International Human Trafficking Law
This piece will focus on International Human Trafficking Law and will discuss and critically evaluate four elements. Section one will cover the historical development of international human trafficking law. Section two will focus on the legal models employed in the European Convention on Action against Trafficking in Human Beings [2005][1]. Section three will take a look at the European Court of Human Rights’ (ECHR) approach to international human trafficking in Ranstev V. Cyprus and Russia [2010][2]. Section four will contain a discussion of proposed amendments to improve the European Convention on Action against Trafficking Human Beings [2005][3].
Section One: The Historical Development of International Human Trafficking Law.
The first international law to deal with the issue of human trafficking was the International Agreement for the Suppression of the "White Slave Traffic [1904][4]. This treaty was signed by twelve European states to provide to “women of full age who have suffered abuse or compulsion, as also to women and girls under age, effective protection against the criminal traffic known as the "White Slave Traffic”[5]. The intention of the treaty was to protect “white women” against trafficking for the purpose of prostitution and sexual exploitation. The focus on white women was a response to increasing reports of white slavery, although the actual number of cases may have been overestimated[6]. The 1904 agreement sought to place a duty on states to protect those who were victims of white slave traffic by keeping watch on railway stations and ports for “persons in charge of women or girls destined for an immoral life”[7] and by communicating all information obtained to the woman or girl’s country of origin with a view to their eventual repatriation[8]. The 1904 agreement sought to address the problem of white slave traffic through monitoring, and providing assistance to trafficked women and girls.
The 1910 International Convention for the Suppression of “White Slave Traffic”[9] further developed on the provisions of the 1904 agreement. The 1910 convention placed a legal duty on states to punish those who were engaged in the trafficking of white women or girls for immoral purposes[10], whilst also compelling states to enact domestic legislation to punish such offences ‘according to their gravity’[11]. The 1910 convention also placed a duty on states to “communicate to each other the records of convictions in respect of offences covered by the present Convention”[12]. The 1904 agreement and the 1910 convention could both be interpreted as somewhat racist in so far as it seeks only to legislate for “white” women or girls. Both also implied trafficking for the purposes of ‘prostitution’ but never mention the word.
A further development in international human trafficking law was the International Convention for the Suppression of the Traffic in Women and Children, 1921[13]. This treaty was signed by thirty three international states. This agreement was adopted under the auspices of the League of Nations and sought to expand the focus of the earlier agreements. This agreement moved away from the previous treaties’ focus on “white slave traffic”, and placed a duty on all contracting parties to “to take all measures to discover and prosecute persons who are engaged in the traffic in children of both sexes and who commit offences within the meaning of Article 1 of the Convention of May4, 1910[14]. The 1921 convention differed from the earlier conventions in that it also placed a duty on states to “extradite or provide for the extradition of persons accused or convicted of the offences specified in Articles 1 and 2 of the Convention of May 4, 1910”[15].
The 1933 International Convention for the Suppression of the Traffic in Women of Full Age sought to “secure more completely the suppression of the traffic in women and children”[16]. This was to be achieved by punishing those who preparing to traffic others[17], and through a more comprehensive sharing of information on offenders such as “ his civil status, description, finger-prints, photograph and police record, his methods of operation, etc”[18].
The 1949 United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others[19] was the first in international human trafficking law to explicitly mention trafficking for the purposes of prostitution. The 1949 convention sought to consolidate and build upon all of the other agreements mentioned above[20]. It included the aims to punish a person that “Keeps or manages, or knowingly finances or takes part in the financing of a brothel” or “Knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others”[21]. The 1949 agreement also took a more comprehensive approach to the protection of trafficked “persons”, not solely focusing on women and children and it calls for the needs of victims to be addressed through social, educational and health related programmes[22]. It also takes a similar criminal law enforcement approach on the previous agreements.
Section Two: The Legal Model Employed in the European Convention on Action against Trafficking in Human Beings, 2005:
The 2005 European Convention on Action against Trafficking in Human Beings[23] was in some ways similar and in other ways wholly different from the previous treaties that addressed human trafficking. It was similar insofar as it still sought to address human trafficking with a criminal law approach, but its difference lay in the human rights based approach contained within its articles. The 2005 convention offers a multifaceted approach to tackling the issue of human trafficking by punishing and prosecuting those engaged in trafficking, whilst also seeking to protect the dignity and human rights of trafficked persons. It does this in a number of ways.
The preamble to the 2005 convention explicitly states that “respect for victims rights, protection of victims and action to combat trafficking in human beings must be the paramount objectives”[24]. The scope of this convention is also wider than others previous, with it applying to trafficking for multiple purposes such as forced labour and servitude, and not solely sexual exploitation, as well as to national and transnational trafficking, regardless of crime connections[25]. The 2005 convention is the first of its kind to propose the necessity of respecting gender equality when combating trafficking[26], and is also the first to provide for non-discrimination[27]. It urges all parties to promote a human rights based approach as well as a gender mainstreaming and child sensitive in developing, implementation and assessment of policies[28]. The 2005 convention also seeks to protect the private life of victims in accordance with Article 10 of the Convention for the protection of Human Rights and Fundamental Freedoms[29]. The convention seeks parties to “adopt such legislative or other measures as may be necessary to assist their physical, psychological or social recovery[30]. In taking this human rights based approach, this convention goes further than any before it in seeking to protect the victims of trafficking, however by failing to address the economic reasons for people consenting to be trafficked, it falls a little short in discouraging demand[31]. With a provision to put a comprehensive social security system in place in each member state, the basis for exploitation could be removed and the economic necessity to migrate reduced.
