Piotrowicz, Ryszard --- "Victims of People Trafficking and Entitlement to International Protection" [2005] AUYrBkIntLaw 11; (2005) 24 Australian Year Book of International Law 159
[∗] Department of Law, University of Wales, Aberystwyth.
[1] On people trafficking generally, see the websites of Anti-Slavery International <http://www.antislavery.org/> and the International Organisation for Migration (IOM) <http://www.iom.int/> . The latter contains special reports as well as the quarterly bulletin Trafficking in Migrants. See also United Nations Office for Drug Control and Crime Prevention, Global Programme against Trafficking in Human Beings, February 1999 <http://www.uncjin.org/CICP/traff_e.pdf> . See also K Knaus, A Kartusch and G Reiter, Combat of Trafficking in Women for the Purpose of Forced Prostitution. International Standards (2000), and related country reports published by the Ludwig Boltzmann Institute of Human Rights, Vienna, outlining the situation with regard to trafficking in individual countries. On trafficking of children see IOM, Trafficking in Unaccompanied Minors for Sexual Exploitation in the European Union (2001); and UN Commission on Human Rights, Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms Ofelia Calcetas-Santos, E/CN.4/1999/71. A recent overview of the regime is provided in R Piotrowicz, ‘Irregular Migration Networks: the Challenge Posed by People Traffickers to States and Human Rights’ in B Bogusz, R Cholewinski, A Cygan and E Szyszczak (eds), Irregular Migration and Human Rights: Theoretical, European and International Perspectives (2004) 137.
[2] For a concise discussion of slavery see R Jennings and A Watts, Oppenheim’s International Law (9th ed, 1992) 978-83.
[3] Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (21 March 1950), 96 UNTS 271.
[4] Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979), 1249 UNTS 13 esp art 6.
[5] Convention on the Rights of the Child (20 November 1989), 28 ILM 1448, esp arts 32, 34 and 35.
[6] Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (25 May 2000), 39 ILM 1290, esp art 3.
[7] Slavery Convention (25 September [1927] LNTSer 19; 1926), 60 LNTS 253; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (30 April 1956), 266 UNTS 40; ATS 1958, No 3.
[8] Forced Labour Convention (28 June 1930) (ILO Convention No 29); Abolition of Forced Labour Convention (25 June 1957) (ILO Convention No 105). More recently, the ILO adopted the Worst Forms of Child Labour Convention (17 June 1999) (ILO Convention No 182), supplemented by the Worst Forms of Child Labour Recommendation (17 June 1999) (Rec 190).
[9] See, for instance, the Universal Declaration of Human Rights, GA Res 217A (1948) art 4: ‘No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms’.
[10] Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990 (18 December 1990), 30 ILM 1521. This entered into force on 1 July 2003 after achieving 20 ratifications, all of which are countries of emigration. Support from destination countries has been underwhelming.
[11] See, eg Council of the European Union, Council Framework Decision of 19 July 2002 on Combating Trafficking in Human Beings (2002/629/JHA).
[12] Rec No R (2000) 11 of the Committee of Ministers to member states on action against trafficking in human beings for the purpose of sexual exploitation (adopted 19 May 2000), and the Rec and Res referred to therein. See also the Commitment and Plan of Action adopted at the Budapest Conference of 20-21 November 2001 in preparation for the Second World Congress against Commercial Sexual Exploitation of Children. Most recently, in 2004 the Council was working on a Draft Convention against Trafficking in Human Beings.
[13] Office of the High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002).
[14] Interim Measures for Combating Unsafe Practices Associated with the Trafficking or Transport of Migrants by Sea (16 December 1998) MSC/Cird 896.
