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c) it is undertaken involuntarily by the victim. This aspect includes situations in which there was initial willingness on the part of the victim, but where external constraints and coercion come into lay at a later stage and the victim is no longer free to withdraw his/her consent. 81 According to the ILO Guidelines on Human Traffi cking and Forced Labour Exploitation legislatures and law enforcement have to take into account that the seemingly “voluntary offer” of a worker/victim may have been manipulated or was not based on an informed decision. The ILO notes that a forced labour situation is determined according to the nature of the relationship between a person and an “employer” and not by the type of activity performed. The legality or illegality of the activity under national law is irrelevant to its determination as forced labour. Penal law often does not place the emphasis on coercion, and often have rather subjective criteria as to what constitutes forced labour. In most cases common sense will show when one human being is exploiting another human being to make unfair profi ts. It is however important to underline that simply poor working conditions do not alone constitute forced labour, there must be an element of intention to exploit. In the fi ght against forced and bonded labour, the Protocol is enormously useful for the work of ILO since before its adoption the agency looked only on the State and whether the State conducted forced labour – with the Protocol the focus was broadened and so was the understanding of what forced labour is – now it is shown that 80% of forced labour is in the private sector. 82 It is especially important to note that traffi ckers cannot circumvent the defi nition of traffi cking by paying the victim a small sum or by giving certain benefi ts or by engaging the person in legal activities if otherwise some of the conditions of forced labour are present – e.g. if the person does not have his/her identity documents or is being threatened with denunciation to immigration authorities etc. The fact that the victim is not in a slavery-like condition but does have a slightly better standard of living does not mean that forced labour/exploitation/traffi cking is not taking place and cannot be prosecuted and proved. Traffi cking and labour rights Traffi cking violates the most basic rights of any person in relation to a work situation – the freedom from coercion at work, the freedom to set up associations and bargain collectively, and the freedom from discrimination at work. Further traffi cking of children has been defi ned by the ILO as one of the worst forms of child labour, which seriously harms the development of the child. These four core principles are enshrined in the 81 Pereira, S. and Vasconcelos, J.: Human Traffi cking and Forced Labour – Case studies and responses from Portugal, International Labour Offi ce, Geneva, 2008, p. 10. 82 Plant, R.: the Labour Dimension of Human Traffi cking. Alliance against traffi cking in persons, Vienna, ILO, 2004. 41
ILO Declaration on Fundamental Principles and Rights at Work that was adopted by ILO members in 1998. The Declaration is based on eight core Conventions, two of which are most closely related to the Palermo Protocol (No. 29 on Forced Labour and No. 182 on the Worst Forms of Child Labour). They are also among the most widely ratifi ed Conventions of the ILO. The principles have to be respected and promoted by all member States even if they have not ratifi ed the respective conventions. The States which ratify Convention No. 29 undertake “to suppress the use of forced labour or compulsory labour in all its forms within the shortest possible period” (Art.1, para. 1, of the Convention). The States Parties to the Convention must ensure that “the illegal exaction of forced or compulsory labour shall be punishable as a penal offence” and “that the penalties imposed by law are really adequate and are strictly enforced” (Art. 25 of the Convention). Convention No. 182 requires that each ratifying State take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. 83 It has been argued that traffi cking is fundamentally a labour market problem. 84 This is most certainly a big part of the problem and underestimating the positive effect it could have to focus on labour market regulations and respect for labour rights is very grave. But it is obviously only part of the problem and the solution. The issue of traffi cking is closely related to undocumented entry or stay in foreign countries. ILO’s Migration for Employment Convention (Revised), 1949 (No. 97), and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) provide a normative framework for the protection of likely and actual victims of traffi cking. With regard to measures to prevent misleading information on employment abroad, C. 97 states that ratifying States undertake to maintain an adequate and free service to assist migrants for employment, and in particular to provide them with accurate information. Ratifying States will also take all the appropriate steps against misleading propaganda relating to emigration and immigration. Convention No. 143 is primarily aimed against the organised movement of migrant workers by labour traffi ckers. Ratifying States shall take measures to detect, eliminate and apply sanctions for clandestine movement of migrants in abusive conditions and illegal employment of migrant workers, on the one hand, and on the other, provide a minimum level of protection to workers in an irregular situation. 85 Considering the growing role of private employment agencies in the recruitment and placement of migrant workers, and recalling the need to protect migrant workers against fraudulent and abusive practices, including traffi cking, the Private Employment Agencies Convention (No. 181) offers guidance for designing a legal framework to address traffi cking of human beings. States that ratify the Convention shall adopt appropriate measures to provide adequate protection for and prevent abuses of migrant workers recruited or placed in its territory by private employment agencies. These 83 ILO Action Against Traffi cking in Human Beings. ILO 2008. p. 7. 84 For a good analysis see Plant, R.: The Labour Dimension of Human Traffi cking. Alliance against traffi cking in persons, Vienna, ILO, 2004. 85 ILO Action Against Traffi cking in Human Beings, p. 7. 42
