Published in May 2019
This module is a resource for lecturers
The broader international framework
Outside the Protocol against Trafficking in Persons, numerous rights attach to victims of trafficking based on their status as, inter alia, humans, children, women, refugees and persons with disabilities. These rights, and corresponding obligations, placed on States, form the basis of a human rights-based approach to trafficking. Obokata (2006, p. 384) identifies two main advantages to taking such as approach:
"First, it promotes better understanding of the problems experienced by those trafficked. Those trafficked may be seen as victims of human rights abuses rather than criminals who violate national immigration laws and regulations, and therefore a victim-centred approach may be promoted. Victimisation may lead to deprivation of victims' sense of self-control and autonomy, and they can also feel isolated from their family, society and the world around them. The victim-centred approach could rectify this situation and empower victims by restoring their dignity and self-worth. Second, a human rights framework can be used to address wider issues. As noted above, there is a wide variety of issues related to trafficking of human beings, including the causes and consequences, which must be dealt with to effectively prevent and suppress the phenomenon. A human rights framework allows us to understand these issues in depth and to seek not only legal, but also political, economic and social solutions accordingly. In other words, it has the potential to promote a holistic approach, and therefore strengthen global action against the phenomenon".
Fundamental to a human rights-based approach to trafficking in persons is the principle of non-discrimination. That is, with very few exceptions, the rights in international human rights treaties apply without discrimination. States cannot deny the application of rights to victims of trafficking based on their age, sex, gender, nationality and other status. Importantly, migration status, including a victim's status as an irregular migrant or non-citizen, cannot be a basis for denying protection. The principle of non-discrimination is enshrined in international human rights law instruments of general application, including the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Universal Declaration of Human Rights (UDHR). It is also included in specialist treaties, including the Convention on the Rights of the Child (CRC) and the Convention on the Rights of Persons with Disabilities among others.
As noted by OHCHR's Commentary on the Recommended Principles and Guidelines on Human Rights and Human Trafficking, "[i]f the State does distinguish between the rights it grants to trafficked persons (either specifically or indirectly in relation to their immigration or other status) and the protections it provides to others, then such a distinction must be reasonably justifiable. Any exceptions or exclusions must serve a legitimate State objective and be proportional to the achievement of that objective. A distinction or exclusion that materially harms the human rights of the individual concerned is unlikely to be justifiable".
A number of human rights are explained in Module 2 of this university module series, while the special protection child victims are entitled to is more fully examined in Module 12. This Module gives a brief overview of some of the main rights relevant to victims of trafficking.
Key human rights for victims of trafficking
While victims of trafficking are entitled to numerous rights under international law, some rights are especially relevant. Certain rights are particularly important for addressing the causes of trafficking (such as the right to social security), while others will be central to the trafficking process itself (such as the right not to be submitted to forced labour) and the response to victims following situations of trafficking (such as the right to the highest attainable standard of healthcare).
The Commentary on the Recommended Principles and Guidelines on Human Rights and Human Trafficking highlights human rights key to addressing trafficking in persons. These include:
- The right to life.
- The right to liberty and security.
- The right of access to courts, equality and a fair trial.
- The right not to be submitted to slavery, servitude and forced labour.
- The right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment.
- The right to freedom of movement.
- The right to the highest attainable standard of mental and physical health.
- The right to an adequate standard of living.
- The right to social security.
These rights derive variously from articles of the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and Universal Declaration of Human Rights (UDHR).
Rights for special groups of victims
As noted above, certain groups of victims are owed additional rights under international law based on special status. Several international instruments address the rights and protection needs of particular classes of individuals. For example, children's rights are enumerated under the Convention on the Rights of the Child, persons with disabilities' rights are set out under the Convention on the Rights of Persons with Disabilities, the rights of migrant workers are protected by various ILO instruments and the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, while the rights of refugees are enshrined under the Convention on the Status of Refugees and its 1967 Protocol. Of note is that, where victims of trafficking are also smuggled migrants some additional, though somewhat cursory, assistance and protection measures accrue to them under the Protocol against the Smuggling of Migrants (see Module 2).
Of particular importance is the right of certain victims of trafficking to non-refoulement. Broadly speaking, the right precludes the return of a person to a place where they would face a real chance of persecution or be exposed to a real risk of other forms of serious ill-treatment. Protection from refoulement accrues to persons granted refugee status under the Refugee Convention; as such, persons benefit from the protection until they are determined not to be a refugee. Atak and Simeon (2014) discuss some of the intersections between trafficking and refugee law and note challenges for victims of trafficking seeking international protection.
UNHCR's Guidelines on International Protection for Trafficking provide interpretive guidance for refugee status determinations of victims, and potential victims, of trafficking. While not all victims are refugees, the Guidelines acknowledge several circumstances where they may be.
UNHCR's Guidelines on International Protection for Trafficking
"A claim for international protection presented by a victim or potential victim of trafficking can arise in a number of distinct sets of circumstances. The victim may have been trafficked abroad, may have escaped her or his traffickers and may seek the protection of the State where she or he now is. The victim may have been trafficked within national territory, may have escaped from her or his traffickers and have fled abroad in search of international protection. The individual concerned may not have been trafficked but may fear becoming a victim of trafficking and may have fled abroad in search of international protection. In all these instances, the individual concerned must be found to have a 'well-founded fear of persecution' linked to one or more of the Convention grounds in order to be recognized as a refugee".
Where victims of trafficking are not refugees, they may still gain a right to non-refoulement under international human rights law. Under certain instruments, the right attaches where persons face a real risk of serious ill-treatment, meaning death, torture, or cruel, inhuman or degrading treatment if returned to their country of origin. The Convention against Torture, and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment (article 3), the ICCPR (articles 6 and 7) and the CRC all contain, either explicitly or implicitly, such a right (articles 6 and 37).