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Article 6

Marsha A. Freeman, Christine Chinkin, Beate Rudolf

From: The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary

Edited By: Marsha A. Freeman, Christine Chinkin, Beate Rudolf

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 17 April 2021

(p. 169) Article 6

States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.

  1. A.  Introduction 170

    1. I.  Historical Context and Main Concepts 170

    2. II.  Role of the Convention 171

    3. III.  CEDAW Committee Practice 173

      1. 1.  Concluding Observations 173

      2. 2.  General Recommendations 173

      3. 3.  Optional Protocol 174

  2. B.  Travaux Préparatoires 175

    1. I.  Article 6 Placement and Brevity 175

    2. II.  Scope of Subject Matter 176

      1. 1.  ‘All Forms of Traffic’ 176

      2. 2.  ‘Exploitation of Prostitution’ 176

      3. 3.  Other Harms 177

  3. C.  Issues of Interpretation 177

    1. I.  ‘All Forms of Traffic’ 177

    2. II.  ‘Exploitation of Prostitution’ 178

  4. D.  Equality in Context 180

    1. I.  Formal and Substantive Equality 180

    2. II.  Transformative Equality 181

    3. III.  Direct and Indirect Discrimination 182

    4. IV.  Intersectional Discrimination 182

  5. E.  States Parties’ Obligation 183

    1. I.  Nature of the Obligation 183

      1. 1.  ‘All Appropriate Measures’ 183

      2. 2.  Immediate Implementation 184

      3. 3.  Specific and Non-specific Obligations 184

    2. II.  Implementation 185

      1. 1.  Obligation to Respect 186

        1. a)  No Prosecution of Trafficked Women for Status Offences 186

        2. b)  No Routine Detention of Trafficked Women 186

        3. c)  Respect for Established Rights 186

        4. d)  Trafficked Women’s and Girls’ Citizenship and Nationality Rights 187

        5. e)  Discrimination against Prostitutes 187

        6. f)  Prompt and Accurate Identification of Trafficked Women 188

      2. 2.  Obligation to Protect 188

        1. a)  Criminal Justice Responses to End Impunity 189

        2. b)  Protection and Support for Victims 189

        3. c)  Legal Assistance, Protection, and Temporary Residence Permits 190

        4. d)  Safe and Preferably Voluntary Return and Options for Residency in Appropriate Cases 190(p. 170)

        5. e)  Safe, Fair, and Equal Labour Migration Opportunities 191

        6. f)  Special Protective and Punitive Measures in Conflict Contexts 191

        7. g)  Special Protection for Girl Victims of Trafficking 192

      3. 3.  Obligation to Fulfil 192

        1. a)  Access to Remedies 192

        2. b)  Data Collection 192

        3. c)  Addressing Demand as a Root Cause of Trafficking 193

        4. d)  Promoting Trafficking Awareness in All Sectors of Society 194

        5. e)  Structural Remedies to Address the Causes of Trafficking and Exploitation of Prostitution 194

        6. f)  Bilateral and Multilateral Cooperation 196

        7. g)  Cooperation with Civil Society in the Design and Implementation of Anti-Trafficking Interventions 196

A.  Introduction

I.  Historical Context and Main Concepts

Article 6 of the Convention addresses the obligation of States parties to suppress the trafficking and exploitation of prostitution1 of women. When the Convention was drafted, these issues were already addressed in international treaties, specifically the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others2 (1949 Trafficking Convention). Declaring trafficking (for sexual purposes only) and prostitution to be ‘incompatible with the dignity and worth of the human person’ and a ‘danger to the welfare of the individual, the family and the community’, the 1949 Trafficking Convention punishes the (undefined) practices of trafficking, procurement, and exploitation of prostitution, irrespective of the victim’s age or consent, and whether internal or cross-border. Due to the existing coverage under international law, the Convention drafters believed that trafficking needed only brief mention. Bringing trafficking into a human rights treaty regime denoted an important conceptual shift, however, by subjecting, for the first time, States’ anti-trafficking efforts to the scrutiny of an expert treaty monitoring body.

