Human trafficking refers to a procedure through which individuals are maintained or placed in a situation that is exploitative in nature in order to obtain economic gain. Trafficking may take place within a country or may involve movement across borders. Men, Women and children fall prey to trafficking for variety of purposes such as exploitative and forced labor in factories, private households, farms, forced marriage and sexual exploitation. Human trafficking affects majority of the countries and regions worldwide. International agreement on prevention of trafficking have emerged until late 1990s when the states have started to separate out trafficking from other practices with which it is usually associated such as irregular migration. Trafficking was first defined in 2000 Protocol to prevent, punish and suppress trafficking in persons, in particular the children and women along with the UN Conventions against Transnational Organized Crime [Trafficking Protocol]. This essay shall discuss about the various forms of human trafficking that takes place within Europe and analyzes the efficacy of the prevailing European legal provisions in prohibiting trafficking and safeguarding victims. It will further discuss about the use and status of European anti-trafficking laws with reference to the international treaties and legislations that aims at preventing human trafficking and ensure safety of the victims.
The human trafficking within Europe has significantly enhanced in the past few decades and this issue with human trafficking especially with forced labor has been increasing since the concurrence of Eastern European states to the European Union in 2004 and 2007. Labor exploitation includes forced labor in the construction and food-processing industries, agriculture, textile, petty theft, forced begging, along with servitude in private households. One of the reasons for incline in the trafficking due to forced labor in Europe is the growth in free development across the borders within the European Economic Area (EEA). This is due to the prevailing EU free movement law where citizens are allowed to arrive and reside for a period of 3 months in any other European Union’s members state without being subjected to any immigration regulation or control.
UK has enacted a law that criminalizes trafficking in the form of labor exploitation in July 2004 as the Asylum and Immigration (treatment of Claimants, Etc) Act, 2004. This legislation defines various forms of trafficking that goes beyond the international instruments, which aims at barring trafficking for labor exploitation in human beings for instance, organ trafficking and identify that trafficking that may take place within a family group. The outcome of the legislation leads to conviction for committing trafficking Victims of Eastern European who have been subjected to exploitation as forced labors in UK.
However, despite successful convictions, the legal provision fails to deter the commission of the crimes, in particular, the individuals belonging to Eastern Europe as they are entitled to move liberally among the member states without any immigration control or restriction. This provision, which permits the Eastern European individuals to move freely, it becomes difficult to establish the elements of trafficking even if there has been an instance of exploitation. The Act of 2004 is not exhaustive as it is not applicable to incidents that involve only exploitation exposing the victims to the risk of more abuse without any strict forms of protection.
The various issues associated with trafficking in the form of sexual exploitation is becoming a great concern. UK, in particular, witnesses number of Eastern European and non-EEA member state women who are subjected to trafficking have been forced into prostitution. After the ratification of the Council of Europe Convention on Action against Trafficking in Human Beings (Trafficking Convention) and the enforcement of this statute in UK in 2009 has led to the establishment of UK Human Trafficking Centre (UKHTC) by the UK government. It further led to the implementation of the National Referral Mechanism (NRM) as a procedure to identify the victims of human trafficking.
The Council of Europe Trafficking Convention is the most exhaustive European anti-trafficking instrument that includes detailed provisions about the protection, assistance and support that is to be extended towards the victims of human trafficking. Moreover, it stipulates the obligations of the member states to be performed for implementing criminal investigations and to undertake measures to overcome trafficking. According to Article 4(a) of the Trafficking Convention, trafficking in human beings refer to the recruitment, transfer, transportation, receipt or harboring of persons, by using threat or force or any other forms of abduction or coercion, deception, abuse of power or fraud. It also refers to the vulnerability, or receiving or giving of benefits for achieving the consent of a person who exercises control over another person with the intention to exploit such person. Exploitation shall include exploitation of the prostitution of or other forms of sexual exploitation, forced services or labor practice or slavery removal of organs and servitude.
