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The
International Legal Framework
Contents:
The United
Nations
The United Nations obligates
States to refrain from committing human rights violations and also to take
positive steps to ensure that individuals are able to enjoy their human rights.
A State’s legal obligations are articulated in human rights instruments, such
as treaties and conventions. The UN also drafts politically-binding documents
that do not have the force of law, such as declarations and resolutions, but
which nevertheless represent important guidelines on States’ obligations.
More information about the United Nations
system, human rights documents and enforcement mechanisms
can be accessed from the International Law section of this site.
The United Nations addresses
trafficking in women from various directions. First, the UN human rights
instruments apply to women and men equally, and are relevant to the kinds
of abuses that women suffer in cases of trafficking. In addition, the UN
international standards on the treatment of crime victims also obligate States
to protect victims of trafficking.
Second, of the types of
violence against women addressed by this site, trafficking in women was perhaps
the first to receive the attention of the UN as a transnational crime. This
section, therefore, includes a historical overview of the UN conceptualization
of trafficking, prior to the emergence of an international women’s human rights
movement.
Third, the UN treaties and
resolutions that articulate the rights of women are applicable to the situation
of trafficking and define trafficking as a form of gender-based violence.
Since the early 1990’s, all major UN instruments on States’ commitment to
ensure women the full enjoyment of their human rights and their protection
from violence have included specific obligations to combat trafficking in
women.
Finally, in 2000, the UN
Convention Against Transnational Organized Crime was opened for signature,
along with the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
especially Women and Children. The Trafficking Protocol contains the international
consensus definition of trafficking and sets forth State obligations to prevent
trafficking, to protect victims and to prosecute perpetrators of trafficking.
UN
Human Rights Law
States are obligated to
protect the rights of trafficking victims under general human rights instruments.
The International
Covenant on Civil and Political Rights guarantees women the right to
life, the right to be free from torture and cruel, inhuman or degrading treatment,
and the right to security of person.
The International
Covenant on Economic, Social and Cultural Rights provides such basic
guarantees as the right to an adequate standard of living
(including food, clothing and housing), the right to the highest attainable
standard of physical and mental health, the right to education and the right
to favorable work conditions, which includes fair wages, equal pay for equal
work and reasonable limitation of working hours. The International Labor
Organization Forced
Labor Convention (C29) and the Abolition
of Forced Labor Convention (C105) set forth the obligation to suppress
all forms of forced or compulsory
labor, defined as “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.”
Trafficked persons are also
granted the right to an effective remedy for acts violating their fundamental
human rights, as set forth in the International Covenant on Civil and Political
Rights.
Under principles of international
law, States are obligated to provide adequate support for victims of
crimes.
The United Nations Declaration
of Basic Principles of Justice for Victims of Crime and Abuse of Power states that victims are entitled to access the justice system and prompt
redress.
(Paragraph 4). Regarding assistance, the Declaration states “Victims
should receive the necessary material, medical, psychological and social
assistance
through governmental, voluntary, community-based and indigenous means. .
. . Victims should be informed of the availability of health and social
services and other relevant assistance and be readily afforded access
to them.” (Paragraphs
14, 15).
Historical
Overview of the UN Perspective on Trafficking
The United Nations first
responded to issue of trafficking in women in the early twentieth century
with a number of treaties that addressed the “white slave trade.” The
UN Special Rapporteur on violence against women, Radhika Coomaraswamy,
explains
that “[h]istorically, anti-trafficking movements have been driven by
perceived threats to the “purity” or chastity of certain populations
of women, notably white women” and that early UN treaties focused
on the protection of victims and not the punishment of perpetrators and,
ultimately, proved to be ineffective.
The League of Nations
concluded two treaties on the suppression of traffic in women. The latter
treaty, the 1933 International Convention for the Suppression of the Traffic
in Women of Full Age, is notable for provisions that punish traffickers,
without regard to whether the victim in some way gave consent. In 1949,
the United Nations consolidated the earlier treaties into the Convention
for the Suppression of the Traffic in Persons and the Exploitation of the
Prostitution of Others. This convention remains the only
international treaty on trafficking, although it has not been widely ratified.
