THE DURHAM RESEARCH POSTGRADUATE CONFERENCE - JULY 2001

Research Student, School of Law, University of Nottingham

llxto@nottingham.ac.uk

*The original version of this article was presented at the Durham European Law Institute's Postgraduate Weekend Conference held between 13 - 15 July 2001. The author would like to thank the organisers of the Conference for giving him an opportunity to present his work. He would also like to express his gratitude to Professor Noreen Burrows (University of Glasgow), Ms. Clare McGlynn (University of Durham), Mr. Patrick Twomey (University of Nottingham) and Ms. Jenny Tooze (University of Nottingham) for their assistance to this paper.

© Copyright 2001 Tom Obokata
First Published in Web Journal of Current Legal Issues in association with Blackstone Press.

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This article examines the extent to which trafficking is perceived and treated as a human rights issue in Europe. It begins with an analysis of the definitions of trafficking offered by European regional organisations (EU, CoE and OSCE) in an attempt to understand how they perceive trafficking in human rights or other terms. The distinction between ‘trafficking’ and ‘smuggling’ also is explored to illustrate different perceptions in relation to smuggling. The article then offers an analysis of how these regional organisations have been or are likely to be successful in addressing human rights issues related to trafficking. This is done by highlighting programmes on trafficking implemented by the regional organisations and by analysing conflicting objectives in immigration and border control. The paper concludes by asserting that although the recognition of human rights implications of trafficking is crucial, border and immigration control policies are making it difficult to promote and protect the human rights of those trafficked in Europe.

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Contents

Introduction
Definitions of Trafficking
Definitions of Smuggling
Analysis of Programs Implemented by European Regional Organisations on Trafficking in Comparison with Immigration and Border Control Law and Policies
Conclusion

Bibliography

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Each year, thousands of people are trafficked to and within Europe. Although the phenomenon has its roots in slavery and the slave trade, it has increasingly been recognised as having a close connection with transnational organised crime in the modern world. Due to sophisticated techniques employed by groups involved in organised crime, the breakdown of States and many other reasons, the number of people trafficked is increasing at a rapid rate.

In order to suppress the phenomenon, European States have put much emphasis on co-operation in criminal matters.⁽¹⁾ Nevertheless, in recent times they also have started examining the human rights implications of trafficking. In addition to the work of international organisations such as the International Organisation for Migrations and the United Nations Office of High Commissioner for Human Rights, the roles of European regional organisations have been particularly crucial in this respect. For instance, under the Council of Europe (CoE), the Steering Committee for Equality between Men and Women (CDEG) has been dealing with the subject matter by organising research seminars and workshops (CoE, 2001a). The European Union (EU) also provides financial support to those trafficked through the European Social Fund (EU, 2001a). Finally, the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) has also initiated programs on trafficking. They include, but are not limited to, NGO Capacity Building to Combat Trafficking in Human Beings and Anti-Trafficking Legislative Review Project for Balkans (OSCE, 2000a).

The aim of this paper is to examine why trafficking should be treated as a human rights issue and the extent to which this has been the case to date. A specific focus is placed on the definitions of trafficking offered by regional organisations (CoE, OSCE and EU) and the following explores how these organisations view trafficking in human rights or other terms. The author also analyses the distinction between ‘trafficking’ and ‘smuggling’ and how the distinction can affect the human rights of those smuggled as opposed to those trafficked.

The paper proceeds to explore the extent to which these regional organisations have been or are likely to be successful in addressing human rights issues on trafficking. This is done by highlighting programs implemented by the CoE, the OSCE and the EU for promotion and protection of the human rights of those trafficked on the one hand, and the immigration and border control policies to stop illegal migration on the other. It is submitted that the immigration and border control policies in Europe serve as an obstacle to promotion and protection of human rights in the context of trafficking. Therefore, in reality, trafficking is still perceived as an issue that goes to the protection of States’ interests rather than to the protection of individual rights.

