International Human Rights Law: Does It Uphold Human Rights - Essay Example

There are two aspects of the International Human Rights Law that need to be understood and appreciated. There is a need to accept that the law can only provide safeguards to ensure that Human Rights are not abused and that the victims are given the mechanism or framework that will aid them to assert such rights. The mechanism is not self-executing unless the victims themselves come forward to bring to justice the violators the framework provided by law will be inutile. The implementation of the safeguards itself is wrought with difficulties and challenges since most of the human rights abuses are culturally accepted and is deemed socially accepted. Discussing the abuses and discouraging its practice are not only considered taboo in some culture but it is also considered as an affront and violation of unwritten rules. The same challenge exist in the implementation and in asserting the rights of victims since the victims themselves do not consider the human rights violation as a violation but rather an acceptable reality of life. Reports of human rights abuses only comes from the exposure of international media of the atrocities, however even if such abuses are highlighted and reported by the International Media without the victim themselves asserting their own rights no case shall prosper. So far, international pressure due to media exposure is the most effective deterrent and assurance of compliance of governments to the international human rights accord supported and promoted by bodies such as the European Union and the United Nations. But this is only true for the passing of laws that will outlaw practices that violates the human rights of its people victims still need to come forward and tell their stories to ensure the prosecution of human rights violators. International Human Rights Law: Does It Uphold Human Rights? The Universal Declaration of Human Rights1 (UDHR) which enshrines the international bill of rights was enacted more than sixty years ago however human rights violations remain rampant. It is a sad commentary that the international law on human rights which seeks to protect individual human rights has not fully achieved its objective. It remains ineffective to successfully curb human rights abuses—perpetrated by individuals, private entities and even duly constituted authorities—such as poverty, discrimination, sexual and labour exploitation to name a few. Human rights continue to be an abstract legal concept to many individuals since governments provide little or no assistance to individuals who seek redress for human rights abuses. The victims would rather suffer in silence than risk retaliatory acts from the perpetrators or from being ostracized by society. When the victims who muster enough courage, they are soon discouraged from continuing further since governments tend to whitewash human rights investigations to cover-up abuses. If charges are lodged, complaints for human rights abuses are often left unattended to die a natural death or denied outright by government authorities out of embarrassment in the community of nation. Sad but human rights concerns is the least of governments’ priorities. There are many recorded atrocities against individual human rights however this paper shall limit its discussion on issues that have global impact: crime and violence against women and children, otherwise known as trafficking in persons, including the victims’ difficulty in seeking migration and/or asylum. Discourse shall likewise be limited on cases reported and decided in the United Kingdom (UK) and other Member States of the European Union (EU). The EU likewise puts premium on human rights as fundamental rights however despite the enactment of the European Convention on Human Rights2 (ECHR), assault on human rights increases. The inability of the United Nations (UN) to demand compliance with the spirit and letter of the human rights laws do not stem from incompetence or tolerance of human rights abuses but rather, it originates from the fact that international laws, conventions or protocols are not self-executing3. International laws are deemed incorporated and more superior than the Member State’s national law however international policies remain ineffective without legislative pronouncements. No international policy may be implemented within a territorial jurisdiction without legislative imprimatur. The UN’s primary function is to maintain the peace and its authority is limited to the imposition of sanctions against the erring Member States4. The UN cannot penalize or punish the perpetrators of human rights abuses and it can only monitor and document the occurrence.5 Moreover, any investigation initiated does not gain any ground since the UN operates as a collegial body thus any resolution or recommendation would have to be submitted in plenary to be voted upon by Member States.6 While the courts of the UK and the ECHR can only take cognizance of a case when a complaint is filed before it. These constraints prevent the implementation of effective human rights measure which is why human rights abuses continue to proliferate. Human