Routledge Handbook of Human Trafficking
Page 86
Paragraph 3(a) of the Code of Conduct establishes the basic duties of mandate-holders. Mandate-holders have an obligation to:
exercise their functions in accordance with their mandate, through a professional, impartial assessment of facts based on internationally recognized human rights standards, and free from any kind of extraneous influence, incitement, pressure, threat or interference, either direct or indirect, on the part of any party, whether stakeholder or not, for any reason whatsoever, the notion of independence being linked to the status of mandate-holders, and to their freedom to assess the human rights questions that they are called upon to examine under their mandate.
Therefore, while enjoying full independence from UN decision-making and from UN Member States, mandate-holders must ensure that their activities are not affected by any kind of interference from any party. This means that not only must they ensure that they are not taking instructions from any governments, but also – which is less obvious – that they are not subjected to any influence of lobbies, companies, or other representatives of the private sector, civil society organisations, or stakeholders of any kind.
Mandate-holders are bound to exercise their functions in accordance with their mandate.5 The obligation is reinforced by Article 3(d) providing that mandate-holders shall: “Focus exclusively on the implementation of their mandates, constantly keeping in mind the fundamental obligations of truthfulness, loyalty and independence pertaining to their mandate”.
The exercise of mandate-holders’ functions in accordance with the mandate – in addition to respect for all the obligations provided for in relevant documents – is the only limit to the scope and content of mandate-holders’ activities. For example, UN Member States cannot try to influence the independent assessments, evaluations, or recommendations issued by a mandate-holder, but can criticise them, or even try to disqualify them, by alleging that the mandate-holder exceeded the mandate, or that his/her activities or their outcome are not consistent with the content of the mandate.
Article 3(e) further indicates criteria with which mandate-holders must comply while discharging their mandate: “highest standards of efficiency, competence and integrity, meaning, in particular, though not exclusively, probity, impartiality, equity, honesty and good faith”. Such criteria are further specified in Articles 3(i) and (j): mandate-holders must “[r]efrain from using their office or knowledge gained from their functions for private gain, financial or otherwise, or for the gain and/or detriment of any family member, close associate or third party”; and “[n]ot accept any honour, decoration, favour, gift or remuneration from any governmental or non-governmental source of activities carried out in pursuit of his/her mandate”.
In the fulfilment of their mandates, according to Article 6, mandate-holders must: “Always seek to establish the facts, based on objective, reliable information emanating from relevant credible sources, that they have duly cross-checked to the best extent possible”. Any decision concerning the use of any information, and the evaluation of a relevant source, is actually sensitive, and ultimately decisive for the effectiveness and credibility of all the activities of a mandate-holder. Of course, mandate-holders have an obligation to take into account information coming from governments; however, it is equally important to take into account information deriving from other sources, in particular civil society.
It is not always easy to assess the credibility and integrity of an individual, group, or association giving information to mandate-holders, especially when they work in remote areas and do not have significant connections with civil society organisations that have already been in touch with the Special Rapporteur. In general terms, there is a duty to assess the credibility of information very cautiously, and to seek advice from UN agencies active in the field. However, it is important to stress that information coming from civil society is essential for the fulfilment of any human rights mandate, including that on trafficking in persons. In fact, information coming from civil society enables the Special Rapporteur to evaluate not only legislation and other regulations but, importantly, their actual implementation, especially regarding respect for, and promotion of, trafficked persons’ rights.
Although issues at stake in trafficking cases differ from other human rights issues such as, for example, torture or forced disappearances, in which State officials are usually the authors of human rights violations, the real outcome of governmental anti-trafficking action cannot be correctly evaluated without accurate information given by associations providing victims with social services, and in general terms by people coming into contact with victims and potential victims. First, civil society organisations adopt an approach which is primarily focused on the rights and needs of the persons concerned, and therefore usually differs from a government’s perspective. Second, only civil society organisations can provide information about human rights violations that are caused, even unintendedly, by public authorities implementing anti-trafficking measures. Finally, they usually provide information regarding individual cases in which serious human rights violations have been detected, including cases in which corruption of public officials is involved.
Special Rapporteurs and other mandate-holders have an obligation to assess very carefully their sources of information, and at the same time must protect their sources. According to Article 8(a) and (b), in the gathering of information, Mandate-holders shall, “[b]e guided by the principles of discretion, transparency, impartiality and even-handedness” and, “[p]reserve the confidentiality of sources of testimonies if their divulgence could cause harm to the individuals involved”. This last duty is particularly important in situations in which civil society organisations are not recognised by the national or local government, and/or when representatives of such organisations could be subject to threats of retaliation for disclosing information considered secret or confidential by the government. Also, in this case, the trafficking mandate can deal with this issue, especially when corrupt public officials are involved in trafficking cases.
