The Connection between Human Rights Abuses and Human Trafficking - Essay Example

?Continuous Assessment on International Human Trafficking Law Introduction Human trafficking impacts all parts virtually the entire world. Increasingly there has been a heightened awareness that in order to satisfactorily respond to the global problem of human trafficking, an international framework is necessary. Achieving this objective is easier said than done as cooperation and coordination between states is fraught by a number of difficulties since individual states have limited experiences relative to dealing with human trafficking.1 This paper evaluates the efforts made by the EU and will examine ways in which these efforts can be improved for the purpose of developing an effective cooperative and coordinative anti-human trafficking framework. The practical difficulties will first be explored by outlining the historical developments of anti-human trafficking international law. Secondly, this paper will analyse the European Convention on Action against Trafficking in Human Beings 2005 (Convention of 2005) and the ECHR’s approach to international human trafficking in Ranstev v Cyprus and Russia (2010). Finally this paper will recommend appropriate amendments that can improve the Convention of 2005. I. Historical Developments in International Human Trafficking Law Trafficking in human beings has a long “legal and political history”.2 The term human trafficking was first used in internationally during the early part of the 20th century and even then it was confined to issues relative to white slavery which was a term used in connection with forced prostitution. Therefore the first anti-trafficking convention at international law was the International Agreement for the Suppression of the White Slave Traffic 1904 which attempted to eliminate the criminal trafficking of females for “immoral purposes”.3 By 1927, the term white slavery was discontinued as it was perceived to be inadequate in terms of reflecting the real nature of the problem of international human trafficking. As a result a number of international conventions were adopted including the League of Nations’ Suppression of the Trafficking in Women and Children 1921 and the Suppression of the Traffic in Women of Full Age 1933. Neither or these conventions offered a definition of trafficking and were largely concerned with the forced prostitution of women across borders. Moreover, these conventions only dealt with the issue of recruitment as it was perceived that detention in brothels fell outside of international law.4 The United Nations adopted the Convention on Suppression of Trafficking and Exploitation of Prostitution in 1949 which had three significant shortcomings. First it was not a binding convention in the sense that it only called for cooperation. Secondly, it was based on self-reporting and thirdly, it did not define the term human trafficking.5 The assessment of human trafficking would therefore differ from state to state as each country would have its own definition of trafficking and self-reporting, regardless of how objective could not reflect the real nature of the problem internationally. Moreover, the voluntary cooperative nature of the 1949 Convention could not provide an effective obligation or commitment to reporting and cooperating on the appropriate responses to international human trafficking. By the decades of the 1990s, national governments, intergovernmental organizations and non-governmental organizations became increasingly concerned about the problems associated with transnational criminal organizations and the attending problems of human trafficking. Thus the UN implemented the UN Convention against Transnational Organized Crime in 2000. At the same time the UN adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (Anti-Trafficking Protocol 2000).6 Significantly, the Anti-Trafficking Protocol 2000 provided for an agreed upon definition of human trafficking, therefore facilitating a harmonized approach to defining human trafficking and as a result harmonizing the international criminalization of what amounts to human trafficking and a unified approach to the offences associated with human trafficking.7 Essentially human trafficking is defined as: ….recruitment, transportation, transfer, harbouring, or receipt of persons, by means of the threat of 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.8 Article 3(a) also goes on to define exploitation so as not to limit it to mere sexual exploitation. Exploitation in this regard, includes “forced labour or services,” as well as “slavery of practices similar to slavery, servitude or the removal of organs.9 The definition of human trafficking under the 2000 Protocol is designed to ensure that national laws and policies will be harmonized among the international community and will therefore give way to a unified approach to investigations and prosecutions of human traffickers. After all the stated purpose of the 2000 Protocol is to “prevent and combat” human trafficking and to ensure that nations cooperate with each other pursuant to this goal.10 The UN’s 2000 Protocol has been successful in that it has resulted in a number of national anti-trafficking laws and policies and has spurred agreements on a regional level. Many of these laws and policies were intended to fill in gaps left by the 2000 Protocol. For example the Council of Europe’s Convention on Action Against Trafficking 2005 attempts to place an emphasis on the protection and assistance of the victims of human trafficking. Moreover, unlike the UN’s 2000 Protocol, the EU’s Convention of 2005, binds its contracting states to identification, investigation, prosecution and enforcement of anti-trafficking offences.11 II. European Convention on Action against Trafficking in Human Beings 2005. Human trafficking in Europe has become particularly problematic and complicated since the end of the 1980s and the 1990s when Europe opened its borders. The opening of its borders and the number of failed