In 2000, the UN drafted a Protocol to Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and Children, discussed below, which largely
supplants the earlier treaty. The Trafficking Protocol elaborates the UN
Convention Against Transnational Organized Crime, viewing trafficking in
women
in the larger context of transnational organized crime activities, such money
laundering, corruption, trafficking in firearms and the smuggling of migrants.
The 1949 Convention for
the Suppression of the Traffic in Persons and the Exploitation of the Prostitution
of Others is problematic for a number of reasons. First, the convention does
not define trafficking, but equates trafficking with the exploitation of prostitution.
Trafficking in women can take many forms, for commercial sex work and also
as forced labor, as domestic servants and as “mail-order brides.” The
difficulties in connecting trafficking and commercial sex work are discussed
in the Explore
the Issue section
of Trafficking.
Second, the treaty reflects
a prohibitionist stance toward prostitution, in which the acts associated
with prostitution are criminalized, but not prostitution itself. Thus, the
Convention defers to national law and does not prohibit the prosecution of
commercial sex workers themselves. According to the Special Rapporteur,
The Convention does not
take a human rights approach. It does not regard women as independent actors
endowed with rights and reason; rather, the Convention views them as vulnerable
beings in need of protection from the “evils of prostitution”. As such, the
1949 Convention does very little to protect women from and provide remedies
for the human rights violations committed in the course of trafficking, thereby
increasing trafficked women’s marginalization and vulnerability to human rights
violations. Further, by confining the definition of trafficking to trafficking
for prostitution, the 1949 Convention excludes vast numbers of women from
its protection. Documentation shows that trafficking is undertaken
for a myriad of purposes, including but not limited to prostitution
or other sex
work, domestic, manual or industrial labor, and marriage, adoptive
or other intimate relationships.
The 1949 Convention sets forth obligations to State parties to take
and encourage “health, social, economic and other related
services, measures for the prevention of prostitution and for
the rehabilitation and social adjustment of the victims of prostitution”
but does not addresses the underlying factors that contribute
to trafficking, such as women’s lower economic status, demand
for women’s sexual services, organized crime and internal
conflict. Finally, the 1949 Convention contains provisions for
the repatriation of trafficking victims but also anticipates that
trafficking victims may be deported in accordance with national
law. Deportation is a measure that does not take into account
the risk of returning a woman to her country of origin and does
not consider possible hardship inherent in the situation she was
originally seeking to leave.
The Report
of the Special Rapporteur on violence against women on trafficking
in women, women’s
migration and violence against women,
submitted in to the UN Commission on Human Rights, E/CN.4/2000/68, 29
February 2000, includes an overview of the United Nations law on trafficking
in women
and a critique of the 1949 Convention.
While a number of UN declarations
and conference reports on the broad issue of women’s human rights made mention
of the issue of trafficking in women, the UN legal framework for describing
the phenomenon of trafficking in women changed little before the early 1990’s.
Law
and Policy on Trafficking and Women’s Human Rights
The United Nations began
to approach trafficking in women as a human rights violation in the early
1990’s. As outlined above, prior to this time, reiterations of
the need to address trafficking equated the problem with forced prostitution. The Declaration
on the Elimination of Discrimination Against Women,
adopted by General Assembly resolution in 1967, for example, mentions
only that, “All appropriate measures, including legislation, shall
be taken to combat all forms of traffic in women and exploitation of
prostitution of women.”
(Article 8). The subsequent Convention
on the Elimination of All Forms of Discrimination Against Women,
which entered into force in 1981 and creates binding obligations for
signatories, added little to the earlier 1949 Convention or Declaration
on the Elimination
of Discrimination Against Women, requiring State parties to “take
all appropriate measures, including legislation, to suppress all forms
of traffic in women
and exploitation of prostitution of women.” (Article 6).
The report of
the Third World Conference to Review and Appraise the Achievements of
the United Nations Decade for Women, which was held in Nairobi in
1985, included
women victims of trafficking and involuntary prostitution as an area
of special concern. At the time of the Third World Conference, trafficking
discourse was still limited to the exploitation of women as prostitutes,
and the UN
urged State parties to the 1949 Convention to enact measures to combat
trafficking for the purposes of prostitution as well as attendant crimes,
such as violence
and drug abuse. The UN also emphasized the need for States to assist
prostitutes with reintegration, including the provision of economic
opportunities, training,
employment, self-employment and health facilities for women and children.
