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.
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