Note by the United Nations High Commissioner for Human Rights, International Organization for Migration, United Nations High Commissioner for Refugees, and the United Nations Children's Fund on the Protocols concerning migrant smuggling and trafficking in persons
Introduction and general observations
1. The United Nations High Commissioner for Human Rights (HCHR), the
International Organization for Migration (IOM), the United Nations High
Commissioner for Refugees (UNHCR) and the United Nations Children's Fund
(UNICEF) wish, at the outset, to express their support for the work of
the Ad Hoc Committee. HCHR, IOM, UNHCR and UNICEF are greatly encouraged
by the fact that Member States have agreed to develop specific instruments
in relation to the smuggling of migrants (Migrant Protocol) and the trafficking
in persons (Trafficking Protocol). The present note raises a number of
outstanding concerns in relation to the two Protocols. HCHR, IOM, UNHCR
and UNICEF are particularly eager to assist States in ensuring that these
instruments do not conflict with or otherwise undermine existing international
legal standards.
2. One issue which HCHR, IOM, UNHCR and UNICEF would like to raise at the outset is the question of the relationship between the two draft protocols. While work has been done on identifying common provisions, little or no discussion has taken place on the potential for conflict between them. The distinction which has been made between trafficked persons and smuggled migrants is evidently a useful one. However, HCHR, IOM, UNHCR and UNICEF are aware that such distinctions are less clear on the ground where there is considerable movement and overlap between these two categories. The Working Group has, through its deliberations, determined that trafficked persons are to be granted additional protections to those accorded to smuggled migrants. However, there is little guidance in either instrument regarding how the identification process is to be made and by whom. The Working Group may wish to consider the implications which flow from the fact that, according to the current drafts, identifying an individual as a trafficked person carries different responsibilities for the State Party than is the case when identifying that same person as a smuggled migrant. The Working Group may also wish to consider the possible consequences of a State ratifying one but not both instruments.
Draft Protocol to Prevent Suppress and Punish Trafficking in Persons Especially Women and Children Supplementing the United Nations Convention against Transnational Organized Crime
(A/AC.254/4/add.3/Rev.5)
The Purpose of the Protocol
3. HCHR, IOM, UNHCR and UNICEF fully support the position of members
of the Working Group that this Protocol is to have two main purposes: to
contribute towards the elimination of trafficking through transnational
organized crime and to extend support and protection to victims of trafficking.
In the spirit of this commitment it is proposed that both purposes be explicitly
set out in the first article of the Protocol.
Definition of Trafficking
4. HCHR, IOM, UNHCR and UNICEF support a broad and comprehensive definition
of trafficking and advocate a revised version of the current Option 1 which
will make specific reference to trafficking as the recruitment, transportation,
transfer or harbouring or receipt of any person for any purpose or in any
form, including the recruitment, transportation, transfer or harbouring
or receipt of any person by the threat or use of force or by abduction,
fraud, deception, coercion or abuse of power for the purposes of slavery,
forced labour, (including bonded labour or debt bondage) and servitude.
The term 'servitude' when used in this context should be understood to
include practices which have been defined elsewhere as 'contemporary forms
of slavery' such as forced prostitution. As noted in the previous submission
of the High Commissioner for Human Rights (UN Doc. A/AC.254/16, para. 25),
the references to slavery, forced labour, bonded labour and servitude are
consistent with existing international law (see, for example, Article 8
of the International Covenant on Civil and Political Rights).
Definition of Trafficking in Children
5. HCHR, IOM, UNHCR and UNICEF support a separate definition of trafficking in children. This definition should include reference to the recruitment, transportation, transfer or harbouring or receipt of any child or the giving of any payment or benefits to achieve the consent of a person having control over a child for the purposes specified in the previous paragraph as well as for the purpose of using, procuring or offering a child for sexual exploitation including the production of pornography or for pornographic services. In addition, in the context of the Protocol and in accordance with the Convention on the Rights of the Child, 'child' should refer to any person under the age of 18 years. In relation to the terms 'child prostitution' and 'pornography' reference could usefully be made to the definitions contained in ILO Convention 182.
Protecting the Rights and Interests of Trafficked Children
6. The Protocol should include an explicit acknowledgement of the fact
that children have special rights under international law and in particular
in the light of the Convention on the Rights of the Child; that child victims
of trafficking have special needs that must be recognized and met by States
Parties; that States are obliged to take measures to prevent trafficking
of children; and that in dealing with child victims of trafficking, the
best interests of the child (including the specific right to physical and
psychological recovery and social integration) are to be at all times paramount.
It is also important that clear recognition is given to fight the impunity
of those responsible for the trafficking and at the same time ensuring
that the child is not criminalised in any way. In this context it should
be noted that the overwhelming majority of States are already under such
legal obligations through their ratification of the Convention on the Rights
of the Child. Existing international law would also appear to require States
to ensure, inter alia, that assistance and protection of child victims
of trafficking is not made discretionary or otherwise dependant on the
decision of national authorities. In accordance with article 2 of the Convention
on the Rights of the Child, child victims of trafficking are entitled to
the same protection as nationals of the receiving State in all matters
including those relating to protection of their privacy and physical and
moral integrity.
