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DR.

RAM MANOHAR LOHIYA NATIONAL


LAW UNIVERSITY,
LUCKNOW

SUBJECT- Human Rights Law


Final Draft on

Human Rights Violation And Trafficking

Submitted to:
Dr. Aparna Singh
Assistant Professor (Law)

Submitted by:
Garima Raj
Xth Semester
B.A. LL.B.(HONS); Roll No.- 50
INTRODUCTION

Slavery is believed to be a no longer existing phenomenon because of its


worldwide abolishment but the enslavement in other forms still remains strong.
With the transnational operation called human trafficking, slavery remains alive
and thriving. Trafficking in persons is a global issue. This is estimated to be a
multibillion-dollar business. Human trafficking is now second only to drug
trafficking in relation to international organized crime. This, in part, is because
the exploitation of trafficking victims in brothels, sweatshops, and fields around
the world exists free of “geographic limitations.” Trafficking in persons is the
equivalent of modern-day slavery. It is no longer a question of race and color for
those being enslaved; it is now a question of vulnerability.
In the past, one person legally owning another person defined slavery, but
modern-day slavery has changed its definition. Today slavery is illegal
everywhere, therefore no one can legally own another human being.
Slaveholders maintain control of a person, having all the “benefits of ownership”
without the “legalities”. This lack of legality dismisses the slaveholder's
responsibility, which is interpreted as an improvement in the eyes of a
slaveholder.

The fight against trafficking is still maturing; because of this a general universal
consensus about concepts, definitions, or terminology does not exist. A
distinction between “smuggling” and “trafficking”, however, has been
established. The trafficking of persons is coupled with coercion, exploitation,
deception, violence, and other forms of either physical or psychological abuse.
Trafficking is a human rights concern, whereas smuggling is a migration concern.
A smuggler generally makes his or her profit upfront once entry into the desired
country has taken place, at which time the relationship with the “client” ceases to
exist. Human trafficking, in contrast, is founded upon the institution of an
exploitive relationship that continues beyond the initial transporting phase; this
generally implies the further controlling of the victim by the trafficker for a long
period of time after entering the new country.
When enacting laws against trafficking, it is of extreme importance to define
trafficking in a broad manner so as ascertain that all the allied violations of
human rights fall within its ambit.
This paper will examine what defines trafficking in persons and what the
operation of trafficking in persons entails. Who is being trafficked will be
analyzed as well as what allows this to continue to exist and thrive as a business.
Palermo Protocol at the international level and the ITPA Act at the national level
are the two major weapons in the fight against trafficking. In this project, the two
documents will be critically analyzed. Furthermore, this paper will look at what
needs to be done by the international community to combat the human rights
violation that is human trafficking.
Trafficking - Definition And Overview

The international community is sharply divided in its approach to the definition


of trafficking in women. Until the drafting of the 2001 Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention Against Transnational Organized
Crime, the main international legal document concerning trafficking was the
1949 United Nations Convention on the Suppression of the Traffic in Persons and
of the Exploitation of the Prostitution of Others. The 1949 Convention took an
approach to trafficking and prostitution that required states parties to punish
any person who "procures, entices or leads away, for the purposes of
prostitution, another person, even with the consent of that person; or exploits
the prostitution of another person, even with the consent of that person."
The 2001 United Nations Protocol to Prevent, Suppress and Punish Trafficking in
Persons was the next major document on this issue. In defining trafficking,
drafters of the Protocol had to negotiate around the differences between
advocates endorsing the approach similar to that taken in the 1949 convention
and advocates favoring the regulation of commercial sex work. These differences
centered on the question of consent in commercial sex work.
The definition of trafficking adopted in the 2001 United Nations Protocol to
Prevent, Suppress and Punish Trafficking in Persons reflects a compromise. The
language adopted allows individual states to choose how they will address
prostitution. The definition states:
"Trafficking in persons" shall mean the recruitment, transportation, transfer,
harbouring or receipt of persons, by means of the 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 of payments or benefits to
achieve the consent of a person having control over another person, for the
purpose of exploitation. Exploitation shall include, at a 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 the
removal of organs;
Interpretive Note 13 of the Protocol explains that the terms "exploitation of the
prostitution of others" or "other forms of sexual exploitation" are not defined in
the Protocol, which is therefore without prejudice to how States Parties address
prostitution in their respective domestic laws.
By allowing domestic laws on prostitution to prevail, the Protocol allows states
to regulate or ban prostitution as they choose but at the same time gives a
leeway to a lax system of implementation of corrective laws. However, the
inclusion of a definition of trafficking in a law that deals with not only trafficking
but also prostitution itself, conflates the issues of prostitution (included under
the category of exploitation in the definition) and trafficking, which according to
a significant number of activists, NGOs and even prostitutes themselves need to
be looked at separately. The phrase ‘position of vulnerability' included in the
definition of trafficking is highly ambiguous and could be interpreted to
disregard the right to self-determination of a prostitute or sex worker.

The ITPA, the only central Indian legislation that deals with trafficking,
inexplicably fails to provide an original definition for the same. The amendment
to the Act inserts the following definition of trafficking as clause 2(k) as per the
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children, also called the Palermo Protocol.
In addition, it is debatable whether the incorporation of the Palermo Protocol
definition that covers all forms of trafficking in a legislation, which deals solely
with trafficking for commercial sexual exploitation shall be of much help. If this
definition is incorporated, the character of the ITPA shall have to change
completely and become a new legislation on all forms of trafficking in human
beings.
Despite signs of a growing consensus on the international definition of
trafficking in human beings, there remains debate over the correct approach to
trafficking in domestic law. Human rights advocates and government institutions
continue to discuss exactly what activities should and should not be considered
trafficking. As trafficking is a complex issue, with interrelated social and
economic factors, the most effective approach may be to adapt one's working
definition of the problem to the specific task or project. For example, while
legislation requires a precise description of prohibited behavior, outreach or
rehabilitative work may be the most effective if trafficking is defined
expansively.
Palermo Protocol And The ITPA Act - An Analysis
There have been numerous documents registering the actions of the
international community against human trafficking. The Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially women and Children
supplementing the United Nations Convention Against Transnational Organised
Crime, also called the Palermo Protocol, provides the definition of trafficking in
human beings as currently agreed upon by the international community. The
Protocol deals with the problem of modern day slavery hints at the nexus
between migration and trafficking while distinguishing trafficking and
smuggling.
The definition of trafficking as given in the Palermo Protocol also clarifies that
trafficking includes not only the transportation of a person from one place to
another, but also their recruitment and receipt so that anyone involved in the
movement of another individual from his/her exploitation is part of the
trafficking process. It also states that trafficking in humans is not restricted to
commercial sexual exploitation alone but also takes place for forced labour and
other practices akin to slavery.
On comparison with the 1949 Convention of Convention for the Suppression of
Traffic in Persons and of the Exploitation of the Prostitution of Others, it is
evident that the Palermo Protocol takes cognizance of the importance of consent
and does not confine the definition of trafficking to prostitution alone. It
combines traditional crime control measures for investigating and punishing
offenders with measures to protect victims of trafficking.
Legislative Framework Regarding Trafficking
Under the Indian constitution, all forms of trafficking of humans or forced labor
are banned. Article 23 clearly lays down that nobody can be forced to provide
bonded labour.
Immoral Traffic (Prevention) Act, 1956 or the ITPA is perhaps the only Indian
law dealing with trafficking that too only of prostitutes. . In addition to this, there
exists an entire range of laws that, in reality, tend to be utilized more often in
tackling prostitution than the ITPA itself. These laws include the Indian Penal
Code, 1860 (which has provisions against trafficking and slavery of women and
children) and the state-level police, railways, beggary, health and public order
statutes. Apart from these laws, state governments are permitted to frame rules
under the ITPA, as regards the licensing and running of protective homes. ITPA
came to existence as result of the amendment of the Suppression of Traffic in
Persons and of the Exploitation of the Prostitution of Others, which in turn
passed due to the fact that India had become signatory to United Nations
Convention for the Suppression of Traffic in Persons and of the Exploitation of
the Prostitution of Others, 1949. It was in 1986 that SITA was renamed ITA.
Enactment of ITPA and the subsequent amendments to it are steps in the right
direction but are still insufficient due to inherent flaws that are still present. For
example the act mainly lays down that the process of maintain and running a
brothel is illegal (section 3) but other activities are held to be legal which include
the act of a woman carrying out prostitution in her own premise. One of the key
features to the amendment to the ITA is the removal of Section 8 which held that
actions such as soliciting to be illegal and causes of public disturbance. Thus
majority of the arrests that were made under this section happened to the
women whereas the traffickers would not b charged with this section.

