PART 1
has grown significantly. In short, many of the
practices that are implicated in modern-day
trafficking are unambiguously prohibited under
international human rights law.
The present Commentary will show that
international human rights law is also relevant
in terms of directing or determining appropriate
responses by States. The law relating to
treatment of non-citizens, for example, confirms
that States are required to extend important
human rights protections to victims of trafficking
within their borders (see discussion under
Principle 1 and related guidelines). Human
rights law also confirms that States cannot
violate non-discrimination principles or norms
protecting economic, social and cultural
rights when developing or implementing their
response to trafficking (see discussion under
Principle 3 and related guidelines). In addition
to basic rights, individual trafficked persons
will, depending on their status, be entitled
to additional protections such as those that
international law recognizes as applicable to
women, children, migrants, migrant workers,
refugees, and non-combatants. The right of
victims of trafficking to remedies (explored
in detail under Principle 17 and related
guidelines) is a critical aspect of the human
rights framework dictating acceptable national
responses.
Does international human rights law actually
prohibit trafficking in persons – as opposed
to practices involved in trafficking such as
forced labour or slavery? In other words, is
trafficking itself a violation of international
law? This is an important question from both a
policy and a practical perspective. To be able
to say that trafficking violates international
human rights law is important for advocacy
purposes because it establishes a direct link
with the secondary rules of responsibility and
because it pushes States towards a particular
level and type of response. Broader legal
38
and policy interventions that aim to eradicate
trafficking receive a considerable boost if that
phenomenon, not just its constitutive elements,
can be characterized as against international
human rights law. Finally, identifying trafficking
as a human rights violation will activate State
obligations where States have introduced
special measures, including protection
measures, for those victims deemed to have
suffered “human rights” violations.33
The clear prohibition on trafficking in the
Convention on the Rights of the Child and the
reference to trafficking in the Convention on the
Elimination of All Forms of Discrimination against
Women indicate that, at least in relation to
trafficking in children and women, international
law recognizes a relatively unambiguous
prohibition. Over the past decade it has
become possible to cite strong, recent evidence,
derived from a range of sources including
treaties,34 interpretive texts,35 resolutions of
intergovernmental organizations36 and findings
This consequence is one of the main reasons why
trafficking was specifically identified as a human rights
violation in the preamble to the European Trafficking
Convention. See Explanatory Report on the European
Trafficking Convention, para. 41.
33
For example, the preamble to the European Trafficking
Convention: “Considering that trafficking in human beings
constitutes a violation of human rights and an offence to
the dignity and the integrity of the human being”. See
also the preamble to the EU Council Decision of 19 July
2002 which states that “trafficking in human beings
comprises serious violations of fundamental human rights
and human dignity”. See further the 2009 proposal for a
new Framework Decision on Trafficking, which states, in its
preamble, that “[t]rafficking in human beings is a serious
crime, often committed in the framework of organised
crime, and a gross violation of human rights”.
34
See, for example, Explanatory Report on the European
Trafficking Convention, paras. 41-45.
35
See, for example, General Assembly resolution 58/137
on strengthening international cooperation in preventing
and combating trafficking in persons and protecting
victims of such trafficking, preamble (“trafficking in persons
[is] an abhorrent form of modern-day slavery and
36
RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING
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