Protection of Trafficked Persons
7. HCHR, IOM, UNHCR and UNICEF note that the key provisions in article 4 (Assistance for and protection of victims of trafficking in persons) remain qualified by the term: 'in appropriate cases'. It is submitted that such a qualification is unnecessarily restrictive and not in accordance with international human rights law, which clearly provides that victims of human rights violations, such as trafficking should be provided with access to adequate and appropriate remedies. At a minimum, States parties should be obliged to provide information to trafficking victims on the possibilities of obtaining remedies, including compensation for trafficking and other criminal acts to which they have been subject, and to render assistance to such victims, giving particular attention to the special needs of children, to enable them to obtain the remedies to which they are entitled.
Status and Repatriation
8. The attention of the Working Group is drawn to the previous submission of the High Commissioner for Human Rights in which she expresses the view that 'safe and, as far as possible, voluntary return must be at the core of any credible protection strategy for trafficked persons. A failure to include provision for safe (and to the extent possible) voluntary return would amount to little more than an endorsement of the forced deportation and repatriation of trafficked persons. When trafficking occurs in the context of organized crime, such an endorsement presents an unacceptable safety risk to victims' (UN Doc. A/AC.254/16, para. 20).
9. HCHR, IOM, UNHCR and UNICEF urge the Working Group to ensure, at a very minimum, that the identification of an individual as a trafficked person be sufficient to ensure that immediate expulsion which goes against the will of the victim does not occur and that the protection and assistance provisions of the Protocol become immediately applicable. Special attention must be given to the situation of children from protecting and ensuring all their rights such as education and health care, to location of their families as well as ensuring sensitive and appropriate measures are taken to reconcile the child with their family.
Border Measures
10. The present draft provisions on border measures appear somewhat at odds with the stated purposes of the Trafficking Protocol and call into question the distinction which has been adopted between trafficked persons and smuggled migrants. HCHR, IOM, UNHCR and UNICEF agree with the comments of several delegations made at the 6th session of the Ad-Hoc Committee that such provisions could operate to restrain the liberty of movement of the persons who are the subject of protection under the Protocol. Given that the majority of trafficked persons are women and girls, the imposition of such restrictions would be, prima facie, discriminatory. It is clear that the strengthening of border controls is an important aspect of preventing trafficking. However, emphasis should be placed, in this article, on measures which will assist border authorities in identifying and protecting victims as well as intercepting traffickers.
11. In addition, while States have a legitimate interest in strengthening border controls in order to detect and prevent trafficking, HCHR, IOM, UNHCR and UNICEF are concerned that these measures do not impinge upon the human rights of individuals as set out in the major international instruments including the International Covenant on Civil and Political Rights, the Refugee Convention and the Convention on the Rights of the Child. It is especially important to ensure that border measures do not limit the right of individuals to seek and enjoy in other countries asylum from persecution as provided for under the Refugee Convention. In particular, provisions of the draft Protocol should not undermine the fundamental principle of non-refoulement (see further, para. 21 below).
Prevention of Trafficking in Persons
12. HCHR, IOM, UNHCR and UNICEF support the proposal for a simplified version of the protection provisions currently set out in the draft Protocol in order to ensure clarity of obligation and flexibility in dealing with new forms of trafficking as and when they arise. However, it is important that the contents of this provision are based on an understanding and acceptance of the root causes of trafficking including economic factors such as poverty, unemployment and indebtedness; social and cultural factors such as violence against women and girls, gender discrimination in the family, the community and by the State; political and legal factors such as a lack of appropriate legislation and public sector corruption; and international factors such as the growing feminization of labour migration on the one hand and increasingly restrictive immigration policies of recipient countries on the other. While it is clearly beyond the scope of the Protocol to address these additional issues in any depth, reference could usefully be made in this section to steps which could be taken by States parties to address the root causes of trafficking. These could include legal measures as well as the social and economic initiatives already referred to in draft article 10 (2).
13. It is also relevant to note that national trafficking prevention measures have been used in some situations to discriminate against women and other groups in a manner that amounts to a denial of their basic right to leave a country and to migrate legally. The inclusion of a general non-discrimination clause as suggested in the following paragraph would go some considerable way towards ensuring that such discrimination does not become an unintended side-effect of the Protocol.
The Need for a non-discrimination clause
14. As noted in an earlier submission by the United Nations High Commissioner
for Human Rights, (UN Doc. A/AC.254/16, para. 15), the principle of non-discrimination
is a fundamental rule of international law and one of particular relevance
to the situation and vulnerabilities of irregular or illegal migrants.