The deletion of Section 8, though, is a step in the right direction, protecting the
interests of prostitutes or sex workers instead of treating them as criminals.
To be really effective, the amendments need to ensure that adequate legal aid
and representation is provided to prostitutes and trafficked women. Additional
provisions for setting a time limit to be set for speedy record of evidence have
also been made under the amendment to Section 21A the ITPA. While the need
for speedy access to justice cannot be denied, the amendments should contain
safeguards to ensure that proper procedures are followed and human rights are
not violated. Also, a clause ensuring that the court protects the dignity and
privacy of the indicted through the provision of mandatory in camera
proceedings has been added. However, the crucial issue of the sensitization of
the judiciary and law enforcement agencies to the plight of prostitutes and the
need for approaching such cases without a moral bias resulting from social
perceptions has not been addressed by the amendments.
One of the most controversial amendments is the addition of Section 5C that
punishers clients of prostitutes for the first time. It penalizes those persons ‘who
visit or are found in a brothel for the purpose of sexual exploitation of any victim
of trafficking' with a term of imprisonment and/or fine. The section has
ostensibly been drafted to penalize clients who seek sexual services from a
trafficked victim and in the words of the Department of Women and Child
Development, which has drafted the Amendment Bill, will provide a penal
remedy against clients who stimulate the demand for trafficking for commercial
sexual exploitation yet remain untouched by existing law.
The intention behind inserting Section 5C is undoubtedly noble but the section
itself is quite ambiguous.
The term ‘sexual exploitation' has not been defined anywhere in the amendment
bill. Furthermore, neither the ITPA not its amendment takes into account the
issue of consent. The definition of trafficking as laid down in Section 2(f) fails to
make a distinction between consensual prostitution and sexual exploitation. It
brings any form of commercial sex work or prostitution within the ambit of
trafficking for sexual exploitation; thereby denying sex workers who have willing
entered the profession for economic reasons their rights to earn a livelihood and
freedom of choice and profession. The failure to make this distinction further
conflates the issues of trafficking and induction into commercial sexual
exploitation and voluntary sex work or prostitution. The insertion of Section 5C
is likely to hurt the interests of those workers the most who have willingly
entered the profession by punishing clients, on whom they depend on to make a
living as it can be interpreted to punish all clients who visit brothels. Moreover,
the amendment does not specify how law enforcement personnel shall
distinguish between clients found in a brothel who avail the services of a
trafficking victim and clients who are found with sex workers who have
voluntarily entered the profession.
In practice, Section 5C is likely to become another tool for the harassment and
extortion of persons found in the vicinity of brothels. This section, instead of
empowering sex workers, further denies them their rights. It also completely
negates the purpose of deleting Section 8. If the clients themselves are liable to
be arrested then decriminalizing soliciting serves no real gain and fails to
empower sex workers as it was meant to. Instead, the section threatens the very
existence of sex workers. Moreover, the section does not require the client to
have sex with the trafficked victim; the act of visiting a brothel is sufficient
ground for arrest. This gives wide ranging discretionary powers to the police
that might be misused, further victimizing sex workers.
In conclusion, it is clear that the ITPA amendments have not have had the
desired effect. The act still aims and punishes the prostitutes rather protecting
them. In addition, the law must take cognizance of the fact that the enforcement
of the ITPA discriminates against women and provide safeguards to check the
abuse of powers by law enforcement agencies. A greater role has to be played by
NGOs in the protection and rehabilitation of prostitutes arrested or convicted
under the Act. The Palermo Protocol definition should either be a part of the IPC
or a separate legislation to comprehensively deal with all forms of trafficking in
human beings. But most importantly, the amendments have to be implemented
properly for the law to be truly effective
Conclusion And Suggestions
The Universal Declaration of Human Rights states: “Everyone has the right to life,
liberty and security of person (Article 3), No one shall be held in slavery or
servitude; Slavery and the slave trade shall be prohibited in all their forms
(Article 4), No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment (Article 5). International conventional law
has recognized trafficking in persons as a human rights violation. The 1956
Convention on the Abolition of Slavery, the Slave Trade and Institutions and
