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

OTHER RELEVANT HUMAN RIGHTS INSTRUMENTS
Even when looked upon from a strict criminal law perspective, it should not be forgotten
that international instruments interact, and a victim may well have entitlements under
human rights law in other instruments. Should a victim present in a destination or
transit country be able to demonstrate that his/her life or safety is at serious risk if he/
she were to return to the country of origin, the victim may well be entitled to refugee
status or subsidiary/complementary protection under other – non-traffi cking – rules.
Here we move away from specifi c human rights guarantees to victims of traffi cking to
the application of general human rights law, most particularly the obligation to respect,
ensure and protect from torture, inhuman or degrading treatment or punishment. 235 But
also of other general human rights provisions e.g. those found in the ICESCR and in
Labour law.
As mentioned above, several international instruments cover aspects of traffi cking and
States are under an obligation to ensure that individuals are not subject to the violations
of human rights perpetrated by third parties (as will be examined more below). Obviously
the ICCPR Art 8 prohibits all forms of slavery and Art 6 of the CEDAW provides that
States take all measures to suppress the traffi cking in women. Already mentioned are also
the ILO instruments which recognise that traffi cking victims have employment rights
and benefi ts.
The ICCPR does not provide a defi nition of the terms “slavery”, “slave trade”, “servitude”
and “forced compulsory labour”. The Vienna Convention on the Law of Treaties prescribes
that a treaty shall be interpreted in good faith in conformity with the ordinary meaning
given to its terms in their context and in the light of the treaty’s object and purpose.
Any subsequent agreement between the parties or practices in the application of the
treaty, establishing the agreement of the parties regarding its interpretation, shall also be
taken into consideration. Supplementary means of interpretation shall also be considered
when interpreting a Treaty, including the preparatory works and the circumstances at its
conclusion. 236 The mentioned terms had already been defi ned (as mentioned above) in
the Slavery Conventions and the ILO Convention number 29 Concerning Forced or
Compulsory Labour. So the terms in the ICCPR can be defi ned according to these, as the
terms in the Protocol can be (see above for defi nition of servitude. Slavery was considered
to be understood narrowly). The Human Rights Committee has formally stated that
States should report on traffi cking even if traffi cking is not explicitly mentioned in Article
8. 237 Article 8.3 contains the prohibition of forced or compulsory labour; its defi nition
contains a subjective element of involuntariness differentiating this offence from slavery
and servitude that are prohibited even when the victim consented to said exploitation. 238
235 Piotrowicz, R.: Traffi cking of Human Beings and their Human Rights in the Migration Context, p. 287.
236 Vienna Convention on the Law of Treaties Art. 31.1.
237 UN Human Rights Committee: General Comment 28 UN DOC HRI/GEN/1/Rev.8,220 para. 12.
238 Scarpa, S.: Traffi cking in Human Beings – modern slavery. p. 88.
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