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States' Positive Obligations with Respect \\server05\productn\B\BIN\29-1\BIN103.txt unknown Seq: 1 5-JAN-11 13:25 STATES’ POSITIVE OBLIGATIONS WITH RESPECT TO HUMAN TRAFFICKING: THE EUROPEAN COURT OF HUMAN RIGHTS BREAKS NEW GROUND IN RANTSEV V. CYPRUS AND RUSSIA Roza Pati* I. INTRODUCTION ............................................ 82 R II. RANTSEV V. CYPRUS AND RUSSIA: THE FACTS AND THE LAW ....................................................... 83 R A. Statement of Facts ..................................... 84 R B. The Court’s Legal Basis ............................... 85 R C. Issues at Bar .......................................... 86 R 1. Admissibility: Continue the Examination of the Case or Strike Out the Application? .............. 86 R 2. Jurisdictional Challenges .......................... 87 R 3. The Decision on the Merits ....................... 88 R a. Alleged Violation of Article 2, the Right to Life ........................................... 88 R b. Alleged Violation of Article 3, the Right to be Free from Torture, Inhumane and Degrading Treatment and Punishment .................... 90 R c. Alleged Violation of Article 4, the Right to be Free from Slavery, Servitude, Forced or Compulsory Labor ............................ 91 R d. Alleged Violation of Article 5, the Right to Liberty and Security of Person................. 97 R III. HUMAN TRAFFICKING: APPROACHES TO ADDRESSING THE PROBLEM ................................................. 99 R A. The Hands-Off Approach to Trafficking in Human Beings................................................. 99 R B. The Criminal Law Approach .......................... 101 R C. The Regulatory Approach: Labor Law and Immigration/Refugee Law ............................. 102 R D. The Human Rights Approach ......................... 103 R * Assistant Professor of Law & Executive Director, Graduate Program in Intercultural Human Rights, St. Thomas University School of Law, Miami, Florida. 79 \\server05\productn\B\BIN\29-1\BIN103.txt unknown Seq: 2 5-JAN-11 13:25 80 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 29:79 IV. TREATIES ON POINT: FROM “WHITE SLAVERY” AGREEMENTS TO THE PALERMO PROTOCOL AND THE COUNCIL OF EUROPE CONVENTION ....................... 104 R A. Early Responses to the Remnants of Slavery, Slavery- Like Practices, and Forced Labor...................... 104 R 1. 1904 International Agreement for the Suppression of the “White Slave Traffic” ....................... 104 R 2. 1910 International Convention for the Suppression of the “White Slave Traffic” ....................... 105 R 3. 1921 International Convention for the Suppression of the Traffic in Women and Children ............. 106 R 4. 1926 Slavery Convention .......................... 107 R 5. 1930 ILO Forced Labor Convention (Convention No. 29)............................................ 108 R 6. 1933 International Convention for the Suppression of the Traffic in Women of Full Age .............. 108 R 7. 1951 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others ............................. 109 R 8. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ....................... 110 R 9. 1957 ILO Convention Concerning the Abolition of Forced Labor (Convention No. 105) ............... 112 R 10. 1999 ILO Worst Forms of Child Labor Convention (Convention No. 182) ............................. 113 R 11. 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography ............... 114 R B. Recent Legal Developments ........................... 115 R 1. 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (“Palermo Protocol”)....................... 115 R 2. Council of Europe Convention on Action Against Human Trafficking ................................ 121 R 3. UN Special Rapporteur on Trafficking in Persons, Especially in Women and Children ................ 124 R V. REDEFINING SLAVERY: HUMAN TRAFFICKING AS AN INTERNATIONAL CRIME ................................... 126 R VI. HUMAN RIGHTS AND STATE RESPONSIBILITY: EXPANDING STATE DUTIES ............................................ 131 R A. The Duty to Respect ................................... 131 R B. The Duty to Ensure ................................... 132 R 1. The Duty to Protect ............................... 133 R \\server05\productn\B\BIN\29-1\BIN103.txt unknown Seq: 3 5-JAN-11 13:25 2011] STATES’ POSITIVE OBLIGATIONS 81 2. The Duty to Promote and to Facilitate ............ 135 R 3. The Duty to Fulfill ................................ 136 R VII. APPRAISAL AND RECOMMENDATIONS ..................... 137 R VIII. CONCLUSION .............................................. 