HCHR, IOM, UNHCR and UNICEF urge the Working Group to include a broad non-discrimination
provision such as that which is contained in the Rome Statute of the International
Criminal Court (A/CONF.183/9, article 21, para. 3).
Draft Protocol Against the Smuggling of Migrants by Land, Air and Sea Supplementing the United Nations Convention against Transnational Organized Crime (A/AC.254/xx)
The Rights of Migrants
15. HCHR, IOM, UNHCR and UNICEF recognize that the primary objective of this instrument is to address the crime of migrant smuggling. However, as was acknowledged by a number of delegations at the 6th Session, there is a clear need to ensure that the individuals falling victim to these practices are protected. The vulnerability of migrants, in particular irregular migrants, as a result of their precarious situation in society often leads to violations of their most basic human rights. The present draft Protocol focuses on migrants who are or have been the victims of criminal exploitation in their countries of origin and/or transit countries and/or countries of reception. That status renders such persons even more vulnerable to further exploitation. It is imperative therefore, that the Protocol preserves and seeks to uphold the fundamental human rights to which all persons, including smuggled migrants, are entitled. Respect for such rights does not, of course, prejudice or otherwise restrict the sovereign right of all States to decide who should or should not enter their territories.
The Need to Include a Protection Provision in the Protocol
16. HCHR, IOM, UNHCR and UNICEF welcome the explicit references to obligations of States Parties under the 1951 Refugee Convention and the 1967 Protocol as safeguards aimed at ensuring that the adoption of this present Protocol does not jeopardize the obligations of States Parties to the 1951 Convention or impinge on the ability of asylum seekers to secure protection from persecution.
17. HCHR, IOM, UNHCR and UNICEF urge that the above-mentioned safeguards be maintained and, where appropriate, further strengthened. The inclusion of a specific reference in the Protocol to international human rights law is considered especially important. It is recommended that a Savings Clause such as the one in the Trafficking Protocol be inserted which makes reference to the rights, obligations and responsibilities of States and individuals under international law, including applicable international humanitarian law and international human rights law and, in particular, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.
18. In this context it is essential to acknowledge that increasing numbers of asylum-seekers, including those with genuine claims to refugee status, are being transported by means covered in the present Protocol. The principle of non-refoulement, which is the core of international refugee protection and which is recognized as a norm of customary international law, must be explicitly preserved in this instrument. HCHR, IOM, UNHCR and UNICEF strongly advocate the inclusion of a provision to the effect that illegality of entrance into a State will not adversely affect a person's claim for asylum. Further, in order to make such a provision effective, signatories should be required to ensure that smuggled migrants are given full opportunity (including through the provision of adequate information) to make a claim for asylum or to present any other justification for remaining in the country and that such claims be considered on a case-by-case basis. Such a provision could be inserted as a Safeguard Clause or, if more appropriate, added to the Savings Clause.
The Need to Include Specific Protection of Smuggled Children
19. As with the Trafficking Protocol, HCHR, IOM, UNHCR and UNICEF are of the view that the Migrant Smuggling Protocol should include an explicit acknowledgement of the fact that children have special rights under international law; that child victims of smuggling have special needs and are entitled to special protection; and that in dealing with child victims of smuggling, the best interests of the child are to be at all times paramount. In accordance with article 2 of the Convention on the Rights of the Child, child victims of smuggling are entitled to the same protection as nationals of the receiving State in all matters including those relating to protection of their privacy and physical and moral integrity.
The Issue of Return
20. To ensure comprehensiveness of the instrument and its compatibility with existing standards, HCHR, IOM, UNHCR and UNICEF advocate the inclusion of a provision on return. International law clearly recognizes the right of all persons to return to their country of origin. States should abide by their obligations to accept the return of their nationals and to facilitate such return. Special consideration needs to be given to the situation of children, including in situations of return for purposes of family reunification in accordance with the CRC, in particular articles 10 and 22. However, an article on return should be accompanied by strong and effective safeguard or savings clauses, which ensures the right to international protection against refoulement and guarantees the basic human rights of the migrants involved. In light of its experience in return activities undertaken on behalf of States, IOM suggest that States be obliged to issue travel documents at the request of another State party or a relevant international organization (see paragraph 3 of Article 15 in A/Ac.254/Add.1/Rev. 3).
Prevention of Migrant Smuggling
21. The strengthening of border controls and other measures foreseen in the draft Protocol to prevent the smuggling of migrants should be implemented in a manner that they will not undermine the rights of individuals to seek asylum or put refugees and asylum seekers at risk of refoulement.
22. In relation to the training of immigration and other relevant officials, HCHR, IOM, UNHCR and UNICEF recommend that the relevant draft article include a specific reference to training in Ainternational human rights law, in particular international refugee law, the rights of women, and children's rights. In view of the potential conflict in application of the migrant smuggling and trafficking protocols, HCHR, IOM, UNHCR and UNICEF further suggest that specific reference be made to training in order to ensure proper and timely identification of trafficked persons and their treatment and care as victims rather than as criminals.