PART 2.1 law.161 The Trafficking Protocol specifically refers to this obligation (art. 14), as does the European Trafficking Convention (art. 40). In the context of international refugee law, the obligation prevents States from returning a person to another State where there are substantial grounds for believing that the individual in question would be subjected to persecution. In relation to a case involving a victim or potential victim of trafficking, a determination on this point would need to take into account the factors raised above relating to the willingness and capacity of the State to prevent and protect from trafficking. (Footnote 160 continued) they would be at risk of being trafficked upon return to their country of origin: V01/13868 [2002] RRTA 799 (6 September 2002); N02/43616 [2003] RRTA 290 (31 March 2003); V03/16442 [2004] RRTA 474 (25 June 2004). In 2001, US authorities found a claimant had established a well-founded fear of persecution related to both forced prostitution and sexual slavery. It was not clear whether the grounds were political opinion or membership of a particular social group: Matter of J-M (number withheld) (BIA 30 March, 2001). Other recent US cases appear to indicate a tendency to identify failure to protect against forced prostitution as leading to persecution (based on the individual belonging to a social group defined as those who are under threat of being forced into prostitution). For cases considered by the United Kingdom Immigration Appeal Tribunal involving trafficked women and girls from Ukraine and Nigeria, see Annette Lansink, Women and Migration, Interim Report on Trafficking in Women, Committee on Feminism and International Law, Report of the 71st Conference of the International Law Association in Berlin (2004), pp. 20-21. For a comprehensive analysis of trafficking-related asylum applications and relevant case law in four major destination countries (Australia, Canada, United Kingdom, United States), see Kaori Saito, International protection for trafficked persons and those who fear being trafficked, UNHCR Research Paper No. 149 (2007), available at http://www .unhcr.org/research/RESEARCH/476652742.pdf. See Office of the United Nations High Commissioner for Refugees, The Principle of Non-Refoulement as a Norm of Customary International Law: Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93 (31 January 1994); Office of the United Nations High Commissioner for Refugees, “Summary Conclusions: The Principle of NonRefoulement: Expert Roundtable organized by the UNHCR and the Lauterpacht Research Centre for International Law, University of Cambridge, United Kingdom, 9–10 July 2001” in Erika Feller, Volker Türk and Frances Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003), p. 178; Nils Coleman, “Renewed review of the status of the principle of non-refoulement as customary international law”, European Journal of Migration and Law, vol. 5, No. 1 (2003), p. 23. The rule of non-refoulement extends beyond international refugee law. States are prevented from returning or extraditing a person to another State where there are substantial grounds for believing that the individual in question would be subject to torture or other forms of ill-treatment.162 For a detailed consideration of the principle of non-refoulement in the specific context of the repatriation of victims of trafficking, see the discussion under Principle 11 and related guidelines. ENSURING NON-VIOLATION OF ESTABLISHED RIGHTS Guideline 2.7 sets out what is required in order to ensure there are not violations of established rights in the context of international refugee law including the principle of non-refoulement: [States should consider ensuring] that procedures and processes are in place for receipt and consideration of asylum claims from both trafficked persons and smuggled asylum seekers and that the principle of non-refoulement is respected and upheld at all times. 161 92 The UNHCR Trafficking Guidelines provide further information on a number of important practical requirements: Convention against Torture, article 3 (1); Refugee Convention, article 33; International Covenant on Civil and Political Rights, article 7; Convention on the Rights of the Child, article 22. Note that the United Nations Special Rapporteur on Torture has recently linked torture and related harms to gender-based violence including trafficking (A/HRC/7/3, paras. 44, 56-58). 162 RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING