January 01, 2013

    Human Rights–Based Approach to Trafficking the Work of the United Nations Office of the High Commissioner for Human Rights

    By Youla Haddadin and Ilona Klímová-Alexander
    A human rights approach to [countering] trafficking requires an acknowledgement that trafficking is, first and foremost, a violation of human rights. . . . [It] means that all those involved in anti-trafficking efforts should integrate human rights into their analysis of the problem and into their responses. This approach requires us to consider, at each and every stage, the impact that a law, policy, practice or measure may have on persons who have been trafficked and persons who are vulnerable to being trafficked. It means rejecting responses that compromise rights and freedoms.
    —Navi Pillay, UN High Commissioner for Human Rights, Foreword to the Commentary on the Recommended Principles and Guidelines on Human Rights and Human Trafficking

    Introduction

    Trafficking constitutes a contemporary form of slavery. Human beings are frequently trafficked for bonded labor, forced labor, child labor, and prostitution and sex work. They should be considered as the victims of the criminal activities of others rather than offenders. While the link between human rights and human trafficking has long been established, human rights concerns have not always been at the center of responses to trafficking. For example, cross-border trafficking is often considered an immigration issue and the human rights implications are seen as secondary. Similarly, States1 may address trafficking primarily as a matter of crime or public order.

    Over the past decade, however, an international consensus has developed around the need for a rights-based approach to addressing human trafficking. The UN General Assembly and the Human Rights Council2 have advocated such an approach, as have relevant human rights mechanisms including special procedures3 and treaty bodies.4 In line with this perspective, the Office of the High Commissioner for Human Rights (OHCHR) advocates a victim-centered approach to trafficking, which emphasizes the primacy of human rights in efforts to prevent and address trafficking.

    Human Rights–Based Approach to Trafficking

    A human rights–based approach is a conceptual framework for dealing with a phenomenon such as trafficking that is normatively based on international human rights standards and that is operationally directed to promoting and protecting human rights. It requires an analysis of the human rights violations that occur during trafficking as well as of States’ obligations under international human rights law. It seeks to identify and redress the discriminatory practices and unjust distributions of power that underlie trafficking, that maintain impunity for traffickers, and that deny justice to victims of trafficking.

    Adopting a human rights–based approach implies that national, regional, and international responses to trafficking be anchored in the rights and obligations of international human rights law. The key points of this approach include the following:

    • The main objective of policies and programs should be to promote and protect rights. Victims of trafficking encounter several violations of their rights all through the cycle of trafficking. They might be deprived of their liberty, their right to choose an occupation, etc. Policies aimed at combating trafficking should address the violations of these rights.
    • Identification of rights-holders (e.g., trafficked persons, potential victims, those accused or convicted of trafficking-related offenses), their entitlements, and the corresponding duty-bearers (usually States) and their obligations is required in order to strengthen the capacities of rights-holders to claim their rights and of duty-bearers to meet their obligations. States’ obligations stem from the well-established principle of due diligence, which means that States have the responsibility to respect, protect, and fulfill the rights of all individuals, including victims of trafficking.
    • Principles and standards derived from international human rights law (such as equality and nondiscrimination, universality of rights, and the rule of law) should guide all stages of the response to human trafficking.

    States’ Obligations Under International Human Rights Law in Relation to Trafficking

    Human rights law has long recognized that human beings cannot be sold. The 1926 Convention to Suppress the Slave Trade and Slavery is among the earliest human rights conventions. The spirit and substance of human rights law have, from their earliest days, rejected the practices that are part of the human-trafficking process. Human rights law condemns the fundamental immorality and unlawfulness of one person appropriating the legal personality, labor, or humanity of another. It also prohibits discrimination on the basis of race and sex. It demands equal or at least certain key rights for aliens. It decries and outlaws arbitrary detention, forced labor, debt bondage, forced marriage, and the commercial sexual exploitation of children and women, and champions freedom of movement and the right to leave and return to one’s own country.

