Human rights as obligations of the State only
The thesis that human trafficking is a human rights violation has been criticised as erroneous; THB is said to be simply a crime. The trafficker does not violate the victim’s human rights, because human rights are obligations owed by States only. So, “why should a criminal act by a private individual perpetrated against another private individual be a breach of human rights?”21 The assumption that human rights constitute obligations to other individuals is flawed, it is suggested, because it ignores their history and purpose. As already stated, human rights, at first, are obligations on the State to limit its power and to protect the rights of individuals.22 This may be a widespread position,23 but still, here the first question arises: which right? The existence of any crime implies a duty not to perform the criminal act. This duty corresponds to a right.24 For example, rape is a crime because it violates the victim’s sexual autonomy. But what is the character of a right to sexual autonomy? Does this right only exist because of national or international legislation, or is every human being entitled to such a right because they belong to mankind? It is hard to see why it should be incompatible to say that rape is a crime and a human rights violation, too.25
Of course, the subjects of international law are primarily States. But the point is whether the scope and application of human rights should be limited to that which is recognised by international law. This position is nothing else than legal positivism – but now international legal positivism. By this theory, human rights are universal and of timeless validity – as long as mankind exists – and therefore independent from recognition by States or by the international community. Slavery was at all times incompatible with human rights,26 and this is not a question of contingent social practice. While it is true that rights need enactment by the State to become de facto valid, it is also true that natural human rights serve as moral requirements to any legislation.27
A different question refers to the content of human rights. The individual addressee is at first bound to respect the rights of others and not to harm them. The obligation to promote human rights by establishing the necessary conditions – for example, to combat extreme poverty as one of the main reasons for trafficking28 –is addressed to States only. But the great variety of human rights, and their scope, is no fundamental argument against individual obligations.
The duty to fight and prevent human trafficking: fundamental case law of the European Court of Human Rights
Slavery and forced labour are prohibited according to Article 4 of the Universal Declaration of Human Rights, Article 4 of the ECHR, and Article 8 of the ICCPR. These provisions are examples of the assumption of a public duty by the State to protect individuals against third parties. If they provided for only a bare defensive right against the State, they would be widely irrelevant, because legalised slavery has long been abolished.
In the Siliadin case, such a duty to protect was derived from Article 4 of the ECHR by the European Court of Human Rights. An underage Togolese girl was forced to work as a house-maid, under slavery-like conditions, for several French families. At the time, this form of labour exploitation was not a crime in France. The Court was not satisfied with the French court’s decision to award damages against the offending families, but rather demanded the creation of a criminal offence in France. Hence, France was held to have breached the appellant’s rights as guaranteed by Article 4 by failing to provide such protection.29 The Court confirmed and extended the decision in the Rantsev case. Here, the daughter of the Russian applicant had entered Cyprus to work there in a night club as an ‘artiste’; but the facts of the case indicate that she had been trafficked for the purpose of sexual exploitation as a prostitute. Later she was found dead under unclear circumstances. In its decision, the Court referred to the Palermo Protocol, and ruled that Article 4 prohibits THB.30 This meant that States were obliged to implement legal and administrative provisions to combat human trafficking and to protect potential victims. If a person is a victim, or in danger of becoming a victim, of trafficking, the authorities of the relevant State have to take operational measures to carry out an investigation and protect the victim. Cyprus was found to be in breach of the Convention because it maintained an inadequate system for awarding artistes’ visas. Furthermore, the Court found that the police authorities had not conducted their investigations with due care. The Court also addressed the State’s obligation to grant lodging, medical care, and psychological support to the victims. Russia was also found to be in breach, because the Russian authorities had failed to properly investigate the victim’s recruitment, or the participation of other Russians connected with the case.31
Conclusion
THB can be seen as a grave breach of human rights. The victims are traded and treated as commodities, but not respected as persons.32 In the State’s response, it is not enough to support the victims only in so far and as long as it is required by the needs of criminal prosecution.33 Victims of THB are entitled to broad support, and to assistance in their claims against the perpetrators. So a three-fold obligation follows for every State from a human rights approach: traffickers must be prosecuted, victims must be supported, and they must be protected against re-trafficking.
A pure positivist approach to human rights, of course, comes to its limit here. He who limits human rights to that which is recognised by international law gets into the difficulty of having to specify the standards of human rights protection. Criticism of applicable law necessarily refers to natural law – and this, exactly, is the idea of human rights: rights of all, by their nature.
Notes
1 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, [2011] OJ L 101/1.
2 See the title of Johannes Morsink’s book, Inherent Human Rights (Philadelphia: Penn Press, 2009).
3 Kant, I., Metaphysik der Sitten (first published 1797), Kant’s gesammelte Schriften. Hrsg. v. d. Königlich Preußischen Akademie der Wissenschaften. Erste Abteilung, Band 6 (Berlin, 1907), p. 203, 237: “Freiheit (Unabhängigkeit von eines Anderen nöthigender Willkür), sofern sie mit jedes Anderen Freiheit nach einem allgemeinen Gesetz zusammen bestehen kann, ist dieses einzige, ursprüngliche, jedem Menschen kraft seiner Menschheit zustehende Recht.”
