International Legal Norms on Human Trafficking

Human trafficking has been defined as “the buying and selling of women, men, and children for sexual exploitation or forced labor–the 21st century version of human slavery”. [1]

Here we examine the history of human trafficking, from its origins in customary law to the gradual emergence of transnational norms condemning slavery, and international law prohibiting the practice of human trafficking. Finally, a comparative analysis shows whether the sovereign States of Côte d’Ivoire, Mexico and Turkey have implemented contemporary international law in this area.

History of Human Trafficking

“Consider the individual who owns many slaves. Does this person fear the slaves? No! Why not? Because the whole state would come to the rescue if the slaves revolted. Now consider what would happen if the individual and the slaves were all moved away from the protection afforded by the city. The slave owner would be (rightly) frightened and would turn into a flatterer of servants/slaves!”

Plato, Republic, 9:578d–e [2]

With these words Plato confirms that slavery was a common institution when he wrote Republic in 360 B.C.E. Ten years later, Aristotle said that for some people, slavery is “natural”, and that “the slave is not only the slave of his master, but wholly belongs to him.” [3] Slavery can be traced even further back to ancient and Biblical times, [4] for example, if a thief were unable to make restitution, he could be sold into slavery (Exodus 22:2-3), and soldiers could take enslaved prisoners as wives (Deuteronomy 21:10-11). Victorious Muslim conquerors in the 7th century brought back captured foreign slaves that, according to Marshall Hodgson, created the first ‘international civilization’ with commerce based on justice and fairness. [5] Confirmation of the legitimacy of slavery is also found in ancient law. Law #7 of the Code of Hammurabi (circa 1760 BC) describes the offence of stealing from another man’s slave: “if any one buy from the son or the slave of another man, without witnesses or a contract, silver or gold, a male or female slave, an ox or a sheep, an ass or anything, or if he take it in charge, he is considered a thief and shall be put to death.” [6] Professor K. S. Lal provides evidence that Muslim slavery was practiced in medieval India [7] , and Professor James Lee Ray documents the progression of the slave trade into the 19th century throughout Europe and the New World. [8] Thus, these customary practices illustrate that the practice of human trafficking is nothing new. As noted by Professor William R. Slomanson, such established standards, if accepted by many other States, constitute binding customary international law. [9] According to Professor Ray, who theorized that vulnerability to human trafficking is related to economic circumstances, slavery in Europe eventually gave way to serfdom in the early 19th century due to changing mores and values related to commerce. The slave trade was abolished altogether in North America shortly thereafter; however, slavery was legal in Saudi Arabia until 1962, in the Sultanate of Muscat and Oman until 1970, and both Stalin and Hitler used slave labour extensively well into the 20th century. [10]

According to the United Nations, human trafficking is a crime against humanity whereby a person recruits, transports, transfers, harbours or receives another person by using force, coercion or other means, in order to exploit victims (primarily women and children) most commonly for the commercial sex trade or forced labour, and is not the same as human smuggling. [11] The International Labour Organization estimates that 12.3 million people, including children, have been enslaved worldwide, depriving them “of their human rights and freedoms, risking global health, promoting social breakdown, inhibiting development by depriving countries of their human capital, and helping fuel the growth of organized crime.” [12] Michael Maria Costa, the Executive Director of United Nations Office on Drugs and Crime said, “[a]fter much neglect and indifference, the world is waking up to the reality of a modern form of slavery. The public and the media are becoming aware that humans prey upon humans for money. Parliaments are passing appropriately severe laws. The judiciary is facing its anti-slavery responsibility, with more prosecutions and convictions. Civil society and (to a lesser extent) the private sector are mobilizing good-will and resources to assist victims.” [13]

Current International Norms and Law

The UN’s Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice was updated in 2006 to reflect current international norms and standards in crime prevention and criminal justice. These norms articulate the UN’s collective concept of how an effective criminal justice system should be structured; and they promote necessary justice reform at the national level, assist the development of sub-regional and regional strategies, and establish global and international “best practices” to be suitably adapted by Member States. [14] The norms have been broken down into four categories related to: 1) persons in custody, non-custodial sanctions, juvenile justice and restorative justice; 2) legal, institutional and practical arrangements for international cooperation; 3) crime prevention and victim issues; and 4) good governance, the independence of the judiciary and the integrity of criminal justice personnel. [15] Notably, the Compendium acknowledges State sovereignty nine times (pages 175, 186, 193, 197, 224, 227, 265, 289 and 380) while simultaneously pressing for States to adopt and implement UN conventions in order to achieve the ultimate goal of reinforcing “respect for the rule of law and human rights in the administration of justice.” [16] The International Court of Justice takes the position that “national law can never prevail should it conflict with International Law.” [17]

These international norms are reflected in a myriad of UN conventions and declarations addressing human trafficking concerns. The limited scope of this paper does not permit an accounting or in-depth discussion of all of them here.

