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Kaine Agary on human trafficking laws and legal challenges

Kaine Agary Criminal Law 0 Comments

Slavery, exploitation and involuntary servitude are issues that have plagued humanity for centuries. In the last century at least, there has been a global recognition of the negative consequences to society of such exploitation of persons and a plethora of international conventions have been adopted to address the problem.

One of the first international treaties to address the issue of human trafficking was the International Agreement signed in Paris on 18 May 1904, for the Suppression of White Slave Traffic. This Agreement was a response to the trafficking and voluntary migration of white women from Europe to Arab and Eastern States as concubines and prostitutes. The title shows that this was a race specific response that arose out of the concern of the European middle-class man to protect the virtues of the European woman. A reading of the Agreement shows that the focus was on the victims and returning them to their place of origin. There was no express provision for the punishment of the authors of the trafficking.

Article 3 of the Agreement provides in part that:

The Governments agree to receive, in each case, within the limits of the laws, the declarations of women and girls of foreign nationality who surrender themselves to prostitution, with a view to establish their identity and their civil status and to ascertain who has induced them to leave their country. The information received will be communicated to the authorities of the country of origin of the said women or girls, with a view to their eventual return.’

In 1930, the International Labour Organisation (ILO) adopted the Forced Labour Convention (No. 29) to suppress the use of forced or compulsory labour in all its forms within the shortest possible period. Article 2(1) of the Convention defined forced or compulsory labour as ‘…all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.’ Article 2(2) went further to exclude certain forms of labour in the definition of forced labour, i.e., compulsory military service; normal civic obligations of citizens to a sovereign country; court-ordered work on conviction of an offence provided the work is supervised by a public authority; work necessary in case of emergency and natural disasters that would impact the well-being of the whole of part of the population; and minor communal services given with consent in the direct interest of the said community. Article 25 specifically provides for the punishment of forced or compulsory labour.

In 1957, the ILO adopted the Abolition of Forced Labour Convention, 1957 (No. 105) in furtherance of the objectives of the Forced Labour Convention, 1930; the Slavery Convention, 1926 which provides that all necessary measures shall be taken to prevent compulsory or forced labour from developing into conditions analogous to slavery; the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956, which provides for the complete abolition of debt bondage and serfdom; the Protection of Wages Convention, 1949, which provides that wages shall be paid regularly and prohibits methods of payment which deprive the worker of a genuine possibility of terminating his employment; and the United Nations Universal Declaration of Human Rights.

The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of others, 1949 recognises in its preamble that, ‘prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community.’ Article 1 provides for the punishment of persons who entice, procure or lead away other persons for the gratification of another person, even where there is consent. Article 2 provides punishment for the operators of brothels and goes a further step to punish owners of properties used as brothels.

In 1999, the ILO took further action in the protection of children with the Worst Form of Child Labour Convention, 1999 (No. 182). Article 3 of the Convention defines the term worst forms of child labour as comprising:

‘(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;

(b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances;

(c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties;

(d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.’

In 2000, the United Nations adopted:

  1. The Convention against Transnational Organized Crime to promote cooperation to prevent and combat transnational organized crime more effectively;
  2. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, aimed at:

(a) Preventing and combatting trafficking in persons, paying particular attention to women and children;

(b) Protecting and assisting the victims of such trafficking, with full respect for their human rights; and

(c) Promoting cooperation among States Parties in order to meet those objectives.

  1. The Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime to prevent and combat the smuggling of migrants, as well as to promote cooperation among States Parties to that end, while protecting the rights of smuggled migrants.

More recently on 19 December 2016, the United Nations General Assembly adopted another Resolution on Trafficking in Women and Girls in furtherance of previous resolutions and conventions to protect the rights of victims and punish perpetrators of human trafficking.

At the regional level, there is the African Charter on the Rights and Welfare of the Child, 1990, which provides in Article 29 that the Parties to the Charter shall take appropriate measures to prevent: (a) the abduction, sale of, or traffic in children for any purpose or in any form, by any person including parents or legal guardians of the child; and (b) the use of children in all forms of begging.

There is also the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which provides in Article 4(2)(g) that Parties to the Protocol shall take appropriate and effective measures to prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk.

Evidently, there is no lack in the number of multilateral conventions aimed at addressing national and transnational human trafficking. The challenge, however is in moving the action beyond the adoption and ratification of these conventions. These conventions merely provide the guiding framework with which the different States can construct their own national legislation to respond to the realities of human trafficking manifested in the different States. The domestication and implementation of these conventions is possibly one of the biggest challenges to an international, integrated response to the menace of human trafficking and other transnational crimes involving the exploitation of persons.

This article is the second part in our four-part human trafficking series. For more information on human trafficking, see Bloomsbury Professional’s recent publication: Human Trafficking and Modern Slavery: Law and Practice. 

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