slave traffic. 6 The 1933 International Convention for the Suppression of the Traffic in Women of the Full Age defines trafficking as the transfer of women across nation-state borders for immoral purposes, regardless of their consent or coercion. 7 The abolitionist approach to prostitution is most pronounced in the 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, which declares prostitution incompatible with the dignity and worth of the human person. 8 This Convention consolidates the earlier conventions, utilising race-, gender- and age-neutral terminology and removing the transnational element of trafficking in persons, thereby extending the conceptualisation of trafficking in persons, while retaining the focus on the sex industry Adopted 7 September 1956, 266 UNTS 3 (entered into force 30 April 1957) Art 1. Adopted 16 December 1966, 999 UNTS 171 (entered into force 23 May 1976) (hereinafter ICCPR). Adopted 18 May 1904, 1 LNTS 83 (entered into force 18 July 1905). Adopted 4 May 1910, LNTS 8(a) (entered into force 8 August 1912). Adopted 30 December 1921, 9 LNTS 415 (entered into force 15 June 1922). Adopted 11 October 1933, 150 LNTS 431 (entered into force 24 August 1934). Adopted 21 March 1950, 96 UNTS 271 (entered into force 25 July 1951), Preamble.

3 International labour law The development of conventions by the International Labour Organisation (ILO) in relation to labour exploitation led to an extension of the scope of trafficking in persons beyond the sole focus on prostitution and sexual exploitation. The ILO considers trafficking a degrading misuse of human resources resulting in undignified and unproductive work. 9 Forced labour refers to all work or service extracted from any person under the menace of any penalty and for which the person has not offered himself or herself voluntarily. 10 In its efforts to ban labour exploitation, the ILO initially built upon the Slavery Convention, which attempts to ward against forced labour degenerating into slaverylike conditions. The 1930 Forced Labour Convention and the 1957 Abolition of Forced Labour Convention 11 institute measures to prevent compulsory labour from degenerating into conditions similar to slavery. The 1949 Convention Concerning Migration for Employment deals with the recruitment, placing, and conditions of migrant workers. 12 The 1973 Migrant Workers Supplementary Provisions Convention also includes provisions concerning trafficking in persons. 13 The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families addresses the elimination of the exploitation of migrant workers throughout the migration process and attempts to institute measures for the protection of documented and undocumented migrants. The 1973 Convention Concerning Minimum Age for Admission to Employment introduces a generalised abolition of child labour, replacing 10 earlier treaties that established a minimum age for admission to employment. 14 The 1999 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour deals specifically with the abolition of the worst forms of child labour, calling on States Parties to abolish such practices as a matter of urgency. 15 More recently, the ILO introduced the Protocol of 2014 to the Forced Labour Convention This Protocol requires States Parties to take additional measures to suppress forced labour, recognizing that the contemporary labour marketplace is unrecognizable from the one that existed when the Convention was first drafted. Additionally, non-binding practical guidance is provided to States Parties in areas such as enforcement and international cooperation through Recommendation No International human rights law To this day, international human rights law complements the system established with the Trafficking in Persons Protocol by balancing the criminal justice approach of the ILO, Unbearable to Human Hearts: Child Trafficking and Action to Eliminate It (2002) vii. Adopted 28 June 1930, 39 UNTS 55 (entered into force 1 May 1932), Art 2(1). Adopted 25 June 1957, 320 UNTS 291 (entered into force 17 January 1959). Adopted 1 July 1949, 20 UNTS 70 (entered into force 22 January 1952). Adopted 24 June 1975, 1120 UNTS 323 (entered into force 9 December 1978). Adopted 26 June 1973, 1015 UNTS 297 (entered into force 19 June 1976). Adopted 17 June 1999, 2133 UNTS 161 (entered into force 19 November 2000), Art 1. ILO Protocol P029: Protocol of 2014 to the Forced Labour Convention, 1930 (103 rd Conference Session Geneva 11 June 2014). ILO Recommendation R203: Forced Labour (Supplementary Measures) Recommendation, 2014 (No. 203) (103 rd Conference Session Geneva 11 June 2014).

4 Protocol and as a mechanism to enforce applicable human rights norms and principles. Several international human rights instruments make specific reference to the abolition of slavery and trafficking in persons. Article 8 of the ICCPR, as mentioned earlier, contains an explicit ban on slavery, servitude and forced labour. Article 7 of the International Covenant for Economic, Social and Cultural Rights further stipulates that [t]he States Parties to the Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work. 18 Rights of the child The 1989 Convention on the Rights of the Child is the first major instrument to consider child trafficking as a separate phenomenon, requiring specific preventative and victim rehabilitation measures. 19 Article 35 of the Convention requires States Parties to take all appropriate measures to prevent the abduction of, the sale of, or traffic in children for any purpose or in any form. The Protocol on the Sale of Children, Child Prostitution and Child Pornography supplements Article 31 of the Convention by calling on States Parties to criminalise national and transnational practices relating to child sexual exploitation, removal of organs for profit, forced labour, illegal adoption, child prostitution and child pornography. 20 The Optional Protocol on the Involvement of Children in Armed Conflicts extends the definition of child trafficking to the movement of child soldiers for the purpose of exploitation. 21 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children The UN Protocol for the Prevention and Suppression of Trafficking in Persons, especially Women and Children was opened for Signature in 2000 and entered into force four years later. 22 The term 'trafficking in persons' is defined in Article 3(a) of the Protocol to mean: the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. The purposes of the Protocol, as stated in its Article 2 are: (a) to prevent and combat trafficking in persons, paying particular attention to women and children; (b) to protect and assist the victims of such trafficking, with full respects to their human rights; and Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 1 March 1976) (hereinafter ICESCR), Art 7. Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). Opened for signature 25 May 2000, 2171 UNTS 227 (entered into force 18 January 2002). Adopted 25 May 2000, 2173 UNTS 222 (entered into force 12 February 2002). Opened for signature 12 December 2000, 2237 UNTS 319 (entered into force 25 December 2003) [hereinafter Trafficking in Persons Protocol].

