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Recommended Principles and Guidelines on Human RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS TRAFFICKING – COMMENTARY COMMENTARY RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING COMMENTARY Office of the United Nations High Commissioner for Human Rights Palais des Nations CH 1211 Geneva 10 – Switzerland Telephone: +41.22.917 90 00 Fax: +41.22.917 90 08 www.ohchr.org RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING COMMENTARY New York and Geneva, 2010 NOTE The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. * * * Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a figure indicates a reference to a United Nations document. HR/PUB/10/2 UNITED NATIONS PUBLICATION Sales No. E.10.XIV.1 ISBN 978-92-1-154190-8 © 2010 United Nations All worldwide rights reserved CREDITS Artwork: “Leptir” by Jana Kohut, a survivor of human trafficking. FOREWORD Over the past decade, human trafficking has acknowledgement that trafficking is, first and moved from the margins to the mainstream of foremost, a violation of human rights. Trafficking international concern. During this period we and the practices with which it is associated, have witnessed the rapid development of a including slavery, sexual exploitation, child comprehensive legal framework that comprises labour, forced labour, debt bondage and international and regional treaties, as well as forced marriage, are themselves violations of a broad range of soft-law instruments relating the basic human rights to which all persons to trafficking. These changes confirm that a are entitled. Trafficking disproportionately fundamental shift has taken place in how the affects those whose rights may already be international community thinks about human seriously compromised, including women, exploitation. It also confirms a change in our children, migrants, refugees and persons expectations of what Governments and others with disabilities. A human rights approach to should be doing to deal with trafficking and to trafficking also demands that we acknowledge prevent it. the responsibility of Governments to protect and promote the rights of all persons within My Office has been at the forefront of efforts their jurisdiction, including non-citizens. This to promote a human rights-based approach to responsibility translates into a legal obligation trafficking. As thisCommentary makes clear, on Governments to work towards eliminating such an approach requires understanding of trafficking and related exploitation. the ways in which human rights violations arise throughout the trafficking cycle and of the ways in A human rights approach to trafficking means which States’ obligations arise under international that all those involved in anti-trafficking efforts human rights law. This approach seeks to both should integrate human rights into their analysis identify and redress the discriminatory practices of the problem and into their responses. This and the unequal distribution of power that approach requires us to consider, at each and underlie trafficking, which maintain impunity for every stage, the impact that a law, policy, traffickers and deny justice to their victims. practice or measure may have on persons who have been trafficked and persons who are On a very practical level, a human rights- vulnerable to being trafficked. It means rejecting based approach to trafficking requires an responses that compromise rights and freedoms. 3 This is the only way to retain a focus on the It is this very positive response that has paved trafficked persons: to ensure that trafficking is the way for the present Commentary, a not simply reduced to a problem of migration, comprehensive analysis of the Principles and a problem of public order or a problem of Guidelines in the light of both general principles organized crime. of international law and the specific rules that relate directly to trafficking. The need for such It was on the basis of such convictions that a publication has been repeatedly drawn to my predecessor, Mary Robinson, led the the attention of OHCHR. Despite the impressive development of the Recommended Principles achievements of the past decade, the rights of and Guidelines on Human Rights and Human individuals and the obligations of States in this Trafficking and transmitted them to the United area are not yet widely or well understood. As a Nations Economic and Social Council in result, the potential of international law to guide 2002. She explained that their development and direct positive change is only partially being was her Office’s response to