States’ legal Obligations to prevent Human Trafficking

Obligations under International Criminal Law.

International conventions of transnational criminal law, such as the United Nations Convention
against Transnational Organized Crime and the Protocols (UNTOC) and its supplementing
Trafficking Protocol, impose legal obligations on states to prevent human trafficking.
In this respect, transnational criminal law treaties aim to impose obligations on States to adopt
domestic law measures to suppress “criminal activities that have actual or potential trans-
boundary effects”.1 Thus, transnational criminal law treaties require States to criminalize certain
offenses and establish penalties, procedural mechanisms, and jurisdiction in their domestic legal
systems in order to prohibit harmful behavior by non-state actors.2
Furthermore, the legal obligation of states under international treaties pertaining to transnational
criminal law specifically target criminal activity carried out by both state and non-state actors.

In particular, the provisions in UNOTC aim to eliminate “safe havens” where organized crime
such as human trafficking can take place. 3 As such, states are under obligation to take legislative
and other measures to criminalize organized crime. More importantly, Article 31 of the UNTOC
requests that “States endeavor different prevention measures against transnational organized
crime”.4

In this regard, the obligation to prevent trafficking is a threefold which includes the obligations
to prevent trafficking through addressing vulnerability, preventing trafficking by addressing
demand and preventing trafficking by responding lawfully. 5 In this respect, states have tripartite
obligation to prevent human trafficking, which includes taking legal action to address the
vulnerability factors that lead to trafficking, continuing to remove the demand that encourages
trafficking and human exploitation, and preventing trafficking as a crime.6

1
Boister, ‘Transnational Criminal Law’, 14 5 (2003) European Journal of International Law, 955.
2
Ibid.
3
Astrid Saraiva Leao, ‘Corporate Criminal Liability for Human Trafficking in the EU: a legal obligation for
Member States? Master’s Thesis in Public International Law (2015) 15.
4
Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized
Crime and the Protocols Theretho, Part I, Article 31(7).
5
Nicksoni Filbert Kahimba, Human Trafficking under International and Tanzanian Law, International Criminal
Justice Series volume 27 (Assess Press, Springer) 247.
6
Ibid.
Firstly, states are under an obligation to combat and prevent factors that make an ‘individual,
social group or the community’ more vulnerable to trafficking and related exploitation. 7 Thus, it
has been argued that the violation of the human rights are the principal drivers that is taken as
cause and consequence of vulnerability to and the main drive for trafficking in persons.8

Consequently, states are required to undertake comprehensive programs, policies and other
measures that: protect trafficking victims from re-victimization, undertaking research,
information, and mass media campaigns and social and economic initiatives to prevent
trafficking; establishing projects to alleviate the circumstances of vulnerabilities. 9 Therefore, this
duty implies that states are under legal responsibility to prevent trafficking by providing and
guaranteeing economic, social and cultural rights the deprivation of which would result in
trafficking of the most marginalized groups.

Secondly, States are required by international anti-trafficking instruments to enact, implement, or

