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The Prevention of Human Trafficking – Regulating Domestic Criminal Legislation through the European Convention on Human Rights
In: Nordic Journal of International LawThe article displays how human rights law is extending into the sphere of domestic criminal law, as seen through the approach to human trafficking by the European Court of Human Rights. The Court is increasingly demanding the criminalisation of harmful acts to prevent harms and to protect potential victims. The content of domestic laws is also progressively subject to evaluation of the Court, in line with its development of placing positive obligations on states to protect individuals from harm perpetrated by private actors. Human trafficking is an example where the Court has not only found the crime to fall within the ambit of Article 4 of the European Convention on Human Rights, which prohibits slavery, forced labour and servitude, but through case law has concretised various positive obligations for states. These include adopting effective criminal laws that cover the acts included in human trafficking. Such laws must be clear and not open to various interpretations. If the law is similar to that of the Palermo Protocol, it is considered effective. However, it is indicated that other constructions may also reach the required level of effectiveness. It is submitted that the methodology of the Court in delineating state obligations is flawed in that the Court demands effective laws but does not clarify what ‘effectiveness’ entails. The casuistic style of the Court negates its increasingly outspoken goal of developing the rules of the Convention for all Member States. The rather broad margin of appreciation of states in formulating domestic criminal laws conflicts with the demands of ‘effectiveness’ in protection.
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4)
UNESCO, Touzenis, supra note 2, p. 72.
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17)
UNESCO, Touzenis, supra note 2, p. 7.
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28)
UN Doc. E/CN.4/2006/61, supra note 27, para. 15.
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30)
Amiel, supra note 2, p. 11.
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37)
Tulkens, supra note 20, p. 578.
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51)
Amiel, supra note 2, p. 42.
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82)
Vladislava, supra note 78, p. 171. See para. 284 in the case.
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100)
UNESCO, Touzenis, supra note 2, p. 32.
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102)
UNESCO, Touzenis, supra note 2, p. 35.
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104)
Abrahamson, supra note 97, p. 483. See also Economic and Social Commission for Asia and the Pacific,, supra note 101, p. 7.
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109)
Abrahamson, supra note 97, p. 436.
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117)
Lehti and Aromaa, supra note 95, p. 133 and International Organization for Migration (IOM), Counter Trafficking and Assistance to Vulnerable Migrants, Annual Report of Activities 2011, p. 84.
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118)
MacKinnon, supra note 14, p. 272.
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119)
Amiel, supra note 2, p. 30; M. O’Connor and G. Healy, ‘The Links between Prostitution and Sex Trafficking: A Briefing Handbook’, Prepared for the Joint Project Coordinated by the Coalition against Trafficking in Women and the European Women’s Lobby on Promoting Preventative Measures to Combat Trafficking in Human Beings for Sexual Exploitation, 2006, p. 16. The split between countries was e.g. obvious in the working group on Contemporary Forms of Slavery of the UN Commission on Human Rights. See UN Doc. E/CN.4/Sub.2/2005/34, 7 July 2005, paras. 28–29.
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122)
O’Connor and Healy, supra note 119, p. 19.
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125)
UNESCO, Touzenis, supra note 2, p. 32.
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129)
Resolution 1579 (2207) Prostitution – Which Stance to Take?, Parliamentary Assembly of the Council of Europe.
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133)
Lehti and Aromaa, supra note 95, p. 138. Meanwhile, it is also noted that legally sanctioned prostitution can heighten the risk of exposing sex workers to violence and health risks, see e.g. the Netherlands, UN Doc. A/56/38, part II, paras. 209–210.
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138)
Silenzi Cianciarulo, supra note 116, p. 68.
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145)
UNESCO, Touzenis, supra note 2, p. 54.
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The Prevention of Human Trafficking – Regulating Domestic Criminal Legislation through the European Convention on Human Rights
In: Nordic Journal of International LawThe article displays how human rights law is extending into the sphere of domestic criminal law, as seen through the approach to human trafficking by the European Court of Human Rights. The Court is increasingly demanding the criminalisation of harmful acts to prevent harms and to protect potential victims. The content of domestic laws is also progressively subject to evaluation of the Court, in line with its development of placing positive obligations on states to protect individuals from harm perpetrated by private actors. Human trafficking is an example where the Court has not only found the crime to fall within the ambit of Article 4 of the European Convention on Human Rights, which prohibits slavery, forced labour and servitude, but through case law has concretised various positive obligations for states. These include adopting effective criminal laws that cover the acts included in human trafficking. Such laws must be clear and not open to various interpretations. If the law is similar to that of the Palermo Protocol, it is considered effective. However, it is indicated that other constructions may also reach the required level of effectiveness. It is submitted that the methodology of the Court in delineating state obligations is flawed in that the Court demands effective laws but does not clarify what ‘effectiveness’ entails. The casuistic style of the Court negates its increasingly outspoken goal of developing the rules of the Convention for all Member States. The rather broad margin of appreciation of states in formulating domestic criminal laws conflicts with the demands of ‘effectiveness’ in protection.
| All Time | Past Year | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 561 | 105 | 7 |
| Full Text Views | 208 | 36 | 4 |
| PDF Views & Downloads | 187 | 78 | 9 |