The enforcement of Trafficking Convention in 2008 was to be implemented as domestic laws along with all the Council of Europe laws, which was applicable in national courts. In the context of international laws, the European Convention on Human Rights [ECHR] and recent legislations in the ECHR Court have held the provision stipulated under article 4 of the Convention. According to Article 4 of ECHR no on shall be held in servitude or slavery and should not be forced to labor. The effectiveness of the statutory provision stipulated under Article 4 of ECHR is evident from the fact that the fundamental status of Article 4 which is to be considered equivalent to most essential human rights including the right to life and prohibition of degrading and inhuman treatment along with prohibition of torture. This implies that the offence of human trafficking within the legal framework of Article 4 of the ECHR Convention shall provide absolute protection to the victims of trafficking in various ways. One of such ways include preventing deportation of persons to a country where the victims may be subjected to the risk of reprisals from trafficking and their traffickers.
The court adopted a practice of interpreting Article 4 of ECHR with reference to other European and International legal provisions, which includes the International Labor Organization (ILO), the Slavery Convention 1926 and the Trafficking Convention. Van Der Mussele v Belgium [1983] was the first landmark case that applied Article 4 significantly and analyzed in particular, prohibition on compulsory or forced labor. The case Rantsev v Cyprus & Russia [2010] has enabled that the victim protection provision of the Trafficking Convention come within the framework of the positive obligation of the state under Article 4 of the ECHR. The protection extended to the victims of trafficking shall constitute an effective domestic remedy that is effective both in practice as well as in law. The Trafficking Convention should be construed in accordance to other international rules of law. The court held that an effective remedy for torture victim includes payment of compensation. It further includes a systematic and effective investigation leading to the punishment and identification of those persons responsible for subjecting the victims to exploitation. The ECHR has clearly mentioned that the Trafficking convention does not reinstate the prevailing rules safeguarding the human rights instead it supplements the provisions stipulated under Article 4 of ECHR and other relevant legal instruments.
The EU laws involving trafficking issues are dealt with three separate instruments each of which separately provides protection of the victims or prevention of human trafficking. The first instrument refers to the Council Directive 2004/81/EC, which requires EU member states to provide residence permits to third-county (non-EU) national human trafficking victims. The residence permits is allowed based on the chances presented by their longer residence on its territory for the purpose of judicial procedures or conducting investigations. The other opportunity, which may enable them to obtain residence permits, is the willing cooperation of the victims with the authorities and the proof of their severance with the traffickers.
In the meantime, the victims are also entitled to have access to the standards of living that ensures their subsistence and their access to medical treatment including the period of recovery while the state determines whether an individual is eligible to be granted residence permit. The rights in the 2004 Directive lays more emphasis on the assistance given to the authorities, which enables the victims to gain access to residence permit. However, the 2004 directive does not provide legislative measures for identification if victim or other principles that may avert removal from the member state in case a victim is ineligible and does not have a residence permit.
The second legislative instrument is the Council Framework Decision 2001/220/JHA that focuses on the Standing of Victims in Criminal Proceedings. Although this legal instrument does not refer to the trafficking victims but also addresses the victims of any offences that is covered under the national law of member states. This instrument provides assistance to and safeguards the victims of crime, which includes the procedure that takes place at hearings.
The third legislative instrument includes the Council Framework Decision 2002/629/JH, which aims at preventing trafficking in human beings. This aims at the requirement of the criminal law framework and the prosecution and investigation of those who are accountable for subjecting the victims to trafficking. The 2011 Directives has been drafted with the similar intent as the Trafficking Convention was drafted. Article 7 of this provision provides assistance and protection to victims with provisions that are concerned with the treatment to which the victims of human trafficking are entitled.
