Trafficking in human beings: human rights and ... - unesdoc - Unesco

THIRD PARTIES – HUMAN RIGHTS VIOLATIONS?
Physical aggression, rape, and murder are not in themselves violations of an individual’s
human rights. Human Rights were created to protect the individual against state
action—to protect human beings from being abused by a power much stronger than
them.
As mentioned above, the state is not usually involved in the acts carried out by traffi ckers,
although it may be through the activity of corrupt law enforcement and border offi cials
who facilitate or ignore the work of traffi ckers. This may occur in origin, transit and
destination states. The primary threat to victims however is clearly one of criminal acts
at the hands of private persons and such acts are not necessarily human rights violations
on the part of a state. There may be a growing trend for recognising legal obligations of
non-state actors and for holding them accountable according to human right standards
the current status remains that they do not bear direct legal obligations and therefore
cannot be held directly accountable. 275
States are the bearers of obligations under international law; they are the laws’ subjects
and accordingly take on direct responsibilities and rights. But the concept of international
legal personality, and the acknowledgement by the International Court of Justice that
the subjects of law in any legal system are not necessarily identical in their nature or in
the extent of their rights, and their nature depends upon the needs of the community, 276
holds open the possibilities that the categories might be meaningfully reconsidered in
time. 277 And it has increasingly been maintained that the recent developments which have
favoured the growth of powers on the part of non-state actors and the consequent limits
imposed on the powers of states requires a re-examination of the obligations of non-state
actors. 278 It has been argued that non-state actors have obligations because they are also
holders of duties to promote and protect human rights. 279 Some rights in existing human
rights instrument explicitly provide that individuals have duties towards other individuals
as well as rights such as ICCPR preambles and ECHR Art 17 (on abuse of rights). Some
human rights mechanisms such as the ECOSOC have stated that international fi nancial
institutions should pay greater attention to the protection of the rights to health in their
lending policies, credit agreements and structural adjustment programmes and that all
members of society including the private business sector have responsibilities in the
275 Obokata, T.: Traffi cking of Human Beings from a Human Rights Perspective – towards a holistic approach.
p. 127.
276 Reparations for Injuries Case, 1949 ICJ Rep 178.
277 Alston, P.: The “not-a-cat” syndrome, in Alston, P. (ed.): Non-State actors and human rights, p. 19
278 Obokata, T.: Traffi cking of Human Beings from a Human Rights Perspective – towards a holistic approach.
p. 128.
279 Human Rights Principles and Responsibilities for Trans-national Corporations and Other Business
enterprise, E/CN.4/Sub.2/2002/WG.2/WP.1, Report of the Sessional Working Group on the Working
Methods and Activities of Trans-national Corporations in its Fourth Session, E/CN.4/Sub.2/2002/13,
Report of the Special Rapporteur on Human Rights and Human Responsibilities, E/CN.4/2002/107 and
E/CN.4/2003/105.
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