    Many practices associated with modern-day trafficking are clearly prohibited under international human rights law. For instance, human rights law forbids debt bondage (the pledging of personal services as security for a debt where the value of those services is not applied toward the liquidation of the debt or their length or nature is not limited and defined). Many trafficked persons who enter into a debt with their exploiters (relating to, for example, placement or transportation fees) find themselves in a situation of debt bondage—the debt is used as a means of controlling and exploiting them. Human rights law also prohibits forced labor, defined by ILO Convention 29 as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” Slavery, servitude, child sexual exploitation, forced marriage, servile forms of marriage, child marriage, enforced prostitution, and the exploitation of prostitution are among other trafficking-related practices that are prohibited under international human rights law.

    Over the past decade, a general agreement has emerged within the international community that trafficking is a serious violation of human rights. For example, both the European Trafficking Convention and the EU Trafficking Directive identify trafficking as a violation of human rights.5 The UN General Assembly and Human Rights Council have repeatedly affirmed that trafficking violates and impairs fundamental human rights, as have many of the international human rights mechanisms.

    Because trafficking is a complex issue that can be considered from a number of different perspectives, the range of relevant treaties is very wide. In the human rights area, treaties dealing with slavery and the slave trade; forced labor; child labor; the rights of women; the rights of children, migrant workers, and persons with disabilities, as well as more general treaties dealing with civil and political rights or economic, social, and cultural rights, are all applicable to trafficking. Major crime control treaties, such as the UN Convention Against Transnational Organized Crime and the UN Convention Against Corruption, are also relevant to trafficking, as is the Statute of the International Criminal Court. There are now also several treaties dealing specifically and exclusively with the issue of trafficking.

    Other accepted sources of international law, such as customary international law and general principles and the decisions of international tribunals, can also be relevant when determining exactly what is required of States with respect to their response to trafficking. The prohibition on slavery is widely recognized to be a part of customary international law, binding on all States irrespective of whether they have become party to one or more treaties that specifically prohibit slavery. A general principle of law7 relevant to trafficking is that someone should not be held responsible for a crime they were compelled to commit. An example of a judgment of an international tribunal that has helped to establish the international legal framework around trafficking is Rantsev v. Cyprus and Russia, which was decided by the European Court of Human Rights in 2009.

    Finally, there are also many sources of “quasi legal norms” related to trafficking. These include the UN Recommended Principles and Guidelines on Human Rights and Human Trafficking (see "Further Reading"); guidelines on child trafficking issued by UNICEF and on trafficking and asylum issued by the UN High Commissioner for Refugees; resolutions adopted by intergovernmental bodies of the UN such as the General Assembly and the Human Rights Council; findings and reports of international human mechanisms such as treaty bodies and special procedures; and nontreaty agreements between countries regarding issues such as the repatriation and reintegration of trafficked persons.

    These sources do not directly impose obligations on States—or confer rights on individuals or groups. However, the instruments are considered to form part of the international legal framework by, for instance, helping to identify or confirm a particular legal trend, or by contributing to the development of customary international law in relation to a particular aspect of trafficking. They can also provide insight into the substantive content of more general legal norms that are contained in treaties. For example, the Trafficking Protocol requires States to take some measures to provide victims of trafficking with access to remedies. Soft law materials such as the Recommended Principles and Guidelines, as well as reports of the UN Special Rapporteur on Trafficking, are key resources in determining the actions required by States to fulfill this particular obligation.

    Human Rights of Trafficked Persons

    Trafficked persons are entitled to the full range of human rights. Even if they are outside their country of residence, international law is clear that trafficked persons cannot be discriminated against because of the fact of their being non-nationals.

    International human rights law further recognizes that certain groups require additional or special protection, due to, for instance, past discrimination or particular vulnerabilities. In the context of trafficking, relevant groups include women; children; migrants and migrant workers; refugees and asylum seekers; internally displaced persons; and persons with disabilities. Sometimes, members of a group will be specifically targeted for trafficking. Individuals belonging to specific groups who are subject to trafficking may be in a position to claim different or additional rights. For instance, international human rights law8 imposes important and additional responsibilities on States when it comes to identifying child victims of trafficking as well as to ensuring their immediate and longer-term safety and well-being.

