Law of human rights on trafficking 1

Law of human rights on trafficking

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28th December 2021

 Law of human rights on trafficking 2

Law of human rights on trafficking

Introduction

Slavery is one of the most known crimes in history and in many countries it has been

abolished, but enslavement in other forms remains strong. Human trafficking refers to the

modern form of slavery where people are being trafficked, sold and bought like objects by

more powerful forces. Despite the existence of regulations and international bodies aimed at

the eradication of human trafficking, it continues to thrive. Human trafficking is a form of

modern-day slavery in which traffickers use force, fraud or coercion to control victims for the

purpose of exploitation. Victims of human trafficking can be men, women and children.

Victims suffer physical abuse and sexual abuse, they live in inhumane conditions and work

long hours. The trafficker profits greatly from this trade by exploiting the victim and using

fear tactics to force the victim to do whatever he/she commands them to do. They use force,

fraud or coercion and as a result, these individuals remain trapped in a system they have no

way of escaping. While many countries around the world have made it illegal to participate in

the sex trade slaves are still being sold throughout our communities today. This is often done

through fraud, force and intimidation. Global awareness is the only way to counter,

trafficking. The UN aims to help people reaffirm their human rights and not just be allowed

to exist as a slave. This problem can be seen as the weaker continuation of slavery

worldwide. While millions of people have gained freedom through anti-slavery initiatives,

this endeavour to abolish slavery remains incomplete without addressing the issue of forced

labour and other forms of exploitation that have passed off as a normal phenomenon in

society.

Prohibition of Slavery By ECtHR

‘The European Convention on Human Rights’ defines slavery as "the status or condition of a

person over whom any or all of the powers attaching to the right of ownership are exercised."
 Law of human rights on trafficking 3

Conscription is seen as a form of slavery because it is compulsory to work required not by the

state but by private entities. Conscription is a form of ‘forced labour’ and is therefore

prohibited by ‘Article 4 of the European Convention on Human Rights’.1

Slavery is a condition in which one human being owns another, often through coercion.

Forced labour is the result of force or coercion: the person performing the work does so

because he or she has no other choice. ‘The European Convention on Human Rights

(ECHR)’ guarantees that these practices will not be tolerated under any circumstances.

The term slavery in Article 4 is interpreted relatively narrowly (compared to other

instruments) as covering only people deprivation of their liberty "by means of their being

sold, bought, exchanged or given" and is generally considered to be a rights violation today

only when committed as a part of organized crime and for exploitation.

The effective implementation of the prohibition of slavery across the European region has

been tested and strengthened by the ‘European Committee on Social Rights’ (the Committee)

in the past decade. By examining various case studies, the 2008 Conclusions of the

Committee established several rules that can be applied to combat modern-day slavery. These

include an obligation at the national level to define or identify such forms of work and assess

if they might be a form of forced labour.

A seven-year battle by victims of child trafficking resulted in a landmark case at the

European Court of Human Rights.

The European Court of Human Rights (ECtHR) ruled on February 20, 2021, that the British

government had violated two articles of the ‘European Convention on Human Rights’ by

failing to protect victims of child trafficking and by breaching the prohibition of forced

labour.2 In addition to awarding compensation to the two trafficked Vietnamese teenagers

1 ECPAT UK, 'Landmark Victory At The European Court Of Human Rights For Survivors Of Child
Trafficking' (2021) <https://www.ecpat.org.uk/news/landmark-victory-european-court-human-rights-child-
trafficking> accessed 28 December 2021.
2Parosha Chandran, 'King's Professor Wins Landmark Judgement In The European Court Of Human Rights'
(Kcl.ac.uk, 2021) <https://www.kcl.ac.uk/news/kings-professor-wins-landmark-judgement> accessed 28
 Law of human rights on trafficking 4

who brought the suit, the Court ordered a change to UK law so that minors involved with

cannabis farms could not be tried at trial as adults if it could be shown they were exploited or

under duress.

Article 4 of the European Convention on Human Rights states that “no one shall be held in

slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” In a

case against the United Kingdom, the pair of victims brought suit against the United

Kingdom, asserting that British Courts failed to identify them as human-trafficking victims

and protect them. The Court ruled in favor of the victims and determined that Britain's failure

to protect potential trafficking victims from exploitation violated Article 4 of its human-rights

obligations.3

UK Government and police forces across the country have failed to protect children. The

criminal justice system’s response to child drug supply is so shockingly inadequate that there

is a real risk of serious injustice. It would be a mistake to assume that those who create or

facilitate child drug supply networks see their role as a guide or mentor to their young,

vulnerable recruits but they certainly use the power imbalance between adult and child to

their advantage.

