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15 See, generally, Gallagher, A. T., “Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway” (2009) 49(4) Virginia Journal of International Law 833–841.
16 UNODC, Legislative Guide to the implementation of the United Nations Convention against Transnational Organized Crime and the protocols thereto (Hereafter: Legislative Guide) (Vienna: UNODC, 2004), pp. xvii–xviii.
17 Ibid., Article 5.
18 Ibid., Article 8.
19 Ibid., Article 6. “Proceeds of crime” is defined in Article 2(e).
20 Ibid., Article 23.
21 Ibid., Article 11(1).
22 Ibid., Article 34(1). This provision does not apply to the extent that the Convention itself (at Article 5) would require the involvement of an organised criminal group.
23 United Nations, Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (Hereafter: Travaux Préparatoires for the Organized Crime Convention and Protocols) (Vienna: UNODC, 2006), p. 285.
24 Organized Crime Convention 2000, Article 26.
25 Ibid., Article 18.
26 Ibid., Article 19.
27 Ibid., Article 20.
28 Ibid., Article 21.
29 Ibid., Article 17.
30 Ibid., Article 16.
31 Ibid., Article 29.
32 Ibid., Article 31.
33 Ibid., Article 30.
34 Ibid., Article 25(1).
35 Ibid., Article 25(2).
36 Ibid., Article 25(3).
37 Ibid., Article 24.
38 Ibid., Article 31(7).
39 Ibid., Article 37(2). See, also, Legislative Guide, p. 253. As the Legislative Guide points out, this provision ensures that in a case arising under one of the Protocols to which the States concerned are parties, all of the general provisions of the Convention (for example, relating to mutual legal assistance and protection of victims) will also be available and applicable.
40 Organized Crime Convention 2000, Article 37(3).
41 Ibid., Article 37(4); Trafficking Protocol 2000, Article 1(1). See, further, Legislative Guide, pp. 253–255.
42 Trafficking Protocol 2000, Article 1(2).
43 Legislative Guide, p. 254. The Interpretive Note on Article 1 of the Trafficking Protocol states that: “[t]his paragraph was adopted on the understanding that the words ‘mutatis mutandis’ meant ‘with such modifications as circumstances require’ or ‘with the necessary modifications’. Provisions of the United Nations Convention Against Transnational Organized Crime that are applied to the Protocol under this article would consequently be modified or interpreted so as to have the same essential meaning or effect in the Protocol as in the Convention” –Travaux Préparatoires for the Organized Crime Convention and Protocols, p. 330.
44 Trafficking Protocol 2000, Article 1(3). See also Legislative Guide, p. 254.
45 UN Commission on Human Rights, Measures to Prevent Trafficking in Children: Report of the Secretary-General (UN Doc. E/CN.15/1997/12, 1997).
46 For a detailed examination of the origins of the Protocol, see Vlassis, D., “The UN Convention Against Transnational Organized Crime”, in Berdal, M. R. and Serrano, M. (eds.), Transnational Organized Crime and International Security: Business as Usual? (London: Lynne Rienner, 2002), p. 83 (Vlassis, “The UN Convention Against Transnational Organized Crime”).
47 Draft Protocol to Combat International Trafficking in Women and Children, Supplementary to the United Nations Convention Against Transnational Organized Crime: Proposal Submitted by the United States of America (UN Doc. A/AC/254/4/Add.3, 1998).
48 Travaux Préparatoires for the Organized Crime Convention and Protocols, p. 322.
49 UN General Assembly Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, Progress Report of the Ad Hoc Committee on the Elaboration of a Convention Against Trans-national Organized Crime (UN Doc. A/AC.254/30-E/CN.15/2000/4, 2000), para. 34.
50 See, further, Gallagher, A. T., “Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis” (2001) 23 Human Rights Quarterly 975, at p. 1002.
51 Trafficking Protocol 2000, Article 3.
52 Ibid.
53 Ibid., Article 3(b).
54 Legislative Guide, p. 270.
55 Trafficking Protocol 2000, Article 2.
56 Hathaway, for example, asserts incorrectly that “slavery or other forms of exploitation that occur entirely within the borders of one country without the involvement of outside parties are beyond the scope of the Trafficking Protocol”. See Hathaway, J. C., The Rights of Refugees Under International Law (Cambridge: Cambridge University Press, 2005), p. 11.
