Joint Committee On Human Rights - Twenty-Sixth Report

Joint Committee On Human Rights Twenty-Sixth Report

2 Human rights standards

11. It has been widely accepted that trafficking of human beings is not merely a criminal justice or migration issue, but also a human rights issue. Indeed, a number of positive obligations have been assumed by the UK under the European Convention on Human Rights (ECHR) and other pertinent human rights instruments to which the UK is a party. A human rights framework to address trafficking therefore has an important role to play.

12. The purpose of this Chapter is to identify existing human rights norms and principles applicable to trafficking of human beings, and to articulate the human rights obligations which are thereby imposed upon the UK. It starts by exploring the definitions of trafficking of human beings adopted at national, regional and international levels. It then continues to analyse the applicable human rights norms and obligations imposed upon States. All of the instruments mentioned in this Chapter, except for soft law instruments, are ratified by the UK unless otherwise stated. The provisions of the Council of Europe Convention relating to the protection of victims are considered in more detail in Chapter 3.

Human trafficking: international definitions

13. Before proceeding to describe the appropriate human rights obligations and standards, the definition of trafficking should be examined and key elements identified. There are three key instruments which are important. The first is the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organised Crime 2000.[18] The UK ratified this instrument on 6 February 2006. Article 3 stipulates that:

"Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring, or receipt of persons, by means of 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 the 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 removal of organs".

An identical definition of "trafficking in human beings" is given in Article 4 of the Council of Europe Convention.

14. Another important instrument for the UK is the EU Council Framework Decision on Combating Trafficking in Human Beings.[19] The UK, like other members of the EU, is bound by this Framework Decision. Article 1 describes trafficking as:

the recruitment, transportation, transfer, harbouring, subsequent reception of a person, including exchange or transfer of control over that person, where:

(a) use is made of coercion, force or threat, including abduction, or

(b) use is made of deceit or fraud, or

(c) there is an abuse of authority or of a position of vulnerability, which is such that the person has no real and acceptable alternative but to submit to the abuse involved, or

(d) payments or benefits are given or received to achieve the consent of a person having control over another person

for the purpose of exploitation of that person's labour or services, including at least forced or compulsory labour or services, slavery or practices similar to slavery or servitude, or

for the purpose of the exploitation of the prostitution of others or other forms of sexual exploitation, including in pornography".

SMUGGLING

15. Trafficking of human beings should not be confused with "smuggling" of human beings. Although these two terms have been used interchangeably in the past, there is a consensus now that they are different acts. This is illustrated by the adoption of the Protocol Against the Smuggling of Migrants by Land, Sea and Air,[20] also attached to the UN Convention against Transnational Organised Crime. Under Article 3, smuggling is defined as:

"the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of illegal entry of a person into a State Party of which the person is not a national or permanent resident."

16. The following key factors can be identified in distinguishing between trafficking and smuggling. First, trafficking is carried out with the use of coercion and/or deception, whereas smuggling is not, indicating that the latter can be a voluntary act on the part of those smuggled. Second, trafficking entails subsequent exploitation of people, while the services of smugglers end when people reach their destination. Third, trafficking can take place both within and across national frontiers, whereas international movement is required for smuggling. Finally, entry into a state can be legal or illegal in the case of trafficking, whereas smuggling is characterised by illegal entry.

Human trafficking under UK domestic law

17. In the UK, although a specific definition akin to that contained in the Trafficking Protocol and the Council of Europe Convention is not incorporated into domestic law, there are several pieces of legislation which have been introduced to criminalise the practice. The first was the Nationality, Immigration and Asylum Act 2002, section 145 of which established an offence of trafficking for prostitution. This stop-gap provision was repealed by the Sexual Offences Act 2003, which introduced wide-ranging offences of trafficking for the purpose of any sexual offence (sections 57-59). Finally, section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 criminalised trafficking for labour exploitation and the removal of organs. With enactment of these domestic laws on prohibition of trafficking, which we consider in more detail in Chapter 5, it has been argued that the UK legislation is compatible with regional and international standards in this respect.