This ruling may be the first from a European Court of Human Rights to overturn such

convictions because the UK failed to identify trafficking victims. Not only does it affect the

two young people involved, but it sets a new standard for how immigration cases are handled

and how victims are recognized.

The fact that many young people involved in county lines drug supply and exploitation are

unaware of their exploitation makes them susceptible to an additional and very damaging

failure of protection - being treated as criminals rather than victims. Child victims are not

guilty of crimes; they are victims of crimes. As such, they need support to rebuild their lives

December 2021.
3 The European Court on Human Rights, 'The European Convention On Human Rights' (The European Court
on Human Rights 2013).
 Law of human rights on trafficking 5

rather than punishment for crimes victimised by others.4 In short, a system has been created

that may well catch those who victimise children but does little or nothing to protect them

from doing so again in future; indeed, it can make children more vulnerable to future

exploitation by giving them criminal records.5

Austrian authorities implemented their duty

This case was brought to the ‘European Court of Human Rights (ECHR)’ by two Filipino

nationals, who worked as maids in the UAE. They claimed that their employer in Abu Dhabi

had taken away their passports and made them work long hours with little rest. In 2006, they

managed to escape from their employer and returned to Vienna.6 They explained their

situation at the Austrian consulate there and were told that they could go to the police. When

they did so in February 2007, however, the police took no action against their employers or

the agency that had placed them.7

In accordance with Article 3 of the Convention, States have a legal obligation to investigate

torture allegations. This obligation applies to both alleged acts and to the individual

administrative or policy decisions that allow such acts to take place.8

The applicants complained before the European Court and relied on Article 6 § 1 of the

Convention. According to them, the Austrian authorities had not taken any measures about

their complaint that they were forced to work in UAE under inhumane conditions and, thus,

did not provide them with effective protection against forced labour. The Austrian authorities

closed their investigation into the applicants’ case after finding that they did not have

4 J and Others v Austria [2017] European Court of Human Rights, 58216 12 (European Court of Human
Rights).
5 'What Is The European Convention On Human Rights? | Equality And Human Rights Commission'
(Equalityhumanrights.com, 2017) <https://www.equalityhumanrights.com/en/what-european-convention-
human-rights> accessed 28 December 2021.
6 AN v the United Kingdom [2021] The European Court of Human Rights, 74603//12 (The European Court of
Human Rights).
7 VCL v the United Kingdom [2021] The European Court of Human Rights, 77587/12 (The European Court of
Human Rights).
8 J and Others v Austria [2017] European Court of Human Rights, 58216/12 (European Court of Human
Rights).
 Law of human rights on trafficking 6

jurisdiction to prosecute possible crimes committed abroad. In their complaint before the

European Court, the applicants asserted that Austria had a duty under international law to

investigate events occurring abroad.

The Court held that under the ‘European Convention on Human Rights’ Article 4, which

provides universal jurisdiction over participating in slavery, slave trafficking and forced

labour, had occurred was not violated. So far, this principle has not been applied at all by

European national courts. The ‘European Court of Human Rights’ did not follow this

example either.

The Court found that the Austrian Government had respected their obligations under the

ECHR. The Austrian court rejected the applicants’ appeal, concluding that all the measures

available were taken to protect them and that the group had been supported by a government-

funded NGO. Special officers interviewed the group, who were then granted residence

permits and work privileges. A ban was also placed on disclosing personal data obtained

during the interviews.

The Austrian authorities' approach of regularising their stay in Austria was not, in itself,

unreasonable. The applicants' data disclosure ban was designed to protect them and was never

breached. This ban could only have been circumvented by deception, but there is no evidence

that this happened.