The relationship between the crime of human trafficking and human rights are universally established. Human rights law has unambiguously considered the appropriation of legal personality, humanity or labor of another person as unlawful and immoral. Human rights law prohibits discrimination of persons on the grounds of sex and race. The human rights law requires maintaining equal and certain essential rights that are fundamental for the non-citizens as well. It profoundly condemns and forbids any forms of arbitrary detention, forced marriage, debt bondage, sexual exploitation of women and children and forced labor. The human rights law has further promoted freedom of movement and the rights of individuals to return to and leave from their own country.
There are certain human rights that are relevant to human trafficking. Firstly, such rights include the right to prohibit discrimination on the grounds of social origin, color, sex, language, political or other opinion, birth, property or other status. Secondly, it includes the fundamental right to life. Thirdly, it promotes the right to security and liberty; fourthly, it includes the right to be free from servitude, slavery, bonder labor, forced labor. Fifthly, it entitles persons to the freedom of movement and association and prevents them from being subjected to gendered violence. Sixthly, the right to be free from being subjected to any cruelty and /or torture, degrading or inhuman treatment. Lastly, the human rights relevant to trafficking entitle the children to be subjected to special protection and that they are entitled to an adequate standard of living.
These various human rights are relevant in the trafficking cycle at different times. Some of the rights may become relevant to the cause or circumstances that led to human trafficking, for instance, the right of the person to an adequate standard of living. The other rights may be relevant to the actual trafficking process such as the right of every person to be free from servitude, slavery or forced labor. The remaining may be relevant at the time of responding to human trafficking such as the right of the suspects to be subjected to fair trial.
Several human practices associated with human trafficking in the modern era are clearly prohibited under the international human rights law. For instance, human rights law forbids the practice of debt bondage, which refers to the pledging of personal services as security for a debt. Several victims of human trafficking who enter into a debt with the exploiters fall prey to debt bondage. The exploiters to exercise control over the victims and exploit them usually use the debt. As defined in Convention No. 29, which is related to Forced or Compulsory Labor of the International Labor Organization (ILO), forced labor, is strictly prohibited. Any service or work that is demanded from a person as a threat of any form of penalty against which the threatened person has not offered him/her voluntarily, it shall amount to forced labor. Servitude, slavery, sexual exploitation of women and children, child marriage, forced marriage, exploitation of prostitution and forced prostitution are other practices that are related to human trafficking which are equally prohibited under the law o international human rights.
According to Peers (2016), a common question that often arises is whether the international human rights law actually prevents commission of trafficking in humans or it only deters the above-mentioned practices associated with trafficking. The question is significant as it questions the responsibilities and obligations of a state towards combating the heinous crime of trafficking. Two major human rights treaties include significant reference about trafficking, namely, Convention on the Rights of the Child and Convention on the Elimination of All Forms of Discrimination against Women. Nevertheless, in the past few decades a general agreement has been formed within the international community that considers human trafficking as a significant violation of human rights. For instance, the European Union Directive and the Council of Europe’s Convention on Action against Trafficking in human Beings have been developed to combat and prevent trafficking in human beings and safeguarding the victims of such trafficking as it amounts to the violation of their human rights. Further, the Human Rights Council and the UN General Assembly has asserted the fact human trafficking amounts to impairment and violation of fundamental human rights.
The Universal Declaration of Human Rights (UDHR) and the Charter of the United Nations confirm that the human rights are universally applicable irrespective of sex, ethnic origin, race or any other grounds of distinction. The persons who are subjected to trafficking are entitled to enforce all the human rights that are relevant to establish a violation of their fundamental human rights. The international laws on human rights are applicable to victims even if they have been subjected to trafficking outside the jurisdiction of their country as international laws have a universal binding effect upon the countries that ratifies such international laws. In other words, with certain exceptions, that requires reasonable justification; international human rights law is usually applicable to every person within not only the territory or jurisdiction of the victim’s state but also extends to other nations irrespective of the fact how the victims have become a part of another nation.
Peers (2016) states that international human rights law recognizes that certain human group require special or additional protection. This is because such human group has been subjected to discrimination in the past or because their members share specific vulnerabilities. In the context of human trafficking, relevant groups include children, women, migrant workers, migrants, asylum seekers, refugees, internally displaced persons and persons with disabilities. At times, specific members of a group are targeted for trafficking such as children who are trafficked for their age as they serve the purpose of sexual exploitation, begging and other various forms of forced labor. Again, there are other group members such as persons with disabilities who are usually targeted to serve the purpose of begging or exploitative labor. Women and girls are trafficked into gender-specific exploitative situations such as sex tourism and exploitative prostitution and forced labor in service and domestic industries. Additionally, they are also subjected to suffer from gender-specific forms of harm and its consequences such as forced marriage, rape, forced or unwanted pregnancy, sexually transmission of diseases such as AIDS/HIV.
The individuals belonging to specific groups who become subjected to trafficking may claim additional rights. For instance, international human rights law imposes additional responsibilities on the states under circumstances when children become victims of human trafficking. The states are required to ensure the long-tem well-being and safety such victimized children. This provision is stipulated in the Convention on the Rights of the Child, which mandates that the best interests of children are to be given utmost importance. In other words, t is expected from the states that they do not give priority to other considerations such as public order, immigration control over the interest and welfare of the children. Moreover, due to the universal applicability of the International Convention on the Rights of the Child, the children are entitled to the protection under the jurisdiction or control of a state. The child victims of trafficking who were non-citizen and they shall be treated as nationals in respect of any matters including matters related to the protection of the physical and moral integrity and privacy. However, there are certain treaties that specify the rights of the child subjected to trafficking such as the Trafficking Protocol and the Convention on Action against Trafficking in Human Beings, which requires certain specific measures to be undertaken with respect to child victims of human trafficking.
While the connection between human rights and human trafficking is apparently established, it does not necessarily imply that the human rights shall be naturally responsible for responding to trafficking in humans. For instance, in case of cross-border trafficking can be dealt as an immigration issue where the fact that such issue may give rise to violation of human rights is secondary. It is possible that the issue related to trafficking will be dealt with as a matter of public order or any criminal matter. The Human Rights Council and the General Assembly has promoted for the human rights-based approach towards trafficking. A human rights-based approach refers to a conceptual framework that deals with issues like trafficking which is based on the standard of the international human rights and is protected and promoted as human rights. The human rights-based approach requires analysis of ways in which it becomes necessary to establish how the violation of human rights has taken place throughout the trafficking cycle. It aims at indentifying and redressing the discriminatory practices that often leads to trafficking, thus, maintaining impunity for the traffickers and denial of justice to the victims.
The primary source of obligations for states is the international treaties and conventions with respect to combat trafficking in persons. After becoming signatories to international treaties and conventions, the states become bound by the obligations stipulated in the international conventions and the treaties to ensure that the national legislations, procedures and policies are consistent with the standards and obligations of the treaties and conventions. The obligations conferred upon the states by the international treaties and conventions are enforceable in the International courts and the international tribunals having legal jurisdiction to deal with such matters such as the European Court of Human Rights (ECHR) or International Court of Justice (ICJ). The matters are also subjected to domestic jurisdictions provided the provisions permit the matters to be enforceable in domestic courts.
Since trafficking in humans is an intricate issue that can be taken into consideration from different perspectives, several treaties are relevant to the offence of human trafficking. Several treaties that control crime are also relevant to trafficking such as UN Convention against Corruption and UN Convention against Transnational Organized Crime. These treaties are additional treaties in dealing with trafficking to the other international laws that prohibits trafficking in human. There are certain instruments that are against the practice of trafficking but such treaties do not have a legal binding effect. Such treaties include Recommended Principles ad Guidelines of Human Rights and Human Trafficking, United Nations Children’s Fund [UNICEF]. These are soft laws that do not impose any direct obligations upon the states or confer any rights or responsibilities on groups or individuals.
