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DEVELOPMENT OF THE PROTOCOL AND HUMAN RIGHTS As a basis for understanding the negotiations process it is useful to recall that from the very beginning of negotiations until adoption of the UNTOC almost three years of negotiations took place. The beginning of the negotiations of the UNTOC and its Protocols refl ects very well what continues to be a problem in implementation: the differences in national legal systems. Further at that point it was a problem even to defi ne what constitutes “organised crime”. 179 Quite obviously the delegates negotiating the documents were government delegates, with specifi c approaches. It was however quite early on in the process recognised that civil society had important information and input to give and thus an invitation to civil society was issued, acknowledging that the idea they may come up with might never see the light of day in the fi nal document. The inputs were however so important that many are refl ected in the Protocol. 180 Numerous delegates expressed the view that traffi cked persons were valuable as witnesses and, therefore, deserving of protections during trials but that they should be deported immediately after the trial. One delegate even wanted assurances that the Protocol would not prevent his government from ‘prosecuting the victims’. Whereas the developed countries were mostly concerned about according rights to ‘illegal migrants’, the developing countries were especially concerned about the fi nancial costs of taking up obligations to provide protection and assistance. This meant that both types of countries had their own – be it different – interests in keeping such provisions discretionary. 181 What should be mentioned is that the wording of Art. 6 at the origin was actually mandatory, and that several States expressed concern that it should remain so and that the existing protection schemes would be lessened by the wording of the Protocol. 182 It was therefore underlined that the protection in the Protocol must be the minimum common denominator and States are encouraged to go well beyond which is now found in Art. 34 of the UNTOC. What is very regrettable is that law enforcement around the world has not really adopted the idea that effective prosecuting depends on protection and respect from the victims. This problem is again addressed in the Protocol itself since it is clearly recognised that training is a crucial element both for prosecuting, protecting and generally implementing effectively. The need for training is an important and incorporated aspect for protection as well as for prosecution. 183 179 Puleo, J.: The Negotiation Process, intervention in the Conference: ten years after the institution of the ad hoc inter-governmental committee for the elaboration of the Palermo protocol, Palermo: 21-22 May 2009. 180 Ibid. 181 Ditmore, M. and Wijers, M: The negotiations on the UN Protocol on Traffi cking in Persons, p. 85. 182 Puleo, J.: The Negotiation Process, intervention in the Conference: ten years after the institution of the ad hoc inter-governmental committee for the elaboration of the Palermo protocol, Palermo: 21-22 May 2009. 183 Ibid. 69
Members of the Human Rights Caucus, which consists of non-governmental organizations from around the world, attended all of the negotiations for the new Traffi cking Protocol. Its main goals were to ensure that the Traffi cking Protocol (1) defi nes traffi cking to include all traffi cking into forced labour, slavery and servitude, according to the Protocol alone, no matter whether it is within or across a country’s borders, and (2) recognizes the rights and meets the needs of traffi cked persons. The fi rst goal was accomplished to the extent possible in an international instrument. The Traffi cking Protocol has a broad defi nition of traffi cking and covers most international traffi cking and some internal traffi cking. The second goal was almost accomplished. Government delegates concentrated on creating a strong law enforcement instrument and many of them did not believe that human rights are appropriate in the Traffi cking Protocol. Consequently, it may be noticed that the law enforcement provisions in the Traffi cking Protocol contain mandatory language, such as “states parties shall,” while the protections and assistance provisions (see Protocol Articles 6 and 7 and Convention Articles 24 and 25) contain weaker terms, such as “in appropriate cases” and “to the extent possible.” Despite the weakness of the protections language, advocates can rely upon other international and regional human rights instruments that obligate governments to protect the rights of traffi cked persons. Furthermore, Article 14 ensures that nothing in the Traffi cking Protocol or the Convention can undermine international obligations to protect human rights. Accordingly, the Traffi cking Protocol only establishes certain minimum standards and must be supplemented by human rights obligations contained in international and regional human rights instruments. 184 That said, the human rights aspect of the Protocol is not irrelevant at all. Nor is the fact that bringing perpetrators to justice for violent crimes and imposing upon states an obligation to do so within the trans-national criminal law area and not only within the human rights area may end up enforcing the states’ obligation to protect through precedence and the development of case law holding states responsible for failure to protect individuals. 184 Jordan, A.D.: The Annotated Guide to the Complete UN Traffi cking Protocol, p. 2-3. 70
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United Nations Educational, Scienti
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UNESCO migration studies 3 Series e
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Human Rights Law 66 Development of
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Note on Author Kristina Touzenis ha
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countries with economies in transit
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nonetheless these instruments mark
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The legal aspect of traffi cking is
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enhanced knowledge of the phenomeno
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Broadly speaking, poverty, unemploy
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Page 31 and 32: often be diffi cult for law enforce
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Page 49 and 50: idea that traffi cking for forced p
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Page 57 and 58: circumstances, including offences i
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Page 63 and 64: Common criminal off ences Traffi ck
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Page 67 and 68: Human Rights Law It has widely been
Page 69: makes the obvious evident - the Pro
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Page 95 and 96: PREVENTION - A HOLISTIC APPROACH Ad
Page 97 and 98: Studies have revealed how, througho
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Page 107 and 108: y state agents, (the duty on the St
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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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