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Title: Trafficking in Human Beings – the international legal framework


1
Trafficking in Human Beings the international
legal framework
  • OHCHR
  • Geneva
  • 25 May 2010

Kristina Touzenis.
2
Trafficking UN Protocol
  • Trafficking in Persons
  • The recruitment, transportation, transfer,
    harboring or receipt of persons, by means of
    threat, use of force or other means of coercion,
    of abduction, of fraud, of deception, of the
    abuse of power or of a position of vulnerability
    or of the receiving or giving of payment to 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.
  • (UN Protocol to Prevent, Suppress and Punish
    Trafficking in persons, especially Women and
    Children)

3
Concept of trafficking

exploitation
movement
organised by a trafficker
trafficking
4
Consent
  • The consent of a victim of trafficking in persons
    to the exploitation shall be irrelevant where any
    of the means of force, threat of, coercion,
    deception, have been used.
  • The recruitment, transportation, transfer,
    harbouring or receipt of a child for the purpose
    of exploitation shall be considered trafficking
    in persons even if this does not involve any of
    the means set forth in the definition of
    trafficking in persons.
  • - agency

5
Exploitation
  • The Protocol makes reference to some specific
    forms of exploitation however the list is not
    exhaustive and it may include other forms as
    well. The choice made was to extend as much as
    possible the definition of trafficking in persons
    to include any possible known or still unknown
    form of exploitation.

6
Women and Children
  • Admittedly, looking at the numbers reported,
    trafficking in women and children is a big
    problem, but the prominent focus on the
    trafficking of women over men arguably has links
    to assumptions about gender and, in particular, a
    generalized notion of female vulnerability. That
    is, many female migrants are conceptualized as
    trafficked while male migrants are seen more
    commonly as irregular migrants.

7
  • The focus on women and children obviously is
    funded in three main factors
  • that these two groups are considered more
    vulnerable in general
  • that statistics underpin the need for this focus
  • that trafficking is often linked to sexual
    exploitation even if trafficking is actually also
    for other forms of exploitation.
  • There is a concrete and urgent need to protect
    these two groups of victims, it is important not
    to create an invisible group of trafficked
    persons both in reality and in research.

8
Palermo Protocol Continued
  • The Protocol gives, for the first time, a
    detailed and comprehensive definition of
    trafficking.
  • The Protocol applies to all people, but
    particularly women and children, since Member
    States have recognized their specific
    vulnerability.
  • It offers tools in order to empower law
    enforcement and strengthen border control,
  • The Protocol integrates this by also
    strengthening the response of the judiciary
  • The main goal is to catch and prosecute the
    trafficker, yet at the same time protect the
    victim. Assistance to victims is crucial to law
    enforcement, since he/she can provide for the
    evidence necessary to successfully prosecute the
    trafficker.

9
Scope of the Protocol
  • To prevent and combat trafficking in persons
  • To protect and assist victims
  • To respect the Human Rights of Victims
  • To prevent, investigate and prosecute
  • To promote cooperation

10
Human Rights Law
  • Human rights issues are not only a concern upon
    arrival of the trafficked person but also during
    the transportation. Instances of torture, inhuman
    and degrading treatment are common during the
    process and many traffickers as well as smugglers
    and in some cases border officials may use
    physical or sexual violence as a means to demand
    payment for their services

11
  • Article 6.2 states that Each State Party shall
    ensure that its domestic legal or administrative
    system contains measures that provide to victims
    of trafficking in persons, in appropriate cases
    (a) Information on relevant court and
    administrative proceedings (b) Assistance to
    enable their views and concerns to be presented
    and considered at appropriate stages of criminal
    proceedings against offenders, in a manner not
    prejudicial to the rights of the defence.

12
  • art. 6.3 requires that states consider
    implementing measures to provide for the
    physical, psychological and social recovery of
    victims of trafficking in persons () in
    particular the provision of
  • (a) Appropriate housing, (b) Counselling and
    information, in particular as regards their legal
    rights () (c) medical, psychological and
    material assistance and (d) employment,
    education and training opportunities.

13
  • Article 6, paragraph 4, of the Trafficking in
    Persons Protocol provides that States parties, in
    considering measures to assist and protect
    victims of trafficking, must take into account
    the special needs of child victims.

14
Other Relevant Instruments
  • International Convention on the Elimination of
    all forms of Racist Discrimination (1966)
  • International Convention on the Elimination of
    All form of Discrimination Against Women (1979)
  • The Convention on the Rights of the Child (1989)
  • ILO Convention 182 on the Worst Forms of Child
    Labour (1999)
  • Convention on the Rights of All Migrant Workers
    and Their Families (1990)
  • In some cases The UN Refugee Convention - 1951

15
CRC
  • Art 35 States Parties shall take all
    appropriate, national, bilateral and multilateral
    measures to prevent the abduction of, the sale of
    or traffic in children for any purpose or in any
    form.
  • The article does not elaborate the terms but the
    words for any purpose or in any form suggest
    that it is to be interpreted broadly.
  • The responsibility for taking measures to avoid
    trafficking is placed clearly on the State, which
    implies a State responsibility if it does not
    succeed in prosecuting offenders, thus making the
    international obligation applicable at the
    trafficker-level

16
CRC OPII
  • OP II Article 3, which provides that States
    Parties shall ensure the definition of the
    following acts as a crime, irrespective of
    whether they are committed domestically or
    trans-nationally, on an individual or organised
    basis Offering, delivering or accepting, by
    whatever means, a child for the purpose of Sexual
    exploitation of the child Transfer of organs of
    the child for profit Engagement of the child in
    forced labour.
  • The OP II also addresses the issues of protecting
    child victims recognising their vulnerability
    but including as an important aspect that the
    views and concerns of the child are taken into
    consideration and that the child be informed of
    her or his rights

17
  • States are under an obligation to protect the
    child victim and his/hers family from
    retaliation, which in many cases is most
    relevant.
  • Measures such as training of personnel and
    special treatment in criminal procedures are also
    included.
  • Using awareness raising and education and social
    integration of victims are imposed on States-
    avoid focusing exclusively on the criminal aspect
    but underlines that children should be at the
    centre of any actions against trafficking and it
    is necessary to take into consideration all
    aspects of this crime.
  • Addressing root causes and international
    cooperation on childrens rights

18
ILO Child Labour Convention (182)
  • For the purposes of this Convention, the term the
    worst forms of child labour comprises
  • (a) all forms of slavery or practices similar to
    slavery, such as the sale and trafficking of
    children, debt bondage and serfdom and forced or
    compulsory labour, including forced or compulsory
    recruitment of children for use in armed
    conflict
  • (b) the use, procuring or offering of a child for
    prostitution, for the production of pornography
    or for pornographic performances
  • (c) the use, procuring or offering of a child for
    illicit activities, in particular for the
    production and trafficking of drugs as defined in
    the relevant international treaties
  • (d) work which, by its nature or the
    circumstances in which it is carried out, is
    likely to harm the health, safety or morals of
    children.

19
  • Each Member shall take all necessary measures to
    ensure the effective implementation and
    enforcement of the provisions giving effect to
    this Convention including the provision and
    application of penal sanctions or, as
    appropriate, other sanctions.
  • 2. Each Member shall, taking into account the
    importance of education in eliminating child
    labour, take effective and time-bound measures
    to
  • (a) prevent the engagement of children in the
    worst forms of child labour
  • (b) provide the necessary and appropriate direct
    assistance for the removal of children from the
    worst forms of child labour and for their
    rehabilitation and social integration
  • (c) ensure access to free basic education, and,
    wherever possible and appropriate, vocational
    training, for all children removed from the worst
    forms of child labour
  • (d) identify and reach out to children at special
    risk and
  • (e) take account of the special situation of
    girls.

20
ICCPR and ICESCR
  • The two major general Human Rights Instrument are
    also valid for victims of trafficking
  • Trafficking is also about protecting from
    victimisation in the county of origin
  • Respect for human rights is needed both in
    countries of origin and in countries of
    destination and transit

21
  • The United Nations High Commissioner for Human
    Rights has developed Recommended Principles and
    Guidelines on Human Rights and Human Trafficking
    (E/2002/68/Add.1), which provide an important
    framework guiding the criminalization of
    trafficking in persons and the development of a
    legislative framework.

22
Smuggling
  • Protection of Children in the smuggling process
    is the protection of irregular migrants human
    rights
  • Consider the child as a child before consider
    him/her as a migrant
  • Terminology and criminalisation

23
Why prevent irregular migration?
  • to avoid exploitation of irregular migrants by
    employers, smugglers and traffickers
  • to prevent the existence of a marginalised group
    in society thus contributing to social cohesion
    and stability
  • to ensure that migration is managed and the
    credibility of legal immigration policies
  • to ensure satisfactory salary levels and working
    conditions for national workers and lawfully
    resident migrant workers, which are undermined by
    the employment of irregular migrants
  • to avoid the existence of whole sectors
    /businesses dependent on irregular migrant labour

24
ILO Convention No. 143 of 1975, Part I
  • State obligation to respect the basic human
    rights of all migrant workers - Art 1
  • Irregular migrant workers to enjoy equal
    treatment with regular migrants in respect of
    rights arising out of past employment
    (remuneration, social security and other
    benefits) Art 9(1)
  • State obligations to
  • take measures, in collaboration with other
    States, to detect and prevent irregular migration
    and the abuses associated with the phenomenon
    Arts 2, 3
  • impose sanctions on traffickers, smugglers and
    employers Arts 5, 6(1)

25
UN Migrant Workers Convention 1990
  • Part III on the human rights of all migrant
    workers and members of their families
  • Reiterates that fundamental civil and political
    rights and economic and social rights apply to
    all migrants
  • Part VI promotion of sound, equitable, humane
    and lawful conditions regarding international
    labour migration
  • State obligation to consult /cooperate to ensure
    labour migration takes place in humane and sound
    conditions
  • Provisions for sanctions against smugglers,
    traffickers and employers

26
Human rights of irregular migrants
  • Safeguards in detention
  • Procedural and substantive guarantees against
    expulsion and protection in the return process
  • Access to economic and social rights
  • Regularization and rights of residence

27
Conclusions
  • Protection of children in both trafficking and
    smuggling is a protection of basic human rights
    in the entire migration process
  • The international legal attention is most
    evident in the trafficking framework
  • Need to emphasise the Human Rights aspects of
    Criminal Law concepts
  • Attention on not focusing too much on one group
    thus invisibilising another

28
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