The Convention on the Elimination of All Forms of Discrimination
Against Women, as mentioned above, articulates a need to combat
trafficking but does not directly address violence against women
generally. The Committee on the Elimination of Discrimination
against Women clarified that trafficking is a form of gender-based
violence when it adopted General
Recommendation No. 19 in 1992, which highlights the interconnections
between trafficking in women, women’s lower economic status,
armed conflict and violence. General Recommendation 19 explains,
“Poverty and unemployment increase opportunities for trafficking
in women. In addition to established forms of trafficking there
are new forms of sexual exploitation, such as sex tourism, the
recruitment of domestic labor from developing countries to work
in developed countries and organized marriages between women from
developing countries and foreign nationals. These practices are
incompatible with the equal enjoyment of rights by women and with
respect for their rights and dignity. They put women at special
risk of violence and abuse. . . . Wars, armed conflicts and the
occupation of territories often lead to increased prostitution,
trafficking in women and sexual assault of women, which require
specific protective and punitive measures.” (Articles 14;
16). The Committee on the Elimination of Discrimination against
Women also made specific recommendations to State parties to
the Convention to prevent and punish trafficking and to include
information about trafficking in periodic reports that describe
“the extent of [the] problems and the measures, including
penal provisions, preventive and rehabilitation measures that
have been taken to protect women engaged in prostitution or subject
to trafficking and other forms of sexual exploitation."
(Article 24(h)). Although General Recommendation 19 does not
have the force of law, it is a pivotal UN statement on States’
obligation to protect women from violence.
In 1993, 160 countries attended
the UN Second World Conference on Human Rights, held in Vienna. This
conference achieved significant changes in the perception and understanding
of women’s human rights in the
United Nations system and around the world. The Vienna
Declaration and Program of Action states “the
human rights of women and of the girl-child are an inalienable, integral
and indivisible part of universal human rights. . . . Gender-based violence
and
all forms of sexual harassment and exploitation, including those resulting
from cultural prejudice and international trafficking, are incompatible
with
the dignity and worth of the human person, and must be eliminated. This
can be achieved by legal measures and through national action and international
cooperation . . . .” The Vienna Declaration represents an articulation
of trafficking as gender-based violence, without equating it to forced
prostitution
or raising issues of consent. (Articles 18; 38).
The Second World Conference
on Human Rights also led to the creation of three important instruments, which
have advanced women’s human rights and address the issue of trafficking in
women: the UN Declaration on the Elimination of Violence Against Women, the
creation of the position of a UN Special Rapporteur on Violence Against Women
and the Inter-American Convention on the Prevention, Punishment and Eradication
of Violence Against Women, "Convention of Belém do Pará.”
The Declaration
on the Elimination of Violence Against Women,
adopted by General Assembly Resolution six months after the Second World
Conference on Human Rights in 1993, expands upon the articulation of
violence against
women of Vienna Declaration and Program of Action, stating “Violence
against women shall be understood to encompass, but not be limited to,
the following:
. . . Physical, sexual and psychological violence occurring in the family
. . . Physical, sexual and psychological violence occurring within the
general
community, including rape, sexual abuse, sexual harassment and intimidation
at work, in educational institutions and elsewhere, trafficking in women
and
forced prostitution; Physical, sexual and psychological violence perpetrated
or condoned by the State, wherever it occurs.” While illustrating
the connections between trafficking and forced prostitution, the Declaration
on the Elimination
of Violence Against Women underscores the level of violence that women
victims of trafficking experience.
The 1995 Beijing
Platform for Action defines
trafficking in women as a form of gender-based violence (Paragraph 100)
and represents a commitment by governments to enact preventative measures
to protect
women from trafficking, such as the enforcement of laws, the provision
of legal protection and medical assistance. (Strategic Objective C.2
108 (q)).