Trafficking in human beings has long been regarded as criminal conduct, regionally and internationally. Consequently, one of the responses to the phenomenon has been to promote co-operation in criminal matters in order to suppress it and bring those responsible to justice. A number of treaties have been adopted for this purpose. At the international level, the first treaty specifically related to the subject matter came into existence in 1904, when a group of European States adopted the International Agreement for the Suppression of the White Slave Traffic (24 U.K.T.S. 1, 1904). Several other treaties were adopted in the first half of the 20^th century.⁽²⁾ Although these instruments did not provide the definitions of trafficking, some elements related to the act may be understood. Analysis of these instruments reveals that trafficking was understood to take place mainly for prostitution and sexual exploitation of women and children. The most recent treaty, the United Nations Convention against Transnational Organised Crime (UNGA, 2000), was adopted by the United Nations in December 2000. One of the two Protocols attached to it specifically deals with trafficking of human beings and provides a definition for the first time under international law.⁽³⁾

In Europe, States have also utilised regional instruments to suppress the act of trafficking. Some instruments, such as the European Convention on Extradition (E.T.S No. 24, 1950), and the Protocols thereto (E.T.S No. 86, 1975 and No. 98, 1978), and the Europol Convention are directed specifically towards co-operation in criminal matters. Other treaties contain provisions relating to the matter, although it is not the only objective. The Treaty of Amsterdam is among them. These instruments have served as the basis for co-operation in such areas as extradition, judicial and police co-operation and information sharing.

Although co-operation in criminal matters is still strongly supported in Europe, there has been a significant shift in the way in which trafficking is approached whereby the human rights of those trafficked are becoming important. This may be seen in the recent definitions of trafficking offered by the CoE, the OSCE and the EU. Each organisation has different mandates, and some elements of the definitions vary. However, the definitions all recognise the human rights implications of trafficking. For instance, in the Recommendation R (2000)11 adopted by the Committee of Ministers of the CoE, trafficking was defined as:

the procurement by one or more natural or legal persons and/or the organisation of the exploitation and/or transport or migration – legal or illegal – of persons, even with their consent, for the purpose of their sexual exploitation, inter alia, by means of coercion, in particular violence or threats, deceit, abuse of authority or of a position of vulnerability (CoE 2000).

Although the definition does not specifically speaks of human rights, trafficking is seen as a human rights issue by the CoE. In the Recommendation, the Committee of Ministers states clearly that trafficking constitutes ‘a violation of human rights’ and ‘an offence to the dignity and the integrity of the human being’ (Ibid.). To be specific the Recommendation classifies subsequent sexual exploitation as a form of slavery (Ibid.). It should also be noted that in the view of the CoE women and girls are the primary target of trafficking (Ibid.). This focus on women and girls reflects the earlier attempts of the international community to suppress trafficking in women and girls, as can be seen in the treaties mentioned above. Finally, the Recommendation also lists the European Convention on Human Rights and its Protocols as well as to the European Social Charter and its Additional Protocol (Ibid.). This suggests that these instruments are relevant in considering issues surrounding trafficking. This emphasis on human rights is hardly surprising, as the CoE has a clear mandate for promotion and protection of human rights.

The definition used by the OSCE also reveals that trafficking is seen as a human rights issue by this organisation. In the Final Report of the Supplementary Human Dimension Meeting on Human Trafficking, which was held in June 2000, the OSCE gave the following working definition⁽⁴⁾ of trafficking:

All acts involved in the recruitment, abduction, transport (within or across borders), sale, transfer, harbouring, or receipt of persons, by the threat or use of force, deception, coercion (including abuse of authority), or debt bondage, for the purpose of placing or holding such person, whether for pay or not, in involuntary servitude, forced or bonded labour, or in slavery-like conditions, in a community other than the one in which the person lived at the time of the original deception, coercion or debt bondage (OSCE 2000b)

There are some elements in this definition which are different from the CoE definition. For instance, the act of trafficking is described in detail under this definition. The OSCE describes trafficking as including such acts as recruitment, abduction, and receipt of human beings. In addition, the coverage of exploitation by the OSCE is more extensive, as it includes other forms of exploitation such as involuntary servitude and forced labour. One point to be mentioned here is that the OSCE definition makes it clearer that the categories of trafficked people include not only women and children (who are the primary target of sexual exploitation), but also men (who are trafficked for purposes other than prostitution and sexual exploitation).

These differences notwithstanding, the OSCE views trafficking from a human rights perspective. It considers that those who are trafficked should be viewed not as illegal immigrants, but as victims of serious violations of human rights (Ibid.). It also encourages participating States to take international human rights standards into account and to promote such measures as effective legal remedies and rehabilitation (Ibid.). It should also be noted that the OSCE views the entire process of trafficking (from recruitment to subsequent exploitation) as constituting human rights violations (Ibid.).