even reinforce laws and other measures aimed at discouraging and/or lowering the demand for
any kind of human exploitation that results in trafficking. 10 In this respect, the European
Trafficking Convention contains provisions, along with a list of minimum measures that its State
parties have to take.11 Hence, states are required to take a legislative, administrative, and other
measure which includes among others social, cultural, and educational initiatives, as well as
those involving bilateral and multilateral cooperation. 12 Therefore, it is an international legal
obligation of states to take at least some measures to discourage the demand that fosters
trafficking-related exploitation.
Thirdly, states are under an obligation to ensure that measures taken to combat and prevent or
otherwise addressing trafficking and related exploitation do not negatively affect individual
rights and freedoms that are protected under international law. International and regional anti-
trafficking law requires states to prevent trafficking lawfully when implementing their anti-
7
United Nations Human Right, Office of High Commissioner, ‘Human Rights and Human Trafficking’ (2014)
Fact Sheet No. 36 39. These factors include poverty and inequality as well as human rights violations such as
discrimination and gender-based violence—all of which contribute to creating economic deprivation and social
conditions that limit individual choice and make it easier for traffickers and exploiters to operate. Ibid.
8
Khaimba, (n 5).
9
Ibid.
10
Trafficking Protocol 2000, Article 9(5): “States shall adopt or strengthen legislative or other measures, such as
educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the
demand that fosters all forms of exploitation, especially of women and children that leads to trafficking.”
11
CoE Anti-Trafficking Convention 2005, Article 6.
12
Ibid.
trafficking obligations.13 Thus, states are obligated to implement their anti-trafficking obligations
without violating established human rights of the trafficked persons so as not to occasion
collateral damage. In general, this indicates states are required to ensure that measures taken by
them to prevent trafficking do not deliberately or inadvertently violate established rights of
individuals including trafficked persons.14
Legal Obligations of States to prevent Human Trafficking under International Human
Rights Law
Under International human rights law, states have tripartite obligations. States are generally
burdened with triple set of human rights duties. 15 These are the human rights obligation to
respect, to protect and to fulfill human rights. It is also noted that there is no hierarchical order
and each layer of obligation is equally relevant to the right in question. 16 They are required to
also provide protection from the actual and potential interference of these rights by individuals or
other private entities.

In this regard, the obligation to protect should be broadly construed so as to embrace a wide
variety of obligations imposed on states. In Particular, the legal obligation to protect victims of
human trafficking can be invoked when States fail to take positive steps to prevent human rights
abuses committed by non-State actors with due diligence.17 In this respect the Inter American
Court of Human Rights which stated that:

An illegal act which violates human rights and which is initially not directly imputable to
the State ……. can lead to international responsibility of the State, not because of the act
itself but because of the lack of due diligence to prevent the violation or to respond to it
as required by the Convention.18

Thus, under international human rights law, states obligation to prevent human trafficking can be
derived from the general obligation of states to protect human rights violations.

13
Trafficking In Person Protocol (2000), Article 14(2); CoE Anti-Trafficking Convention 2005, Article 3;UN
Recommended Principles and Guidelines 2002, principle 3.
14
Available at https://www.cambridge.org/core accessed on April 3,2024.
15
De shutter, 242.
16
Ibid.
17
Tom Obokata, ‘Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and
State Actors under International Human Rights Law’ available online at www.ijrl.oupjournals.org accessed April 20,
2024.
18
Ibid.
More importantly, the legal obligation of states to regulate and prevent human rights violations
in general and human trafficking in particular have been recognized and elaborated by different
international tribunals. To this end, the Inter American Court of Human Rights in Velasquez
Rodriguez v. Honduras19 found that States have a duty to “organize the governmental apparatus
and structures of the state through which the public power is exercised in order to ensure the full
enjoyment of all persons within the territory of the State, their fundamental rights and freedoms
under the Convention”.20 In this case, the court has pointed the legal responsibility of states can
be invoked when human rights violations occur due to states failure to take preventive
measures.21
Similarly, in Rantsev v Cyprus and Russia, the European Court of Human Rights elaborated
positive obligation of states recognized under ECHR in relation to human trafficking. The court
established that states positive obligation is not only limited to criminalize and prosecute
traffickers, but must also be seen in the broader context of preventing trafficking and protecting
victims.22 The court affirmed that
“If State authorities were aware, or ought to have been aware, of a risk of trafficking, a
failure to take appropriate measures within the scope of their powers to remove the
individual from that situation or risk is a violation of that person's rights and,
consequently, a breach of the State's positive obligations”.23

Therefore, it is clear that states have the duty to exercise due diligence to prevent human rights
violations in general and human trafficking in particular regardless of the status of the
perpetrators of the violations.

19
The Inter-American Court of Human Rights, Velasquez Rodriguez v. Honduras, No.4, July 29 (1988)
20
Leao, (n 3) 16.
21
Ibid.
22
ECtHR, Rantsev v. Cyprus and Russia, Application No. 25965/04, Judgment of 7 January 2010, para-284.
23
Ibid.