The document emphasizes the need for States to address the “root
factors, including external factors, that encourage trafficking in women
and girls
for prostitution and other forms of commercialized sex, forced marriages
and forced labor in order to eliminate trafficking in women, including
by strengthening
existing legislation with a view to providing better protection of the
rights of women and girls and to punishing the perpetrators, through
both criminal
and civil measures.” (Strategic Objective D.3 131(b)). The Beijing
Platform for Action also encourages States to implement the 1949 Convention
for the
Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others of Others and other relevant instruments. (Strategic
Objective C.5. (123)).
In 1996 and 1997, the Special
Rapporteur on Violence Against Women, Radhika Coomaraswamy, traveled
to Eastern Europe
to gather information on violence against women, including trafficking. Ms.
Coomaraswamy’s 1996 Report
on the mission of the Special Rapporteur to Poland on the issue of trafficking
and forced prostitution of women (E/CN.4/1997/47/Add.1) provided
important information about the dynamics of the problem, including information
about recruitment methods, trafficking
routes and the difficulty of prosecuting traffickers under national law.
The Special Rapporteur issued a later report
on Violence against Women (E/CN.4/1997/47), in 1997, which provided a broader analysis of the
problem
of trafficking. Ms. Coomaraswamy points out that trafficking had previously
been conceptualized as prostitution but, in fact, women are trafficked
into
“slavery-like conditions as prostitutes, domestic workers, sweatshop
laborers or wives.” She states that trafficking routes duplicate
migration routes and are not necessarily only from South to North but occur
regionally and
within States. The report of the Special Rapporteur also points out
that because trafficking involves cross-border movement, it is an issue
that should
be addressed by international standards and consensus.
The
Trafficking Protocol and Recent Initiatives
By the late 1990’s, it was
apparent that the existing 1949 Convention was inadequate for addressing
the complex problem of trafficking in women and there was a clear need
for consensus
around a standard definition. In December 2000, at an international
conference in Palermo, Italy,
the UN Convention Against Transnational Organized Crime was opened for
signature. This treaty, along with its
supplementary protocol, the Protocol
to Prevent, Suppress and Punish Trafficking in Persons,
especially Women and Children,
(Trafficking Protocol) define signatory countries’ obligations
on trafficking in women. The Interpretative Notes (Travaux Préparatories)
to the Trafficking Protocol also set forth government commitments to
combat trafficking.
The International Human
Rights Law Group, a U.S. human
rights organization, has created a single annotated guide which explains
and analyzes the three UN authoritative
texts: the Convention Against Transnational Organized Crime, the Trafficking
Protocol and the Interpretive Notes. The Annotated
Guide to the UN Trafficking Protocol is a “tool to assist
advocates in the development of a human rights framework for national
anti-trafficking laws and policies.” The
Annotated Guide includes excellent analysis of where provisions of the
Trafficking Protocol should
be modified in the creation of domestic anti-trafficking law, in order
to achieve greater protection for victims’ human rights and facilitate
prosecution of traffickers. Some of the divergences between the Trafficking
Protocol and national legal remedies are also discussed in the Trafficking
Law and
Policy section on domestic legislation.
As described by the International
Human Rights Law Group, the Trafficking Protocol is primarily a law enforcement
instrument. It contains strong language on States’ obligation to create law
enforcement provisions at the national level. However, provisions regarding
protection of victims’ human rights are weak. The Protocol uses language
that States shall undertake these measures merely “in appropriate cases” and
“to the extent possible.” Despite the weaknesses in human rights protections
offered by the Protocol, it represents a strategically important re-conceptualization
of trafficking in women.
First, the Trafficking Protocol
defines “trafficking in persons” as “the recruitment, transportation, transfer,
harboring or receipt of persons, by means of the threat or use of force or
other forms of coercion, of abduction, of fraud, of deception, of the abuse
of power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over
another person, for the purpose of exploitation.” Exploitation is defined
as “at a minimum, the exploitation of the prostitution of others or other
forms of sexual exploitation, forced labor or services, slavery or practices
similar to slavery, servitude or the removal or organs.” (Article 3). This
definition is broad and detailed and represents the accepted international
consensus that the key element of trafficking is the exploitation of the victim,
rather than the movement of victim across borders or “means” by the trafficker
involves the victim in trafficking.