The OSCE is the organisation mainly concerned with security issues in Europe (Möttölä, 1997, p. 2). At first glance, this might be read to mean that the OSCE views trafficking as a security issue. However, the term ‘security’ should not be understood in the traditional context, in which political and military factors are the main concerns. In the view of the OSCE, the term ‘security’ is much wider in scope. This can be seen in the concept of ‘comprehensive security’ (Foreign and Commonwealth Office, 1992, p. 5), introduced in the Helsinki Summit Declaration of 1992. According to the OSCE (then CSCE), ‘comprehensive security’ includes not only military and political factors but also, inter alia, respect for human rights and fundamental freedoms (Ibid.). This means that the protection of human rights has been and will be one of the key areas of concern for the OSCE.

Finally, human rights implications are also evident in the definition of trafficking offered by the EU. In January 2001, the European Commission of the EU sent communications on the subject matter to the European Council and the European Parliament. In the first Proposal for a Framework Decision⁽⁵⁾ on combating trafficking in human beings, the European Commission identified two types of trafficking: trafficking for labour exploitation and sexual exploitation. Article 1 of the Proposed Framework Decision on trafficking for labour exploitation gave the following definition:

Each Member State shall take the necessary measures to ensure that the recruitment, transportation or transfer of a person, including harbouring and subsequent reception and the exchange of control over him or her is punishable, where the fundamental rights of that person have been and continue to be suppressed for the purpose of exploiting him or her in the production of goods or provision of services in infringement of labour standards governing working conditions, salaries and health and safety (EU, 2001b).

Article 2 on trafficking for sexual exploitation stipulated that:

Each Member States shall take the necessary measures to ensure that the recruitment, transportation or transfer of a person, including harbouring and subsequent reception and the exchange of control over him or her is punishable, where the purpose is to exploit him or her in prostitution or in pornographic performances or in production of pornographic materials (Ibid.).

The Proposal added the following as necessary elements of trafficking for labour and sexual exploitation:

(a) use is made of coercion, force or threats, including abduction, or

(b) use is made of deceit or fraud, or

(c) there is a misuse of authority, influence or pressure, or

(d) there is another form of abuse (Ibid.).

Although some elements of trafficking (e.g. coercion and subsequent exploitation) in the EU definition are similar to those of the CoE and the OSCE, there is one difference. Unlike the definitions of the CoE and the OSCE, the EU definition makes an explicit reference to the rights of those trafficked. This echoes the Charter of Fundamental Rights adopted by the EU in December 2000 (EU, 2000a, pp. 1-22) and the explanatory note accompanying this Proposal clearly links the rights under the definition to the Charter. It is worth noting that a prohibition on trafficking is explicitly included under Article 5(3). The Charter itself is not legally binding. Nevertheless, since it is one of the few instruments concerned with rights of individuals to include trafficking,⁽⁶⁾ its adoption represents a significant step forward for the protection of the human rights of those trafficked.

It should also be noted that the EU definition lists labour exploitation as a separate category, in addition to sexual exploitation. This can be explained partly by the main objectives of the EU. Economic integration and development within Europe were the driving forces for the creation of such organisations as the European Coal and Steel Community, the European Atomic Energy Community, the European Economic Community and the EU (Craig and de Burca, 1998, pp. 7-48). Although the EU's mandate has been expanding to deal with such issues as justice and home affairs, common foreign and security policy and human rights, economic integration and development among Member States remain the central agenda for the EU. Since the protection of the labour force is fundamental in this regard, the EU might have created an additional provision for labour exploitation.