states and “a weakened rule of law” made Europe more vulnerable to the incidents of human trafficking.12 The European Convention on Action Against Trafficking in Human Beings 2005 seeks to address the problem by emphasising that states are responsible for protecting and enforcing the rights of victims.13 In this regard, states are required to lend physical, psychological and social aid to victims for at least one month during their recovery.14 This minimum recovery period is referred to as a “reflection and recovery period”.15 According to Morehouse the reflection period is designed to put distance between the victim and the trafficker and to encourage the victim’s cooperation in terms of prosecution.16 This incentive is further supplemented by Article 12(6) of the Europe Convention of 2005 which provides for states to ensure that assistance is not conditioned to cooperation and by Article 14 which stipulates that the victim is issued with a renewable permit as a means of gaining access to labour.17 Article 15 also provides that states ensure that victims are accorded legal assistance and “free legal aid”.18 Articles 12 to 14 are particularly important as the prosecution of traffickers is not possible without ensuring that the victim is ready, willing and able to cooperate with investigating and prosecuting authorities. The reflection period is therefore entirely necessary. However, since a number of the states within Eastern Europe are suffering from failing economies and a weakened rule of law, it is impractical to expect these states to be able to offer this kind of assistance to victims when political, social, legal and economic conditions have facilitated human trafficking in the first place. Article 28 attempts to provide some guidance on how these states may render greater assistance to victims by providing that: Each Party shall consider entering into agreements or arrangements with other States for the implementation of this article.19 Since Article 28 is not compulsory, it depends upon contracting states’ ability to and willingness to seek arrangements/assistance or to render assistance to other states for ensuring the protection of victims. No doubt there are number of European states that are capable of and willing to provide such protection within their own territories. However, the question remains whether or not they are willing to provide assistance to other states. Another practical difficulty is found in Article 29 of the Europe Convention 2005 which provides that contracting states ensure that “specialised authorities and co-ordinating bodies” are trained in and experts in “the fight against trafficking and the protection of victims”.20 Moreover, contracting states are required to promote cooperation among government bodies and officials for combatting trafficking and protecting victims.21 Again, there is a presumption that contracting states have the funds and human capital and are free of corruption. Given the previously identified conditions of a number of Eastern European States, there is little hope of ensuring that Article 29 can be adhered to with any degree of precision or satisfaction. The substantive law provisions of the Europe Convention 2005 begins by effectively adopting the definition of trafficking contained in the UN Protocol of 2000.22 The Convention however, goes further by taking a more holistic approach to the pervasive problem of human trafficking. To begin with, human trafficking is facilitated by “the elements of supply and demand”, which is more problematic in politically and economically weak countries.23 Articles 5 and 6 take an holistic approach by addressing the supply and demand elements of human trafficking. Article 5 which deals with supply, specifically requires contracting states to prevent human trafficking by adopting measures designed to heighten awareness and to provide “social and economic initiatives and training” for persons “vulnerable to trafficking and for professionals concerned with” human trafficking.24 Article 5(5) is particularly instructive in that it provides that: Each Party shall take specific measures to reduce children’s vulnerability to trafficking, notably by creating a protective environment for them.25 Article 5 (5) obviously intends that state policies, practices and laws are such that children are provided with social and welfare protection and assistance so as to reduce their vulnerability to trafficking. However, while calling for specificity, Article 5(5) is vague and as such fails to make it clear what these specific measures are and should be. It is also equally uncertain who states should go about providing economic incentives and training for persons who might be vulnerable to human trafficking. Article 6 is similarly ambitious in terms of taking a holistic approach to anti-human trafficking and specifically addresses the supply element. Article 6 is practical and reasonable as it requires education which would ensure that children are provided with respect for and appreciation for human rights. In fact Hathaway argues that the protection of human rights is indistinguishable from human trafficking offences.26 The Europe Convention 2005, attempts to address the root causes of human trafficking and therefore ensures that particular attention is paid to the victim. This approach is intended to strengthen the prosecutorial aspect of human trafficking as a means of deterring the incidents of human trafficking. The framework of the Europe Convention 2005 is essentially designed to prevent, combat, monitor and regulate human trafficking among its contracting states. Harmonization of these objectives may not be altogether successful without assistance from the more developed countries to the least developed countries. As it is there is a common standard and the law knows no distinction. III. The European Court of Human Rights’ approach to international human trafficking in Rantsev v. Cyprus and Russia [2010]. The connection between human rights abuses and human trafficking are exemplified by