4 For an illuminating presentation of the history of habeas corpus, see Duker, W.F.A., A Constitutional History of Habeas Corpus (Westport, CT: Greenwood, 1980).
5 Cyrus, N. and de Boer, K., “Darstellung und Analyse der Vorkommensweise des Menschenhandels zur Arbeitsausbeutung”, in KOK – Bundesweiter Koordinierungskreis gegen Menschenhandel e.V. (ed.), Entwicklung tragfähiger Unterstützungsstrukturen für die Betroffenen von Menschenhandel zur Arbeitsausbeutung. Studie im Auftrag des Bundesministeriums für Arbeit und Soziales (March 2011), p. 41, 48 et seq.
6 See, also, Article 2(1), ILO-Convention No. 29 (Forced Labour Convention), of 28 June 1930: “the term ‘forced or compulsory labour’ shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.
7 For an instructive treatment see van Voorhout, C., “Human Trafficking for Labour Exploitation: Interpreting the Crime” (2007) 3 Utrecht Law Review 44, 59 et seq. Comparable to this is the discussion of the ‘wrongful use’ approach, and the ‘disparity of value’ approach – see Munro, V.E., “Exploring Exploitation: Trafficking in Sex, Work and Sex Work”, in Munro, V.E. and Giusta, M.D. (eds.), Demanding Sex: Critical Reflections on the Regulation of Prostitution (Farnham: Ashgate, 2008), pp. 83–98.
8 Cf. Article 7 of the ICESCR 1966: “The State Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work …” For respective concepts at the EU level, see Report on the EU Contribution to the Promotion of Decent Work in the World, SEC(2008)
2148 final. See, further, Anker, R., Chernyshev, I., Egger, P., Mehran, F., and Ritter, J., Measuring Decent Work With Statistical Indicators (Working Paper No. 2, ILO, October 2002). See, also, ILO, Decent Work Indicators: Towards Better Statistics on Forced Labour and Human Trafficking (Geneva: ILO, 2007).
9 In this way. Bundesgerichtshof, Judgment 22 April 1997–1 StR 701/96, BGHSt (Federal Court of Justice, official collection of decisions), vol 43, 51, 61.
10 Article 2(2), Directive 2011/36/EU. Cf. Cavalieri, S., “Between Victim and Agent: A Third-Way Feminist Account of Trafficking for Sex Work” (2011) 86 Indiana Law Journal 1409, 1428 et seq.
11 For details see Shannon, S., “Prostitution and the Mafia: The Involvement of Organized Crime in the Global Sex Trade”, in Williams, P. (ed.), Illegal Immigration and Commercial Sex: The New Slave Trade (London: Frank Cass, 1999), pp. 119–144; and Williams, P., “Trafficking in Women and Children: A Market Perspective”, ibid., pp. 145–170.
12 See the Preamble of the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949: “prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community”. This position is especially founded by a feminist approach – see Barry, K., The Prostitution of Sexuality (New York: New York University Press, 1995); and Jeffreys, S., The Idea of Prostitution (Melbourne: Spinifex, 1997). An opposite view is presented by Nussbaum, M.C., “Whether from Reason or Prejudice: Taking Money for Bodily Services” (1998) 27 Journal of Legal Studies 693–724.
13 See Article 2(3), Directive 2011/36/EU.
14 Ibid.
15 See the definition of slavery in Article 1(1) of the Slavery Convention, 1926: “Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”.
16 Cf. the definition of serfdom in Article 1(b) of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956: “the condition or status of a tenant who is … bound to live and labour on land belonging to another person and to render some determinate service to such other person … and is not free to change his status”.
17 Ibid., Article 1(a): “the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined”.
18 Article 7(1)(c) (commentary), Rome Statute. See, also, The Queen v. Tang [2008] HCA 39, para. 50. For a detailed analysis see Stoyanova, V., “Dancing on the Borders of Article 4: Human Trafficking and the European Court of Human Rights in the Rantsev Case” (2012) 30 Netherlands Quarterly of Human Rights 163, at 188 et seq.
19 See Aradau, C., “The Perverse Politics of Four-Letter-Words: Risk and Pity in the Securitisation of Human Trafficking” (2004) 33 Millennium: Journal of International Studies 251–278.
20 See Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and violence against women, submitted in accordance with Commission on Human Rights Resolution 1997/44, E/CN.4/2000/68, 29 February 2000, para. 83 et seq.
21 Piotrowicz, R., “The Legal Nature of Trafficking in Human Beings” (2009) 4 Intercultural Human Rights Law Review 175, at 188.
22 Ibid., 192 et passim.
23 On the question of the horizontal application of human rights see, for example: Knox, J. H., “Horizontal Human Rights Law” (2008) 102 American Journal of International Law 1–47.
24 Cf. Raz, J., The Morality of Freedom (Oxford: Clarendon, 1986), p. 167: “Rights are grounds of duties to others”. Rights can belong to individuals or to the community.
25 Needless to say that not every crime is a human rights violation. There might be an analogy to the concept of mala per se and delicta mere prohibita.
