4
KEY LEGAL ISSUES
A human rights-based approach to trafficking,
explored further in the context of Principle 1 and
related guidelines, requires consideration of
a range of legal questions. Three of the major
legal “issues” that are raised at various points
throughout this Commentary are introduced
below.
4.1. TRAFFICKING AS A VIOLATION OF
HUMAN RIGHTS
International law prohibits certain practices
that are closely associated with trafficking,
including debt bondage, forced labour, the worst
forms of child labour, child sexual exploitation,
forced marriage, enforced prostitution and the
exploitation of the prostitution. International law
also contains a strong prohibition on slavery,
a prohibition that extends beyond human
rights law to other areas of international law
including the law of the sea, humanitarian law
and international criminal law. The prohibition
on torture, identified as a rule of customary
international law,31 has also recently been
invoked by international human rights bodies
Human Rights Committee, general comment No. 24
(1994): Issues relating to reservations made upon
31
in the specific context of trafficking.32 As we
come to understand more about how trafficking
happens and why, the relevance of other strong
international rules, including the prohibition on
discrimination on the basis of race and sex,
ratification or accession to the Covenant or the Optional
Protocols thereto, or in relation to declarations under article
41 of the Covenant, para. 10; Prosecutor v. Furundzija
(Trial Chamber) Case No. IT-95-17/1-T (10 December
1998) (Judgement), paras. 143-4; Prosecutor v. Kunarac
et al. (Trial Chamber I) Case No. IT-96-23-T& IT-96-23/1-T
(22 February 2001) (Judgement), para. 466 [Hereinafter:
Kunarac Trial Chamber].
The Special Rapporteur on Torture has recently noted
that victims of trafficking are often confined, forced to
work for long periods of time, and subjected to severe
forms of physical and mental violence “that may amount to
torture or at least cruel, inhuman and degrading treatment
or punishment” (A/HRC/7/3, para. 56). The Special
Rapporteur cites (para. 57) Siliadin v. France in support of a
contention that the State may be held accountable for failing
to prevent, prosecute and punish trafficking by non-State
actors and for failing to provide appropriate protection for
victims. He further cites (para. 57) Barar v. Sweden in which
the European Court held that the expulsion of a person to a
State where she or he would be subject to slavery or forced
labour might raise issues under the obligation to prohibit
torture. The Committee against Torture has also recognized
the link between trafficking and torture. See, for example,
concluding observations on Russian Federation (CAT/C/
RUS/CO/4, para. 11); South Africa (CAT/C/ZAF/CO/1,
para. 24); Togo (CAT/C/TGO/CO/1, para. 26); Republic
of Korea (CAT/C/KOR/CO/2, para. 18); and Austria
(CAT/C/AUT/CO/3, para. 4).
32
COMMENTARY
37
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