[15] See, eg IOM and EU, Brussels Declaration on Preventing and Combating Trafficking in Human Beings (18 September 2002) <http://europa.eu.int/comm/
justice_home/news/forum_crimen/2002/workshop/brusels_decl_en.htm>; OSCE Declaration on Trafficking in Human Beings (7 December 2002) MC.DEC/2/03; Decision No.557 – OSCE Action Plan to Combat Trafficking In Human Beings, (24 July 2003) PC.DEC/577; Stability Pact for South Eastern Europe ,Task Force on Trafficking in Human Beings, Statement on Commitments, 11 December 2002 <http://www.osce.org/attf/pdf/sofia/sofia_commstatement.pdf> .
[16] Convention against Transnational Organised Crime, A/AC 254/4/Rev 9, reprinted in (2001) 40 ILM 353.
[17] Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (15 November 2000), 40 ILM 377. On TIPP, see A Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23 Human Rights Quarterly 975; R Piotrowicz, ‘Traffic in People Gets the Red Light’ (2001) 75 Australian Law Journal 35.
[18] Art 17. It came into force on 25 December 2003. UNCTOC, the parent convention, has been in force since 29 September 2003. Destination states that have ratified TIPP include Belgium, Canada, France, Norway, Spain and Sweden. As of September 2004 Australia had signed but not ratified.
[19] TIPP has to be read in conjunction with UNCTOC, the framework convention, which it supplements (art 1(1)). Art 3(2) of UNCTOC defines a transnational offence as any of the following: an offence committed in more than one state; an offence committed in one state but a substantial part of its preparation, planning, direction or control occurs in another state; an offence committed in one state but involving an organised criminal group, which is active in at least two states; an offence committed in one state but having substantial effects in another. The definition of trafficking in art 3(a) of TIPP allows substantial scope to states in tackling trafficking in human beings. It includes ‘recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation’. There is no reference here to the transnational aspect of the process. The definition covers those involved at all stages of the trafficking process. The offence of transnational trafficking is perpetrated not only by those who actually cause the victim to cross the frontier, but also those involved in the process of getting the victim from where she first came under the control of the traffickers to the destination where she will be exploited.
[20] TIPP, art 3(a). See, on reasons for trafficking of children, the Report of the UN Special Rapporteur, above n 1, 12-18; Trafficking in Human Beings: Implications for the OSCE, ODIHR Background Paper 1999/3, sects 2.1, 2.2, 2.3.
[21] Convention Relating to the Status of Refugees (28 July 1951), 189 UNTS 150.
[22] Protocol Relating to the Status of Refugees (4 October 1967), 606 UNTS 267.
[23] See above n 17, art 7(1).
[24] The Refugee Convention starts from the premise that protection is most appropriately provided by the state of nationality. It is only where such protection is unavailable that other states are obliged to consider claims for asylum. Hence art 1A(2) defines as refugees those who, inter alia, are outside the country of their nationality and unable or unwilling to return there owing to a well-founded fear of persecution: in other words, they are unable or with good reason unwilling to rely on the protection of their home state. This is confirmed by the UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1992) [106] (hereinafter UNHCR Handbook), that provides in part: ‘Wherever available, national protection takes precedence over international protection.’
[25] UNHCR, Global Consultations on International Protection, 4 September 2001, Reception of Asylum Seekers, Including Standards of Treatment, in the Context of Individual Asylum Seekers (EC/GC/01/17). See especially para g), dot point 2, of the Recommended Measures for the Reception of Asylum Seekers in Individual Asylum Systems: ‘Single women with special security needs should be provided with separate and safe accommodation.’ Also para g), dot point 8: ‘Special attention should be paid to the risk of child trafficking, in particular separated and unaccompanied female asylum seekers. Special accommodation arrangements, counselling and protection arrangements are necessary for them.’ Similar recommendations are made in UNHCR, Reception Standards for Asylum Seekers in the European Union (2000) 17-19.
[26] TIPP explicitly criminalises the activities of those who are involved in trafficking: arts 3(a) and 5. Furthermore Part II of TIPP, entitled ‘Protection of victims of trafficking in persons’, and the provisions therein make it clear that such persons are not to be treated as criminals but rather as victims of a serious offence who are entitled to substantial assistance.
