Slavery in The 21st Century

24 Abolishing Slavery
tion and assistance provisions are discretionary. In practice, this difference is likely to result in
weak protection of victims’ human rights. For example, States parties are required to protect the
privacy of victims “in appropriate cases” and “to the extent possible under international law” 119
and “shall consider” implementing measures to provide for the physical, psychological, and social
recovery of victims, 120 while “endeavouring” to provide for the physical safety of victims. 121 This
lack of specific obligation seems likely to undermine the Protocol’s effectiveness as a law enforcement
instrument since the identification and prosecution of traffickers is dependent on the cooperation
of trafficked persons. 122 “States should be obliged to provide information to trafficking victims
on the possibility of obtaining remedies, including compensation for trafficking and other
criminal acts to which they have been subjected, and to render assistance to such victims, giving
particular attention to the special needs of children to enable them to obtain the remedies to which
they are entitled.” 123
79. The status of trafficking victims and the related issue of repatriation were both contested
issues during the drafting of the Protocol 124 since both issues have a major influence on the degree
of witness protection available for successful prosecutions once the Trafficking Protocol is implemented
in national legislation. Receiving States parties are required to consider adopting legislative
or other measures permitting the victims of trafficking to remain in their territories temporarily
or permanently in “appropriate cases” with “appropriate consideration” being given to humanitarian
and compassionate factors. 125 The State of origin of the trafficked person is obliged to facilitate
and accept “the return of that person without undue or unreasonable delay”, with “due regard
for the safety of that person”. 126 States of origin are also required to verify the nationality of a victim
and issue the necessary travel documents in order to facilitate his or her return. 127 Similarly,
the receiving State, when repatriating a trafficked person, is required to ensure that return is with
due regard both to the person’s safety and to the status of any legal proceedings relating to the fact
that the person is a victim of trafficking. 128 As Gallagher highlights, however, while article 8(2)
states that return of a trafficked person “shall preferably be voluntary”, the travaux preparatoires
effectively render this concession meaningless by indicating that these words are to be understood
as not to be placing any obligation on the returning State party. 129 A note by the Secretary-General
on “Smuggling and trafficking in persons and the protection of their human rights” states that, following
the implementation of the Trafficking Protocol, “at a minimum, it would appear that the
identification of an individual as a trafficked person should be sufficient to ensure that immediate
expulsion which goes against the will of the victim does not occur and that necessary protection
and assistance is provided.” 130
80. Chapter III of the Protocol, containing the law enforcement and border control provisions, is
“clearly at the heart of the Protocol”; “the principal emphasis of the Protocol remains firmly on the
interception of traffickers rather than the identification and protection of victims.” 131 States are
required to cooperate through information exchange; strengthen law enforcement, immigration
119 Trafficking Protocol, supra note 28, art. 6(1).
120 Trafficking Protocol, supra note 28, art. 6(3)(a). These measures include the provision of appropriate housing,
counselling and information, particularly regarding legal rights, medical, psychological and material assistance, employment
as well as educational and training opportunities.
121 Trafficking Protocol, supra note 28, art. 6(5).
122 Anne Gallagher, supra note 102.
123 Smuggling and trafficking in persons and the protection of their human rights, Note by the Secretary- General,
United Nations document E/CN.4/Sub.2/2001/26, para.11.
124 Anne Gallagher, supra note 102.
125 Trafficking Protocol, supra note 28, art. 7.
126 Trafficking Protocol, supra note 28, art. 8(1).
127 Trafficking Protocol, supra note 28, art. 8(3) and (4).
128 Trafficking Protocol, supra note 28, art. 8(2).
129 Anne Gallagher, supra note 102.
130 Smuggling and trafficking in persons and the protection of their human rights, Note by the Secretary- General,
supra note 123, para. 12.
131 Anne Gallagher, supra note 102.