    Different human rights are relevant at different points in the trafficking cycle. Some rights, such as the right to an adequate standard of living, will be especially relevant to the causes of trafficking; others, such as the right to be free from slavery, to the actual process of trafficking; and still others to the response to trafficking (e.g., the right of suspects to a fair trial). Some rights are broadly applicable to each of these aspects. The text box on page 25 sets out the rights most relevant to trafficking.

    State Responsibility to Address Trafficking

    States may sometimes be reluctant to accept legal responsibility for trafficking and for the violations of human rights that are integral to the trafficking process. They may argue that the primary wrong of the trafficking and associated harms has been committed by private criminals and not by the State itself. They also might claim to have done everything possible to avoid the harm.

    The process of determining the responsibility of States for trafficking and related harms can be a difficult one because of the complex nature of trafficking and its associated legal framework. The Commentary on the Recommended Principles and Guidelines on Human Rights and Human Trafficking contains an extensive discussion of the relevant principles and rules and should be referred to when considering the specific obligations of States in relation to trafficking. In very general terms, States will be responsible for their own acts or omissions that breach their obligations under international law including human rights law. In addition, States will generally not be able to avoid responsibility for the acts of private persons when their ability to influence an alternative, more positive outcome (judged against the relevant rule—usually to be found in a treaty) can be established. In such cases, the source of responsibility is not the act itself but the failure of the State to take measures of prevention or response in accordance with the required standard.

    The main substantive obligations on States with respect to trafficking and the rights that are found or implied in these obligations can be summarized as follows.

    States are obliged to identify, protect, and support victims of trafficking, for example, by provision of immediate protection and support; provision of legal assistance including temporary residency; and noncriminalization. States also have a number of obligations related to return of trafficked persons. International law supports a standard of “safe and preferably voluntary return” for trafficked persons, supplemented by a number of important additional obligations on countries of destination and countries of origin respectively. This includes the obligation of States to respect the right to due process and in certain situations the principle of non-refoulement; for instance, where the State of origin is unable to offer protection against reprisals or re-trafficking by criminal groups. Furthermore, States should be careful to ensure that the return of trafficked persons does not jeopardize the initiation and/or successful completion of any legal proceedings involving or implicating the victim. In situations where return would pose unacceptable risks to the victim and/or the victim’s family, States may be required to provide alternatives to repatriation.

    States are further obliged to provide victims of trafficking (by their virtue of being victims of human rights violations) with access to effective and appropriate remedies, which may include restitution, compensation, rehabilitation, and satisfaction and guarantees of nonrepetition. While remedies for trafficking are still very rare, there is a clear trend toward making this a legal and practical possibility. Some countries have expressly granted victims of trafficking the right to private action against their traffickers and have included mandatory restitution to trafficked persons as part of the criminal sentencing of traffickers. Other countries grant victims the right to bring civil action against their traffickers, regardless of their nationality or migration status.

    Because trafficking is a crime as well as a violation of human rights, international law requires States to ensure an effective criminal justice response to trafficking—a response that works to end impunity of traffickers and to secure justice for victims. This includes the obligation to criminalize trafficking and related offenses, ensuring effective investigation and prosecution of trafficking. States have the due diligence obligation to prevent trafficking through all reasonable and necessary measures, addressing the causes of trafficking. Prevention measures should concentrate on addressing (1) vulnerability to trafficking (for example, as it relates to poverty and inequality, conflict and post-conflict situations, discrimination and violence against women, and special vulnerabilities of children); (2) demand; and (3) corruption and complicity.

    Finally, States have the obligation to ensure that responses to trafficking do not violate established rights, including the prohibition on discrimination, for example, gender-based racial, and so forth; the right to freedom of movement; and the rights of refugees. The text box above provides some examples of trafficking-related responses that risk violating established rights.

    The Work of the UN Office of the High Commissioner for Human Rights

    OHCHR’s work on trafficking has witnessed an expansion in its scope due to the adoption of the Global Plan of Action Against Trafficking in Persons by the General Assembly (2010) and the Human Rights Council Resolution (11/3) requesting OHCHR to promote the Recommended Principles and Guidelines on Human Rights and Human Trafficking at the regional and subregional levels. In this regard, OHCHR’s strategy has been to combine a series of regional launchings of its Commentary on theRecommended Principles and Guidelines on Human Rights and Human Trafficking (see “Further Reading” for more on these two documents) with capacity development activities on the application of the rights-based approach targeted at government officials, intergovernmental organizations, and civil society actors. So far, such events have been organized in Cameroon, Moldova, Thailand, Tunisia, and the United Arab Emirates.