trafficking or trafficking in persons is the most nefarious human rights offences since it targets the vulnerable and the weak segments of society who do not have the resources or strength to lodge a complaint. In fact, it is designated as a crime against humanity since 2.5-million7 of the global population fall prey to human trafficking that include forced labour and sexual exploitation. The ill-effects of human trafficking cannot be disputed as it impacts many countries for being the source, route or destination of victims of exploitation. Given this scenario, there are no recognizable territorial boundaries thus its effect can be felt in all countries regardless of its economic resources. Human traffickers focus on the poor and the least educated since they can be very naive and easily enticed by a simple promise of better life and fortune. The mere chance to extricate their families from poverty is enough motivation for the victims to throw caution into the wind. This is why human trafficking is a lucrative business making it a $31.6-billion industry.8 Human trafficking prospers not only because of the unwillingness of the victims to institute any action against the perpetrators or simply report the abuse not only due to the dishonour it brings to their person and their families but mainly because the victims are afraid of reprisal after having been isolated from the outside world—deprived of the most inalienable human rights: the right to life, liberty and property. After obtaining the victims’ consent by employing fraud and deceit, the victims, contrary to the promise of economic prosperity, are housed in a prison-like environment to cater to the demands of their captors against their will, forced to work with little or without pay and often under hostile working conditions and suffer the fate worse than a prisoner. These are ruses employed to bend the will of the victims and force them to submit to the will of the perpetrators-captors. If the victims are able to escape their captors, they remain silent giving rise to a situation where the perpetrators continue to flourish in their secret industry without fear of prosecution or even exposure. It is thus unjust that the victims cower in fear while the perpetrators flout the law and flaunt the fruits of their illegal activities. As earlier articulated, trafficking in persons is difficult to prosecute as the perpetrators are seldom caught due to the reluctance of the victims, who despite being maltreated and subjected to inhuman living conditions, to come forward. The covert nature of the human trafficking makes it convenient for the perpetrators to elude arrest. It is compounded by the lack of laws which particularly defined human trafficking as an offence—the perpetrators, if ever brought to the bar of justice, are held liable for criminal offences other than human trafficking which imposes lesser degree of penalty which may be disproportionate to the acts committed. There is likewise the issue of jurisdiction where the perpetrators may be indicted since human trafficking is a continuing act which commences from the time of recruitment up to the time of actual exploitation. These procedural difficulties are nothing compared to the sufferings of the victims who are rejected by States when seeking asylum and deported to their countries of origin where they are exposed to danger and peril. The earlier UN conventions on the protection of a child and women9 did not protect the weak against the traffickers as their criminal activities continue with impunity. The glaring disparity between the grievous offences committed by human traffickers and the penalty imposable did not stop this criminal activity. However it led nations towards a more coordinated effort to eliminate trafficking. One country does not have the monopoly of the cures to eradicate trafficking in persons but requires the cooperation of all countries, including the sharing of information and technology so that the offenders may be arrested and prosecuted in any country where they operate preferably a country where the criminal justice system is strong. The United Nations Convention against Transnational Organized Crime10 is a concrete proof of the global effort to fight transnational organized crime. This is strengthened by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; the Protocol against the Smuggling of Migrants by Land, Sea and Air; and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition. However, the first two Protocols known as “Palermo Protocol” shall be relevant in this discussion. Trafficking in persons was given global definition on 23 December 2003 by virtue of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. This is designed to homogenize national approaches in the establishment of domestic criminal offences to enhance international cooperation in investigating and prosecuting human trafficking cases as well as to protect the human rights of the victims of trafficking and assist them in their pursuit for justice. The other significant Protocol11 which focuses on organized criminal groups involved in migrant smuggling for profit. It was conceived to protect the rights of smuggled