57 Organized Crime Convention 2000, Article 34(2). See, also, Conference of the Parties to the UN Convention against Transnational Organized Crime, Criminalization Within the Scope of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto (UN Doc. CTOC/COP/2008/4, 2008), para. 2 (“the offences need to be criminalized in domestic law independently of the transnational nature or the involvement of an organized criminal group”); Legislative Guide, at p. 276 (“transnationality is not required as an element of domestic offences”), and also at pp. 18–19, 275–276, 341; Travaux Préparatoires for the Organized Crime Convention and Protocols, at 285. On the matter of involvement of an organised criminal group, see, also, for example, Legislative Guide, at p. 276 (“the involvement of an organized criminal group must not be required as a proof in a domestic prosecution”).
58 Legislative Guide, pp. 269–270.
59 “[S]ubject to the basic concepts” of the legal system of the State: Trafficking Protocol 2000, Article 5(2)(a). The Legislative Guide, at pp. 271–272, notes that this caveat was introduced to accommodate legal systems which do not recognise the criminal concept of “attempt”.
60 Trafficking Protocol, Article 5(2)(b).
61 Ibid., Article 5(2)(c).
62 Organized Crime Convention 2000, Article 23.
63 Legislative Guide, pp. 267–269.
64 Legislative Guide, pp. 268–269.
65 Organized Crime Convention 2000, Article 10; Legislative Guide, p. 270.
66 Organized Crime Convention, Article 11(1).
67 Ibid., Article 6.
68 Ibid., Article 11(3).
69 Ibid., Article 11(5).
70 Ibid., Articles 12–14.
71 Ibid., Article 18.
72 Ibid., Article 23.
73 Ibid., Articles 24–25.
74 Ibid., Article 26. For examples of measures that could be taken to this end, see the Legislative Guide, at p. 275.
75 Organized Crime Convention 2000, Article 27.
76 Trafficking Protocol 2000, Article 6(1). Reference should also be made to Article 24(2)(b) of the Organized Crime Convention, which provides for witnesses to be able to give evidence in safety.
77 Trafficking Protocol, Article 6(2).
78 Ibid., Article 6(5). Note that this is a minimum standard which, in certain cases (such as in relation to witnesses) would be supplemented by additional requirements contained in Articles 24 and 25 of the Organized Crime Convention.
79 Trafficking Protocol 2000, Article 6(6).
80 Ibid., Article 6(3). The type of assistance set forth in this paragraph is applicable to both the receiving State and the State of origin of the victims of trafficking in persons – but only regarding victims who are in their respective territory. See Travaux Préparatoires for the Organized Crime Convention and Protocols, p. 373.
81 Trafficking Protocol 2000, Article 6(3).
82 Ibid., Article 6(4). The provision requires consideration of “age, gender and special needs of victims of trafficking in persons, in particular the special needs of children”.
83 Travaux Préparatoires for the Organized Crime Convention and Protocols, p. 380.
84 UN General Assembly Ad Hoc Commi
ttee on the Elaboration of a Convention against Transnational Organized Crime, Revised Draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (UN Doc. A/AC.254/4/Add.3/Rev.7, 2000), footnote 27.
85 Trafficking Protocol 2000, Article 7(1).
86 Ibid., Article 7(2).
87 Ibid., Article 8.
88 Inter-Agency Submission, p. 9.
89 Trafficking Protocol, Article 8(1). See, further, Travaux Préparatoires for the Organized Crime Convention and Protocols, at p. 386 and 397.
90 Trafficking Protocol, Article 8(2).
91 Ibid.
92 Travaux Préparatoires for the Organized Crime Convention and Protocols, at p. 388. On the issue of repatriation in the absence of consent, the Ad Hoc Committee agreed, during negotiations, that “bilateral and multilateral agreements should be encouraged” –Ibid., at p. 384.
93 Trafficking Protocol 2000, Articles 8(3)–8(4).
94 Ibid., Articles 8(5)–8(6). See also Travaux Préparatoires for the Organized Crime Convention and Protocols, at p. 389.