5 (c) to promote cooperation among States Parties in order to meet those objectives. Unlike earlier treaties, the Protocol reaches beyond sexual exploitation to cover all forms of trafficking regardless of the victim s age and gender. The Protocol aims to set out a uniform approach to trafficking to be taken by all States Parties, and to facilitate international cooperation among them. It divides its approach into prosecution, protection, and prevention (sometimes referred to as the 3 Ps ). Supplementing the Convention Against Transnational Organised Crime, 23 the Protocol advocates a coordinated international response including uniform antitrafficking legislation and prosecution of offenders. With its criminal justice focus, almost all mandatory provisions in the Protocol relate to the criminalisation of trafficking in persons and the subsequent investigation and prosecution of offenders. Article 5(1) of the Trafficking in Persons Protocol requires that criminal offences be established to criminalise the trafficking in persons as defined in Article 3. Additionally, Article 5(2) requires States Parties to criminalise attempting to commit an offence, participating as an accomplice in an offence, and organising or directing other persons to commit an offence. The Protocol also contains provisions for the protection victims of trafficking, although many of these provisions are not mandatory and are often perceived as subsidiary to those addressing prosecution and criminalisation. States Parties, in appropriate cases, are required to protect the privacy of victims, provide victims with information on legal proceedings, and facilitate consideration of victim views and concerns during criminal proceedings against their traffickers. States Parties shall also endeavour to ensure victim safety in their territory, and consider, in appropriate cases, the provision of legal advice, housing, medical and psychological assistance, education, employment, and training to victims. 24 Further, States Parties shall adopt legislative measures to make victim compensation available. Insofar as possible, repatriation of victims should be voluntary and States Parties are asked to allow victims to remain in their territories in appropriate cases. 25 Article 9 of the Protocol requires States Parties to establish policies and programmes to prevent trafficking in persons, such as awareness raising campaigns, research, and data collection. States shall also address related issues of the demand that fosters exploitation, and poverty, underdevelopment, and lack of equal opportunity which increase a person s vulnerability to being trafficked. 26 Further, States Parties shall, where appropriate, provide for inter-country information exchange, 27 and for the strengthening of border protection measures. 28 Finally, States Parties shall provide training to law enforcement, immigration and other officials on prevention of trafficking in persons. 29 The Protocol does not set out formal reporting procedures or other arrangements under which States Parties report on the steps that they have taken to implement the Opened for signature 12 December 2000, 2225 UNTS 209 (entered into force 29 September 2003). Trafficking in Persons Protocol Art 6. Trafficking in Persons Protocol Art 7 and 8. Trafficking in Persons Protocol Art 9. Trafficking in Persons Protocol Art 10. Trafficking in Persons Protocol Art 11. Trafficking in Persons Protocol Art 10(2).

6 Protocol, though the Conference of States Parties and the Working Group on Trafficking in Persons provide informal channels through which States Parties may voluntarily provide such reports and updates. For a complete outline and analysis of the Trafficking in Persons Protocol, see Andreas Schloenhardt, Prevented, Suppressed, and Punished!? Twelve Years of the Trafficking in Persons Protocol, UQ Human Trafficking Working Group, Research Paper (January 2012). The full report is available here [pdf]. Implementation and Uptake As at 19 September 2015, the Trafficking in Persons Protocol has 167 States Parties; 117 States have also ratified the Protocol. The perceived lack of incentives, the view that enough is already done through national laws or non-binding regional initiatives, and a general reluctance to accept binding obligations on issues that traditionally have been matters of national concern are among the principal reasons why some countries have not or not yet signed the Protocol. The costs, expertise, and resources necessary to understand and comprehensively implement the Protocol domestically are further deterrents for many non-state parties, especially developing nations and small island states. Research conducted by the UQ Human Trafficking Working Group in 2011/12 identifies and explores potential barriers to ratification in the non-party states. Using country and region specific example, this research project details a lack of capacity to implement the Protocol, lack of understanding of the Protocol and its requirements, and a lack of political will as the core issues preventing universal ratification. To view the full report, see Andreas Schloenhardt & Ellen Bevan, To Ratify or Not to Ratify? Exploring the Barriers to Wider Ratification of the Trafficking in Persons Protocol (2011) 9 New Zealand Yearbook of International Law , Human Trafficking Working Group, The University of Queensland, Australia. This text is available electronically at