Trafficking in Human Beings

– the international legal

framework

OHCHR
Geneva
25 May 2010
Kristina Touzenis.
 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)
Concept of trafficking
Concept of trafficking:
- movement of a person
- for the purpose of
exploitation
- organised by a trafficker

movement exploitation

organised
by a trafficker

trafficking
 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
 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.
 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.
 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.
 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.
 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
 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
 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.
 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.
 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.
 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

 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”
 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
 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 children’s rights
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.
 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.
 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
 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.
 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
 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
 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)
 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
 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
 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
THANK
YOU!