A Human Rights Framework to Address Trafficking of Human Beings
| Published date | 01 September 2006 |
| DOI | 10.1177/016934410602400302 |
| Author | Tom Obokata |
| Date | 01 September 2006 |
| Subject Matter | Part A: Article |
PART A: ARTICLES
A HUMAN RIGHTS FRAMEWORK TO ADDRESS
TRAFFICKING OF HUMAN BEINGS
TOM OBOKATA*
Abstract
This article attempts to establish a human rights framework to promote better
understanding of trafficking and to articulate obligations which can be imposed upon
States. It begins by exploring the definition of trafficking of human beings adopted under
the Protocol to Prevent, Suppress and Punish Trafficking in Persons (Trafficking Protocol)
attached to the United Nations Convention against Transnational Organised Crime. It
then highlights the advantages of using a human rights framework to the practice. The
article continues with identification of human rights obligations imposed upon States to:
1) prohibit trafficking; 2) punish traffickers; 3) protect victims; and 4) address the causes
and consequences of the act. Finally, the interaction among different branches of
international law and its implication on the obligations imposed upon States will be
examined. The main conclusion reached is that a human rights framework may be utilised
to assist global action against the phenomenon, and several recommendations in this
regard are presented.
1. INTRODUCTION
Trafficking of human beings is a widespread practice in the modern world. It has been
estimated that approximately 800,000 people are trafficked all around the world each
year.
1
Virtually all States are affected by the practice,
2
and traffickers are believed to
Netherlands Quarterly of Human Rights, Vol. 24/3, 379-404, 2006. 379
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands.
* Lecturer in Law at the Queen’s University Belfast, Northern Ireland, United Kingdom.
1
US Department of State, Trafficking in Persons Report 2005, US Department of State, Washington
DC, at p. 6. It should be stressed that the clandestine nature of trafficking makes it difficult to obtain
accurate statistics.
2
Ryf, K.C., ‘The First Modern Anti-Slavery Law: The Trafficking Victim Protection Act 2000’, Case
Western Reserve Journal of International Law, Vol. 34, 2002, p. 45, at p. 47.
380
make between USD 7 to 10 billion annually from trafficking business.
3
The
transnational nature of the practice and its link with organised crime prompted the
international community to take urgent action, and a major step was taken
in December 2000 with the adoption of the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children (Trafficking Protocol)
attached to the United Nations Convention Against Transnational Organised Crime
(Organised Crime Convention).
4
It is widely accepted by different actors, such as scholars, governments, NGOs and
international organisations, that trafficking is not only a criminal justice issue, but also
a human rights issue, because the act is regarded as a serious threat to the promotion
and protection of human rights.
5
This suggests that a human rights framework may
have a role to play in assisting global action against the practice. The Office of the
United Nations High Commissioner for Human Rights adopted the Recommended
Principles and Guidelines on Human Rights and Human Trafficking.
6
However, these
Principles and Guidelines are not legally binding and do not fully articulate human
rights obligations. As a result, a human rights discourse in relation to trafficking
remains without much substance.
The purpose of this article, then, is to establish a human rights framework in order
to promote better understanding of the practice and to articulate obligations which
can be imposed upon States to prevent and suppress the practice. The article begins
with an analysis of the definition of trafficking under the Trafficking Protocol. The key
elements of the definition are identified in comparison with the definition of
smuggling of human beings. It then illustrates some advantages of adopting a human
rights framework, such as its ability to promote a victim-centred and holistic approach
to the practice.
Tom Obokata
3
UNICEF UK, End Child Exploitation: Stop Traffic!, UNICEF UK, London, 2003, at p. 11.
4
UN Doc. A/RES/55/25 (2001), Annexes I and II. For the drafting process of these instruments, see,
Gallagher, A., ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A
Preliminary Analysis’, Human Rights Quarterly, Vol. 23, No. 4, 2001, p. 975.
5
See for instance, Reports of the Secretary General on Trafficking in Women and Girls, UN Docs E/CN.4/
2002/80 and E/CN.4/2003/74; Note by the Office of the United Nations High Commissioner for Human
Rights, the United Nations Children’s Fund and the International Organisation for Migration on the
Draft Protocols Concerning Migrant Smuggling and Trafficking in Persons, UN Doc. A/AC.254/27;
Global Alliance Against Trafficking in Women (GAATW), Human Rights and Trafficking in Persons:
A Handbook, GAATW, Bangkok, 2001; Inglis, S.C., ‘Expanding International and National
Protections against Trafficking for Forced Labour Using a Human Rights Framework’, Buffalo
Human Rights Law Review, Vol. 7, 2001, p. 55; Obokata, T., ‘Human Trafficking, Human Rights, and
the Nationality, Immigration and Asylum Act 2002’, European Human Rights Law Review, Vol. 4,
2003, p. 410; and Murray, J., ‘Who Will Police the Peace-Builders? The Failure to Establish
Accountability for the Participation of the United Nations Civilian Police in Trafficking of Women in
Post-Conflict Bosnia and Herzegovina’, Columbia Human Rights Law Review, Vol. 34, 2003, p. 475.
6
UN Doc. E/2002/68/Add.1.
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