migrants against all forms of exploitation and to foster greater cooperation between Member States to prevent human smuggling. Human smuggling is a different genus from trafficking in persons. In human smuggling, the recruiter did not employ deceit or fraud to procure the consent of the victims rather both the recruiter and the victims conspired to commit the offence. Human smuggling does not entail deprivation of life and liberty as the “victims” are fully aware that the transaction is illegal and know that the consequences are dire. Nonetheless, both human smuggling and trafficking in persons involve exploitation however they are dissimilar in the sense that the victims in trafficking in persons are lured into the ring by means of deceit and fraud whereas in human smuggling there is voluntariness and valid consent. The 2003 Trafficking Protocol is a positive act that addresses the problem of trafficking in persons but this requires the enactment into the domestic laws of Member States punishing acts linked to organized crime. Member States must incorporate in its national laws the frameworks for extradition, mutual legal assistance and law enforcement cooperation; and to promote training and technical assistance for building or upgrading the necessary capacity of national authorities. This facilitates the arrest, indictment and prosecution of persons charged with trafficking in persons to be meted the appropriate penalty corresponding to the offence committed. The UK in 2003 repealed its Nationality, Immigration and Asylum Act 2002 which was deemed not responsive in prosecuting the wide-array of trafficking offences as it only addresses trafficking for prostitution. The Sexual Offences Act of 2003 was promulgated to cover all forms of trafficking for the purpose of any sexual offence12. While the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 criminalised trafficking for labour exploitation and the removal of organs13. The UK likewise opted in on the 5 April 2011 Directive 2011/36/EU of the European Parliament and of the Council to prevent and combat trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA. With these legislations, the UK has shown its commitment to fight human trafficking by legal steps towards the prosecution and conviction of the perpetrators. In R. v Plakici14, the offender arranged for the illegal entry of women and young girls into the UK through deceit and coercion. The girls were likewise forced to work as prostitutes. These acts were considered as a series of individual offences when taken collective amounted to extremely serious case of trafficking. The offender was convicted with illegal entry, of living on immoral, of kidnapping, and of incitement to rape which carried a total imprisonment of 23 years. In R. v. Shaban Maka15, the Court affirmed the conviction16 of the appellant for trafficking for sexual exploitation and ruled that the sentence of 18 years is appropriate and not severe. It was recognized that human trafficking was an international problem which produced untold misery throughout the world. The 15-year old Lithuanian girl was tricked into coming to the UK for the purpose of prostitution. She was promised of a well-paid job but instead when she arrived in the UK, her passport was taken and was not only sold from one man to another but she was likewise forced to work in a brothel. The sentencing judge appropriately applied principle of totality. The girl was full of hope but because she was naive and vulnerable, she finished up disorientated, assaulted, threatened, friendless, controlled, and frequently having to engage in sexual intercourse when she did not want to in an alien environment. The appellant was totally indifferent to her suffering. He was aware of her minority and yet he made arrangements to sell her into prostitution—against her will for profit. The Court was not persuaded that the sentences of 18 years could be categorised as manifestly excessive or wrong in principle. The severity of the penalty is intended as a deterrent to those who are similar minded to take part in activities of this kind was a highly material consideration. In R. v. Roci and Ismailaj17, the appellants were convicted for trafficking by arranging the immigration of adult women who were willing to work as prostitutes. Ismailaj pleaded guilty to conspiracy for arranging and/or facilitating the arrival of persons for the purpose of sexual exploitation while Roci pleaded guilty to conspiring to control the prostitutes. In this case, the appellants were penalized less severely since the women had knowingly thus the element of corruption is absent. The women were found coerced and in unpleasant environment however the circumstances presented in this case were less extreme thus the Court viewed this as a mitigating circumstance which served to reduce appellants’ sentence. In R. v. Makai18, the Court likewise sustained the contention of the appellant that the Hungarian girls knew that they would be working on brothels considering that appellant did not hide the nature of the job in the advertisement posted on his website. The Crown held that since the girls were of age and came to the UK of their own free will, the exploitation was limited to his role of introducing them to others that placed them in the brothels which warranted the reduction of his sentence to 30 months. The Court in R. v. Khan, Khan and Khan19 increased the prison term of two appellants from 3 years to 4 years for conspiracy to traffic for exploitation under section 4 Asylum and Immigration Act 2004. The appellants recruited men from the Middle East and India to work in the restaurant which they managed. The passports and other personal documents of the workers were confiscated on arrival in the UK. They were forced to work long hours with no days off and for little reward. The Court found that the workers were deceived by promises of attractive wages only to be subjected to conditions of neglect, abuse, deprivation and economic exploitation. In Nigeria v. Secretary of State for the Home Department20, protection was extended to the female victim who was merely persuaded by a man that she could earn a good living in the UK. It was only when she reached UK that she discovered that the agent’s true purpose was prostitution. She sought asylum when she was arrested as it was revealed that she was an illegal immigrant. Her claim for asylum was denied by the Secretary of State for the Home Department. On appeal, both asylum and human rights grounds were upheld however the same overturned when appeal taken by the Secretary of State since she was not able to discharge the burden that she was a victim of a gang. The woman appealed again which was granted on the ground that the victim’s evidence proves that agent had not worked alone but indeed a member of a gang in Nigeria which would endanger her should she return to Nigeria. The punishment incurred by human traffickers in the UK was echoed in the European Court of Human Rights when it took cognizance of the first human trafficking case. In Siliadin v. France21, the applicant is Togolese national who live in Paris. She was held in servitude and forced labour within the meaning of Article 4 of the Convention which cannot be characterized as slavery in the traditional sense of that concept. She had served as an unpaid servant for several years as minor and her passport was confiscated. She alleged that the French criminal law did not afford her sufficient and effective protection against the "servitude", or at the very least against the "forced and compulsory" labour which in practice had made her a domestic slave22. In Public Ministry v. Wang Li Kang and Wang Qi23, the couple of Chinese descent employed other two Chinese illegal immigrants to work for them in their restaurant. They stayed in the construction site since the establishment remained unfinished and still an open construction site24. They slept on the floor with no mattress, ate off the ground since there were no tables and were not provided bathroom and hot water.25 They likewise worked for 12-13 hours a day and paid irregularly and the amount of pay was disputed.26 The Court found that elements of trafficking were present—undignified and unsanitary conditions, maltreatment and harassment.27. The Chinese couple were found guilty of human trafficking sentencing them to a year of imprisonment and a fine of 500 euros.28 In Public Ministry v. Cengiz Yonel and Abdellah Bouassam29 involved an irregular Turkish national, Mehmet Ormanci, working in a bakery under the watch of Cengi Yonel and Abdellah Bouassam. For his payment as a worker he receives unsold food.30 In 2006, he was discovered by an inspector from social services who in turn filed a case. Cengiz Yonel was meted the penalty of 14 months imprisonment and ordered to pay a fine of 5500 euros while Abdellah Bouassam was given a one year suspension and 5500 euro fine.31 In Procureur de la Republique v. Monsieur B., Monsieur B, the owner of a textile company, was found guilty of human trafficking and sentenced to 2 years imprisonment and to pay a fine of 100 000 francs as the workers who were not allowed to smile and talk; mere attempts to disobey were punished.32 Apart from disallowing them to express themselves they were also subjected to torture; in the summer they were not allowed to open windows despite the heat during the summer and heating systems were turned off in the winter.33 Another important ECHR ruling is found in Rantsev v. Cyprus and Russia34, where it was declared that States have positive obligation to investigate allegations of trafficking and to implement measures to prevent and protect people from human trafficking. The Court unanimously found that trafficking fell within the scope of Article 4. This case arose from a complaint brought by a Russian national against the Republic of Cyprus and Russia due to the death of his 20 year old daughter. The ECHR found in particular a violation of Article 4 of the European Convention (Prohibition of slavery and forced labour). With respect to the grant of asylum, the ECHR has been liberal on asylum seekers in the case of M.S.S. v. Belgium and Greece35 respecting the asylum transfer system within the EU. The Court ruled that asylum seekers cannot be transferred to other Member States if there is any risk of serious breach of the fundamental rights which they are guaranteed under the Charter of Fundamental Rights. The Court further stated that it was not only Greece that violated the ECHR but Belgium for transferring the asylum seekers back to Greece where the conditions were bad. As could be gleaned from the above cited cases, countries have taken proactive role in the prevention of human trafficking which should be accompanied by openness to share data base information so that apprehension and prosecution may be facilitated. It can similarly deduced from the foregoing cases that the wide latitude conferred upon States to define trafficking in persons and mete out penalty in its territorial jurisdiction poses as one of the main stumbling blocks in prosecuting the offence. The States may recognize certain offences to fall under trafficking in persons or simply include the act in other related offences as could be gleaned in the acts of the UN Member States. UNODC report reveals that not all Member States have separately legislated and specifically criminalized trafficking in persons but simply relied on non-specific and related offenses to prosecute trafficking offenders. The diverse position taken by the Member States towards the handling of trafficking in humans emboldened the perpetrators to operate their illegal business where the penalties meted are less severe. To eliminate this problem, it should be mandatory for all Member States to specifically designate trafficking in persons as a crime to include all forms of exploitation, particularly those that target the vulnerable and the least protected members of society. There should be no other designation for the offence to indict the culprits and a minimum penalty imposable shall be fixed so that the offenders can be punished appropriately wherever they may be situated. There should be a special court assigned in every jurisdiction to handle exclusively trafficking in humans for the speedy disposition of cases. Since trafficking in persons partake the nature of a private crime, prosecution is restricted since only the offended party may bring an action. Therefore, trafficking in persons should be made a public crime so that any well-intended person or entity may institute a complaint to prosecute the perpetrators should the victims refuse to do so. The non-specificity of trafficking in persons as an offence in Member States may be used to bar extradition due to the failure to fulfil the dual criminality principle. The varying degree of punishment is seen as a hindrance since a Member State may refuse the extradition of its national accused of trafficking in persons in another State where a stiffer penalty is meted for the same offence. Thus, to prosecute the perpetrators of human trafficking, political will should be exerted by the UN against Member States to strictly comply with the Declaration, Convention and Protocols. Likewise, the Member States must be enjoined to develop a strong criminal justice system where the police, prosecutors and courts work hand in hand to punish the guilty however it is stressed that the rights of the accused must be protected to prevent persecution. Another issue which is viewed as human rights violation is the stringent immigration policies against victims of trafficking. Human trafficking victims seeking asylum should be given utmost consideration for humanitarian reasons—they are victims and not menace to society. Persons seeking asylum are entitled to greater human rights protection and their status in the receiving country is of no moment. The receiving state has obligation to promote their well-being as well. Their rights still have to be respected and upheld as citizens of the world. Conclusion There are many economic, political and social legal frameworks that the UN provides, society is still faced with rampant disregard for human rights and liberties. Laws are designed to protect everybody if everybody follows the rule of law. However, there are miscreants that violate the intent and spirit of the law directly or by overcoming and taking advantage of the safeguards of the law that protects the innocent and the rights of the violators as well. There are no perfect laws, and there is no perfect implementation of the law but the law is meant to protect everybody—it is meant to deter injustice from being committed and punish those who have violated the law. The human rights law being proposed and championed by the UN is meant to join and engage the common grounds of all concerned. The human rights law is only weak where the political and social frameworks are weak. Thus, everyone must advocate adherence to the rule of law to ensure that the human rights of everyone is respected and upheld. Bibliography: Legislation: OUNHCHR. International Convention on the protection of the Rights of all Migrant Workers and Members of their families adopted by General Assembly resolution 45/158 of 18 December 1990. Accessed from http://www2.ohchr.org/english/law/cmw.htm. Accessed on 16 February 2012. OUNHCHR. International Covenant on Civil and Political Rights General Assembly resolution 2200A (XXI).,16 December 1966. 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