The Prevention of Human Trafficking – Regulating Domestic Criminal Legislation through the European Convention on Human Rights

in Nordic Journal of International Law
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The 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.

  • 3)

    Amielibid. p. 12.

  • 4)

    UNESCO Touzenissupra note 2 p. 72.

  • 17)

    UNESCO Touzenissupra note 2 p. 7.

  • 28)

    UN Doc. E/CN.4/2006/61supra note 27 para. 15.

  • 30)

    Amielsupra note 2 p. 11.

  • 37)

    Tulkenssupra note 20 p. 578.

  • 51)

    Amielsupra note 2 p. 42.

  • 82)

    Vladislavasupra note 78 p. 171. See para. 284 in the case.

  • 100)

    UNESCO Touzenissupra note 2 p. 32.

  • 102)

    UNESCO Touzenissupra note 2 p. 35.

  • 104)

    Abrahamsonsupra note 97 p. 483. See also Economic and Social Commission for Asia and the Pacific supra note 101 p. 7.

  • 109)

    Abrahamsonsupra note 97 p. 436.

  • 117)

    Lehti and Aromaasupra note 95 p. 133 and International Organization for Migration (IOM) Counter Trafficking and Assistance to Vulnerable Migrants Annual Report of Activities 2011 p. 84.

  • 118)

    MacKinnonsupra note 14 p. 272.

  • 119)

    Amielsupra 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.

  • 122)

    O’Connor and Healysupra note 119 p. 19.

  • 125)

    UNESCO Touzenissupra note 2 p. 32.

  • 129)

    Resolution 1579 (2207) Prostitution – Which Stance to Take? Parliamentary Assembly of the Council of Europe.

  • 133)

    Lehti and Aromaasupra 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.

  • 138)

    Silenzi Cianciarulosupra note 116 p. 68.

  • 145)

    UNESCO Touzenissupra note 2 p. 54.

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