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
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