[27] Such treatment could be at the hands of the traffickers, who may have contacts in the areas from which women have been trafficked and who report their return. Women in some countries are also vulnerable to harassment by the local police, especially where the police are corrupt, because the police know that the women have been working in the sex trade, perhaps in breach of the law of the country where they were trafficked but, more importantly, because they can threaten to reveal to her local community that the woman has been working in the sex trade. This may expose the women to ostracism or other forms of victimisation. See IOM, Deceived Migrants From Tajikistan (2001) 20, 22; A O’Neill Richard, International Trafficking in Women to the United States: A Contemporary Manifestation of Slavery and Organized Crime (2000) 40; Trafficking in Human Beings: Implications for the OSCE, above n 20, sect 5.2 and fn 60.
[29] Ibid 95.
[30] Ibid 96.
[31] The Refugee Convention does not actually say that the persecution must be at the hands of the state but this has been the interpretation of some countries, including France and Germany. On this generally, see G Goodwin-Gill, The Refugee in International Law (2nd ed, 1996) 70-74; the UNHCR Handbook, above n 24 65, states: ‘Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned … Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.’ Australian courts accept that persecution may be at the hands of non-state actors: see R Germov and F Motta, Refugee Law in Australia (2003) 216-20 and cases cited therein. The United Kingdom generally accepts persecution by non-state actors as sufficient: R v Secretary of State for the Home Department; Ex parte Adan and Aitsegur [2000] UKHL 67; [2001] 1 All ER 593. For discussion of the extent of the UK’s acceptance of persecution by non-state actors, see I MacDonald and F Webber, MacDonald’s Immigration Law and Practice (5th ed, 2001) 12.51-12.57.
[32] Proposal for a Council Directive laying down minimum standards for the qualification and status of third country nationals and stateless persons as refugees, in accordance with the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, or as persons who otherwise need international protection, COM (12 September 2001) 510 final. See further R Piotrowicz and C van Eck, ‘Subsidiary Protection and Primary Rights’ (2004) 53 International & Comparative Law Quarterly 107.
[33] Arts 9(1c) and 11(2). In its explanation of art 9, the Commission argues that the inclusion of persecution by non-state actors where the state is unwilling or effectively unable to provide protection actually reflects the practice of the vast majority of member states. This is a significant move away from the (non-binding) Joint Position on the harmonised application of the refugee definition adopted by the Council of the European Union in 1996, which was much more restrictive concerning the origins of persecution: Joint Position 96/196/JHA [5.2]. G Goodwin-Gill, ‘The Individual Refugee, the 1951 Convention and the Treaty of Amsterdam’ in E Guild and C Harlow (eds), Implementing Amsterdam. Immigration and Asylum Rights in EC Law (2001) 140, 153-54.
[34] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (30 September 2004) OJ L 304/12.
[36] UNHCR Handbook, above n 24, 51.
[37] Ibid 53.
[38] For a detailed analysis see A Aleinikoff, ‘Membership in a Particular Social Group: Analysis and Proposed Conclusions’ Background Paper for Track Two of the Global Consultations of the UNHCR (2001), available at the UNHCR website: <http://www.unhcr.ch> , at Global Consultations, Documents, Second Track Meetings. Amended version: A Aleinikoff, ‘Protected Characteristics and Social Perceptions: an Analysis of the Meaning of “Membership of a Particular Social Group”‘ in E Feller, V Türk and F Nicholson (eds), Refugee Protection in International Law (2003) 263.
