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

This principle, which is analogous to the mutatis mutandis requirement, is a critical link
between the Protocol and Convention. It ensures that any offence or offences established
by a State in order to criminalize traffi cking in human beings, as required by Article 5
of the Traffi cking in Persons Protocol, will automatically be included within the scope of
the basic Convention provisions governing forms of international cooperation, such as
extradition (Art. 16) and mutual legal assistance (Art. 18). It also links the Protocol and
Convention by making applicable to Protocol offences other mandatory provisions of the
Convention. In particular, obligations under Articles 6 (criminalization of the laundering
of proceeds of crime), 10 (liability of legal persons), 11 (prosecution, adjudication and
sanctions), 12 to 14 (confi scation), 15 (jurisdiction), 16 (extradition), 18 (mutual legal
assistance), 20 (special investigative techniques), 23 (criminalization of obstruction of
justice), 24 to 26 (witness and victim protection, and enhancement of cooperation with
law enforcement authorities), 27 (law enforcement cooperation), 29 and 30 (training and
technical assistance) and 34 (implementation of the Convention) apply equally to the
offences established in the Protocol. Establishing a similar link is therefore an important
element of domestic legislation to implement the Protocol. 154 As will be seen below
implementation is mainly obstructed by lack of adequate and conformed laws, but in
every case which may or may not at the end amount to a traffi cking case it should never
be forgotten that many common crimes are part of traffi cking, crimes which usually are
punishable by national penal law. Further it must be underlined that states do not only
have obligations towards non-nationals who have been subject to abuse or exploitation
according to the Protocol but according to the main Human Rights instruments in
general. 155
154 UNODC: Toolkit to Combat Traffi cking in Persons, 2008, p. 12.
155 The International Covenant on Civil and Political Rights (ICCPR) apply to both nationals and nonnationals.
(Some rights in the ICCPR are expressly limited to citizens, such as political rights in Art.
25 ICCPR. See also Art. 16 ECHR, which reads: “Nothing in Articles 10, 11 and 14 shall be regarded
as preventing the High Contracting Parties from imposing restrictions on the political activity of
aliens”. The clauses enumerated are respectively concerned with the rights to freedom of expression,
peaceful assembly and association, and the right to non-discrimination. However, Art. 16 ECHR
has been interpreted restrictively by the European Court of Human Rights. See Piermont v. France
(1995) 20 EHRR 301. Moreover, Article 16 ECHR remains controversial vis-à-vis the expansive and
universal protection afforded by more general human rights instruments.). They adopt all-embracing
language such as “everyone”, “all persons”, and “no one” and also contain non-discrimination clauses
requiring each State Party to respect and ensure the rights recognised therein to all individuals within
its territory without distinction of any kind such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status. Although nationality is not
explicitly remunerated as a prohibited ground of discrimination in either instrument, these provisions
are clearly open-ended. The applicability of the ICCPR and its non-discrimination clause to nonnationals
has been declared unequivocally by the Human Rights Committee in its General Comment
15/17 on the Position of Aliens under the Covenant: In general, the rights set forth in the Covenant
apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.
Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without
discrimination between citizens and aliens. Aliens receive the benefi t of the general requirement of nondiscrimination
in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof.
This guarantee applies to aliens and citizens alike ... see UN, ESCOR, Human Rights Committee,
27th Session, 1986, General Comment 15/17 on the Position of Aliens under the Covenant,
reproduced in UN Doc. A/41/40, Annex VI, paras. 1 and 2. The Committee is empowered to issue
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