    The Office has offered training courses on the international legal framework on trafficking and the human rights–based approach for law enforcement officials from Belarus, Ukraine, Moldova, Russian Federation, Azerbaijan, Armenia, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan, Turkey, and the United Arab Emirates. A regional consultative meeting on addressing trafficking was also organized in Qatar in 2011.

    The Office provides technical cooperation to interested Member States, intergovernmental entities, and civil society organizations. It has been active in enhancing interagency cooperation and coordination among relevant UN bodies and international organizations through its membership in the Inter-agency Coordination Group against Trafficking in Persons (ICAT),9 the UN Global Initiative to Fight Human Trafficking (UN.GIFT),10 and the Alliance Expert Coordination Group.11 In its role as ICAT chair in 2011, OHCHR has been instrumental in shifting the focus of ICAT from an information-sharing platform to a policy development forum. As a result, a series of interagency policy papers are currently in the pipeline dealing, for example, with the critical intersection between legal regimes to address trafficking and with evaluating the impact of anti-trafficking responses. In addition, OHCHR is developing a compilation of UN human rights mechanisms jurisprudence to be made available to researchers, Member States, and other stakeholders. Furthermore, OHCHR is currently collecting good practices on the application of the human rights–based approach to trafficking.

    Conclusion

    There is a growing recognition that the rights-based approach to trafficking advocated by the RecommendedPrinciples and Guidelines makes operational sense. Victims who are protected and supported are in a position to cooperate in the prosecution of their exploiters. Perhaps most importantly, States and the international community have come to recognize the strong connections between trafficking and violations of human rights, in particular as they relate to vulnerable groups such as women, children, and migrant workers. Placing human rights at the center of the work against trafficking means seeing trafficking as a violation of human rights. We hope that this article sheds light on the benefits of applying a human rights–based approach to addressing trafficking in persons.

    The views expressed in this article are those of the authors and do not necessarily reflect the view of the United Nations. We would like to thank Mona Rishmawi and Marcia V.J. Kran as well as the Judges’ Journal Editorial Board for their comments on earlier drafts.

    Endnotes

    1. The term “State” in this article refers to sovereign States.

    2. The Human Rights Council is an intergovernmental body within the United Nations system made up of 47 States responsible for the promotion and protection of all human rights around the globe. For more details, see United Nations Human Rights Council, UN Human Rights, http:// www.ohchr.org/EN/HRBodies/HRC/Pages/HRCIndex.aspx.

    3. Special procedures is the general name given to the mechanisms established by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world. For more details, see UN Human Rights, http://www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage.aspx.

    4. The human rights treaty bodies are committees of independent experts that monitor implementation of the core international human rights treaties. For more details, see Monitoring the Core International Human Rights Treaties, UN Human Rights, http://www2.ohchr.org/english/bodies/treaty/index.htm.

    5. Council of Europe Convention on Action Against Trafficking in Human Beings (European Trafficking Convention, 2005), Preamble; Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims (EU Directive), para. 1.

    6. The United States is a party only to the Organized Crime Convention, the Trafficking Protocol, and ICCPR.

    7. A general principle of law is one that is common to all major legal systems of law and thereby part of international law.

    8. Through, for example, the Convention on the Rights of the Child; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Protocol to the Convention against Transnational Organised Crime); and the European Trafficking Convention.

    9. ICAT was established pursuant to General Assembly Resolution 61/180 in 2007, Improving the Coordination of Efforts Against Trafficking in Persons, aimed at enhancing cooperation and coordination to facilitate a holistic and comprehensive approach by all the international community to the problem of trafficking in persons. Membership of ICAT consists of 16 UN entities (UNODC, DPKO, IOM, ILO, ICPO (Interpol), ICAO, OHCHR, UNAIDS, UNDP, UNFPA, UNICEF, UNICRI, UNESCO, UNHCR, UN Women, and the World Bank).

