Human Trafficking Violates Human Rights                                                                             Updated September, 2020

Background

Because human trafficking is a widespread problem affecting every nation in the world, numerous different legal structures address it. Human trafficking is a grave violation of a variety of human rights. Those human rights stem from wide-ranging sources.

There are treaties explicitly related to trafficking, but before they were adopted, several United Nations conventions set standards applicable to human trafficking. The international conventions forming the basis for the later, more explicit human trafficking conventions include:

The Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the Slavery Convention (1926), the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956), the United Nations Convention against Transnational Organized Crime (2000), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and the Convention on the Elimination of All Forms of Discrimination against Women (1979).[1]

Explicit Human Trafficking Instruments And Procedures

From that background emerged the current instruments that explicitly apply to human trafficking. The United Nations Office on Drugs and Crime adopted the United Nations Convention against Transnational Organized Crime in 2000. [2]  That treaty is supplemented by 2 protocols. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially women and children, 2003 [known as the Palermo Protocol] specifically applies to human trafficking. The Protocol Against the Smuggling of Migrants by Land, Sea, and Air, 2004 can apply to trafficking, although smuggling is not always trafficking.[3]

The international Forced Labour Treaty was adopted in 1930 and updated with a 2014 Protocol. With the pervasiveness of sex trafficking of women, another important treaty is the Convention on the Elimination of All Forms of Discrimination against Women, adopted in 1979, [known as CEDAW]. Similarly, the European Convention on combatting violence against women and domestic violence of 2011 [Istanbul Convention] also applies to trafficking. They are each discussed below.

The Palermo Protocol

The Palermo Protocol, adopted in 2003, provides an internationally-accepted definition of human trafficking:

"’Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring 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 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.”[4]

It gives a different definition if the trafficked-person is a child under age 18:

“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 subparagraph (a) of this article.”[5]

The Palermo Protocol has a three-part framework:  prevention, protection for victims, and punishment for traffickers.  Thus, states parties should implement prevention in the form of public awareness and addressing the inequalities that lead to trafficking. They should protect and support trafficked persons with housing, medical treatment, etc. And States should enact criminal systems to provide accountability for trafficking. The Palermo Protocol further requires the country of citizenship of a trafficked migrant to accept the return of that person and requires cooperation between states parties in detecting and addressing persons trafficked between nations.

One component of the Palermo Protocol that receives some criticism is its perceived weak language about supporting and protecting victims of human trafficking. It requires states to “consider implementing” measures for the support and protection of victims of human trafficking, including housing, medical and mental-health support, and the possibility of recovery of compensation by victims for harm suffered.[6] Some would prefer that such protective measures were mandatory rather than optional.

Convention on the Elimination of Discrimination Against Women

In 1979, the Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW] was adopted. Article 6 of CEDAW requires the states parties to “take all appropriate measures, including legislation, to suppress all forms of traffic [sic] in women and exploitation of prostitution of women.”[7] To further elaborate on Article 6, the Committee  on the Elimination of Discrimination Against Women drafted a General Recommendation on Trafficking in Women in the Context of Global Migration.[8] This General Recommendation, still in draft form, clarifies the state’s obligations to combat trafficking in women. It is intended to provide a more detailed, nuanced framework to aid states in addressing trafficking. It is an effort to assist states in moving away from an “over-reliance” on the criminal response, moving instead toward prevention of the causes of trafficking in women.[9] The draft General Recommendation was available for commentary through May 2020, and will eventually be finalized by the CEDAW Committee for use by states parties.

Istanbul Convention

The Council of Europe adopted the Convention on preventing and combating violence against women and domestic violence [known as the Istanbul Convention] in 2011. Its wide-ranging provisions regarding prevention, protection, and punishment of all forms of violence against women apply to trafficking in women. In particular, its clear requirements for shelters and help centers, protection for immigrants, and prevention through raising awareness, are particularly suited to address human trafficking of women and girls.[10]

Forced Labour Convention

Human trafficking occurs both within one nation’s borders and internationally. The International Labour Organization [I.L.O.] coordinates workers, employers, and governments to set standards and develop programs to promote decent work for all people. In 1930, the I.L.O. adopted the Forced Labour Convention (called No. 29).[11] Article 2.1 of the Forced Labour Convention contains a widely-accepted definition of forced or compulsory labor: “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.”[12] It mandates that ratifying nations establish remedies for forced labor.