Having examined the definitions, it may now be useful to expand on types of human rights issues which are relevant to trafficking.⁽⁷⁾ As for the causes of trafficking, many people resort to traffickers in their States of origin for such reasons as economic hardship, persecution by States, terrorism and armed conflicts. Many of these factors are considered to have negative impacts on the enjoyment of human rights (UNGA, 1993). The prohibition against torture, inhuman and degrading treatments is relevant, as many of those trafficked are placed under harsh conditions from the beginning to the end of their journey. As was the case with 58 Chinese illegal migrants who were found dead in a lorry at Dover in June 2000 (CNN , 2001), many can lose their lives during the process of trafficking. Therefore, the right to life can also become a crucial issue. In addition, as highlighted by the definitions of trafficking of the CoE, the OSCE and the EU, subsequent exploitation can be seen to constitute slavery and forced labour. Moreover, they may experience discrimination on account of their race, ethnicity, religion and other distinctions once they reach their destinations. Finally, due to the illegal nature of their stay, those trafficked may not be able to receive adequate legal, social, economic and other assistance from States of destination.

There are two main advantages in treating trafficking as a human rights issue. First, a human rights discourse provides a framework for understanding the problems experienced by those trafficked and for seeking solutions according to their needs. Those trafficked may be seen as victims of human rights violations rather than criminals who violate national immigration laws and regulations, and this makes it easier for States, International Organisations and NGOs to offer assistance such as provision of food, shelter, medical and psychological treatments to fulfil their immediate needs. Other measures such as settlement in new societies (e.g. assistance on employment and provision of temporary or permanent residence permits) or repatriation to, or re-integration in States of origin can also be considered if those trafficking wish to return.

Second, the human rights approach can put more pressure on States to act because they can be held accountable under international and regional human rights laws. This provides a considerable advantage over a criminal justice approach, since the latter does not envisage state liability. At first glance human rights law may not be applicable to trafficking, since the perpetrators are private individuals for the most part, and human rights law addresses the responsibility of States rather than of individuals. Nevertheless, the concept of positive and negative obligations under Article 1 of the European Convention on Human Rights can be relevant in the instant case. While a negative obligation requires States to abstain from interfering with human rights, States have to take action to secure human rights under a positive obligation (Harris, O'Boyle and Warbrick, 1995, pp. 19-22). This means that the failure of States (of origin and destination) to take action against and/or to refrain from some of the human rights violations raised earlier, such as persecution, forced labour, torture and other inhuman or degrading treatment and discriminations may be addressed.⁽⁸⁾ Thus, although there is as yet no jurisprudence on trafficking under the European Human Rights system, the European Court and Convention on Human Rights may be able to address the human rights issues of trafficking in the future.

It was shown above that the CoE, the OSCE and the EU view trafficking as a human rights issue. Nevertheless, these organisations do not necessarily consider smuggling of human beings in the same way. The terms ‘trafficking’ and ‘smuggling’ have been used interchangeably in the past without a clear distinction. However, there is now a consensus that they differ. It has recently been argued that while smuggling is an intermediary function which facilitates illegal crossing of borders, usually with the consent of those smuggled, trafficking is characterised by coercion and subsequent exploitation of those trafficked (Twomey, 2000, p. 7). It is further argued that trafficking is an issue of migration with human rights implications as it involves protection of individuals, whereas smuggling is an issue of crime and border control as it encompasses protection of States (Meese, et al, 2000, p. 22).

Such views on the distinction between trafficking and smuggling were further strengthened when the United Nations adopted two Protocols to the United Nations Convention against Transnational Organised Crime in December 2000. The Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children defined trafficking as:

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 payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at the 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 removal of organs (UNGA, 2000, ibid.).

Under the Protocol against Smuggling of Migrants by Land, Sea and Air smuggling was defined as:

The procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of illegal entry of a person into a State Party of which the person is not a national or permanent resident (Ibid.).

Some of the views on the distinction described above are reflected in these definitions. While the definition of trafficking contains the element of coercion, that of smuggling does not. It is also the case that the definition of trafficking emphasises subsequent exploitation, whereas the definition of smuggling is characterised by the facilitated illegal entry of a person from one country into another. All of this means that those trafficked are seen as victims whereas those smuggled are not. Since these two Protocols are the first legally binding instruments which defined trafficking and smuggling, and are gradually being accepted by States,⁽⁹⁾ they will be used to reinforce the distinction between trafficking and smuggling.

The distinction between trafficking and smuggling is also recognised in Europe. The EU, for instance, considers smuggling to be ‘a crime against states’, but trafficking ‘a crime against a person’(EU, 2001b, ibid.). It is also worth noting that the EU has become a signatory to both Protocols described above and thus recognises the distinction.⁽¹⁰⁾ The OSCE also recognises the distinction (OSCE, 1999). Unlike the EU and the OSCE, the CoE does not make any explicit reference to this distinction. Nevertheless, the CoE distinguishes trafficking and other illegal migration and views the former as a human rights issue (CoE, 2001b). In view of these, it can be concluded that these regional organisations do recognise that trafficking and smuggling are different.