the ECHR’s ruling in Rantsev v Cyprus and Russia (2010).27 In this case, the complaint was lodged with the European Court of Human Rights under the provisions of the European Convention on Human Rights. The complainant was the father of a female victim of the sex industry in Cyprus who had died in the process. The exploitation of the female had been facilitated by trafficking from Russia. The claimant alleged that his daughter’s death had occurred as a result of violations of Article 2 of the European Convention on Human Rights (the right to life); Article 3 (which prohibits human torture); Article 5 (which provides for the right to life); and Article 5 (which guarantees liberty).28 The ECHR ruled that the complainant’s daughter’s situation was one that fell under trafficking and fell within Article 4 of the European Convention on Human Rights. Article 4 provides that: No one shall be held in slavery or servitude. No one shall be required to perform forced or compulsory labour.29 The European Court of Human Rights went on to state that Article 4 was akin to Articles 2 and 3 and “enshrines one of the basic values of the democratic societies making up the Council of Europe” and under Article 4, there is “no provision for exceptions and no derogation from it is permitted” even where there are national emergencies and crises.30 What can be gleaned from this ruling is that the ECHR regards human trafficking as closely connected to abuses of human rights. IV. Recommendations Article 28 of the 2005 Europe Convention should be amended to make arrangements and agreements compulsory. Failing that, the Council of Europe should create and fund an organization specifically designed to lend advice and assistance to weaker states for the protection of victims. The 2005 Europe Convention should therefore be amended to create and designate the organization for this purpose and make it mandatory for states who are unable to provide adequate assistance to victims to have access to the organization. In this regard, Articles 12 to 15 and 28 would be more realistic in its expectations. Article 29 also suffers from the same shortcoming, in that there are bound to be a number of European states that are unable to provide human capital resources for the provision of expertise and specialization in combatting human trafficking and protecting victims. Therefore Article 29 should be amended to include the creation of a body that is designed to train officials from member states who are unable to provide that kind of training. This training should also include anti-corruption instructions. Article 5(5) should also be amended to provide a more involved list of the specific measures that would reduce the child’s vulnerability to human trafficking. Moreover, Article 5(5) should also provide where and how contracting states may seek or obtain funding in order to facilitate these kinds of measures. In states where political, legal and economic structures are weak, it is unlikely that these states will have the resources to adopt affective and meaningful measures for reducing the child’s vulnerability to trafficking. Additionally, Article 5 should be amended to call upon the more developed states to assist the weaker states with providing economic incentives and training for persons who might be vulnerable to human trafficking. However, what is meant by economic incentives should be clarified or presented in greater detail. Given the ECHR’s approach to human trafficking as intricately connected to abuse of human rights, Article 6 ought to emphasize that member states ensure that they meet their obligations under the European Convention on Human Rights. In particular, contracting states should be reminded of their obligations to investigate suspected cases of human trafficking and to take specific measures to prosecute the matter. Works Cited Allain, J. “Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery.” Human Rights Law Review. 10(3)(2010): 546-557. Amiel, A. “Integrating Rights Perspective into the European Approach to Combatting the Trafficking of Women for Sexual Exploitation.” Buffalo Human Rights Law Review, 12(2006): 5-56. Bales, K. Understanding Global Slavery: A Reader. California: University of California Press, 2005. Deitel, C. “Not Our Problem: Russia’s Resistance to Joining the Convention on Action Against Trafficking in Human Brings.” Suffolk Transnational Law Review, 32(1) (2008): 161. European Convention on Action Against Trafficking in Human Beings 2005. European Convention on Human Rights. Gallagher, A. and Holmes, P. “Developing an Effective Criminal Justice Response to Human Trafficking: Lessons From the Front Line”. International Criminal Justice Review, 18(3) (2008): 318-343. Gallagher, A. The International Law of Human Trafficking. Cambridge: Cambridge University Press, 2010. Hathaway, J. “The Human Rights Quagmire of ‘Human Trafficking’”. Virginia Journal of International Law, 49(1) (2008): 1-59. International Agreement for the Suppression of the White Slave Traffic 1904. Morehouse, C. Combating Human Trafficking. Netherlands: VS Verlag, 2009. Owen, M. “International Trafficking in Women: Application of the Council of Europe Convention on Action Against Trafficking in Human Beings in Post-Conflict State and Creation of a European Court to Adjudicate Cases of Trafficking.” DePaul Rule of Law Journal, (Fall 2010):1-28. Pearson, E. “Historical Development of Trafficking – The Legal Framework for Anti-Trafficking Interventions,” cited in Sector Project Against Trafficking in Women (Eds). Challenging Trafficking in Persons Theoretical Debate and Practical Approaches. Nomos: Baden and Baden, 2005. Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children 2000. Rantsev v Cyprus and Russia Application No. 25965/02 Judgment of 7 January 2010. Vlassis, D. “The UN Convention Against Transnational Organized Crime.” Cited in Berdal, M. and Serrano, M. (Eds) Transnational Organized Crime and International Security. Boulder, Co.: Lynne Riener Publishers, Inc. Ch. 6, 2002. Read More