141 R ABSTRACT In the dearth of legal interpretation of the phenomenon of human trafficking, a January 7, 2010 decision of the European Court of Human Rights has transfused new blood into the legal paradigms of fighting trafficking. The Court embraces trafficking as a global con- cern and takes a step forward with respect to its recognition of traf- ficking as an affront to human dignity by the international community of states. Often labeled “modern-day slavery,” treaties targeting this global scourge date back to the early 20th century. They were constantly supplemented and revised, ending, on the world-wide scale, with the 2000 Palermo Protocol, and regionally, with the 2005 Council of Europe Convention. These two treaties marked the progression from approaching the problem with a focus on the punishment of the perpetrator to focusing on the interests of the abused victim from a more holistic perspective. Slavery itself, the prohibition of which is a staple of jus cogens— the rarefied circle of norms from which no derogation is permitted— has been interpreted by the International Criminal Tribunal for the former Yugoslavia in Kunarac as including not only the classic para- digm of the treatment of human beings as items of property law, but also as encompassing any or all features attached to the right of own- ership, situations of absolute control of one person over another induced through force, fear or coercion – the paradigm of human trafficking. This definition of “enslavement” as a crime against humanity was endorsed by the international community of states in Article 7(1)(c) of the Rome Statute of the International Criminal Court. In a groundbreaking decision regarding Article 4 of the European Human Rights Convention (the human right to be free from slavery), the European Court of Human Rights in its 2010 case, Rantsev v. Cyprus, accepted this enlarged definition and overruled the classical interpretation it had espoused only as recently as 2005 in the case of Siliadin v. France. It also formulated novel state duties arising from this construction. Such obligations ranged from raising awareness about the phenomenon of human trafficking, training law enforcement and immigration officials on issues related to human trafficking, implementing administrative measures to regulate the operation of businesses that cover up human trafficking, and institut- ing necessary changes in the policy and the law related to immigra- tion, criminalization, investigation and prosecution of all aspects of trafficking, to practically and effectively protecting victims’ rights. \\server05\productn\B\BIN\29-1\BIN103.txt unknown Seq: 4 5-JAN-11 13:25 82 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 29:79 This article analyzes this landmark decision and the consequences it might engender in the field of human trafficking. It also puts forth a discussion of the past efforts at addressing this problem and devel- ops recommendations based on a holistic human rights-oriented approach to state duties in the field of human trafficking. I. INTRODUCTION Trafficking in human beings has been an issue at the top of the agenda for international bodies and domestic decision makers in the human rights field. Properly designated as “modern-day slavery,” it has drawn the attention of states since the beginning of the 20th century. States responded with treaties complementing domestic legislation, ranging from the 1904 “White Slave Traffic” Convention to the 2000 Palermo Protocol. The original exclusive focus on the perpetrator has now shifted to include a response to the needs of the victim and society at large. The prevention of trafficking and the rehabilitation of victims have become key policy goals, and enslavement, broadly defined, has increasingly been conceived of as an international crime. The problem of human trafficking has both a domestic and an interna- tional dimension. The dehumanization of individuals, which it so often entails, takes place within and outside the borders of one state and one legal system. When trafficking occurs within a single state, the govern- ment of that state can address the issue comprehensively and effectively within its borders. However, when any element of the process relates to a foreign state, be it the nationality of the victim or the state in which the victim is temporarily crossing during his or her trafficking passage, not only is the control of the state over this activity legally and factually lim- ited, but the victim is also put in a precarious position. This reality, facili- tated by a globalizing economy and the related easing of travel restrictions around the world, makes trafficking
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