Saturday, November 21, 2020

III. Legal framework 3/7


 

III. Legal framework

8.    Article 6 of the Convention is based on Article 8 of the 1967 United Nations Declaration on the Elimination of Discrimination against Women, which provides that ‘All appropriate measures, including legislation, shall be taken to combat all forms of traffic in women and exploitation prostitution of women’. International law on this question was codified and developed by the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of Others. This legal basis requires that Article 6 be read as an indivisible provision, which links trafficking and sexual exploitation.

9.    While trafficking is defined as a criminal offence in international law, States parties’ primary obligation is to address trafficking in a way that respects, protects and fulfils the human rights of persons, particularly of marginalized groups, as set out in the core United Nations human rights treaties, drawing from the Universal Declaration of Human Rights. The 2002 Recommended Principles and Guidelines on Human Rights and Human Trafficking elaborated by the Office of the United Nations High Commissioner for Human Rights, and its 2010 Commentary, further provide an important soft-law framework for integrating a human rights-based approach in all anti-trafficking interventions.

10.    The Committee affirms that discrimination against women and girls includes gender-based violence, the prohibition of which has evolved into a principle of customary international law. Recognizing the gender-specificity of the forms of trafficking in women and girls and its consequences, including harms suffered, the Committee acknowledges that trafficking and exploitation of prostitution in women and girls is unequivocally a phenomenon rooted in structural sex-based discrimination, constituting gender-based violence and often exacerbated in the contexts of displacement, migration, the increased globalization of economic activities, including global supply chains, the extractive and offshore industry, militarization, foreign occupation, armed conflict, violent extremism and terrorism.

11.    The internationally-accepted legal definition of trafficking in persons is set out in the United Nations Trafficking Protocol:

Article 3.

1.        “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

2.     The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.

12.    The Committee emphasises that the realities of trafficking in women and girls extend beyond the scope of the United Nations Trafficking Protocol. It points to the recent trends and the role of information communication technology, social media and chat apps in the recruitment of women and girls and their exploitation. It further acknowledges that the definition of trafficking in persons extends beyond situations where physical violence has been used or where the victim’s personal liberty has been deprived. Its examination of States parties’ reports reveal that the abuse of a position of vulnerability and the abuse of power are the most common means used to commit the trafficking crime and that victims are often subjected to multiple forms of exploitation.

13.    Combatting trafficking in women and girls in the context of global migration requires engagement of the larger protection framework stemming from international humanitarian law, refugee law, criminal law, labour and international private law, the statelessness, slavery and slave trade conventions and international human rights law instruments. The Convention reinforces and complements the regional and international law regime for trafficking victims, particularly where explicit gender equality provisions are absent from international agreements. The Committee recognizes that women and girls retain concurrent protection of these legal instruments.

14.    Trafficking and sexual exploitation in women and girls is a human rights violation and can be a threat to international peace and security. The positive obligation of States parties to prohibit trafficking is reinforced by international criminal law, including the Rome Statute of the International Criminal Court which recognizes that enslavement, sexual slavery and enforced prostitution may be crimes within the jurisdiction of the Court.

15.    Obligations flowing to non-State actors to respect the prohibition of trafficking also arise from the peremptory norm (jus cogens) prohibiting slavery, the slave trade and torture, noting that in certain cases trafficking in women and girls may amount to such rights violations.

16.    Strategic global action by States to combat trafficking, especially in women and girls, must happen within commitments set out in the Global Compact for Safe, Orderly and Regular Migration, the 2030 Agenda for Sustainable Development, as well as implementation of the United Nations Global Plan of Action to Combat Trafficking in Persons and Security Council resolutions.

17. States parties bear a legal obligation to respect and ensure the rights laid down in the Convention to anyone within the power or effective control of that State party, even if not situated within its territory. The direct obligation of States parties to prevent, investigate, prosecute and punish acts of trafficking in women and girls and offer redress to victims extends to the acts or omissions of all perpetrators, including private persons, family members and intimate partners, State-mandated actors and officials, organizations or businesses as well as non-State actors including armed terrorist groups.


https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/GC/38&Lang=en

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