However, such soft laws may form an essential part of international law by providing assistance while identifying or confirming any specific statutory trend. It may also provide assistance in making significant contributions to the development of customary international law with respect to any specific aspect of trafficking. The soft laws enable to provide insight into substantive content of legal norms that are more general in nature and are stipulated in the international treaties and conventions. For instance, the Trafficking Protocol requires that states must undertake measures in order to ensure that the victims of human trafficking have easy access to remedies. Now, the soft law instruments such as the Recommended Principles and Guidelines along with the reports of the UN Special Rapporteur on trafficking can be considered as essential resources that enables the states to determine the actions that is required by the states to satisfy the specific obligation.
Nevertheless, despite the existence of international treaties and Conventions on trafficking, the states may at times, feel reluctant to undertake the responsibilities for trafficking and violations of human rights. The states may often argue that the private criminals are responsible for any wrongs and the states have made every possible attempt to deter the commission of such offence. Although it is difficult to determine the accountability of the states, given the intricate nature of trafficking and its associated legal framework, generally, the states shall be held responsible for their own acts or omissions that lead to infringement of their obligations under the international human rights law. The states shall not be able to avert their responsibility towards the conduct of the private persons, when it is proved that there was an alternative measure available before the state, which could have prevented the occurrence of the conduct, or a positive outcome was possible. Under such circumstances, the source of responsibility shall not refer to the act of the private persons but the failure of the state to prevent the occurrence of the conduct of such private person as per the standards stipulated under the international human rights treaties or laws.
The international treaties and laws preventing the commission of human trafficking states that one of the significant issue in the implementation of the international treaties is the failure to treat the victims of human trafficking as victims. Whenever the victims to human trafficking are identified, they are usually granted the status of illegal migrants and are denied justice. The Recommended Principles and Guidelines stipulate that the identification of victims of human trafficking as illegal migrants or criminal, result in denial of the persons; human rights as well. in case the person is not identified it further impedes the accessibility of the person to the human rights he is entitled to enjoy. Hence, the obligation to identify the victims is implied in every legal instrument, as it is the first step to extend the necessary held and support to such victim. Further, the victims who succeed in freeing themselves from the grasp of the traffickers are often found in a situation of great vulnerability and insecurity. Under such delicate situations, mistreatments received from the law enforcement officials may amount to persisting exploitative situations or them. The harm that has already been caused to them intensifies by failing to provide them with the necessary medical and other forms of assistance.
International law has always been a powerful medium for deterring the occurrence of human trafficking. The recent and the most reputable instruments of international law that have paved the way to prosecute, prevent human trafficking includes the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the UN Protocol against the Smuggling of Migrants by Land, Air and Sea. The UN Office on Drugs and Crime (UNODC) is the main source of these conventions that has extended support to the ability of the international law to overcome human trafficking. Further, to extend support to these instruments, the UNDOC has established the UN Global Initiative to Fight Human Trafficking (UN.GIFT) in 2007.
The most significant issues related to elimination of human trafficking is compliance with international law. The measures for compliance with the international treaties include ratification, signature and the enforcement of international agreements. After a state signs and ratifies an international, it becomes subjected to monitoring by the UN Committees that receive inputs from the non-governmental organizations. The Trafficking Protocol maintains the fact that people do not have any right to select trafficking or neither have they had a right to subject their children to trafficking. This belief clarifies the fine line that exists between trafficking ad smuggling. However, if the victim has been initially smuggled and thereafter used as a forced labor, the crime shall amount to trafficking. According to the trafficking Protocol, it is not necessary that a person has been threatened to or directly compelled into trafficking. If such person establishes that he or she did not have any alternative means but to act as being told, it shall be considered within the provisions stipulated under Trafficking Protocol.
Further, the standard of treatment, which the victims of trafficking should be subjected to, is embodied in two comprehensive documents. The documents include Human Rights Standards for the Treatment of Trafficking Persons and the Recommended Principles and Guidelines on Human Rights and Human Trafficking. These documents ensure that the victims of trafficking are not treated as criminals but as victims. The Special Rapporteur on human trafficking, especially in women and children acts as a mediator who ensures that the rights of the victims are safeguarded and undertake necessary actions in the event of violation of these rights.