95 Organized Crime Convention 2000, Article 31(7).
96 Trafficking Protocol 2000, Article 9(1).
97 Ibid., Article 9(2).
98 Ibid., Article 9(3).
99 Ibid., Article 9(5).
100 HCHR Submission, p. 25; Inter-Agency Submission, p. 13.
101 Trafficking Protocol 2000, Article 14(2).
102 Ibid., Article 14(1).
103 In particular, Articles 27–29 of the Organized Crime Convention.
104 Trafficking Protocol 2000, Article 10(1).
105 Ibid., Article 10(2).
106 Ibid.
107 Ibid.
108 Inter-Agency Submission, para. 10. See, also, Travaux Préparatoires for the Organized Crime Convention and Protocols, at p. 407.
109 Trafficking Protocol 2000, Article 11(1).
110 Ibid., Articles 11(2)-11(4).
111 Trafficking Protocol 2000, Article 12. For examples of the kinds of measures that could be taken to this end, see the Legislative Guide, at pp. 298–299.
112 Trafficking Protocol 2000, Preamble.
113 Ibid., Article 10.
114 Ibid., Article 8.
115 Ibid., Articles 11–13.
116 Ibid., Articles 6(3) and 9(3).
117 Council of Europe Convention on Action against Trafficking in Human Beings 2005.
118 United Nations High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking (UN Doc. E/2002/68/Add.1, 2002) (hereafter UN Trafficking Principles and Guidelines).
119 As at March 2016, the Trafficking Protocol had been ratified or acceded to by 169 States.
120 International Labour Organization Convention Concerning Decent Work for Domestic Workers 2011, ILO No. 189.
121 International Labour Conference, Text of the Protocol to the Forced Labour Convention 1930, Provisional Record 9A, 103rd Session, Geneva, 2014.
122 See, for example, International Labour Organization, Caught at Sea – Forced Labour and Trafficking in Fisheries (2013); and, Profits and Poverty: The Economics of Forced Labour (2014).
123 Association of Southeast Asian Nations (ASEAN) Convention against Trafficking in Persons, especially Women and Children 2015.
124 Trafficking Protocol 2000, Article 14.
125 Ibid., Article 6(4).
126 UN Trafficking Principles and Guidelines, Principle 10 and Guideline 8.
127 Trafficking Protocol 2000, Article 6(6).
128 UN Trafficking Principles and Guidelines, Principle 17 and Guideline 9.
129 Ibid., Principles 9, 12–16, and Guidelines 5 & 6.
130 Ibid., Principle 3 and Guidelines 1(7) & 3(5).
131 Ibid., Principle 7.
132 While also acknowledging other areas of law, including refugee law and international criminal law.
133 Council of Europe Convention on Action against Trafficking in Human Beings 2005; 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.
134 See, for example, Human Rights Council Resolution 20/1, 5 July 2012, especially at paragraph 4(a) (“[States to] ensur[e] that, in order to most effectively protect victims and bring their abusers to justice, national laws criminalize all forms of trafficking in persons in accordance with the provisions of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children”) and paragraph 5 (encouraging States that have not yet done so to ratify the Protocol and “to take immediate steps to incorporate provisions of the Protocol into domestic legal systems”).
135 Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report of the Conference of the Parties to the United Nations Convention Against Transnational Organized Crime on Its Fourth Session, Held in Vienna From 8 to 17 October 2008 (UN Doc. CTOC/COP/2008/19, 2008), Decision 4/4 (at 11).
136 See, for example, Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report of the Conference of the Parties to the United Nations Convention Against Transnational Organized Crime on Its Fifth Session, Held in Vienna from 18 to 22 October 2010 (UN Doc. CTOC/COP/2010/17, 2010), para. 97–108.
137 Conference of the Parties to the United Nations Convention against Transnational Organized Crime Working Group on Trafficking in Persons, Report on the Meeting of the Working Group on Trafficking in Persons Held in Vienna on 14 and 15 April 2009 (UN Doc. CTOC/COP/WG.4/2009/2, 2009), para. 13(c).