Practices Similar to Slavery outlawed slavery practices including debt bondage,
serfdom, bride price and exploitation of child labor. The 1979 Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) explicitly
prohibited “exploitation or prostitution of women” and “all forms of trafficking in
women” [Article 6]. The 1989 Convention on the Rights of the Child mandated
that state parties must take all appropriate measures to prevent “the abduction
of, the sale of or traffic in children for any purpose or in any form” [Article 35].
Recognition of trafficking in persons as a transnational crime is essential in
combating human trafficking. Cooperation between countries of origin and
countries of destination must be a part of any transnational legal response since
apprehension of traffickers, investigation of cases of trafficking and prosecution
of the traffickers sometimes require cooperation between countries of origin and
countries of destination in matters “including request for assistance, search,
seizure, attachment and surrender of property, measures from securing assets,
service of judicial decision, judgments and verdicts.”
In response to recent international mandates a number of new anti-trafficking
legislation has been enacted which have shifted the focus from criminalizing the
behavior of the trafficked person to recognizing such a person as a victim of a
crime. In these legislations the crime control approach to trafficking in persons
has been coupled with a human rights-based approach to trafficking. Many
immigration policies have been redefined to allow for a legitimate immigration
status for the trafficked person.
International conventions against slavery, trafficking, and the rights of migrants
and the rights of women are a significant source of publicity, these conventions
broadcast the abuses involved in human trafficking and draw attention to
government neglect of its commitments. Publicity of the crime of trafficking in
persons and awareness in the community is vital to fighting human trafficking.
Government agencies must play a major role in raising awareness. This includes
the spread of information about the facts, the provision of counseling for those
thinking of migration and work with families and communities in order to build
alternatives to leaving home.
With regards to trafficking in persons as a severe violation of human rights,
states should implement programs that deal with the victims of trafficking in a
“comprehensive and compassionate” manner. These programs are necessary to
treating victims with the dignity and care that they deserve, but they are also
helpful in establishing victim cooperation, which is essential for combating
trafficking. Deportation is still the norm in most parts of the world, which, as
mentioned early, does nothing to diminish the traffic and instead makes the
victims of trafficking less likely to report their situation and more dependent
upon traffickers and pimps. This is an essential issue that needs to be addressed.
Victims of trafficking are entitled to basic human rights; efforts need to be made
insure that these rights are no longer violated by legal systems.
Of course it is assumed that each country will have to find an approach to combat
trafficking in persons that suits the specific needs of that country, as trafficking
affects sending, receiving, and transit countries differently.
Unlike international law, U.S. domestic legislation recognizes that slavery is
“defined primarily by the power of an individual to control another for economic
gain.” The definitions of trafficking in the U.N. Trafficking Protocol and the
United States Trafficking Act are similar, however, the difference lies in the
United States' “aggressive, proactive approach” to the human
trafficking. For example, unlike the Trafficking Protocol, the US Anti Trafficking
Act contains international monitoring and funding restriction provisions. The
Trafficking Act also establishes obligatory restitution from convicted traffickers,
as a recent amendment to the Trafficking Act allows survivors to “sue their
former captors for civil damages or violations of the statute.”
In spite of the strengths of both international and U.S. anti-trafficking laws, they
both consist of weaknesses when it comes to protections for victims. Both the
U.N. Protocol and the U.S. Trafficking Act recognize trafficked individuals are
victims of a crime rather than illegal migrants; however, they are not “consistent
in this victim-centered approach.”
The Trafficking Protocol established the inclusion of provisions of immigration
relief, social services, and compensation to victims optional rather than
mandatory. United States law has established an immigration status and social
services for victims, yet, these benefits are only available victims of a “severe
form of trafficking” who are cooperating with and needed for the prosecution of
their traffickers. The stipulations placed on immigration relief and social services
create the “perception that victims are primarily instruments of law enforcement
rather than individuals who are, in and of themselves, deserving of protection
and restoration of their human rights.”
Bibliography