Page 1 and 2: United Nations Educational, Scienti
Page 3 and 4: UNESCO migration studies 3 Series e
Page 5 and 6: Human Rights Law 66 Development of
Page 7 and 8: Note on Author Kristina Touzenis ha
Page 9 and 10: countries with economies in transit
Page 11 and 12: nonetheless these instruments mark
Page 13 and 14: The legal aspect of traffi cking is
Page 15 and 16: enhanced knowledge of the phenomeno
Page 17 and 18: Broadly speaking, poverty, unemploy
Page 19 and 20: Considering the complexity of the p
Page 21 and 22: The perhaps most innovative report
Page 23 and 24: THE WAY FORWARD IN POSSIBLE RESEARC
Page 25 and 26: and considers the consent of the
Page 27 and 28: 35 Organizing or directing others t
Page 29 and 30: TRAFFICKING AND SMUGGLING - AN IMPO
Page 31 and 32: often be diffi cult for law enforce
Page 33 and 34: group argued that ’traffi cking
Page 35 and 36: ecruitments agency’s responsibili
Page 37 and 38: workers to authorities if they refu
Page 39 and 40: The Travaux Préparatories, in para
Page 41: Forced labour Bonded labour and deb
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Page 47 and 48: sex industry is frequently illegal
Page 49 and 50: idea that traffi cking for forced p
Page 51 and 52: labour exploitation and services ar
Page 53 and 54: Criminal Law Traffi cking and smugg
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Page 57 and 58: circumstances, including offences i
Page 59 and 60: supply and demand in the traffi cki
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Page 63 and 64: Common criminal off ences Traffi ck
Page 65 and 66: The gravity of traffi cking is perh
Page 67 and 68: Human Rights Law It has widely been
Page 69 and 70: makes the obvious evident - the Pro
Page 71 and 72: Members of the Human Rights Caucus,
Page 73 and 74: 3) examining the possibilities of g
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Page 91 and 92: OTHER RELEVANT HUMAN RIGHTS INSTRUM
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of the Child on the sale of childre
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PREVENTION - A HOLISTIC APPROACH Ad
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Studies have revealed how, througho
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Traffi cking in persons is - like a
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It thus results that any effective
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epresent confusion or disagreement.
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ealisation of the right to food. 28
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y state agents, (the duty on the St
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must also be sensitized to the para
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One of the three purposes of the Tr
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cases where it has been established
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victims compensation fund. Traffi c
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Protection and support for the traf
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their territories until the identif
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entry into or residence in countrie
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of human rights and may even in som
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Current policy for counteracting hu
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The contemporary regulation of huma
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of a residence permit and the right
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measures. The question of whether o
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availability of legal and sustainab
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ut nonetheless refl ects the kind o
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Current Trends in Traffi cking The
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There is still a lack of quantitati
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traffi cking are embedded in social
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further below). Most identifi ed hu
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In the construction sector: Exploit
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harms. At the same time, if one avo
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protection laws. Such differences b
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guards, labour inspectors, immigrat
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The fact that there are very few pr
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evidence to prove the crime and to
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Hence, migration departments and la
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The Recommended Principles and Guid
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traffi cking. Such cooperative mech
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prevention including respect for so
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To sign and ratify the Protocol to
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victims may be based on different f
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Fekete, L.: Canary Island Tragedy:
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Piotrowicz, R.: Trafficking of Huma
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UNODC: Global Patterns in Human Tra
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