The United Nations Global Initiative To Fight Human Trafficking (UN.GIFT) is “managed by the United Nations Office on Drugs and Crime (UNODC) in cooperation with the International Labour Organization (ILO), the International Organization for Migration (IOM), the Office of the High Commissioner for Human Rights (OHCHR), the Organization for Security and Cooperation in Europe (OSCE), and the United Nations Children’s Fund (UNICEF)” and their respective conventions, declarations and protocols. [18]

The UN’s primary instruments of international law on human trafficking are the United Nations Convention against Transnational Organized Crime, and its supplementary Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which came into force in 2003. [19]

In addition, the UN has passed a whole host of conventions, declarations and resolutions that underscore and enhance its commitment to achieving the purposes of the afore-mentioned Convention and Protocol [20] , for example, the Universal Declaration of Human Rights [21] , Convention on the Rights of the Child of 1989 [22] , Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict [23] , Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography [24] , Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour 1999 [25] , Forced or Compulsory Labour Convention 1930 [26] , Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others [27] , Convention to Suppress the Slave Trade and Slavery [28] , Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery [29] , and Protocol amending the Slavery Convention signed at Geneva on 25 September 1926 [30] .

Although scholarly works, recommendations and soft law such as resolutions and declarations are not binding on States under Article 38(1)(d) of the Statute of International Court of Justice, these subsidiary means can assist in determining the rule of law, and the latter often lead to hard law such as treaties and conventions. [31] For example, the UN High Commissioner for Human Rights to the Economic and Social Council’s report on Recommended Principles and Guidelines on Human Rights and Human Trafficking [32] and the UN’s General Comment No. 6 (2005) Treatment of Unaccompanied and Separated Children Outside Their Country of Origin [33] provide clarity with respect to these issues.

Resolution A/RES/55/2, the United Nations Millennium Declaration, was adopted on September 8, 2000 to reaffirm that “men and women have the right to live their lives and raise their children in dignity, free from hunger and from the fear of violence, oppression or injustice.” The UN Convention Against Corruption aimed at fostering cooperation between States in the fight to end corruption through the prevention, investigation, and prosecution of offenders such as human traffickers, came into force on December 14, 2005. [34]

The 2005 World Summit Outcomes, Resolution A/RES/60/1 restated the UN’s ongoing commitment to its main objectives including promotion of child and human rights. [35] The Declaration on the sixtieth anniversary of the Universal Declaration of Human Rights A/RES/63/116 was adopted on December 10, 2008 reaffirming commitment to the realization of universal human rights. [36] Resolution A/RES/63/1 was adopted by the General Assembly on September 22, 2008 to continue supporting African States in their struggles for lasting peace, economic growth, eradication of poverty and sustainable development. [37] Resolution A/RES/62/88 was adopted on December 13, 2007 to renew commitment to ensuring the well-being of children, including freedom from exploitation. [38] Resolution A/RES/61/1was adopted on September 19, 2006 to renew commitment to assist impoverished nations eradicate poverty, and achieve economic growth and sustainable development. [39] Resolution A/RES/60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, was adopted on 16 December 2005 and sets out remedies available to victims. [40]

At the Eleventh United Nations Congress on Crime Prevention and Criminal Justice in 2005, Member States signed the Bangkok Declaration, Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice resolving to strive for an integrated approach and cooperation in transnational criminal matters to strengthen the rule of law internationally. [41]

The UN’s fourth Conference of the Parties to the United Nations Convention

Against Transnational Organized Crime was held in October 2008. In April 2009, the UN Working Group on Trafficking in Persons made a number of recommendations for consideration at the next Conference to be held in January 2010 which included the following: that States which have not yet adopted the United Nations Convention against Transnational Organized Crime and the Trafficking in Persons Protocol do so in order to achieve universal adherence to and effective implementation of law in the fight against human trafficking. [42] The report on the Fifth Conference held in Vienna from January 27 to 29, 2010 has yet to be published; however, this topic was listed on the provisional agenda for the Conference. [43]

It is a cornerstone of international law that States cannot withhold human rights; however the scope of such rights varies according to the type of society and is largely connected to its economic development. For example, industrialized democratic nations tend to focus on political rights of the individual; whereas fundamental social and economic rights such as food, shelter, health care and education are of greater importance in undeveloped and impoverished countries. [44]

Under Article 38(1) of the Statute of International Court of Justice, the afore-mentioned conventions, declarations, resolutions and recommendations constitute sources of the body of international law with respect to the crime of human trafficking.