The Special Rapporteur on trafficking in persons, especially women and children
Sources and scope of the mandate
The mandate of the Special Rapporteur on trafficking in persons, especially women and children, was first established in 2004. According to the Resolution of the Human Rights Commission 2004/110, the mandate is focused on the human rights aspects of the victims of trafficking in persons, especially women and children. The Resolution requests the Special Rapporteur to submit an annual report, together with recommendations, on measures required to uphold and protect the human rights of victims; it also requests the Secretary-General to provide all the necessary resources for the effective fulfilment of the mandate of the Special Rapporteur.6 In compliance with this mandate, the Office of the High Commissioner for Human Rights (OHCHR), based in Geneva, provides the Special Rapporteur with funds covering expenses for travel, accommodation, and a daily allowance on the occasion of the presentation of two reports a year – to the Human Rights Council and to the General Assembly – and expenses related to two or three country visits a year, and to meetings convened by the Human Rights Council or the OHCHR. The Special Rapporteur enjoys the support of a full-time staff based in Geneva.
It is important to note that the trafficking mandate was established four years after the adoption of the Palermo Protocol. The Protocol includes important provisions aimed at the protection of victims, but it is mainly aimed at ensuring effective investigation and prosecution of THB. The establishment of a Special Rapporteur on trafficking indicates the will of the UN system to ensure full protection of victims’ rights, following the Recommended Principles and Guidelines on Human Rights and Human Trafficking,7 issued in 2002 by the OHCHR, which is the main instrument identifying objectives and actions addressing trafficking from a human rights-based approach.
In 2014, Resolution 26/88 extended the mandate of the Special Rapporteur for a period of three years, and updated the description of the activities
to be undertaken. The Council tasked the Special Rapporteur to:
(a) Promote the prevention of trafficking in persons in all its forms and the adoption of effective measures to uphold and protect the human rights of victims of trafficking in persons;
(b) Promote the effective application of relevant international norms and standards and to contribute to their further improvement;
(c) Integrate a gender and age perspective throughout the work of his or her mandate through, inter alia, the identification of gender-and age-specific vulnerabilities in relation to the issue of trafficking in persons;
(d) Identify, share and promote good practices in order to uphold and protect the human rights of victims of trafficking in persons and to identify protection gaps in this regard, including with regard to the identification of victims of trafficking in persons;
(e) Examine the impact of national, regional and international anti-trafficking measures on the human rights of victims of trafficking in persons with a view to proposing adequate responses to challenges arising in this regard and to avoid re-victimization of victims of trafficking;
(f) Give particular emphasis to recommendations on practical solutions with regard to the implementation of the rights relevant to the mandate, including by the identification of concrete areas and means for international and regional cooperation and capacity-building to tackle the issue of trafficking in persons;
(g) Request, receive and exchange information on trafficking in persons from and with Governments, relevant treaty bodies, special procedures, specialized agencies, intergovernmental organizations, civil society, including non-governmental organizations, national human rights institutions and other sources, including victims of trafficking or their representatives, as appropriate, and, in accordance with current practice, respond effectively to reliable information on alleged human rights violations with a view to protecting the human rights of actual or potential victims of trafficking;
(h) Work in close cooperation, while avoiding unnecessary duplication, with other special procedures and subsidiary organs of the Council, relevant United Nations bodies, agencies and mechanisms, including the … [UNODC], the Office of the United Nations High Commissioner for Refugees, the International Labour Organization … and the Inter-Agency Coordination Group against Trafficking in Persons, as well as the International Organization for Migration, relevant treaty bodies, regional human rights mechanisms, national human rights institutions, civil society, including non-governmental organizations, and the private sector;
(i) Cooperate closely with the Conference of the Parties to the United Nations Convention against Transnational Organized Crime, including its Working Group on Trafficking in Persons and the Working Group on the Review of the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, and attend and participate in their annual sessions, upon invitation;
(j) Continue consultations with States through its national level actors to fight trafficking in persons, including national rapporteurs, coordinators and committees, as well as with human rights mechanisms and national human rights institutions, with a view to contributing to strengthening cooperation between those actors;
(k) Report annually on the implementation of the present resolution to the Human Rights Council and the General Assembly, according to their respective programmes of work.