The 2005 convention also builds upon previous treaties by taking a criminal law approach to the issue of human trafficking. This is to be achieved by strengthening national co-ordination between the bodies responsible for combating trafficking[32]. This convention also ‘advises’ parties to criminalise the use of services of a victim, where there is knowledge that one is a victim[33]. This article may not go far enough insofar as it does not compel states to adopt such legislation. It also seeks domestic legislation to be introduced to make a criminal offence various acts relating to fraudulent travel documents, and aiding and abetting trafficking[34].
This convention also introduced the concept of corporate liability into human trafficking law, seeking to ensure that “a legal person can be held liable for a criminal offence... committed for its benefit by any natural person”[35]. Legislation such as this can help in punishing those who try to shield themselves from responsibility through not being in direct contact with trafficked persons, but still having some involvement in their exploitation. The 2005 convention also lays down a number of expectations on states in relation to criminal sanctions, including deprivation of liberty, monetary sanctions or the confiscation of the proceeds of criminal offences, including property[36]. In this regard the 2005, parties are expected to develop specialised authorities and co-ordinating bodies to fight against trafficking and protect victims[37]. In this sense the 2005 convention is fairly comprehensive on the criminal law approach, however, rather than compelling states to adopt legislation in this area, a better approach may be to harmonise anti-trafficking laws throughout Europe, thereby leading to less gaps in the system.
Section Three: The European Court of Human Rights Approach to International Human Trafficking in Ranstev V. Cyprus and Russia [2010]
This case refers to the death of a Russian national in Cyprus who had been trafficked there to work in the sex industry. In the case of Ranstev V. Cyprus and Russia, the European Court of Human Rights found that both Cyprus and Russia were in breach of human rights in relation to the trafficking of persons[38]. The court found that both states did not meet their obligations under international human trafficking and human rights law. Firstly, the court found that there was “a procedural violation of Article 2 of the Convention as regards the failure of the Cypriot authorities to conduct an effective investigation into Ms Rantseva’s death”[39]. It further concluded that in failing to afford Ms Rantseva protection against trafficking and exploitation, Cyprus had violated Article 4 of the European Convention on Human Rights and Fundamental Freedoms. Further to this, the court also found that Cyprus had violated article 5, the right to liberty, “on account of Ms Rantseva’s unlawful and arbitrary detention”[40] at the police station and the apartment. In relation to Russia’s duties, the court found that there had been a violation by Russia of their duties to investigate the recruitment of Ms Rantseva under Article 4 also[41]. In making its judgement the court recognised the obligations that are placed on states to tackle trafficking, whether they are states of destination or origin. It also emphasised the importance of cross border co-operation to effectively deal with human trafficking. The human rights based approach taken in this case was an important step in international human trafficking law. It reiterated the effective duty on states to take more seriously the phenomenon of human trafficking, and to protect victims as well as properly investigate instances of human trafficking.
Section Four: Amendments to improve the European Convention on Action against Trafficking in Human Beings [2005]
The European Convention on Action against Trafficking in Human Beings [2005] is a solid document that goes further than any other previous treaty in relation to human trafficking. However that is not to say that it is perfect. There are a number of ways that it could be improved upon. For example, it could be argued that because Europe adheres to a capitalist system in which unemployment is an intrinsic feature, the necessity for people to engage in trafficking for profit and survival will always be there. To rectify this and reduce demand, amendments to the treaty could be made to require each state to implement comprehensive social security nets to reduce poverty and the need to engage in trafficking. Further to this, in relation to Article 19 of the convention, the fact that states are only expected to “consider adopting”[42] legislation that makes a criminal offence the use of services of a victim requires amending so that states must enact such legislation. Also in regards to this article, the requirement that one must have knowledge of a person being a victim of trafficking to be prosecuted requires amending. This could be achieved through two cross border policies in Europe. By outlawing prostitution on a Europe wide basis, if one procures the services of a prostitute then they could no longer have a reasonable defence that they were unaware that the prostitute may be a victim of trafficking. Another approach to this in relation to forced labour could be the introduction of a Europe wide minimum wage. In this regard, if someone was judged to be paying someone below the legal minimum, they could not reasonably claim to have no knowledge that the person may be a victim of trafficking. These measures would provide extra protection to victims of trafficking and may contribute to a reduction in demand for trafficked persons.