Côte d’Ivoire

Civil war and ongoing political unrest in the Republic of Côte d’Ivoire since 1999 have divided the country and contributed to the growth of organized crime such as human trafficking to finance rebel forces. [45] UN troops continue to maintain a presence in Côte d’Ivoire to support the peace process and assist in implementation of commitments to hold elections, disarm, demobilize and integrate rebel forces into national armed forces. [46]

The US Central Intelligence Agency reports that “Côte d’Ivoire is a source, transit, and destination country for women and children trafficked for forced labor and commercial sexual exploitation; trafficking within the country is more prevalent than international trafficking and the majority of victims are children; women and girls are trafficked from northern areas to southern cities for domestic servitude, restaurant labor, and sexual exploitation; boys are trafficked internally for agricultural and service labor and transnationally for forced labor in agriculture, mining, construction, and in the fishing industry; women and girls are trafficked to and from other West and Central African countries for domestic servitude and forced street vending.” [47] The UN Global Report on Trafficking in Persons reflects that 236 child victims of human trafficking, 36 of whom were form Côte d’Ivoire, were identified between 2005 and 2007. All were exploited for forced labour, except for three who were trafficked for sexual exploitation in 2005. Victim support such as legal protection, temporary stay permits, medical and psychosocial support, and housing and shelter was provided by State authorities, and NGOs and international organizations provided medical and psychosocial support, housing and shelter. [48]

According to the UN Global Report on Trafficking in Persons, trafficking in adults is not illegal in Côte d’Ivoire. The Report reflects that Côte d’Ivoire was contemplating the criminalization of some forms of trafficking in 2007, but instead adopted an action plan on child trafficking and labour. Côte d’Ivoire reported that, although it prohibits trafficking in persons under the age of 18, it did not prosecute anyone for this offence from 2002 to 2006; however, approximately 29 men were investigated for forced labour between 2005 and 2007, two were prosecuted in 2005 and 15 in 2006, resulting in two convictions in 2006. [49]

Côte d’Ivoire has not ratified the United Nations Convention against Transnational Organized Crime, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, or the Convention Against Corruption. Although the State ratified the Convention on the Rights of the Child, it is not a signatory to either of the supplementary protocols on sexual exploitation of children and child soldiers. It is also noteworthy that on February 7, 2003, Côte d’Ivoire denounced the Minimum Age (Industry) Convention 1919 and the Minimum Age (Non-Industrial Employment) Convention 1932, both of which it ratified in 1960. [50]

Mexico

The United Mexican States ratified the United Nations Convention against Transnational Organized Crime, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Convention Against Corruption, Convention on the Rights of the Child and its supplementary protocols on sexual exploitation of children and child soldiers. Mexico is also partnering with UNODC in launching the international “Blue Heart” campaign against human trafficking. [51] However, the nation has denounced the following eight International Labour Organization Conventions: Night Work of Young Persons (Industry) Convention, 1919; Minimum Age (Sea) Convention, 1920; Repatriation of Seamen Convention; Protection against Accidents (Dockers) Convention (Revised), 1932; Fee-Charging Employment Agencies Convention, 1933; 1926 Indigenous and Tribal Populations Convention, 1957; Safety Provisions (Building) Convention, 1937; and Convention concerning Statistics of Wages and Hours of Work, 1938. [52]

Since the devaluation of the peso in 1994 and the global financial crisis in late 2008, Mexico has experienced ongoing economic and social problems such as low wages, underemployment for much of the population, inequitable income distribution, and limited advancement opportunities for the largely Amerindian demographic in the poorer southern states of the country. The government’s priorities are poverty reduction and job creation. In addition, thousands of impoverished Guatemalans and other Central Americans enter Mexico illegally looking for work. [53] According to the American Bar Association, the scope of human trafficking in Mexico is difficult to determine as there are no official statistics to draw on, but reports from media, academic studies, NGOs and others suggest that Mexico has between 20,000 and 500,000 victims of sexual exploitation and forced labour at any given time. [54] The US State Department says that Mexico is a large source, transit, and destination country for trafficking of women and children (boys and girls), indigenous people, and illegal migrants for commercial sexual exploitation and forced labour. [55]

