The human rights of trafficked persons (part 2)

Both the Charter of the United Nations and the Universal Declaration of Human Rights confirm that  rights are universal: they apply to everyone, irrespective of their race, sex, ethnic origin or other distinction. Trafficked persons are entitled to the full range of human rights. Even if they are outside their country of residence, international law is clear that trafficked persons cannot be discriminated against simply because they are non-nationals. In other words, with only some narrow exceptions that must be reasonably justifiable, international human rights law applies to everyone within a State’s territory or jurisdiction, regardless of nationality or citizenship and of how they came to be within the territory.

International human rights law recognizes that certain groups require additional or special protection. This may be because of past discrimination or because their members share particular vulnerabilities. In the context of trafficking, relevant groups include women, children, migrants and migrant workers, refugees and asylum seekers, internally displaced persons, and persons with disabilities. Sometimes, members of a group will be specifically targeted for trafficking. Children, for example, may be trafficked for purposes related to their age such as sexual exploitation, various forms of forced labour and begging. Persons with disabilities can also be targeted for certain forms of exploitative labour and begging. Women and girls are Trafficked into gender-specific situations of exploitation such as exploitative prostitution and sex tourism, and forced labour in domestic and service industries. They also suffer gender-specific forms of harm and consequences of being trafficked (for example, rape, forced marriage, unwanted or forced pregnancy, forced termination of pregnancy, and sexually transmitted diseases, including HIV/AIDS).

Individuals belonging to specific groups who are subject to trafficking may be in a position to claim different or additional rights. For example, international human rights law imposes important and additional responsibilities on States when it comes to identifying child victims of trafficking as well as to ensuring their immediate and longer-term safety and well-being. The core rule is derived from the obligations contained in the Convention on the Rights of the Child: the best interests of the child are to be at all times paramount. In other words, States cannot prioritize other considerations, such as those related to immigration control or public order, over the best interests of the child victim of trafficking. In addition, because of the applicability of the Convention to all children under the jurisdiction or control of a State, non-citizen child victims of trafficking are entitled to the same protection as nationals in all  matters, including those related to the protection of their privacy and physical and moral integrity. Other treaties may further specify these rights. For example, the Trafficking Protocol requires certain special measures with regard to child victims, as does the Convention on Action against Trafficking in Human Beings.

The rights of aliens

Aliens … have an inherent right to life, protected by law, and may not be arbitrarily deprived of life. They may not be subjected to torture or to cruel, inhuman or degrading treatment or punishment; nor may they be held in slavery or servitude. Aliens have the full right to liberty and security of the person. If lawfully deprived of their liberty, they shall be treated with humanity and with respect for the inherent dignity of their person. Aliens may not be imprisoned for failure to fulfil a contractual obligation. They have the right to liberty of movement and free choice of residence; they shall be free to leave the country.

Aliens shall be equal before the courts and tribunals, and shall be entitled to  a fair and public hearing by a competent, independent and impartial tribunal established by law in the determination of any criminal charge or of rights and obligations in a suit at law. Aliens shall not be subject to retrospective penal legislation, and are entitled to recognition before the law. They may not be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence. They have the right to freedom of thought, conscience and religion, and the right to hold opinions and to express them. Aliens receive the benefit of the right of peaceful assembly and of freedom of association. They may marry when at marriageable age. Their children are entitled to those measures of protection required by their status as minors. In those cases where aliens constitute a minority within the meaning of article 27, they shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion and to use their own language. Aliens are entitled to equal protection by the law. There shall be no discrimination between aliens and citizens in the application of these rights.

These rights of aliens may be qualified only by such limitations as may be lawfully imposed under the Covenant.

Source: Human Rights Committee, general comment No. 15 (1986) on the position of aliens under the Covenant, para. 7.

Next Issue:  The importance of a human rights-based approach to trafficking (part 3)