Bibliography:
Amiel, A. ‘Integrating a Human Rights Perspective into the European Approach to Combating the Trafficking of Women for Sexual Exploitation’ Buffalo Human Rights Review, Vol 12. 2006. P.43. < http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/bufhr12&div=5&id=&page=> last accessed 21/04/2011
Bruch, E. M. “Models Wanted: The Search for an Effective Response to Human Trafficking.” Stanford Journal of International Law. Vol 40, 2004, p 7; http://heinonline.org/HOL/Page?handle=hein.journals/stanit40&collection=journals&page=1#11 last accessed 19/04/2011
Council of Europe, [2005], European Convention on Action against Trafficking in Human Beings http://www.coe.int/t/dghl/monitoring/trafficking/Docs/Convntn/CETS197_en.asp#TopOfPage last accessed 18/04/2011
European Court Of Human Rights, Ranstev v. Cyprus and Russia - 25965/04 [2010] ECHR 22 (7 January 2010) http://www.bailii.org/eu/cases/ECHR/2010/22.html last accessed 20/04/2011
International Agreement for the Suppression of the "White Slave Traffic, 1904, http://www1.umn.edu/humanrts/instree/whiteslavetraffic1904.html last accessed 19/04/2011
International Convention for the Suppression of “White Slave Traffic,” 1910, http://www1.umn.edu/humanrts/instree/whiteslavetraffic1910.html last accessed 20/04/2011
International Convention for the Suppression of the Traffic in Women and Children, 1921, http://ec.europa.eu/anti-trafficking/entity.action;jsessionid=X2Y6NZ1DmykT2Zh73QZSLkGfm9GRYzYJncd6v1hmcKDDLnJtl9BG!1145937442?id=3e45bb04-38d9-4f66-b7f1-bde3ea47361e last accessed 20/04/2011
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[1]European Convention on Action against Trafficking in Human Beings, 2005
[2] European Court Of Human Rights, RANTSEV v. CYPRUS AND RUSSIA
[3] European Convention on Action against Trafficking in Human Beings, 2005
[4]International Agreement for the Suppression of the "White Slave Traffic, 1904
[5] International Agreement for the Suppression of the "White Slave Traffic, 1904
[6] Bruch. E.M. ‘Models Wanted: The search for an effective response to human trafficking
[7] Article 2, International Agreement for the Suppression of the “White Slave Traffic,” 1904
[8] Article 3, International Agreement for the Suppression of the “White Slave Traffic,” 1904
[9] The International Convention for the Suppression of “White Slave Traffic,” 1910
[10] Articles 1 & 2, The International Convention for the Suppression of “White Slave Traffic,” 1910
[11] Article 3, The International Convention for the Suppression of “White Slave Traffic,” 1910
[12] Article 7, The International Convention for the Suppression of “White Slave Traffic,” 1910
[13] International Convention for the Suppression of the Traffic in Women and Children, 1921
[14] Article 2, International Convention for the Suppression of the Traffic in Women and Children, 1921
[15] Article 4, International Convention for the Suppression of the Traffic in Women and Children, 1921
[16]International Convention for the Suppression of the Traffic in Women of Full Age, 1933,
[17] Article 1, International Convention for the Suppression of the Traffic in Women of Full Age, 1933
[18] Article 2(A) International Convention for the Suppression of the Traffic in Women of Full Age, 1933
[19] United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949
[20] Preamble, United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949
[21] Article 2, United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949
[22] Article 16, United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949
[23] European Convention on Action against Trafficking in Human Beings, 2005
[24] Preamble, European Convention on Action against Trafficking in Human Beings, 2005
[25] Article 2, European Convention on Action against Trafficking in Human Beings, 2005
[26] Amiel, A. 2006. ‘Integrating a Human Rights Perspective into the European Approach to Combating the Trafficking of Women for Sexual Exploitation’
[27] Article 3, European Convention on Action against Trafficking in Human Beings, 2005
[28] Article 5.3, European Convention on Action against Trafficking in Human Beings, 2005
[29] Article 11.3, European Convention on Action against Trafficking in Human Beings, 2005
[30] Article 12, European Convention on Action against Trafficking in Human Beings, 2005
[31] Article 6, European Convention on Action against Trafficking in Human Beings, 2005
[32] Article 5.1, European Convention on Action against Trafficking in Human Beings, 2005
[33] Article 19, European Convention on Action against Trafficking in Human Beings, 2005
[34] Articles 20 & 21, European Convention on Action against Trafficking in Human Beings, 2005
[35] Article 22, European Convention on Action against Trafficking in Human Beings, 2005
[36] Article 23, European Convention on Action against Trafficking in Human Beings, 2005
[37] Article 29, European Convention on Action against Trafficking in Human Beings, 2005
[38] RANTSEV v. CYPRUS AND RUSSIA - 25965/04 [2010] ECHR 22 (7 January 2010)
[39] Para 242, RANTSEV v. CYPRUS AND RUSSIA
[40] Para 325, RANTSEV v. CYPRUS AND RUSSIA
[41] Para 309, RANTSEV v. CYPRUS AND RUSSIA
[42] Article 19, European Convention on Action against Trafficking in Human Beings, 2005
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