[39] Conclusions 4 and 5, available at the UNHCR website: <http://www.unhcr.ch> , at Global Consultations, Documents, Second Track Meetings. Also at Feller, Türk and Nicholson, above n 38, 312. A very similar definition has been adopted by the UNHCR in two instruments: Guidelines on International Protection: Gender-Related Persecution within the context of art 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (7 May 2002) HCR/GIP/02/01, 29 and Guidelines on International Protection: ‘Membership of a particular social group’ within the context of art 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, (7 May 2002) HCR/GIP/02/02 1. The definition adopted there is: ‘a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.’
[40] This is the position of courts in several jurisdictions that deal with significant numbers of applications for asylum. See eg Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225, 242, 263 (Australia); R v Immigration Appeal Tribunal and another; Ex parte Shah; Islam and others v Secretary of State for the Home Department [1999] UKHL 20; [1999] 2 All ER 545, 552 (UK).
[41] Canada (Attorney-General) v Ward [1993] 2 SCR 689.
[42] Draft Directive, above n 32, commentary to art 7(4) provides, in part: ‘where the applicant for international protection is a woman, account shall be taken of the fact that persecution, within the meaning of the Geneva Convention, may be effected through sexual violence or other gender-specific means. Where the form of persecution is gender-specific this should not obscure the reason why the persecutory act occurred. For example, sexual violence can be inflicted on refugee women because, for instance, of their religion, political opinion or nationality. In these cases sexual violence is purely a form of persecution and any of the Convention grounds elaborated in … may be applicable.’
[43] ‘[S]exual violence to refugee women, such as female genital mutilation can also be inflicted for the one and only reason of their gender. In such situations, the persecution ground “membership of a particular social group” could apply.’ Ibid. There is certainly some willingness to show flexibility in establishing particular social groups. See the decision of the House of Lords in Shah and Islam, above n 40. Similarly, the Immigration and Refugee Board (Refugee Division) of Canada has been prepared, in a contentious decision, to treat former sex trade workers as a particular social group: Case T98-06186, 2 November 1999. Since then British courts and tribunals have recognised that some victims of trafficking could be a member of a particular social group in particular circumstances, without going so far as to assert that all victims would qualify: Secretary of State for the Home Department v Dzhygun (2000) Immigration Appeal Tribunal Decision 00TH00728, (particular social group consisting of women from Ukraine forced into prostitution against their will); Miss AB v Secretary of State for the Home Department (2003) Immigration Appellate Authority Decision CC/64057/2002 (particular social group consisting of girls trafficked from West Africa); Appellant v Secretary of State for the Home Department [2003] UKIAT 00023 (particular social group consisting of women from the north east of Albania); Petition of Olga Shimkova, Outer House, Court of Session, 23 December 2003 (particular social group consisting of women trafficked from Ukraine).
[45] Art 1A(2) 2.
[46] See, in particular, Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695 and Lay Kon Tji v Minister for Immigration and Ethnic Affairs [1998] 1380 FCA. For detailed discussion of these issues, see R Piotrowicz, ‘Refugee Status and Multiple Nationality in the Indonesian Archipelago: Is there a Timor Gap?’ (1996) 8 International Journal of Refugee Law 319 and ‘Lay Kon Tji v Minister for Immigration & Ethnic Affairs: The Function and Meaning of Effective Nationality in the Assessment of Applications for Asylum’ (1999) 11 International Journal of Refugee Law 544.
[47] Conclusion on International Protection(s). Executive Committee Conclusions No 90 (LII) – 2001.
[48] Convention Relating to the Status of Stateless Persons (28 September 1954), 360 UNTS 117.
[49] See ExCom, Note on International Protection, 13 September 2001 68: ‘The Convention does not specifically refer to any particular groups of people who may face problems when forcibly displaced. Yet there are persons whose protection needs might require a tailored response with additional safeguards. Among them are … survivors of sexual and gender-based violence’; 70: ‘Women and girls, who are victims of trafficking and have been stranded en route, have given rise to acute protection needs …’ A/AC.96.951 96/951. The problems confronting trafficked women in this regard are acknowledged even more forcefully in ExCom’s Conclusion on International Protection of 5 October 2001, above n 47.