The distinction may lead to the development of separate policies for trafficking and smuggling especially in States of destination. Seen as victims, those who are trafficked are more likely to benefit from treatments with an emphasis on the protection of their human rights described earlier. All of those measures, however, may not be taken in the case of those who are smuggled. Therefore, treatments such as immediate arrest, detention, prosecution and deportation can be expected. In sum, the distinction between trafficking and smuggling may create categories of those who deserve protection and those who do not. This problem is similar to the case of the definition of a refugee. Those who are refugees under national and international laws can receive protection from States. Nevertheless, it is difficult for internally displaced persons (IDP), for example, to receive similar protection, as they do not strictly qualify as refugees. In view of this, it may be concluded that human smuggling is considered as the issue of protection of States' interests in border and immigration control.

While these policy implications for those trafficked and smuggled seem clear, the situation surrounding those who are trafficked and smuggled is so complicated that the distinction may not reflect the phenomena accurately. For instance, many resort to smugglers, as opposed to traffickers, in order to escape from human rights violations. This is particularly true for those who encounter persecution by States and therefore qualify as refugees. It should also be noted that the distinction between trafficking and smuggling is blurred at times. It has been argued, for example, that by placing themselves in the hands of smugglers, individuals have already ceded control of their fate, and are therefore in a position of vulnerability (Meese et al, 2000, ibid.). It could also be argued that charging a large amount of money for smuggling may itself be seen as subsequent exploitation, as many of those smuggled are compelled to pay back the cost to the smugglers after they reach their destinations. All of this means that there is a danger that those in need of adequate attention and care might not receive enough protection from States.

Since the 1990s, various programs on trafficking have been implemented by the CoE, the OSCE and the EU. These organisations sometimes work separately and at other times work in co-operation. Some of the programs implemented by them have a human rights focus. For example, the CDEG of the CoE has organised seminars such as the ‘Seminar on action against traffic in women, considered as a violation of human rights and dignity (1991)’ (CoE, 2001a, ibid.). As a result of this seminar, groups of experts on trafficking in women were created and the Plan of Action against Traffic in Women was eventually adopted in 1996 (Ibid.). Between May and August 1999, the CoE also implemented a program for Kosovar refugees in Albania in order to prevent trafficking for the purpose of sexual exploitation, in co-operation with other organisations such as the International Organization for Migration and UN High Commissioner for Human Rights (CoE 1999, pp. 3-7). In this program, such activities as awareness-raising sessions for women and girls, training of local teachers and NGOs on prevention of trafficking, and meetings with government agencies (e.g. immigration bureau, police, and prosecution office) were conducted (Ibid.).

The OSCE, through the ODIHR, has also implemented various field programs. For instance, an initiative entitled ‘Poland: Direct Assistance for Return and Reintegration of Victims of Trafficking’ (2001) has been providing material aid to those trafficked and fostered their return to, and/or reintegration in, Poland or other States of origin (OSCE, 2000a, ibid.). It also implemented a program in Romania called ‘NGO-Government Anti-Trafficking Network’ (2001), which facilitated active co-operation between NGOs and the government in such areas as protection of victims and prosecution of traffickers (Ibid.)

Finally, the EU has implemented such programs as STOP(1996-2000) and Daphne (2000-2003). The former was a program designed to reinforce networks and co-operation among those responsible for action against trade in human beings and sexual exploitation of children among EU Member States (EU, 1996, pp. 7-10). Under this program, activities such as training sessions for public officials, dissemination of information, studies and research were organised (Ibid.). The latter is a program which funds activities for prevention of violence again children, young people and women (EU, 2000b, pp. 1-7). This program is also open to EFTA/EEA States, the associated Central and Eastern European States, Cyprus, Malta and Turkey (Ibid.).