According to Resolution 26/8 of 2014, paragraph (a), the primary focus of the mandate is the prevention of trafficking in persons and the protection of the rights of its victims. The attention to the human rights aspects is reiterated and specified in (e), when the Council requests the Special Rapporteur to evaluate the impact of national and international anti-trafficking measures on the human rights of victims of trafficking in persons. Therefore, the Council acknowledges that anti-trafficking measures could have a negative impact on human rights of victims, and requests the Special Rapporteur to take action to prevent it, provide victims with remedies, and avoid re-victimisation. The last sentence is of particular importance because it clearly implies that not only can human rights violations occur as a consequence of anti-trafficking measures, but also that they can lead to re-victimisation of trafficked persons. This provision allows the Special Rapporteur to highlight, especially during country visits, issues arising from measures such as, for example, ‘closed shelters’, causing further human rights violations, and include in the final report relevant recommendations aimed at abolishing such harmful anti-trafficking measures.
The same rights-based approach is clearly stressed in paragraph (d), requesting the Special Rapporteur to “[i]dentify, share and promote good practices”. This task has the specific aim to uphold and protect the human rights of trafficked persons, and to identify protection gaps, including those related to the lack of identification of trafficking victims. In fact, in identifying and sharing good practices, it is necessary to bear in mind that the main objective of the Special Rapporteur is to improve the protection of victims’ rights. This implies, for example, that good practices in the field of prosecution and punishment of traffickers, or organised crime-related aspects of anti-trafficking action, must always be taken into consideration from the point of view of victims’ rights. In other words, any anti-trafficking measures, including measures aimed at the repression of crimes, must be promoted and evaluated from a human rights and victim-centred approach.
Paragraph (c) contains an indication aimed at promoting an updated understanding of the special focus on women and children that characterised the mandate from its first establishment. The formulation of the mandate has been criticised as it seemed to endorse a cultural approach according to which women and children deserve protection as the weakest part of society. According to paragraph (c), the formulation must be understood as implying a gender-based and child-sensitive approach to anti-trafficking action. However, many commentators are of the view that the title of the mandate should be modified and updated.
Under paragraph (f), the Special Rapporteur is tasked to give
particular emphasis to recommendations on practical solutions with regard to the implementation of the rights relevant to the mandate, including by the identification of concrete areas and means for international and regional cooperation and capacity-building to tackle … trafficking in persons.
This, and the following paragraphs, emphasise the active role of the Special Rapporteur in the advancement of anti-trafficking action with respect to specific areas of work such as international co-operation and capacity building; and by emphasising co-operation with governments, treaty bodies, UN agencies, the Conference of the Parties to the UNCTOC, and national institutions, including national coordinators and national rapporteurs on trafficking as well as human rights mechanisms and institutions.
Essential for the fulfilment of the mandate is the possibility to request, receive, and exchange information not only with governments, but also with a wide range of actors, including civil society organisations and victims of trafficking or their representatives, and respond effectively to reliable information on alleged human rights violations with a view to protecting the human rights of actual or potential victims of trafficking (paragraph (g)). This is crucial for at least three reasons. First, this provision establishes a direct mandate for information exchange with civil society, which has important implications for all the activities carried out by the Special Rapporteur, including country visits and communications. Second, the Special Rapporteur is allowed to have direct contact with victims and with their representatives, including their lawyers, trade unions members representing them in mediation procedures and civil proceedings including before labour courts, and persons designated by victims, including social workers delivering services to them. This implies that the Special Rapporteur must be able to meet freely and confidentially with victims and their representatives. This usually happens in shelters or detention centres, where the Special Rapporteur meets people without the presence of governmen
t officials. Third, paragraph (g) explicitly describes the aim of the Special Rapporteur’s activity broadly: not limited to actual victims of trafficking but including also potential victims. This means, for example, that the Special Rapporteur is entitled to visit any place in which potential victims can be found and identified, such as prisons, other detention centres, including centres in which migrants are held in administrative detention before deportation, refugee camps, and reception centres for migrants after their landing or border crossing. Also in this respect, meetings take place without the presence of government officials or authorities in charge of the management of camps, centres, or prisons.
Finally, paragraph (k) indicates that the Special Rapporteur reports to the Human Rights Council and the General Assembly. The double reporting function not only implies that the Special Rapporteur issues two reports a year, but also that she/he has an opportunity to enter into a constructive dialogue with the General Assembly. As not all Special Rapporteurs report to the General Assembly, this particular reporting function implies full recognition that trafficking in persons is deeply intertwined with all the pillars of the UN system: peace and security, development, and human rights.
In conclusion, the mandate of the Special Rapporteur shows an important mix of tasks that include, but are not limited to, the monitoring and reporting function.9 According to the above-mentioned description of the mandate in its most recent Human Rights Council Resolution, the activities to be carried out by the Special Rapporteur on trafficking can be summarised as including:
Description and analysis of trafficking in persons’ main trends and evolutions;
Evaluation of anti-trafficking measures adopted at the national and possibly at the regional and sub-regional level;