Albanian national given residence permit, who has been trafficked and exploited

The applicant appeared to have been trafficked from Italy to the United Kingdom and forced

into prostitution in a night club. The applicant alleged someone collected all of her profits

while she was there, and she escaped to an undisclosed shelter. She further alleged that she

would be exposed to a risk of being trafficked again if she were removed from the United

Kingdom to Albania.
 Law of human rights on trafficking 7

The applicant was an Italian national, who born in 1975 and living in the UK having been

trafficked from Italy. The applicant claims that she is at risk of further abuse by her

traffickers in Albania because of her status as a trafficking victim and because she does not

have family or social ties in Albania. The applicant rests her case on Article 3 of the

Convention, which prohibits torture and inhuman or degrading treatment. The applicant is

seeking asylum on the basis of Article 4 of the Convention against forced labour, which

prohibits all forms of involuntary servitude and slave labour and Article 8 which recognises

an individual’s a right to respectful life. The applicant also refers there has been a failure by

the State party to protect her under Article 2, which prevents torture from being used as an

excuse to prevent people entering the UK thus preventing them from claiming asylum.

The ‘European Court of Human Rights’ held that the UK immigration authorities had

wrongly issued deportation orders against the applicant and her daughter, as they were

Albanian nationals granted refugee status. While the court shared the opinion that granting

asylum and rejecting an immigration application could be interpreted as a favourable

response, it took into account the fact that the government had intervened to come up with

additional financial compensation for legal costs incurred.9

The Court considered that the applicant's complaint concerned an episode which had already

come to an end and was no longer likely to recur, and decided to strike the application out of

its list of cases..10

Conclusion

A problem faced by many anti-trafficking frameworks, however, is the lack of attention given

to the reintegration of trafficked persons into their cultural and social framework. The

experiences of trafficked persons are particularly varied, taking on various forms, from forced

9 Paola Cavanna, Ana Belén Valverde Cano and Amy Weatherburn, 'Securing The Prohibition Of Labour
Exploitation In Law And Practice: Slavery, Servitude, Forced Labour And Human Trafficking In Italy, Spain
And The UK' (2018) 4 Journal of Modern Slavery.
10 Vladislava Stoyanova, 'Human Trafficking And Slavery Reconsidered' [2017] Conceptual Limits and States'
Positive Obligations in European Law.
 Law of human rights on trafficking 8

labour to sexual exploitation. The approach to anti-trafficking legislation practiced in some

countries today represents a progressive and necessary shift in understanding, not only of the

phenomenon of trafficking in persons, but also of the deeply flawed conception of human

rights that sees them as primarily concerned with the protection of individual freedoms. The

combination of crime control and human rights-based approaches to combating the

trafficking of persons has been a response to the fact that few countries have had articulated

policies in place to deal with the issue. The issue was noticed only with the increase in

trafficking, as it became clear there was as yet no system in place to handle it. One of the

most important steps that legal systems must take to prevent trafficking is to effectively treat

victims of trafficking. By granting these individuals a right to stay and providing them with

adequate protection, services and assistance, legal systems send a clear message that the

trafficking and exploitation of individuals will not be tolerated. To combat trafficking,

countries must come together on this issue. All members must take practical steps to prevent

human trafficking, including ensuring vulnerable groups are not subject to deportation.
 Law of human rights on trafficking 9

Bibliography

Primary Sources

Journals Articles

Cavanna P, Valverde Cano A, and Weatherburn A, 'Securing The Prohibition Of Labour

Exploitation In Law And Practice: Slavery, Servitude, Forced Labour And Human

Trafficking In Italy, Spain And The UK' (2018) 4 Journal of Modern Slavery

Stoyanova V, 'Human Trafficking And Slavery Reconsidered' [2017] Conceptual Limits

and States' Positive Obligations in European Law

European Court of Human Rights

AN v the United Kingdom [2021] The European Court of Human Rights, 74603 12 (The

European Court of Human Rights)

J and Others v Austria [2017] European Court on Human Rights, 58216 12 (European

Court on Human Rights)

J and Others v Austria [2017] European Court of Human Rights, 58216 12 (European

Court of Human Rights)

VCL v the United Kingdom [2021] The European Court of Human Rights, 77587 12

(The European Court of Human Rights)

 Law of human rights on trafficking 10

Secondary Sources

Websites

Chandran P, 'King's Professor Wins Landmark Judgement In The European Court Of

Human Rights' (Kcl.ac.uk, 2021) <https://www.kcl.ac.uk/news/kings-professor-

wins-landmark-judgement> accessed 28 December 2021

ECPAT UK, 'Landmark Victory At The European Court Of Human Rights For

Survivors Of Child Trafficking' (2021) <https://www.ecpat.org.uk/news/landmark-

victory-european-court-human-rights-child-trafficking> accessed 28 December

2021