There are two observations to be made regarding these programs mentioned. First, many of the field programs are directed towards States where trafficked migrants are likely to originate or be travelled through. While these measures may be necessary, they are not sufficient, because those who have already reached their destinations, Western European States, do not receive enough attention. Second, these programs are also aimed at the prevention of trafficking. In other words, these programs are designed to reduce the supply side of trafficking. Although supply reduction measures are important for curtailing the act of trafficking, they are not themselves adequate, because they do not take the demand for trafficked human beings into consideration. Unless some measures are taken to reduce the demand for prostitution, sexual exploitation, cheap labour and other forms of exploitation, the act itself is likely to continue.

It is submitted that one of the reasons why much focus has been placed upon the States of origin and/or transit derives from stringent immigration and border control policies, especially among Western European States. For instance, there has been a steady increase in the number of States whose nationals are required to obtain visas to enter Western Europe (Kosher, 2000, p. 94). A system of carrier sanctions, which requires the carriers (e.g. airline and shipping companies) to pay a fixed fine for bringing any passenger without proper travel and identity documents, has also been introduced in such States as the UK, Belgium and Germany (Morrison, 2000, p. 41). In addition, co-operation on the expulsion of foreign nationals has also been promoted within the framework of the EU (EU, 2001c, pp. 34-36). Finally, Western European States are considering measures against illegal employment and marriages of convenience with the sole aim of circumventing the rules of entry and residence (Hailbronner, 2000, pp. 166-167). These measures are aimed at curtailing the flow of illegal migrants and/or expelling them from their jurisdictions. This may explain why programs on trafficking are directed towards States of origin and/or transit, and why those already trafficked do not receive enough attention. This focus on stringent immigration and border control policies suggests that although the increasing emphasis on human rights aspects of trafficking is a significant step forward, trafficking is still viewed more as a matter of protection of States. One of the ironies is that tight immigration and border control policies are among the causes of trafficking and smuggling. Because in recent times it is extremely difficult to migrate to Europe legally, many turn to traffickers and smugglers who promise them to provide assistance. Therefore, stringent immigration laws and policies are actually aggravating the situation.

This paper attempted to examine the extent to which trafficking is seen as a human rights issue in Europe. It was shown that European States, through participation in the CoE, the OSCE and the EU, views trafficking from a human rights perspective. These organisations have adopted definitions of trafficking with human rights emphases and have implemented various programs. Nevertheless, human smuggling is not seen from the same light. It is treated as a criminal activity, and there is a danger that those who are smuggled, as opposed to trafficked, may not receive adequate attention from a human rights perspective. It should also be emphasised that existing immigration and border control policies serve as a hurdle against promotion and protection of the human rights of those trafficked. Therefore, it is concluded that trafficking and smuggling of human beings are still viewed as the matter of protection of States rather than that of individual rights in Europe.

What is needed now is re-consideration of immigration and border control polices and of programs on trafficking both at national and regional levels. At the national level, States should adopt provisions in relevant immigration laws to protect the human rights of those trafficked. One measure which can be implemented sooner rather than later in this respect is to provide residence permits and witness protection to those trafficked. This is beneficial not only from a human rights perspective, but also from a criminal justice perspective, as those trafficked can co-operate with the law enforcement and judicial authorities to punish those responsible for the act.

At the regional level, more consideration should be given to those who reach their destination, and organisations, in co-operation with States and NGOs, should design programs accordingly. A focus should also be placed upon the reduction of the demand for trafficked people. In addition, European States should adopt legally binding instruments to foster protection of the human rights of those trafficked, in addition to combating the phenomenon itself. Finally, as stated above, addressing issues related to trafficking under the European Convention on Human Rights should also be considered.

At both levels, the distinction between trafficking and smuggling should be re-considered. Instead of making a distinction which may lead to the formulation of separate policies and programs, the focus should be placed upon protection of the human rights of those in need, regardless of their status as trafficked or smuggled. Trafficking and smuggling occur in all parts of the world, and the number of victims is increasing. Thus, there is a need to address human rights issues effectively at the global level. Although the roles of the international organisations such as the United Nations are crucial, Europe can play a leading role in this regard, as the region has a long tradition of promotion and protection of human rights. When this happens, it should become quite possible that other regions in the world will follow the footsteps of Europe, and that more victims will have their human rights protected.

CNN (2001) Trafficker jailed for Chinese deaths (11/5/2001) [online] Available at <http://www.cnn.com/2001/WORLD/europe/05/11/dutch.verdict.02/>

[Accessed 14 August 2001].

Council of Europe (1999) Prevention of the risk of trafficking in human beings for the purpose of sexual exploitation: actions organized in Albania for Kosovar refugees (May - August 1999), Final Report. EG (99)11 (Strasbourg:CoE).

Council of Europe (2000) Recommendation R(2000)11 of the Committee of Ministers of the Council of Europe on action against trafficking human beings for the purpose of sexual exploitation (19 Mary 2000) and Explanatory Memorandum [online] Available from <http://cm.coe.int/ta/rec/2000/2000r11.htm> [Accessed 14 August 2001].

Council of Europe (2001a) Fact Sheet: Trafficking in Human Beings for the Purpose of Sexual Exploitation (Strasbourg: Council of Europe).

Council of Europe (2001b) Recommendation 1489 (2001, Transit Migration in Eastern Central Europe [online] Available at <http://stars.coe.fr/ta/ta01/erec1489.htm> [Accessed 14 August 2001]. Reported to have moved to <http://assembly.coe.int/Documents/AdoptedText/TA01/EREC1489.htm> [14 January 2008].

Craig, P and G. de Burca (1998) EU Law: Text, Cases and Materials, 2^nd ed (Oxford: Oxford University Press), pp. 7-48.

European Union (1996) Joint Action of 29 November 1996, establishing an incentive and exchange of programme for persons responsible for combating trade in human beings and sexual exploitation of children. 96/700/JHA, OJ L 322, 12/12/1996, pp. 7-10.

European Union (2000a) Charter of Fundamental Rights of the European Union OJ C 364, 18/12/2000, pp. 1-22.

European Union (2000b) Decision No. 293/2000/EC of the European Parliament and of the Council of 24 January 2000, adopting a programme of Community action (the Daphne programme) (2000-2003) on preventive measures to fight violence against children, young persons and women. OJ L 34, 9/2/2000, pp. 1-7.

European Union (2001a) Trafficking in Women: A Comprehensive European Strategy, Information and Funding Sheets (Brussels: European Union).

European Union (2001b) Communication from the Commission to the European Council and the European Parliament: Combating Trafficking in Human Beings and Combating Sexual Exploitation of Children and Child Pornography, Proposals for a Council Framework Decision on Combating Trafficking in Human Beings and on Combating Sexual Exploitation of Children and Child Pornography COM (2001) 854 [online] Available at
<http://europa.eu.int/eur-lex/en/com/pdf/2000/en_500PC0854_01.pdf> [Accessed 14 August 2001]. Reported to have moved to http://ec.europa.eu/justice_home/doc_centre/crime/trafficking/doc_crime_human_trafficking_en.htm [14 January 2008].

European Union (2001c) The Council Directive 2001/40/EC of 21 May 2001 on the mutual recognition of the decisions on the expulsion of third country nationals OJ L 149, 2/6/2001, pp. 34-36.

Foreign and Commonwealth Office (1992) CSCE Helsinki Document 1992: The Challenges of Change.(London: HMSO) CM 2092.

Hailbronner, K (2000) Immigration and Asylum Law and Policy of the European Union (The Hague/London/Boston Kluwer Law International), pp. 166-167.

Harris, D.J, O’Boyle M and Warbrick, C (1995) Law of European Convention on Human Rights (London, Dublin and Edinburgh: Butterworths ), pp. 19-22.

Kosher, C (2000) ‘Asylum Policy, Trafficking and Vulnerability,’ in Appleyard and Salt (eds), Perspectives on Trafficking of Migrants (Geneva: International Organization for Migration and United Nations), p. 94.

Meese, J.K, et al (2000), Multidisciplinary Research on the Phenomenon of Trafficking in Human Beings from an International and National Perspective. Quoted in International Organization for Migration (2000) Migrant Trafficking and Smuggling in Europe: A Review of the evidence with case studies from Hungary, Poland and Ukraine (Geneva: International Organization for Migration ), p. 22.

Morrison, J (2000) The Trafficking and Smuggling of Refugees: The End Game in European Asylum Policy? Pre-Publication Edition (Geneva: United Nations Office of High Commissioner for Refugees), p. 41.