the clear need for fulfilled. The Commentary seeks to remedy this practical, human rights-based policy guidance, situation. It uses the Principles and Guidelines to and encouraged States and intergovernmental structure a detailed overview of the legal aspects organizations to make use of them in their own of trafficking, focusing particularly but not efforts to prevent trafficking and to protect the exclusively on international human rights law. rights of trafficked persons. The response to this call has been impressive. Since then they have I commend the Principles and Guidelines and the been integrated into numerous policy documents present Commentary to States, the international and interpretive texts attached to international human rights system, intergovernmental and regional treaties, including both the Protocol agencies, civil society groups and all others to Prevent, Suppress and Punish Trafficking involved in preventing trafficking, securing justice in Persons, Especially Women and Children, for those who have been trafficked and ending supplementing the United Nations Convention impunity for those who benefit from the criminal against Transnational Organized Crime, and exploitation of their fellow human beings. the Council of Europe’s Convention on Action against Trafficking in Human Beings. They have been extensively cited by various international human rights bodies and adopted by the Special exploitation of their fellow human beings. Rapporteur on Trafficking in Persons as a major reference point for the work of that mandate. Many non-governmental organizations have used Navanethem Pillay them in their efforts to advocate a stronger and United Nations High Commissioner more rights-protective response to trafficking. for Human Rights 4 ACKNOWLEDGEMENTS OHCHR would like to gratefully acknowledge the consultant who had primary responsibility for developing the Commentary, Anne Gallagher. OHCHR wishes to thank the individuals and organizations that provided comments, suggestions and support for the preparation of the Commentary, in particular Christine Chinkin, who undertook preliminary work on this subject in 2004, and Mara Bustelo and Jane Connors, who reviewed the manuscript for the OHCHR Publications Committee. 5 CONTENTS Page Foreword . 3 Acknowledgements . 5 PART 1 . 13 1. INTRODUCTION TO THE TRAFFICKING PRINCIPLES AND GUIDELINES . 15 1 .1 . .Development .and .purpose . 15 1 .2 . .Scope .and .structure . 15 1 .3 . .Legal .status . 16 2. THE INTERNATIONAL LEGAL FRAMEWORK AROUND TRAFFICKING IN PERSONS . 17 2 .1 . .Sources .of .international .legal .obligation . 17 2 .2 . .Treaties .relevant .to .trafficking . 17 2 .2 .1 . .Specialist .trafficking .treaties: .international . 19 2 .2 .2 . .Specialist .trafficking .treaties: .regional . 19 2 .2 .3 . .Treaties .prohibiting .slavery .and .the .slave .trade . 20 2 .2 .4 . .Treaties .prohibiting .forced .labour .and .child .labour . 21 2 .2 .5 . .Relevant .human .rights .treaties: .international . 21 2 .2 .6 . .Relevant .human .rights .treaties: .regional . 22 2 .2 .7 . .International .criminal .law .and .international .crime .control .treaties . 22 2 .3 . .Customary .international .law .relevant .to .trafficking . 23 2 .4 . .General .principles .of .law . 24 2 .5 . .Subsidiary .source: .the .decisions .of .international .courts .and .tribunals . 24 2 .6 . .Relevant .“soft .law” . 24 2 .7 . .How .different .sources .of .law .and .other .authorities .are .used .in .this .Commentary . 28 2 .7 .1 . .The .work .of .the .United .Nations .human .rights .treaty .bodies . 30 2 .7 .2 . .The .work .of .the .United .Nations .special .procedures . 31 2 .7 .3 . .Additional .sources .of .information .and .authority . 31 3. KEY DEFINITIONS . 33 3 .1 . .Trafficking .in .persons . 33 3 .2 . .Trafficking .in .children . 35 3 .3 . .Related .legal .terms . 35 4. KEY LEGAL ISSUES . 37 4 .1 . .Trafficking .as .a .violation .of .human .rights . 37 4 .2 . .Trafficking .as .a .form .of .sex-based .discrimination .and .violence .against .women . 39 4 .3 . .Trafficking .in .international .humanitarian .and .criminal .law . 43 7 Page PART 2 . 47 PART 2.1 THE PRIMACY OF HUMAN RIGHTS . 49 INTRODUCTION . 49 PRINCIPLE 1 AND RELATED GUIDELINES: HUMAN RIGHTS OF TRAFFICKED PERSONS . 51 1 .1 . .Purpose .and .context . 51 1 .2 . .Key .human .rights .involved .in .trafficking . 52 1 .3 . .Applicability .of .human .rights .to .non-citizens . 57 1 .4 . .Human .rights .applicable .to .special .groups .of .trafficked .persons . 60 1 .4 .1 . .Human .rights .of .women . 61 1 .4 .2 . .Human .rights .of
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