The Mexican constitution contains international legal principles as well as a supremacy clause specifying that federal law governs in the event of a conflict with Mexican state law. [56] Since Mexico is admittedly a country of origin, transit and destination for human trafficking, its new federal Inter-secretariat Commission to Prevent and Prosecute Trafficking in Persons has enacted the Law to Prevent and Combat Trafficking in Persons which falls under state jurisdiction, or federal jurisdiction if three or more individuals are involved, it is a repeat offence, or is an international case. As of 2008, five of Mexico’s thirty-one states have criminalized human trafficking, fourteen enacted laws against trafficking in prostitution only or otherwise not in keeping with the UN Trafficking Protocol, four have penal code changes pending, and eight have no anti-trafficking laws. In 2008, the federal district appointed a Federal Special Prosecutor for Crimes of Violence against Women and Trafficking of Persons. The UN Global Report on Trafficking in Persons reflects that only the state of Chihuahua has prosecuted any cases of human trafficking so far (fifteen), and it has a 15 member law enforcement investigation team. This is primarily due to the fact that legislation had just recently been passed by various states at the time of the UN survey. [57] The Report also states that victim support such as legal protection, temporary stay permits, medical and psychosocial support, and housing and shelter is provided by State authorities, and NGOs and international organizations provide medical and psychosocial support, housing and shelter.

Although Mexico falls short of international norms respecting labour standards particularly in respect of children, it appears to be taking its anti-human trafficking obligations seriously despite its economic obstacles.

Turkey

The Republic of Turkey is a destination and transit country for trafficking of women and children mainly from Eastern Europe and the former Soviet Union commercial sexual exploitation and forced labour. [58] Turkish authorities identified a total of 994 victims of human trafficking including only 50 Turks and 205 females (women and girls) between 2003 and 2008. [59]

Turkey has undergone many reforms to strengthen its democracy and economy in the past ten years and in 2005 began accession membership talks with the European Union. [60] Similarly, Turkey has taken a very progressive approach to the issue of human trafficking.

Turkey has ratified the United Nations Convention against Transnational Organized Crime, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Convention Against Corruption, Convention on the Rights of the Child and its supplementary protocols on sexual exploitation of children and child soldiers. However, on October 30, 1998, Turkey denounced the following ILO Conventions: Minimum Age (Trimmers and Stokers) Convention, 1921; Fee-Charging Employment Agencies Convention, 1933; Minimum Age (Sea) Convention (Revised), 1936; and Minimum Age (Industry) Convention (Revised), 1937 which suggests that the nation does not meet international labour standards, particularly those for children. [61] The Turkish government criminalized human trafficking in 2005 when article 80 of its criminal code went into force prescribing imprisonment from eight to twelve years for trafficking in persons. In 2002, Turkey’s Ministry of Foreign Affairs established a National Task Force on the Fight Against Human Trafficking which meets frequently with a number of domestic and international organizations. The Task Force produced a First National Action Plan for Combating Human Trafficking in 2003, followed by the second National Action Plan in 2007. The Turkish National Police Department for Foreigners, Borders and Asylum created a specialized Trafficking in Human Beings unit in 2003. A toll-free international multi-language help/tip emergency line has been set, free medical and legal assistance as well as other social supports are provided to victims by the State. [62]

Conclusion

Circumstances beyond a State’s control may impede their ability to conform to international law. The evidence suggests that there is a correlation between a State’s economic status and the incidence of human trafficking. As previously stated, a nation’s ability to implement human rights is inexorably linked to its economic development: fundamental social and economic rights such as food, shelter, health care and education are of greater importance in undeveloped and impoverished countries than human rights such as protection from human trafficking as shown in Côte d’Ivoire. The problem in implementing international human rights is further exacerbated by strict budget limitations and delays in adopting necessary changes to legal instruments as evidenced in Mexico. Turkey has made concerted efforts to fight trafficking in persons by implementing the UN’s anti-human trafficking legal instruments and vigorously investigating and prosecuting offenders, but could be able to offer more assistance to victims through the services of NGOs.

In each case, there is ample reason to be hopeful that the numerous United Nations conventions aimed at establishing lasting peace, economic growth, sustainable development and the elimination of poverty, several of which were noted above, will resolve many if not all of the underlying impediments to the implementation of international law to forever eradicate the scourge of trafficking in persons.

Endnotes