Möttölä, K (1997), ‘THE OSCE: Institutional and Functional Developments’ in Ronzitti and Rosas (eds), The OSCE in the Maintenance of Peace and Security: Conflict Prevention, Crisis Management, and Peaceful Settlement of Disputes. (The Hague/London/Boston: Kluwer Law International), p. 2.

OSCE (1999) Background Paper 1999/3, Trafficking in Human Beings: Implications for the OSCE [online] Available at <http://www.osce.org/odihr/docs/i3_index.htm> [Accessed 14 August 2001]. Reported to have moved to http://www.osce.org/item/1668.html [14 January 2008].

OSCE (2000a) Trafficking Projects [online]. Available from <http://www.osce.org/odihr/cal2000_tra.php.3>[Accessed 14 August 2001]. Reported to have moved to http://www.osce.org/item/2297.html [14 January 2008].

OSCE (2000b) Supplementary Human Dimension Meeting on Human Trafficking: Final Report [online] Available from <http://www.osce.org/odihr/docs/m00-3-final.htm> [Accessed 14 August 2001]. Reported to have moved to http://www.osce.org/item/1919.html [14 January 2008].

Twomey, P (2000), ‘Europe's Other Market: Trafficking in People’ 2 European Journal of Migration and Law 1, p. 7.

United Nations General Assembly (1993) Vienna Declaration and Programme of Action. A/CONF.157/23.

United Nations General Assembly (2000) Report of the Ad Hoc committee on the Elaboration of a Convention against Transnational Organized Crime on the work of its first to eleventh sessions. Annex I, II, and III. A/55/383 (New York: United Nations).

⁽¹⁾ See, for example, Title VI (Provisions on police and judicial cooperation in criminal matters) of the Treaty of Amsterdam. Command Paper (1999) Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts (London: HMSO) CM 4434 (1999), pp. 16-22. Article 29 specifically mentions trafficking in persons. See also, Convention based on Article K.3 of the Treaty on European Union, on the Establishment of European Police Office. OJ C 316, 27/11/1995, pp. 2-32. The definition of trafficking in human beings was expanded by the Council Decision of 3 December 1998 supplementing the definition of the form of crime 'traffic in human beings' in the Annex to the Europol Convention. OJ C 26, 30/1/1999, p. 21.

⁽²⁾ They are the 1910 International Convention for the Suppression of the White Slave Traffic (20 U.K.T.S. 269), the 1921 International Convention for the Suppression of the Traffic in Women and Children (9 L.N.T.S. 415), the 1933 International Convention for the Suppression of the Traffic in Women of Full Age (150 L.N.T.S. 431) and the 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (96. U.N.T.S. 271).

⁽³⁾ It will be discussed in detail later.

⁽⁴⁾ It should be pointed out that the definition does not have a significant legal effect, as it is not written in a form of a legal instrument. It is rather used as the guidelines for understanding the phenomenon.

⁽⁵⁾ According to Article 34(2)(b) of the Treaty of Amsterdam, a framework decision (for the purpose of approximation of laws and regulations of the Member States), if adopted, is binding upon the Member States as to the result to be achieved, but the national authorities have the choice and methods to achieve it. See supra, note 1.

⁽⁶⁾ Article 6 of the Convention on the Elimination of All Forms Discrimination against Women also urges Member States to take measures for suppression of traffic in women. 1249 U.N.T.S. 13.

⁽⁷⁾ A point on state accountability will be discussed below.

⁽⁸⁾ For general discussions on the matter, see for example, Marckx v. Belgium [1979] (Series A, Vol. 31) and Airey v. Ireland [1979] (Series A, Vol. 32). See also, Young, James and Webster v. UK [1981], (Series A, Vol. 44) and Platform 'Arzte für das Leben' v. Austria [1988] (Series A, Vol. 139). These two cases touched upon an obligation to protect individual rights against interference by private actors.

⁽⁹⁾ As of August 2001, 81 States have become the signatories to both Protocols. United Nations Office of Drug Control and Crime Prevention (2001), Signatures [online], Available at http://www.undcp.org/crime_cicp_signatures.html. Accessed on 21 August 2001.

⁽¹⁰⁾ Under Articles 16 of the Trafficking Protocol and 21 of the Smuggling Protocol, regional economic integration organisations may become parties to these two Protocols. The EU became a signatory to both Protocols on 12 December 2000. Ibid.