Key human rights obligations

18. An examination of the existing human rights norms and principles reveals that certain human rights obligations in relation to trafficking of human beings already exist. While there may be a wide variety of obligations, this Report focuses on three key obligations imposed upon all states, regardless of their status as source, transit or destination states. They are obligations to:

1) prohibit and prevent trafficking and related acts,

2) investigate, prosecute and punish traffickers, and

3) protect victims of trafficking.

The Recommended Principles and Guidelines on Human Rights and Human Trafficking 2002[21] issued by the UN High Commissioner for Human Rights affirm in this regard (Principle 2) that "States have a responsibility under international law to act with due diligence to prevent trafficking, to investigate and prosecute traffickers and to assist and protect trafficked persons."

Positive and negative obligations

19. Before describing specific obligations, it is worth explaining the major difference between positive and negative obligations, concepts which appear often in human rights discourses. The jurisprudence established by the European Court of Human Rights provides us some guidance in understanding these concepts. A positive obligation requires states to undertake specific actions, whereas they must refrain from taking certain actions under a negative obligation. Most of the ECHR rights are said to be negative rights in that member states are obliged to refrain from interfering with them. However, the European Court of Human Rights recognizes the existence of positive obligations to take preventive or protective actions to secure ECHR rights. Some examples include investigating killing, protecting vulnerable persons from ill treatment, and securing respect for private life. As will be shown below, there are several positive obligations related to trafficking of human beings, and some of the concrete measures to fulfil such obligations are illustrated.

Obligation to prohibit trafficking and related acts

20. There are various international human rights instruments which explicitly require states to prohibit trafficking. Article 6 of the Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW), for instance, provides that:

"States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women."

21. In relation to children, Article 35 of the Convention on the Rights of the Child 1989 (CRC) states that:

"States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form." [22]

22. With regard to instruments specifically on trafficking of human beings, the obligation to prohibit is set out in Article 5(1) of the Trafficking Protocol, Article 1 of the EU Framework Decision, and Article 18 of the Council of Europe Convention.

23. In addition to these legally binding instruments, some non-binding instruments are relevant. They include:

Article 5(3) of the Charter of Fundamental Rights of the European Union 2000
- "Trafficking in human beings is prohibited."
Principle 12 of the UN Principles and Guidelines:

"States shall adopt appropriate legislative and other measures necessary to establish as criminal offences, trafficking, its component acts, and related conducts."

Guideline 4 of the UN Principles and Guidelines supplements this by illustrating detailed legislative measures for states to take.

24. In addition to trafficking itself, other related acts are also prohibited under international human rights law. Slavery and/or forced labour are good examples. Article 4 of the ECHR stipulates in this regard that:

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

25. The recent case of Siliadin v France is of great importance in relation to Article 4. In this case, the European Court of Human Rights held that member states have a positive obligation to penalise slavery and forced labour.[23]

26. Other pertinent instruments include the Slavery Convention 1926, the Forced Labour Convention 1930, and the International Covenant on Civil and Political Rights 1966 (ICCPR),[24] ILO Convention No. 183 (Worst Form of Child Labour Convention) 1999, and Article 19 of the Council of Europe Convention. It has long been established that prohibition of slavery is part of customary international law and constitutes jus cogens.[25]

27. Another pertinent obligation arises from the prohibition on torture and other inhuman, cruel or degrading treatment or punishments. States are under a clear obligation to prohibit these acts. This obligation is stipulated in Article 3 of the ECHR, the European Convention for the Prevention of Torture and Inhuman, Degrading Treatment or Punishment 1986, the UN Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, and Article 7 of the ICCPR. Similar to the prohibition of slavery and forced labour, the prohibition on torture and inhuman or degrading treatment is a part of customary international law and jus cogens.