The enforcement of the international law in the context of human trafficking is efficient and effective when such law is incorporated into domestic and regional legislation. The domestic and regional instruments that plays an essential role in elimination and prevention of human trafficking includes the US Victims of Trafficking and Violence Protection Act 2000, the Council of Europe Convention on Action against Trafficking in Human Beings 2008 and the European Convention for the Protection of Human Right and Fundamental Freedoms 1950. The regional and domestic instruments are purported to prevent human trafficking through provisions that are consistent with the international agreements against human trafficking while adjusting their enforcement and subjecting the methods to regular monitoring as per the needs of the state or region.
The enforcement of the international anti-trafficking laws is inconvenient to implement as the victims of human trafficking feel reluctant to identify the traffickers under the fear of outcome of such complaint. According to Bravo (2015), human trafficking is a crime that surpasses borders and jurisdictions as well. Consequently, enforceability of international law for victims of human trafficking residing in another state is an intricate as well as an expensive venture. Moreover, human trafficking results in violation of several laws and it is not a one-time event. In order to frame a case against the traffickers, it is a time-consuming process as well as it consumes energy and resources. In countries where there are restricted resources, these intricacies may cause hindrance to the enforceability of the international anti-trafficking laws.
The other dilemma of enforcing anti-trafficking laws is the insufficient training provided to the local enforcement officers within a particular state. Even if the state has enforced anti-trafficking laws, it is not possible to expect that the border patrol officers, local polices and federal agents are well conversed with the domestic and the international laws with respect to human trafficking. The victims of human trafficking are usually treated as illegal immigrants or criminals as a result of which they are either deported or arrested instead of extending support to them. In addition, since the victims of human trafficking do not belong to the origin of the country, a language barrier arises between the victims and the enforcement officers, which ultimately makes the collection of information inconvenient.
The huge resources required to ensure that the officers are capable of implementing the anti-trafficking laws effectively are unavailable or restricted in majority of the states. Nevertheless, one of the goals of the UN.GIFT is to create awareness of the concerned issue and provide necessary technical assistance to resolve the issue. Such assistance includes draft legislation, fact-sheets for raising awareness and manuals for various law enforcement victims and agencies. In addition, NGOs all over the world also plays a significant role in creating awareness about human trafficking and monitoring of human trafficking.
Conclusion
From the above discussion, it can be inferred that the establishment of effective and appropriate mechanisms, which purports to oversee and provide a guidance to respond to national trafficking, is fundamental in developing a stronger rights-based approach. The EU’s firm attitude in overcoming trafficking through more effect legislation in association with the legislative judgments given in matters related to European Court of Human Rights involving human trafficking signifies that European law is effectively responding to the issues related to human trafficking through legislation and with the assistance of enforcement largely. However, with the increase in the European member states, the need for effective implementation of European and International law is rising as the states can itself overcome trafficking and provide the victims with necessary support and assistance. Hence, it is recommended that while self-governing monitoring is imperative to ensure that policies, legislations and practices safeguard the established human rights without contravening the same, the governmental agencies that are directly involved in responding to trafficking issues must monitor their own conduct as well. Such governmental agencies include the law enforcement officials, legislators, judicial and the prosecutorial bodies as well as the victim support agencies take responsibilities for ensuring that their conducts do not amount to violation of the human rights and are aimed to secure the human rights.
Additionally, the non-governmental agencies must be encouraged to take active part in evaluating and monitoring their own actions as well as that of the states towards providing necessary assistance to the victims of human trafficking. The contravention of human rights is both a consequence and cause of human trafficking. Therefore, it is highly imperative to give utmost importance to safeguard the human rights as the core reason to prevent and eradicate the commission of trafficking in human. Simultaneously, while implementing the anti-trafficking measures, considerations must be taken not to affect the human dignity or the human rights of persons, in particular, of the people who have been subjected to human trafficking.
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