of United Nations treaty bodies,37 to indicate a
general consensus among States that trafficking
is, in all its forms, a serious violation of human
rights.
the meaning of article 3 (a) of the Palermo
Protocol and article 4 (a) of the Anti-Trafficking
Convention, falls within the scope of article 4 of
the Convention” (para. 282).
An important, additional confirmation of this
is provided by a recent judgement of the
European Court of Human Rights. In Rantsev
v. Cyprus and Russia, the Court was required
to consider whether trafficking was included in
article 4 of the European Convention on Human
Rights, which prohibits slavery, servitude and
forced or compulsory labour. It concluded that
“there can be no doubt that trafficking threatens
the human dignity and fundamental freedoms
of its victims and cannot be considered
compatible with a democratic society and the
values expounded in the Convention… the
Court concludes that trafficking itself, within
While it is becoming easier to point to the
existence of a generally applicable norm
prohibiting trafficking, it remains difficult to identify
the nature, scope and effect of this norm with
absolute certainty. Complicating factors include
the complexity of the trafficking phenomenon; the
range of rules involved or potentially involved; and
the difficult question of State responsibility for acts
that often lie outside their direct sphere of control.
The Trafficking Principles and Guidelines are an
important contribution to the difficult but important
task of identifying the scope and fleshing out the
normative content of an international prohibition on
trafficking.
[is] an act that is contrary to universal human rights”);
General Assembly resolution 61/180 on improving the
coordination of efforts against trafficking in persons,
preamble (“contemporary forms of slavery violate human
rights and … trafficking in persons impairs the enjoyment
of human rights”); Commission on Human Rights resolution
2004/45 on trafficking in women and girls, preamble
(“eliminate all forms of sexual violence and trafficking …
which both violate and impair or nullify the enjoyment of
the human rights and fundamental freedoms of victims of
trafficking”); Human Rights Council resolution 11/3 on
trafficking in persons, especially women and children,
preamble (“trafficking in persons violates human rights
and impairs the enjoyment of them”); Council of Europe,
Recommendation Rec(2002)5 on the protection of women
against violence, adopted by the Committee of Ministers
on 30 April 2002 (defines “violence against women” as
including “trafficking in women for the purposes of sexual
exploitation and economic exploitation and sex tourism”
and states that “violence against women both violates and
impairs or nullifies the enjoyment of their human rights and
fundamental freedoms”).
4.2. TRAFFICKING AS A FORM OF SEXBASED DISCRIMINATION AND VIOLENCE
AGAINST WOMEN38
The Human Rights Committee, in its concluding
observations, has repeatedly identified trafficking as
constituting a potential violation of articles 3, 8, 24 and
26 of the Covenant: Barbados (CCPR/C/BRB/CO/3,
para. 8); Kosovo (Serbia) (CCPR/C/UNK/CO/1, para.
16); Paraguay (CCPR/C/PRY/CO/2, para. 13); Brazil
(CCPR/C/BRA/CO/2, para. 15); and Slovenia (CCPR/
CO/84/SVN, para. 11).
37
It can be argued that trafficking constitutes
a violation of international law because it is
contrary to the international prohibition on
sex-based discrimination. A refinement of
this position identifies trafficking as a form
of violence against women and, therefore, a
violation of the norm prohibiting discrimination
on the basis of sex. These various claims are
analysed below with particular reference to
the work and functions of the Committee on the
Elimination of Discrimination against Women.
For a more detailed consideration of this issue, see
Gallagher, International Law of Human Trafficking,
chap. 3. For a comprehensive analysis of article 6
of the Convention on the Elimination of All Forms of
Discrimination against Women and the related practice of
the Committee on the Elimination of Discrimination against
Women, see Janie Chuang, article 6, in Commentary to
the United Nations Convention on the Elimination of All
Forms of Discrimination against Women (forthcoming).
38
COMMENTARY
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