Obligation to investigate, prosecute and punish traffickers

28. Another legal obligation imposed upon states is to investigate, prosecute and punish non-state actors, including traffickers, with "due diligence." One important case which touched upon this was Ergi v. Turkey.[26] In this case, the European Court of Human Rights held that:

This obligation to (investigate) is not confined to cases where it has been established that killing was caused by an agent of the State. Nor is it decisive whether members of the deceased's family or others have lodged a formal complaint about the killing with the relevant investigatory authority. In the case under consideration, the mere knowledge of the killing on the part of the authorities gave rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation ...[27]

This obligation has been affirmed by the European Court of Human Rights in such cases Osman v. United Kingdom,[28] and Z and Others v. United Kingdom,[29] and endorsed also by other human rights mechanisms including the UN Human Rights Committee[30] and the Special Rapporteur on Violence against Women.[31]

29. In relation to trafficking-related instruments, the obligation to investigate, prosecute, and punish traffickers is established by the EU Framework Decision (Articles 3, 4, 5, 6). The Trafficking Protocol also touches upon international co-operation to strengthen law enforcement in Article 10. Further, Article 23(1) of the Council of Europe Convention provides that:

Each Party shall adopt such legislative and other measures as may be necessary to ensure that the criminal offences … are punishable by effective, proportionate and dissuasive sanctions. These sanctions shall include … penalties involving deprivation of liberty which can give rise to extradition.

Other pertinent provisions in the Council of Europe Convention include Chapter V (Investigation, Prosecution and Procedural Law) - Articles 27-31.

30. In relation to soft law, Principle 13 of the UN Principles and Guidelines provides that states "shall effectively investigate, prosecute and adjudicate trafficking, including its component acts and related conduct, whether committed by governmental or by non-state actors."[32] Further, Guideline 5 of the same document goes further to elaborate on some of the measures which should be taken by states. They include adequate training for law enforcement agencies, enhancement of investigative powers and technology, and establishment of anti-trafficking units.

31. It should be noted, however, that investigation, prosecution and imposing sanctions must be carried out in accordance with international human rights law. This means that the rights of those accused of trafficking must also be respected. The key human rights principles which must be respected and protected include the right to liberty and security (Article 5 of the ECHR and Article 9 of the ICCPR) and the right to a fair trial (Article 6 of the ECHR and Article 14 of the ICCPR).

Obligation to protect victims of trafficking

32. States also have an obligation under international human rights law to protect victims of trafficking of human beings.

33. A number of human rights instruments including the Optional Protocol to the CRC[33] contain provisions on protection of victims. Other pertinent provisions and instruments include Articles 6 to 8 of the Trafficking Protocol, Article 7 of the EU Framework Decision, and Chapter III (Articles 10-17) of the Council of Europe Convention, which is considered in greater detail in Chapter 3 below. Further, Principles 7-11, and Guidelines 6, 8, and 9 of the UN Principles and Guidelines elaborate on this obligation to protect victims of trafficking.

34. Although other human rights instruments do not contain provisions specifically related to the protection of victims of trafficking, the obligation can be inferred from a general duty to secure, ensure, or restore rights, and to provide remedies. Article 2(3)(a) of the ICCPR for instance, provides that:

States are under an obligation to ensure that "any person whose rights and freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity."

Even though the wording may be different, a similar obligation is established by such instruments as the CRC[34] and ECHR.[35]

35. The obligation to protect also arises when states fail to take positive steps to prevent non-state actors from committing illegal acts. A case which touched upon this is the Case Concerning United States Diplomatic and Consular Staff in Tehran (Iran v. United States), in which the International Court of Justice held that although attacks by militants were not imputable to Iran, it was not "free of responsibility in regards to the attacks," as Iran was placed under an obligation to "take appropriate steps to ensure the protection of the United States Embassy and Consulates." [36]

36. There is no precise list of protection measures which states are required to provide or implement, and some of the key measures will be described below. In Chapter 3 we consider in greater detail the provisions of the Council of Europe Convention relating to the assistance and protection of victims.

IDENTIFICATION OF VICTIMS

37. A starting point is identification of victims. Article 10(2) of the Council of Europe Convention obliges states to "adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations." Guideline 2 of the UN Principles and Guidelines also stipulates that they are "under an obligation to ensure that such identification can and does take place." Some of the measures recommended for effective identification of victims include development of manuals and guidelines for law enforcement agencies which come in contact with potential or actual victims, their training, and facilitation of law enforcement co-operation.