26 See Kant, I., Metaphysik der Sitten (first published 1797), Kant’s gesammelte Schriften. Hrsg. v. d. Königlich Preußischen Akademie der Wissenschaften. Erste Abteilung, Band 6 (Berlin, 1907), p. 203, 330: “Durch einen Vertrag kann sich niemand zu einer solchen Abhängigkeit verbinden, dadurch er aufhört, eine Person zu sein; denn nur als Person kann er einen Vertrag machen”. –“No one can bind himself to such a condition of dependence, as he would thereby cease to be a person, and only as a person he can make a contract”.
27 See Fagan, A., “Human Rights” (2005) The Internet Encyclopedia of Philosophy 3(a).
28 See Piotrowicz, R., “The Legal Nature of Trafficking in Human Beings” (2009) 4 Intercultural Human Rights Law Review 183 et seq.
29 Siliadin v. France, App No. 73316/01 (ECtHR, 26 July 2005), ECHR 2005-VII 289.
30 Rantsev v. Cyprus and Russia, App No. 25965/04 (ECtHR, 7 January 2010), ECHR 2010-I 65. This is a notable expansion, compared to Siliadin. For a critical view, see Stoyanova, V., “Dancing on the Borders of Article 4: Human Trafficking and the European Court of Human Rights in the Rantsev Case” (2012) 30 Netherlands Quarterly of Human Rights 163, 166 et seq.
31 Ibid. See also M. and others v. Italy and Bulgaria, App No. 40020/03 (ECtHR, 31 July 2012); C.N. and V. v. France, App No. 67724/09 (ECtHR, 11 October 2012); C.N. v. UK, App No. 4239/08 (ECtHR, 13 October 2012).
32 Cf. Kant, I., Grundlegung zur Metaphysik der Sitten (first published 1785), Kant’s gesammelte Schriften. Hrsg. v. d. Königlich Preußischen Akademie der Wissenschaften. Erste Abteilung, Band 4 (Berlin, 1911), p. 385, 428: “Der Mensch … existirt als Zweck an sich selbst, nicht bloß als Mittel zum beliebigen Gebrauche für diesen oder jenen Willen, sondern muß in allen seinen … Handlungen jederzeit zugleich als Zweck betrachtet werden”. –“A human being … exists as an end in himself, not merely as a means to be arbitrarily used by this or that will, but in all his actions … must be always regarded at the same time as an end”.
33 This was the explicit view of Council Directive 2004/81/EC of 29 April 2004 on residence permits issued to third-country nationals who are victims of human trafficking or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authority, OJ (2004) L 261/19. For justified criticism see Piotrowicz, R., “European Initiatives in the Protection of Victims of Trafficking Who Give Evidence Against their Traffickers” (2002) 14 International Journal of Refugee Law 263, 267 et seq.
3
Trafficking in transnational criminal law1
Anne T. Gallagher
Introduction
The raft of international agreements on slavery that were concluded in the latter part of the nineteenth century and the early twentieth century (see Chapter 1) did not purport, and were never considered, to cover the practices that are now associated with trafficking – including sexual exploitation, forced labour, debt bondage, and child labour. However, the international movement to abolish the transatlantic slave trade provided the framework within which another battle, this time against the cross-border movement of women and girls into prostitution and/or sexual exploitation, would be fought. Between 1904 and 1933, four different treaties dealing with the traffic in women and girls were concluded.2 In 1949, these were consolidated into one instrument: the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.3 The 1949 Convention is limited to trafficking for prostitution, and ostensibly applies to both women and men. It aims to prohibit and control the (undefined) practices of trafficking, procurement, and exploitation, whether internal or cross-border, and irrespective of the victim’s age or consent. Despite trenchant criticisms, the Convention survived as the only specialist treaty on trafficking for more than half a century. The only other international instruments concluded d
uring that period to refer to trafficking were two of the core human rights treaties: the Convention on the Rights of the Child (CRC – which 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”)4 and the Convention on the Elimination of all forms of Discrimination against Women (CEDAW – which requires States Parties to take all appropriate measures to: “suppress all forms of traffic in women and exploitation of the prostitution of women”).5
This narrow characterisation of trafficking and its monopolisation by the UN’s human rights system continued unchallenged until the last decade of the twentieth century. The catalyst for change was the link established between trafficking and the newly identified international threats of ‘migrant smuggling’ and transnational organised crime. This quickly led to the development of a new legal instrument outside the human rights framework; one that expanded the concept of ‘trafficking’ in fundamental ways and has since been acknowledged by States to be “the principal legally binding global instrument to combat trafficking in persons”.6
This chapter considers the “transnational criminal law”7 regime that was created around trafficking in persons. That regime comprises two treaties, both adopted by the UN General Assembly in 2000, and since widely ratified:8 a ‘parent’ instrument – the United Nations Convention against Transnational Organized Crime (UNCTOC);9 and a specialised treaty – the Protocol against trafficking in persons, especially women and children. Parts 1 and 2 of the chapter provide an overview of the Convention and the Protocol, respectively; and Part 3 considers the impact of the Protocol on the international legal and policy framework around trafficking, and discusses several of the challenges that have emerged in the years since its adoption.
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