In 2014, the I.L.O. modernized the treaty with the Protocol of 2014 to the Forced Labour Convention, 1930. This Protocol includes requirements for prevention through education. It mandates addressing root inequalities that lead to vulnerability to forced labor. It requires states parties to  provide an effective remedy, and support for survivors. The 2014 Protocol required non-prosecution of victims for offenses related to trafficking victimization. It includes provisions for international cooperation against human trafficking.[13]    

Special Rapporteur

The position of United Nations Special Rapporteur on trafficking in persons, especially women and girls [S.R.], was created in 2004.[14] The Special Rapporteur takes action on complaints about human rights violations regarding trafficking, makes country visits to research and respond to issues, and issues reports on nations’ responses to trafficking. Upon completing her six-year mandate as S.R., Maria Grazia Giammarinaro issued a final paper in July, 2020.[15] This paper emphasized the need to protect victims of trafficking, and particularly, to implement the “non-punishment principle.” That principle holds that persons victimized by trafficking should not be punished or detained for offenses committed as a consequence of being trafficked. This applies to criminal offenses and immigration offenses. It has become a widely-accepted component of the protection measures for trafficking survivors. It should be adopted as domestic policy, implemented through training and protocols, and in particular, should be applied to all children, according to the S.R.

Other Sources of Human Rights Applicable to Trafficking

In addition to the explicit measures discussed above, there are many other sources of international law that relate to human trafficking. It is a complex issue that intersects with an array of international treaties and state obligations. Treaties that deal with labor or the rights of women, children, migrants, and persons with disabilities provide relevant standards. Additionally, treaties on the more general concepts of civil, cultural, economic, political or social rights can influence state’s obligations regarding human trafficking.

From this web of legal sources emerges a system of obligations for states interacting with trafficking survivors and traffickers. States have responsibility for the decisions and actions of state actors. They also have responsibility for the state’s influence over the outcome of the actions of private individuals. The general principles of international human rights law on trafficking incorporate prevention, protection, and punishment.

Some examples of treaties and regional instruments that are particularly relevant to trafficking are:

Convention on the Rights of the Child, 1989

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography, 2000

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990

International Covenant on Civil and Political Rights, 1966

International Covenant on Economic, Social and Cultural Rights, 1966

Council of Europe, Convention on Action against Trafficking in Human Beings, 2005 (European Trafficking Convention)

Charter of Fundamental Rights in the European Union, 2000, article 5, and Directive 2001/36/EU of the European Parliament and Council on preventing and combatting trafficking in human beings and protecting its victims, 2011

South Asian Association for Regional Cooperation, Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002[16]

Additional information and guidance on obligations relevant to human trafficking include:

Recommended Principles and Guidelines on Human Rights and Human Trafficking, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNICEF Guidelines on the Protection of Child Victims of Trafficking,

And Criminal Justice Responses to Trafficking in Persons: ASEAN Practitioner Guidelines

UNHCR Guidelines on international protection: The application of article 1A(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.

The Office of the United Nations High Commissioner for Human Rights has prepared a fact sheet summarizing the state’s human rights obligations under international law.[17] The following are some highlights of that summary.

Summary of International Law on Human Trafficking

Office of United Nations High Commissioner for Human Rights

1. The obligation to protect and support identified survivors of trafficking

Human trafficking most frequently impacts individuals who suffer from inequalities and insecurity such as poverty, lack of shelter, and lack of access to legitimate employment. When human trafficking victims are identified and escape the trafficking scenario, they often remain in an insecure and highly vulnerable position. The state thus has an obligation to support and protect them.

Protection and support might take the form of protection from further exploitation, medical attention, mental-health support, or protection from retaliation. The European Court of Human Rights decided in a well-known case that the state-party that identifies a likely human-trafficking victim undertakes the obligation to investigate and remove the individual from the trafficking situation. Failure to do so is a violation of the victim’s rights.[18]

Human-trafficking survivors have the right to participate in the legal proceedings relating to their trafficking. They might be called as witnesses in a criminal proceeding against the trafficker, or might provide a victim-impact statement for sentencing. Survivors might bring civil proceedings in their own names against traffickers. In doing so, survivors have the rights to legal information, assistance, input, and to make their own decisions in legal matters.

Trafficked migrants who are present in a country unlawfully have rights specific to that circumstance. Some legal instruments grant a time of reflection and recovery, so that survivors can learn and consider their options. Others grant temporary legal residence conditioned upon cooperation with ongoing legal proceedings against their trafficker. And some countries grant temporary residence status on humanitarian grounds without the condition that they take part in legal proceedings.

An important component of protection for human-trafficking victims involves not prosecuting them for violations of either immigration laws or other criminal laws in connection with their status as a trafficked person. In addition to this “principle of non-punishment,” states should avoid routinely detaining victims. This includes detention for any reason, such as punishment, medical attention, welfare, or awaiting immigration decisions. Systems providing for detention of victims meet human rights standards only if they do so narrowly and individually based on factors of necessity, legality, and proportionality.