138 Ibid., para. 12(b). See, also, UN Working Group on Trafficking in Persons, Non-Punishment and Non-Prosecution of Victims of Trafficking in Persons: Administrative and Judicial Approaches to Offences Committed in the Process of Such Trafficking (UN Doc. CTOC/COP/WG.4/2010/4, 2009).
139 Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Report on the Meeting of the Working Group on Trafficking in Persons Held in Vienna From 6 to 8 November 2013 (UN Doc. CTOC/COP/WG.4/2013/5, 2013), para. 17.
140 UNODC, Abuse of a Position of Vulnerability and Other ‘Means’ Within the Definition of Trafficking in Persons (2012); UNODC, The Role of Consent in the Trafficking in Persons Protocol (2014); UNODC, The Concept of Exploitation in the Trafficking in Persons Protocol (2015).
141 See, further, Chapter 4.
142 Most clearly set out in the Commentary to the United Nations Recommended Principles and Guidelines on Human Rights and Human Trafficking (2010).
143 See, for example (n.134), above.
144 For example, UN Committee against Torture, Concluding Observations: Estonia (UN Doc. CAT/C/EST/CO/5, 2013), para. 13; UN Committee on the Rights of the Chid, Concluding Observations: Afghanistan (UN Doc. CRC/C/AFG/CO/1, 2011), para. 73; UN Committee on the Elimination of Discrimination against Women, Concluding Observations: Saudi Arabia (UN Doc. CEDAW/C/SAU/CO/2, 2008), paras. 23–24. See, also, UN High Commissioner for Refugees, Guidelines on International Protection: The Application of Article 1(A)(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked (UN Doc HCR/GIP/06/07, 2006).
145 For a detailed reflection on the impact of the Trafficking Protocol on the work of the mandate, see the Special Rapporteur’s “[s]tocktaking exercise on the work of the mandate on its tenth anniversary”, contained in Human Rights Council, Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo (UN Doc. A/HRC/26/37/Add.2, 2014).
146 For example, Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak (UN Doc. A/HRC/7/3, 2008), paras. 56–58.
147 See Gallagher, A.T
., “The Trafficking Watchlist May Be Flawed, But It’s the Best Measure We Have” The Guardian (27 June 2014).
148 See, for example, the Malaysia country report in the United States of America Department of State, Trafficking in Persons Report June 2014, at p. 260.
149 See, for example, the Ireland, Kazakhstan, and Paraguay country reports: ibid., at p. 214, 226, & 310.
150 See, for example, the Azerbaijan and Thailand county reports: ibid., at pp. 85–87 & 372–376.
151 See, for example, the New Zealand and Taiwan country reports: ibid., at pp. 291–293 & 368; and International Labour Organization, Caught at Sea – Forced Labour and Trafficking in Fisheries (Geneva: ILO, 2013).
152 See Murray, S., “Casting a Tight Net” (Fall, 2015) Stanford Social Innovation Review, https://ssir.org/articles/entry/casting_a_tight_net
153 See, for example, Verité, Risk Analysis of Indicators of Forced Labor and Trafficking in Illegal Gold Mining in Peru (2013); and Forced Labour in the Production of Electronic Goods in Malaysia (2014).
154 See, for example, The Human Trafficking Pro-Bono Legal Centre and the Freedom Fund, Ending Impunity, Securing Justice: Using Strategic Litigation to Combat Modern Day Slavery and Human Trafficking (2015); and London School of Hygiene and Tropical Medicine and the Freedom Fund, Safer Labour Migration and Community-based Prevention of Exploitation: The State of the Evidence for Programming (2016).
155 Walk Free, The Global Slavery Index (2013); Walk Free, The Global Slavery Index (2014).
156 See UNODC, Issue Paper: Abuse of a Position of Vulnerability and Other ‘Means’ Within the Definition of Trafficking in Persons (Vienna: UNODC, 2012).
157 See UNODC, Issue Paper: The Concept of ‘Consent’ Within the Definition of Trafficking in Persons (Vienna: UNODC, 2014).
158 See UNODC, Issue Paper: The Concept of ‘Exploitation’ in the Trafficking in Persons Protocol (Vienna: UNODC, 2015).
159 Chuang, J.A., “Exploitation Creep and the Unmaking of Human Trafficking Law” (2014) 108(4) The American Journal of International Law 609–649.