The Trafficking Protocol’s language on sexual exploitation
is also significant. On one hand, the Trafficking Protocol acknowledges
that trafficking in women is frequently for the purposes of prostitution
and sexual exploitation. On the other hand, the Protocol expands
the previously-accepted definitions of trafficking to include
all forms of forced labor, slavery and servitude, even within
a country’s borders. Finally, the drafters of the Trafficking
Protocol deliberately left the terms “exploitation of the
prostitution of others” and “sexual exploitation”
undefined. This was the only way to achieve consensus among countries
that criminalize prostitution and those which have laws that regulate
(and decriminalize) adult sex work. More information about the
Debate over the Definition
of trafficking can be found in the Trafficking: Explore the Issue
section of this site.
Article 3 of the Trafficking
Protocol further states that “the consent of a victim of trafficking in persons
to the intended exploitation . . . shall be irrelevant where any of the means
set forth [above] have been used.” This provision is consistent with international
legal norms dictating that a person cannot legally consent when force, coercion,
deception or abuse of power have been used. The Interpretive Notes (Travaux
Préparatories) to the Protocol clarify that a person in a “position of vulnerability”
refers to “any situation in which the person involved has no real and acceptable
alternative but to submit to the abuse involved." By definition, if
the crimes of forced labor, slavery or servitude have occurred, consent is
irrelevant. Thus, the very common situation in which a woman consents to
certain specific actions, such as using false documents, working illegally
abroad or working as a prostitute, will not allow a defendant to argue that
she consented to be trafficked.
Article 2 of the Trafficking
Protocol, the Statement of Purpose, sets forth the goals of the document:
To prevent and combat trafficking
in persons, paying particular attention to women and children;
To protect and assist the
victims of such trafficking, with full respect for their human rights;
To promote cooperation among
States Parties in order to meet those objectives.
Significantly, the Protocol
articulates a need for State Parties to cooperate. States should cooperate
across borders on the following actions, outlined in the Trafficking Protocol:
assistance and protection of victims (Article 6), repatriation of victims
(Article 8), information exchange and training (Article 10) and border measures
(Article 11). Effective measures to combat trafficking require harmonized
efforts by national governments
As mentioned above, the
Trafficking Protocol is not a human rights instrument, yet it does
contain an obligation to protect the rights of and provide
assistance to trafficking
victims, consistent with international human rights standards. Such
standards are found in human rights instruments of the United Nations
and the European
regional system, as discussed in the section on regional
law and standards. The Protocol
thus emphasizes the importance of protecting trafficking victims
and not labeling them criminals.
The relatively weak human rights language of the Trafficking
Protocol is not reflective of an overall UN policy on trafficking
victims’ human rights. In fact, the Recommended
Principles and Guidelines on Human Rights and Human Trafficking,
issued by the High Commissioner for Human Rights in May 2002 sets
forth the primacy of human rights, which “shall be at the
center of all efforts to prevent and combat trafficking and to
protect, assist and provide redress to victims.” While
not legally binding, the Recommended Principles are a document
that is politically influential. The document contains eleven
recommended guidelines, including one on the promotion and protection
of human rights, which begins “Violations of human rights
are both a cause and a consequence of trafficking in persons.
Accordingly, it is essential to place the protection of all human
rights at the center of any measures taken to prevent and end
trafficking. Anti-trafficking measures should not
adversely affect the human rights and dignity of persons and,
in particular, the rights of those who have been trafficked, migrants,
internally displaced persons, refugees and asylum-seekers.”
Thus, when read in conjunction with the Trafficking Protocol’s
purpose, the Recommended Principles provide advocates with useful
guidelines on how to shape domestic law and policy.
In another recent initiative,
in July 2002, the Rome
Statute of the International Criminal Court entered into force. Within the
statute’s
definition of “crimes against humanity,” the Statute
defines “enslavement”
as “the exercise of any or all of the powers attaching to the
right of ownership over a person and includes the exercise of such
power in the course of trafficking
in persons, in particular women and children.” (Article 7). The
inclusion of enslavement, in the form of trafficking, in the Rome
Statute indicates
the high priority that the UN has given to addressing the crime of
trafficking in women.
Trafficking in Women: Law and Policy | Regional
Law and Standards | The Domestic
Legal Framework | List of Law
and Policy Documents
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