Like the 1949 Trafficking Convention, Article 6 of the Convention does not define the terms ‘trafficking’ and ‘exploitation of prostitution’. While exploitation of prostitution is generally understood to refer to pimping, the meaning of trafficking has evolved (and been deeply contested) over time.3 The CEDAW Committee has embraced a more expansive conception of trafficking than that of the 1949 Trafficking Convention. In its General Recommendation 19, for example, the Committee identified ‘new forms of trafficking’ including ‘the recruitment of domestic labour from developing countries to work in developed countries and organized marriages between women from developing countries and foreign nationals’. Even this characterization is outdated, as migratory flows are now understood to run from poorer countries to relatively wealthier countries, rather than necessarily from developing to developed countries.(p. 171)

The 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children4 (Trafficking Protocol), supplementing the 2000 UN Convention against Transnational Organized Crime5 (Organized Crime Convention), finally defined ‘trafficking’ as a matter of international law and States’ obligations to address this problem were specifically articulated. The Committee has called upon States parties to ratify the Trafficking Protocol and to adopt the new international legal definition of trafficking contained therein.6

(a)  ‘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;

(b)  The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.7

The international legal definition of trafficking has thus evolved significantly to encompass trafficking of women, men, and children, for the purpose of placing them into a wide range of exploitative labour practices beyond forced prostitution. Consistent with this broader view, the Committee, in its consideration of States parties’ reports, has called upon States parties, for example, to protect women and girls from forced marriage,8 and those working as domestic servants and in maquiladoras from exploitation and abuse.9

II.  Role of the Convention

As recognized in the Committee’s practice, trafficking is a phenomenon inexorably linked to the socio-economic impact of globalization, with wealth disparities feeding increased intra- and transnational labour migration as livelihood options decrease in less wealthy countries and communities. Women are over-represented among those migrating for survival, the gender disparity often attributed to the ‘feminization of poverty’10 arising from the failure of existing social structures to provide equal and just educational and employment opportunities for women. This results in a feminization of migration, as women accept dangerous migration arrangements to escape the (p. 172) entrenched discrimination, including unequal employment, gender-based violence, and the lack of access to basic resources for women.11 Current data indicating that women and girls form the majority of trafficked persons suggest that trafficking is a gender-based harm.12 Women experience discrimination at every stage of the trafficking cycle. Gender-based discrimination and violence in their home communities increase women’s vulnerability to traffickers; women are forced into gender-specific exploitative labour (for example, forced prostitution, domestic work); and they suffer gender-specific harms from trafficking (for example, unwanted pregnancy, forced marriage, rape, forced abortion, STDs). The Convention’s broad framework for eliminating discrimination against women in all spheres of life thus offers unique potential to address the underlying root causes of women’s and girls’ particular vulnerabilities to trafficking.

The Convention is one of several different sources of international laws relevant to the prevention and punishment of trafficking, and the protection of trafficking survivors. These include, in addition to trafficking-specific treaties,13 treaties relating to slavery and the slave trade,14 forced labour,15 human rights, and criminal justice.16 Within the area of human rights alone, trafficking can be approached from a number of different angles—for example, women’s rights, labour rights, children’s rights, migrant workers’ rights. The Convention is one of only two international human rights treaties that mention trafficking specifically, the Convention on the Rights of the Child (CRC) being the other.17 While subsequent law and policy developments have culminated in a much broader understanding of trafficking than that held by the CEDAW Convention drafters (eg as also affecting men and boys and involving non-sexual exploitation), the Convention’s identification of trafficking as a problem rooted in discrimination is an important paradigm for exploring the root causes of the phenomenon and for identifying specific rights and State obligations. Moreover, the fact that no State party has entered a reservation to Article 6 heightens the Convention’s potential for establishing a baseline anti-discrimination approach to trafficking of women and girls.(p. 173)