[50] The Universal Declaration of Human Rights, art 15(2), provides: ‘No one shall be arbitrarily deprived of his nationality …’. It is not necessarily unlawful to deprive a citizen of their nationality but the recognised grounds all entail some act that serves to alienate the citizen from the state: Jennings and Watts, above n 2, 878-80. This is not the case with victims of trafficking. Furthermore, deprivation is generally permissible only where the person affected will not be rendered stateless as a consequence.
[51] Convention on the Reduction of Statelessness (13 August 1961), 989 UNTS 175.
[52] The UNHCR expressly raised this in a commentary on migration control in the EU: Office of the UN High Commissioner for Refugees, Reconciling Migration Control and Refugee Protection in the European Union: A UNHCR Perspective, October 2000, 40: ‘the Convention definition of a refugee does not cover the protection needs of all persons. Those who may not necessarily come within the ambit of the Convention refugee definition as formulated in 1951 but who nevertheless need international protection are commonly referred to as refugees falling under UNHCR’s wider competence. States have long supported protection and assistance activities undertaken for those categories of refugees by UNHCR, which include, for example, persons fleeing the indiscriminate effects of armed conflict or serious public disorder, albeit with no specific element of persecution or link to one of the five grounds enumerated in the Convention’.
[53] Art 6(3) requires states to ‘consider implementing measures’ for the physical, psychological and social recovery of victims. This is to include appropriate housing, counselling and information in a language that they can understand (especially with regard to their legal rights); medical, psychological and material assistance; employment, educational and training opportunities. This is an extensive list. It entails potentially substantial outlay of resources by the state and clearly envisages that the victim might remain for some substantial period of time in the national territory – hence the non-obligatory language. Art 7(1) takes this further by obliging states to ‘consider’ the adoption of legislative or other measures that enable victims to remain, temporarily or permanently.
[54] For a discussion of some of the uncertainties and possibilities see G Noll, ‘Fixed Definitions or Framework Legislation? The Delimitation of Subsidiary Protection Ratione Personae’, paper for the seminar ‘International Protection Within One Single Asylum Procedure’, 23-24 April 2001, Norrkőping, reproduced in: Subsidiary Protection: Improving or Degrading the Right of Asylum in Europe, conference documents, Academic Network for Legal Studies on Immigration and Asylum in Europe, Brussels, 16-17 November 2001. See also Piotrowicz and van Eck, above n 32.
[55] Global Consultations on International Protection (4 September 2001) Complementary Forms of Protection, EC/GC/01/18.
[57] See the Proposal of 12 September 2001 as amended, art 15(b). 7944/04, Asile 21, 31 March 2004.
[59] On the generally binding status of the principle, see Goodwin-Gill, above n 31, 167-71. On its normative character for parties to the ECHR, see Soering v United Kingdom [1989] ECHR 14; (1989) 11 EHRR 439, 88 91; HLR v France [1997] ECHR 23; (1997) 26 EHRR 29, 40 (dealing specifically with the threat from non-state actors).
[60] Rape has been recognised as torture by the European Court of Human Rights (Aydin v Turkey [1997] ECHR 75; (1998) 25 EHRR 251) and by the International Criminal Tribunal for Rwanda (Prosecutor v Akayesu Case No ICTR-96-4-T, ICTR T ch I, 1998, 597). Not all rape is torture, but in these cases the rape was carried out by someone acting in a position of authority.
[61] Cases dealing with inhuman and degrading treatment or punishment invariably have involved alleged breaches of human rights by the state. However, given that persecution by non-state actors is recognised for the purposes of refugee status, it is logical to extend that to subsidiary protection. HLR v France, above n 59, supports this. As to the type of treatment that may be inhuman or degrading, see D Harris M O’Boyle and C Warbrick, Law of the European Convention on Human Rights (1995) 61-73, 80-84.