NON-REFOULEMENT

39. Within the framework of the ECHR, the principle of non-refoulement is often invoked in conjunction with Article 3 (prohibition against torture). The cases such as Soering v United Kingdom[37] and Chahal v United Kingdom[38] in the European Court of Human Rights have established that if someone faces the risk of torture on return to his or her state of origin, then member states, including the UK, cannot return that person.

40. It has been accepted by UK courts that the obligation of states to respect this principle extends to cases where persecution is attributed to traffickers if states are unwilling or unable to bring them to justice. In a case involving a Ukrainian woman who was trafficked into the UK for prostitution, it was held that the inability of the Government of Ukraine to protect her made it more likely that she would be persecuted by traffickers if she was returned to Ukraine.[39] She was consequently granted asylum in the UK. The principle of non-refoulement also applies to cases where people are likely to face torture, or inhuman or degrading treatment perpetrated by non-State actors. This was affirmed in the case Bensaid v. United Kingdom by the European Court of Human Rights.[40] Moreover, it has been held in the past that expulsion of a person to a State where he/she would be subjected to slavery or forced labour might raise issues under the obligation to prohibit torture.[41]

41. In relation to soft law, Guideline 4.6 of the UN Principles and Guidelines urges states to ensure "that the protection of trafficked persons is built into anti-trafficking legislation, including protection from summary deportation or return where there are reasonable grounds to conclude that such deportation or return would represent a significant security risk to the trafficked person and/or her/his family."

42. Some measures designed to secure the principle of non-refoulement comprise the granting of reflection periods and/or temporary or permanent residence permits to victims of trafficking so that they can legally reside in a given state. Such provisions are contained in Article 7 of the Trafficking Protocol and Articles 13 and 14 of the Council of Europe Convention. Although the UK is not bound by it, the EU Council Directive on the Short-Term Residence Permit Issued to Victims of Action to Facilitate Illegal Immigration or Trafficking in Human Beings who Cooperate with the Competent Authorities[42] is also pertinent at European level. It obliges member states to issue residence permits of at least 6 months. Finally, Principle 9 and Guidelines 4.7 and 6.6 of the UN Principles and Guidelines urge states to permit victims to legally stay.

VOLUNTARY REPATRIATION

43. If trafficking victims wish to return to their source states, then voluntary repatriation must be facilitated. Voluntary repatriation is closely linked to one's right freely to return to the state of origin and is enshrined in the ICCPR[43] and the International Convention on the Elimination of All Forms of Racial Discrimination 1966 (CERD).[44] This is strengthened by Article 8 of the Trafficking Protocol and Article 16 of the Council of Europe Convention. In relation to soft law, Principle 11 and Guideline 6.7 of the UN Principles and Guidelines also urge states to promote voluntary and safe return.

44. When destination states decide to expel people in accordance with domestic law, international human rights law also stipulates that they must provide an opportunity to appeal against the decision to expel.[45]

CONSULAR ASSISTANCE

45. For those trafficked who are foreign nationals, they must have an opportunity to seek assistance from their own Governments. States of destination such as the UK have a duty to provide access to consular assistance, while source states have the right to communicate with their own nationals to provide assistance in accordance with the Vienna Convention on Consular Relations 1963.

46. It is important to note here that this Convention concerns both rights of states and individuals. Although the Vienna Convention is not a human rights instrument per se, the International Court of Justice, in the LaGrand Case (Germany v. United States) stated that Article 36 of the Vienna Convention creates individual rights.[46] The Inter-American Court of Human Rights went further to state that consular assistance, as part of minimum due process guarantees, is recognised under Article 14 of the ICCPR.[47] Finally, Guideline 6.3 of the UN Principles and Guidelines urges states to ensure that "trafficked persons are informed of their right of access to diplomatic and consular representatives from their state of nationality. Staff working in embassies and consulates should be provided with appropriate training in responding to requests for information and assistance from trafficked persons."