    10. Together with IOM, ILO, UNICEF, UNODC, and the OSCE, OHCHR is a member of the Steering Committee of the UN Global Initiative to Fight Human Trafficking (UN.GIFT). Launched in 2007, the initiative is the first global attempt to mobilize efforts within the UN system to address trafficking.

    11. This group is chaired by the Special Representative and Coordinator for Combating Trafficking in Human Beings at the Organization for Security and Cooperation in Europe (OSCE) and provides a platform for coordination and collaboration on a wide spectrum of issues related to trafficking through the organization of international and regional events, including the annual High-level Alliance against Trafficking in Persons Conference.

    Further Reading

    OHCHR has developed several tools to facilitate the application of the human rights–based approach to addressing trafficking, including most importantly:

    • Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002), which provides a human rights framework for addressing trafficking. The 17 principles address four core areas: (1) the primacy of human rights; (2) preventing trafficking; (3) protection and assistance; and (4) criminalization, punishment, and redress. The 11 recommended guidelines provide practical measures for their implementation, including cooperation within and between States and regions.
    • Commentary on the Recommended Principles and Guidelines on Human Rights and Human Trafficking, whose purpose is to provide a legal and policy analysis of the Principles and Guidelines as well as to guide the development and application of the rights-based approach to trafficking.

    Examples of Anti-Trafficking Measures That May Adversely Affect Established Rights

    • Detention of trafficked persons in immigration or shelter facilities;
    • Prosecution of trafficked persons for status-related offenses, including illegal entry, illegal stay, and illegal work;
    • Denial of exit or entry visas or permits—whether generally applicable or only in relation to a group of persons identified as being especially vulnerable to trafficking;
    • Denial of the right of all persons, including those who have been trafficked, to seek asylum from persecution;
    • Denial of basic rights to migrants, including migrant workers and those not lawfully within the territory of the State;
    • Raids, rescues, and “crack-downs” that do not include full consideration of and protection for the rights of individuals involved;
    • Forced repatriation of victims in danger of reprisals or retrafficking;
    • Denial of a right to a remedy;
    • Violations of the rights of persons suspected of or convicted for involvement in trafficking and related offenses, including unfair trials and inappropriate sentencing; and
    • Laws or procedures that authorize any of the above.

    Risks to Human Rights That May Arise in Addressing Vulnerability to Trafficking

    • Failure to distinguish between children who are trafficked into situations of exploitation and children who migrate on their own or are assisted by others to find nonexploitative jobs they want to stay in;
    • Failure to distinguish between those who are trafficked and those who migrate for work;
    • Preventing or obstructing children, women, or members of a particular ethnic or racial group from leaving home or migrating in search of work;
    • According insufficient recognition and protection to male victims of trafficking; and
    • Failing to focus adequate attention on all forms of trafficking.

    Rights Most Relevant to Trafficking

    • The prohibition of discrimination on the basis of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status;
    • The right to life;
    • The right to liberty and security;
    • The right not to be submitted to slavery, servitude, forced labor, or bonded labor;
    • The right not to be subjected to torture, and/or cruel, inhuman, degrading treatment or punishment;
    • The right to be free from gendered violence;
    • The right to associate freely;
    • The right to freedom of movement;
    • The right to the highest attainable standard of physical and mental health;
    • The right to just and favorable conditions of work;
    • The right to an adequate standard of living;
    • The right to Social Security; and
    • The right to special protection for children.

    Treaties Particularly Relevant to Trafficking6

    • Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2000 (Trafficking Protocol)
    • Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW)
    • Convention on the Rights of the Child, 1989 (CRC)
    • Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography, 2000 (Optional Protocol on the sale of children)
    • UN Convention Against Transnational Organized Crime, 2000 (Organized Crime Convention)
    • International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 (Migrant Workers Convention)
    • International Covenant on Civil and Political Rights, 1966 (ICCPR)
    • International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR)
    • Council of Europe Convention on Action against Trafficking in Persons, 2005 (European Trafficking Convention)
    • Directive 2011/36/EU of the European Parliament and Council on preventing and combating trafficking in human beings and protecting its victims, 2011 (EU Directive on Trafficking)
    • South Asian Association for Regional Cooperation, Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (SAARC Convention)