Human rights standards incorporate special protection measures for child victims of human trafficking. Children have obvious vulnerabilities. Authorities seeking to detain children must establish that detention is in the child’s best interests, with no reasonable alternative. Indeed, all decisions regarding child victims must incorporate the “best interests” as the primary consideration. Protection and support measures must be age-appropriate and specific to the child’s age and characteristics, such as gender, culture, or ethnicity. Given that the exact age of a child might be difficult to ascertain, there is a growing use of a “presumption of age” in which a victim who might be a child is treated as a child until a determination of adulthood is made.

2. The obligations that relate to the return of a trafficked migrant.

Survivors of human trafficking might be identified in a country other than where they have citizenship. When that happens, international standards include the safe and voluntary return of the trafficked person. This means that trafficked persons are entitled to return, preferably by their choice, to their country of origin. The country where the victim is identified, and the country of origin must both work to return the survivor reasonably quickly to their home.

The process of returning a trafficked person may not, itself, violate the human rights of the survivor. State’s owe survivors the right of due process, for example, avoiding arbitrary expulsion. And states must avoid “refoulment:” returning a trafficked individual to a place where there is a real risk of persecution or abuse.

In working to return trafficked migrants, states should act without jeopardizing any legal proceedings that involve the victim. This may require providing legal residency during the proceedings for compensation, or while criminal proceedings against the trafficker are in progress.

For survivors who return to the original countries, human rights standards include support for their reintegration into society. As victims of crime, they are entitled to support and respect for their rights of privacy and non-discrimination. To this end, the cooperation between the repatriating country and country of origin is also key to many international and regional documents.

3. Remedies for Harm Caused by Trafficking

Human rights law generally provides for “adequate and appropriate” remedies for harm, and access to those remedies. Remedies for harm from human trafficking are no exception. Available remedies might include restitution (being restored physically and legally to the status held before being trafficked), compensation (paid damages for physical and emotional harm and lost financial means), rehabilitation (medical and psychological care and legal assistance), or guarantees of non-repetition (investigation and verification of the truth, legal sanctions for the trafficker, and reducing inequities that lead to trafficking).

Victims are entitled to access to financial compensation from the offender. If compensation is not available from the offender, the state has the obligation to provide for reparations to the survivor.

4. An Effective Criminal Justice Response

International law requires that nations criminalize the activities that comprise human trafficking. This involves the adoption of domestic laws penalizing trafficking entirely within the domestic scope, independent of any international activity. Domestic laws should apply the international definition of trafficking, including liability for accomplices and for trafficking-related activity such as sexual violence or forced labor. Domestic courts should have jurisdiction to punish all parts of the criminal trafficking activity, regardless of where they took place. Sanctions should include forfeiture of traffickers’ assets that can be used to support victims. Nations should cooperate to ensure effective investigations across borders.

To enforce those laws, international law creates the positive obligations to investigate and prosecute trafficking with “due diligence.” This includes implementing measures for the support of victims, use of a gender-aware perspective, training and specialization of justice professionals, proportional sanctions, and due process for the accused trafficker. The ultimate goals are to create accountability and prevent traffickers from acting with impunity.

5. Trafficking Prevention

International law imposes upon states the obligation to implement prevention strategies to stop trafficking from happening. Prevention includes several forms of proactive measures.

Prevention can take the form of addressing the factors that make people susceptible to trafficking. Those factors are manifold, but include poverty, lack of housing, unequal opportunity, discrimination based on race, culture, or religion, youth, and gender-based violence. Groups that lack power or influence are disproportionately represented as victims of trafficking, so reducing those inequities is trafficking prevention.

Prevention also occurs when states work to stop the demand that precipitates trafficking. This is a complex undertaking, as it can comprise the demand for cheap goods, demand for commercial sexual activity, or the demand for cheap labor. It might involve raising awareness of the outcomes of such demands and strengthening the protections for persons whose work is likely to be exploited by traffickers.

Prevention of trafficking also includes the reduction of corruption by those in power. Strengthening the rule of law and enforcing expectations for public officials helps to quell the environment that supports trafficking. For example, occupying military forces might fuel sex trafficking. Border officials who accept bribes to permit trafficking, or health and safety inspectors who are complicit in illegal workplaces, are part of the trafficking problem. States are obligated to undertake “due diligence” in uncovering and addressing corruption that underlies much human trafficking.

Finally, underlying all these standards is the requirement that they be undertaken with due regard for the human rights of all involved – the victim, the trafficker, and others involved in trafficking. Trafficking is complex and so are its solutions.[19]

As widespread and complex as human trafficking is, it takes a wide network of instruments and states’ obligations to address this problem that is ubiquitous around the world.