Books And Articles


 Altink, Sietske, “Stolen Lives: Trading Women into Sex and Slavery”,
Harrington Park Press, New York, 1995.
 Anon., ‘Human Rights Standards for the Treatment of Trafficked Persons',
Global Alliance Against Traffic in Women Publication, 1999. Found at -
www.ihrlgtraffickin_tsStandards.pdf.
 Bales, Kevin, “Disposable People: New Slavery in the Global Economy”
,California:
University of California Press, Berkeley, 1999.
 Cook Rebecca, ‘Human Rights of Women', University of Pennsylvania
Press, Philadelphia, 1994.
 Coonan, Terry, “Ancient Evil, Modern Face: A Fight Against Human
Trafficking” Georgetown Journal of International Affairs, Edmund A.
Walsh School of Foreign Service, 2005
 Defeis, Elizabeth F, “Protocol to Prevent, Suppress & Punish Trafficking in
Persons- A
New Approach” 10 ILSA Journal of International & Comparative Law, 2004.
 Jordan Ann, ‘The Annotated Guide to the Complete UN Trafficking
Protocol', International Human Rights Law Group Publication,
Washington, 2002. Found at -
www.hrlawgroup.org/initiatives/trafficking_persons/.
 Kyle, David, and Rey Koslowski, “Global Human Smuggling: Comparative
Perspectives” Baltimore, Md.; London: Johns Hopkins University Press,
2001.
 Mc Kinnon Catherine, ‘Are Women Human', The Belknap Press of Harvard
University Press, London, 2006.
 Rao Mamata, ‘Law Relating to Women and Children', Ed. II, Eastern Book
Company, Lucknow, 2008.
 Sen Shankar, ‘Trafficking of Women and Children in India', Orient
Longman Publications, New Delhi, 2005.
 Skrobanek, Siriporn, “The Traffic in Women: Human Realities of the
International Sex
Trade” London, 1997.
Web Sites -
 “Assessment of U.S. Activities to Combat Trafficking in Persons.” U.S.
Department of Justice. Last visited on 28th December, 2008. Available at -
http://www.state.gov/g/tip/rls/rpt/23495.htm
 “U.S. State Department Trafficking Report Undercut by Lack of Analysis.”
Human
Rights Watch. Available at -
http://www.hrw.org/press/2002/06/usreport0606.htm
 United States Congress: Trafficking in Persons Report of 2004. “United
States of America.” April 2005. Available at -
http://www.humantrafficking.org/countries/eap/united_states/

Primary Documents -
 Convention on Slavery of the League of Nations, 1927.

 Universal Declaration of Human Rights, 1948.

 United Nations Convention on the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others of 1949.

 Constitution of India, 1950.

 Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices
Similar to Slavery, 1956.

 Suppression of Immoral Traffic in women and Girls Act, 1956

 Convention on the Elimination of All Forms of Discrimination against Women, 1979.

 The Immoral Traffic (Prevention) Act, 1986.

 Convention on the Rights of the Child, 1989.

 ILO Convention on the Worst Forms of Child Labour, 1999.

 United Nations Convention Against Transnational Organised Crime, 2000.

 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, 2001.