PARTICIPATION IN THE CRIMINAL JUSTICE PROCESS

47. An effective investigation into cases of trafficking can be regarded as a form of redress available to some victims. An integral part of this remedy is the right of victims to participate in investigations and judicial processes against traffickers.

48. There are several steps which must be taken in order to secure this right of victims to participate. The first is to ensure that they can remain in a state at least while criminal investigations or proceedings are under way (see the principle of non-refoulement and related obligations above). Second, states should also secure effective witness protection to protect the identities of victims, coupled with such measures as free access to interpreters and legal advice. These measures are stipulated in Articles 6(1) and 6(2) of the Trafficking Protocol, Articles 12(1)(e) and 15 of the Council of Europe Convention, and Principles 9 and 10, and Guidelines 6.5 and 6.6 of the UN Principles and Guidelines.

49. A right of all people to equal treatment before national tribunals is established under international human rights law,[48] and states must therefore take positive steps to secure "an effective right of access to the courts."[49]

COMPENSATION

50. Source states bear the primary responsibility in this regard, as the fact that people are trafficked illustrates their failure to prevent traffickers from abusing the human rights of those trafficked. However this obligation can also be imposed upon states of transit and destination, if they fail to fulfil pertinent human rights obligations illustrated above. The obligation to provide compensation is explicitly stipulated in Article 6(6) of the Trafficking Protocol and Article 15 of the Council of Europe Convention.

51. In relation to other human rights instruments, the obligation to provide compensation may be inferred from Article 2(3) of the ICCPR and Article 13 of the ECHR. It is worth noting in this regard that where the right to life or prohibition against torture is involved, the European Court of Human Rights has held in the past that the payment of compensation may be required.[50]

52. Further, Guideline 9 of the UN Principles and Guidelines notes that:

Trafficked persons, as victims of human rights violations, have an international legal right to adequate and appropriate remedies. This right is often not effectively available to trafficked persons as they frequently lack information on the possibilities and processes for obtaining remedies, including compensation, for trafficking and related exploitation. In order to overcome this problem, legal and other material assistance should be provided to trafficked persons to enable them to realize their right to adequate and appropriate remedies.

18 A/RES/55/25 (2001), Annexe II. Henceforth "Trafficking Protocol". It is also commonly referred to as the "Palermo Protocol". Back

19 OJ L 203/1 (1/8/02). Henceforth "EU Framework Decision". Back

20 A/RES/55/25 (2001), Annex III. Back

21 E/2002/68/Add.1. Henceforth UN Principles and Guidelines. Back

22 Also relevant is the Optional Protocol on Sales of Children, Child Prostitution and Child Pornography 2000. Although the United Kingdom signed this instrument on 7 September 2000, it has not ratified it yet, though it has confirmed its intention to do so at the earliest opportunity, an intention which we welcomed in our Report on the Government's recent review of international human rights instruments (17^th Report of Session 2004-05, Review of International Human Rights Instruments, HL Paper 99/HC 264, para.28. Back

23 Application No. 73316/01, Judgment of 26 July 2005, para. 112.This case was about a Togolese national who was forced to work as a domestic servant on very low, sometimes non-existent, wages and in harsh living and working conditions. The Court found that there had been a violation of France's positive obligations under Article 4 ECHR. Back

24 Article 8. Back

25 Article 53 of the Vienna Convention on the Law of Treaties 1969 provides that jus cogens is "a peremptory norm of general international law" which is "accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Back

26 Application No. 23818/94, Judgment of 28 July 1998.In this case, a Turkish national of Kurdish origin claimed, among other things, that his sister was unlawfully killed by the Turkish security force in violation of Article 2 ECHR, when they opened fire indiscriminately in his village against PKK members. Back

27 Para. 82. Back

28 Application No. 23452/94, Judgment of 28 October 1998, paras. 115-116. This case involved a claim by the applicant that the UK authorities had failed to protect her husband and son from a school teacher who developed an obsession with her son. Back

29 Application No. 29392/95, Judgment of 10 May 2001, para. 109. In this case, Z and others, who were minors, successfully argued that the local authority failed to protect them when they were subjected to ill-treatment and neglect at home in contravention of Article 3 ECHR. Back