PART 2.1 Racial and gender-based discrimination in the recognition and application of economic and social rights is also a critical factor in rendering persons more susceptible than others to trafficking. In both these cases, the impact of discrimination results in fewer and poorer life choices. It is the lack of genuine choice that can, in turn, render women and girls more vulnerable than men and certain nationalities and races more vulnerable to being trafficked in certain situations – where they are minorities, or where they are living in conditions of poverty or instability after conflict or political transition (see further the discussion under Principle 5 and related guidelines). of sex is a fundamental human right, firmly enshrined in the major international and regional instruments. Under international human rights law, an anti-trafficking measure will violate the prohibition on sex-based discrimination if it can be shown that it: (i) negatively affects the rights of the individual involved; and (ii) is overwhelmingly directed at and predominantly affects women and girls. This test is used at appropriate points throughout the present Commentary. Measures taken by States and others to prevent or respond to trafficking can perpetuate discrimination and even violate the legal prohibition against discrimination. This danger is explicitly recognized in the Trafficking Protocol, which states that: The right to freedom of movement is generally held to refer to a set of liberal rights of the individual, including: the right to move freely and to choose a place of residence within a State; the right to cross frontiers in order to both enter and leave a country; and the prohibition on the arbitrary expulsion of aliens.142 In its article 12 the International Covenant on Civil and Political Rights explicitly recognizes and protects a right to freedom of movement, as do the Universal Declaration of Human Rights (art.13 (1)) and all the major regional human rights treaties.143 The measures set forth in this Protocol shall be interpreted and applied in a way that is not discriminatory to persons on the ground that they are victims of trafficking in persons. The interpretation and application of those measures shall be consistent with internationally recognized principles of nondiscrimination (art. 14). The problem of gender-based discrimination is particularly acute in respect of anti-trafficking measures. This is recognized in Guideline 1.4 which enjoins States and others to take “particular care to ensure that the issue of gender-based discrimination is addressed systematically when anti-trafficking measures are proposed with a view to ensuring that such measures are not applied in a discriminatory manner”. As noted above in part I, section 1.4.1, equal treatment and non-discrimination on the basis 86 3.3. ANTI-TRAFFICKING MEASURES AND THE RIGHT OF FREEDOM OF MOVEMENT Freedom of movement is particularly vulnerable to being compromised by States in their efforts to respond to trafficking. States may, for example, take legislative, administrative or other measures to prevent individuals from emigrating in search of work. They may take (or may not prevent non-governmental entities from taking) national or foreign victims of trafficking into “protective” 142 Nowak, op. cit., p. 260. 4th Additional Protocol to the European Convention on Human Rights, articles 2-4; 7th Additional Protocol to the European Convention on Human Rights, article 1; African Charter, article 12; American Convention on Human Rights, article 22. 143 RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING