Current International Legal Framework: Human Trafficking Victims - Essay Example

Current International Legal Framework: Human Trafficking Victims Introduction In the last two decades, human trafficking has raised serious concerns within the globe. A simple definition of human trafficking is the illegal and organized criminal activity where human beings are treated as goods or possessions (A deeper definition is given in the section that follows). As a result, human trafficking concepts have elicited extensive political debates as well as the need for adequate legal regulations within national, regional, and international levels. Other than the perpetrators, the human trafficking victims have elucidated a lot of concerns especially with respect to protection and assistance1. Despite the numerous debates and serious need for legal framework, various international legal frameworks have been developed to protect and assist human trafficking victims2. The current international legal framework applicable to protecting and assisting victims of human trafficking is adequate and effective. This paper critically analyses whether the current international legal framework applicable to protecting and assisting victims of human trafficking is adequate and effective. In order to perform the critical analysis, the paper provides a deeper understanding of the definition of human trafficking and its victims. In addition, the paper identifies the current international legal framework applicable in protecting and assisting human trafficking victims before critically analyzing its effectiveness and adequacy. A concluding remark on the thesis statement winds up the analysis. Definition and Concept of Human Trafficking and its Victims According to Article 3(a) of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, which supplements the UN Convention against Transnational Organized Crime, human trafficking is a process that involves recruiting, transporting, transferring, harbouring, or receipt of human beings3. For such actions to be considered human trafficking the means is very fundamental. The aforementioned activities achieve the category of human trafficking if threat, force, other means of coercion, fraud, abduction, deception, or abuse of power was the means applied. Besides, the definition goes further to describe that the intention of such activity also makes it qualify to be categorized as human trafficking4. In this perspective, the activities yield to human trafficking if the intention or purpose was exploitation in various ways. Based on the UN’s definition of human trafficking, it therefore follows that the concept of human trafficking involves movement of persons through an organised trafficker for the purposes of exploitation. Therefore, movement, exploitation, and means are the major concepts of human trafficking5. With respect to childrem, the UN’s definition is that a child is a person below 18 years of age. In this respect, child trafficking is more complicated than adult trafficking6. For instance, whereas in adult trafficking there is need to understand the victim’s consent in the event that the “means” element is not proven, child trafficking proof does not require the “means” element78. The concept of human trafficking victims is fundamental to analysing the effectiveness and adequacy of the current international legal framework for protecting and helping them9. For the purposes of this paper, human trafficking victims are regarded as those individuals who have captured by organized traffickers and the vulnerable category to human trafficking10. In addition, the analysis of the adequacy and effectiveness of the current international legal framework applicable to protecting and assisting of human trafficking victims will consider the persons close to the trafficked individuals11. Such individuals may include friends and relatives who suffer due to the actions of organized traffickers on their beloved ones12. Therefore, this paper will focus on three broad categories of victims; those already captured by the traffickers, those that are vulnerable to future trafficking, and those closely related to the trafficked individuals who suffer psychological, economical, and emotional trauma due to such activities. Current International Framework: Adequacy and Effectiveness The main current international framework applicable in protecting and assisting the victims of human trafficking is the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, which supplements the UN Convention against Transnational Organized Crime other than the various other regional and national legal frameworks13. The Protocol provides for three main obligations also known as the 3Ps; prosecuting/punishing the traffickers, protecting the victims of trafficking, and preventing of trafficking. These obligations are contained in Articles 5, 6, 7, 8, and 9 of the UN Protocol14. Arguments for Adequacy and Effectiveness of the UN Protocol Various debates have arisen in support of the adequacy and effectiveness of the UN Protocol in protecting and assisting the victims of human trafficking15. Article 6 (1) of the UN Protocol provides for the assistance as well as the protection of victims of human persons16. Amazingly, the international legal framework bestows the responsibility of protecting the privacy of the human trafficking victims17. Such responsibilities require individual states to come up with relevant and adequate legal proceedings that enhance the confidentiality and privacy of human trafficking victims18. In line with this provision, various legal proceedings have been established around the world. For instance, Council of Europe Convention (2005)19 is a victim centred approach to protecting and assisting victims of human trafficking through providing safe houses. Another legislative proceeding has been the development of Victims of Tracking and Violence Protection Act of 2000.20 Indisputably, a majority of victims of human trafficking suffers significantly from stigmatization. As far as Article 621 is concerned, there is an effective and adequate measure in place towards minimizing and eliminating the stigmatization aspects. Elimination and minimization of stigmatization, which is achieved through effective and adequate legal proceedings bestowed on individual states, will definitely help in protecting and assisting the victims of human trafficking22. Therefore, on the basis of the confidentiality and privacy of the victims, the current international legal framework is adequate and effective in protecting and assisting the human trafficking victims. Other than protecting the human trafficking victims against stigmatization through providing for the need to have adequate legal proceedings for enhancing privacy and confidentiality, Article 6 (3)23 provides that individual states shall have adequate and effective measures implemented within their borders that allow for the provision of physical, psychological, and social recovery of victims. The provisions of this article adequately and effectively assist human trafficking victims. Notably, appropriate housing (Article 6.3a)24, provision of counselling and information (Article 6.3b)25, medical, psychological, and material assistance (Article 6.3c)26, and employment, education, and training opportunities (Article 6.3d)27 are amongst the sought ways of achieving the provisions of the UN Protocol in line with protecting and assisting victims of human trafficking. These are adequate and effective provisions for protecting and assisting human trafficking victims within the global arena. Such UN Protocol provisions have led to the development of various measures from individual states around the world. For instance, in Europe, the creation of New EU Directive 2011/36/EU28 has been extensively involved in providing physical, psychological, and social supports to the human trafficking victims within the region29. There is no doubt that human trafficking victims experience various harms that include physical, psychological, and social30. Assisting the human trafficking victims would therefore mean that measures are implemented to help solving such problems31. Providing housing, counselling, medical, psychological, material, employment, educational, and training assistances are effective and adequate measures that an individual state can initiate courtesy of the UN Protocol32. In this regard, it is clear that the UN Protocol, which is the current legal framework applicable in protecting and assisting human trafficking victims, is adequate and effective on the basis that it provides for individual states to look after the welfare of the victims. Another way through which UN Protocol achieves the obligation of protecting and assisting the human trafficking victims is on the basis of Article 733. Article 7 provides for taking care of the statuses of the victims. According to the UN Protocol Article 7.134, every state has a responsibility of adopting relevant and effective legislatures or measures that can allow the victims to remain within its territories either temporarily or permanently. That is to say, if a victim is trafficked from state A to state B, upon his rescue state B can adopt effective and relevant legislations that would allow the victim to continue residing within the territories of state B either temporarily or permanently. This is a provision that would allow the victim to be away from the home location for some time hence overcoming the effects of stigmatization. Article 7.235 of the UN Protocol also provides that there is a need for individual states to implement the provisions of the Protocol whilst taking into considerations the humanitarian and compassionate factors. Considering humanitarian and compassionate factors are likely to assist the human trafficking victims significantly especially with respect to developing trust on other human beings. In most cases, the majority of human trafficking victims end up with bitterness in their hearts towards human beings. This is as a result of the emotional and psychological traumas that such a person might have gone through during the trafficking36. Therefore, it only becomes reasonable if they are handled humanely and compassionately. Combining Article 7.1 and 7.237 evidently confirm the impact of the current international legal framework in respect to protecting and assisting human trafficking victims. From the provisions of these two subsections within the UN Protocol, there is adequate evidence that the human trafficking victims are likely to be cared for especially after they are rescued. Notably, the physical, psychological, and social harm that victims of human trafficking undergo is enough to last a lifetime38. Whilst such resentments last, victims of human trafficking are unable to move on with their lives as it should be towards attaining their individual goals39. By providing that individual states need to allow the victims residential permit whilst treating them with humanity and compassionate, UN Protocol effectively and adequately protects and assists the such victims. The last article that provides extensive and comprehensive provisions towards protection and assistance of the human trafficking victims is Article 8 of the UN protocol40. Article 8 of the UN Protocol provides for the repatriation of human trafficking victims. Various specific provisions are contained within Article 8. For instance, Article 8 provides for facilitations and acceptance of the victim of the state of origin. In addition, Article 8 provides for both the state of origin and the state of residence shall engage in the repatriation of the human trafficking victims under adequate safety41. There are also provisions within Article 8 that demands a quick and urgent processing of the repatriation of the victims in order to enable them to move on with their normal lives in their original states42. Article 8 also provides that individual states shall have adequate measures to ensure that such victims are able to receive their fundamental rights. It cannot be denied that the biggest challenge for many human trafficking victims is repatriation. The majority of human trafficking victims fear going back to their states of origin due to various fears. Examples of such fears are the probability that all their belongings have been taken up, the fear of the reaction from family members and friends, and the fear of stigmatization43. Fortunately, the provisions of the UN Protocol in Article 8 are adequate and effective in making sure that human trafficking victims return to their states of origin without any problems44. Both the state of current residence and state of origin has the obligation of ensuring that human trafficking victims repatriate back to their home countries and continue with their normal lives45. Based on this perspective, it is noteworthy to mention that the current legal framework applicable to protecting and assisting human trafficking victims is both adequate and effective. Arguments against Adequacy and Effectiveness of the UN Protocol Despite the fact that various arguments have confirmed the adequacy and effectiveness of the UN Protocol as an international legal framework for protecting and assisting human trafficking victims, there have also been arguments against advanced towards the same. Firstly, the UN Protocol only emphasizes on the assistance of the victims with very little on protection. In most of the provisions highlighted with Articles 6, 7, and 846, the emphasis is on assisting the human trafficking victims rather than protecting them as well. It is important if the protection part was also given the same magnitude as the one given on the assistance of human trafficking victims47. Consequently, this makes the current international legal framework for assisting the human trafficking victims stronger than their protection48. Hence, such legal frameworks can be termed as not only inadequate in protecting the victims but also ineffective. Secondly, most of the provisions within the UN Protocol talks of “shall consider” rather than “shall provide assistance”49. It should be noted that the UN Protocol only provides specific measures that individual states need to identify and implement. Throughout the Protocol all the obligations of protecting and assisting the human trafficking victims have been transferred to the individual states50. It is the individual states that need to come up with effective and adequate measures that would enhance the protection and assistance of the human trafficking victims. When a legal framework bestows all its obligations to other minor legal frameworks then it might be considered ineffective and inadequate51. The expectation is that a major legal framework should take precedence and form the basis of developing minor legal frameworks. Therefore, on this basis, the international legal framework applicable in protecting and assisting human trafficking victims can be regarded as both ineffective and inadequate. Organization Position of the Analysis When both the arguments for and against the effectiveness and adequacy of the current international legal framework applicable to protecting and assisting human trafficking victims are considered, one fact that arises is that the arguments for are weightier than the arguments against. Even though the arguments against identify the loopholes existing within such legal frameworks especially with regard to transferring all the obligations and emphasizing on the assistance at the detriment of protection, the arguments supporting the adequacy and effectiveness of the framework are convincing. The arguments supporting the framework state that the international legal framework assisted the individual states to come up with a comprehensive, extensive, and universal aspects of protecting and assisting the human trafficking victims. Therefore, there are adequate reasons to believe and confirm that the current international legal framework applicable in assisting and protecting the human trafficking victims is not only adequate but also very effective. Conclusion There is no doubt that human trafficking has raised a lot of concern within the global perspective. Consequently, various debates and serious needs have arisen in order to help eradicate the vice. Amongst the many concerns raised by the human trafficking is the plight of the human trafficking victims. Despite the need for extensive legal frameworks in assisting and protecting victims of human trafficking, the existing legal framework has proven beyond reasonable doubt that it is effective and adequate. Through the UN Protocol, victims of human trafficking have been able to obtain protection and assistance thus picking up and moving on with their previous lives before the events of the trafficking. Indeed, the current international legal framework has been important in protecting and assisting victims of human trafficking. Bibliography Cases R v Roci & Ismailaj [2005] EWCA Crim 3404 R v Ramaj [2006] EWCA Crim 448 Legislations Council of Europe Convention on THB [2005] EU Directive on THB [2011] United Nations Convention against Transnational Organized Crime and the Protocols Thereto. [2004]. New York: United Nations. United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against transnational organized crime [2000] Victims of Trafficking and Violence Protection Act of 2000. www.state.gov/g/tip/rls/61124.htm Secondary Sources Hyland, E, K, Protecting Human Victims of Trafficking: An American Framework, [2001] BWLJ 29, 71. Kathleen, K and Hreshchyshyn, K, Human Trafficking Private Right of Action: Civil Rights for Trafficked Persons in the United States [2004] HWLJ 1, 36 Maggy, L (ed.), Human Trafficking. (3rd, William Publishers, Portland 2007) Natalia, O, The United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children: A Tool for Criminal Justice Personnel (UNODC 2008) accessed 18 April 2013 Tom, O, Trafficking of Human Beings from a Human Rights Perspective: Towards a Holistic Approach (1st, Martinus Nijhoff Publishers, Leiden 2006) Christine, W, Stessens, G and Janssens, L (Eds), International Criminal Law: A Collection of International and European Instruments (1st, Martinus Nijhoff Publishers, Boston 2005) Mohamed, Y, M, Trafficking in Persons: An Annotated Legal Bibliography [2004] LLJ 669, 702 Read More