III.  CEDAW Committee Practice

1.  Concluding Observations

The Committee’s assessments of States parties’ reports under Article 6 have consisted of recommending broad, programmatic measures and providing, at times inconsistent, interpretations of the scope of Article 6 vis-à-vis the issue of prostitution. It has called upon States parties, for example, to incorporate and implement legislative measures to prevent trafficking and prosecute traffickers; to take measures aimed at poverty alleviation and women’s economic empowerment; to provide victim assistance through counselling, reintegration, and rehabilitation; to collect data on trafficking and the impact of anti-trafficking interventions; and to increase international, regional, and bilateral cooperation with other countries.18 The Committee has also discussed the discrimination that feeds trafficking, such as rural women’s unequal access to food, lack of access to alternative livelihoods, discriminatory measures taken against prostitutes and not the pimps, customers, or traffickers. But the Committee has not linked States parties’ obligations to address these root causes to specific provisions of the Convention, and instead has situated them generally within the context of Article 6.19 States parties’ obligations under Article 6 thus remain broadly programmatic, and could greatly benefit from specific elaboration in the form of a general recommendation on trafficking and exploitation of prostitution. Inconsistencies in the Committee’s reviews of States parties’ reports with regard to prostitution are a potential obstacle, however, to the development of a general recommendation on Article 6. Not surprisingly, given the deep divides within the international feminist community over prostitution reform, the Committee members themselves have divergent views as to how States parties should address prostitution.20 The Committee members’ contrasting positions over whether States parties should seek abolition of all prostitution or target only the exploitation of prostitution are evident in the Committee’s review of States parties’ reports.21 While, in recent years, the Committee has more consistently followed the text of the Convention by calling upon States parties to target the exploitation of prostitution, its specific guidance has also included recommendations that target prostitution more generally, such as efforts to prevent women from entering into prostitution, and to discourage the demand for prostitution.

2.  General Recommendations

The Committee addresses trafficking and exploitation of prostitution in General Recommendation 19 on violence against women and briefly references trafficking in General Recommendation 26 on women migrant workers. The Committee initially considered addressing trafficking in General Recommendation 26 on migrant workers, but ultimately decided that trafficking should be addressed separately.22(p. 174)

General Recommendation 19 identifies trafficking as a form of violence against women, and ipso facto, a form of discrimination on the basis of sex. As a form of gender-based violence, trafficking violates a wide range of rights, including the right to life, right not to be subjected to torture or to cruel, inhuman, or degrading treatment of punishment, right to equal protection according to humanitarian norms in time of international or internal armed conflict, right to liberty and security of the person, right to equal protection under the law, right to equality in the family, right to the highest attainable standard of physical and mental health, and right to just and favourable conditions of work.23 General Recommendation 19, paragraph 15 notes that poverty and unemployment increase opportunities for trafficking in women and force many women, including young girls, into prostitution. Because prostitutes are ‘especially vulnerable to violence’ since their status, which may be unlawful, ‘tends to marginalize them’, prostitutes ‘need the equal protection of laws against rape and other forms of violence’. General Recommendation 19, paragraph 16 further notes that ‘wars, armed conflicts and occupation of territories often lead to prostitution, trafficking in women and sexual assault of women, which require specific protective and punitive measures’.24

General Recommendation 26 addresses women migrant workers in low-paid jobs who may be at high risk of abuse and discrimination and who may never acquire eligibility for permanent stay or citizenship in the country of destination.25 The Committee recognized that ‘while women migrant workers may become victims of trafficking due to various degrees of vulnerability they face’, the trafficking phenomenon ‘is complex and needs more focused attention’. It noted that many elements of General Recommendation 26 would also be relevant where women migrants have been victims of trafficking.26

3.  Optional Protocol

In Zhen Zhen Zheng v Netherlands, Article 6 was the basis of an individual communication filed under the Optional Protocol.27 The Committee did not reach the merits of the claim, finding the communication inadmissible due to failure to exhaust domestic remedies. The author of the communication, a minor, was trafficked from China into the Netherlands for purposes of forced prostitution. She had not identified herself as a trafficking victim to the Dutch authorities and had unsuccessfully applied for asylum and a resident permit to remain in the Netherlands after she became pregnant and was released from her trafficking situation. The applicant claimed that the Netherlands had violated its obligation under Article 6 for failing to notify her of the possibility of pursuing relief under the ‘B9’ scheme, which permitted trafficked persons to apply for temporary residency status. The Committee found that the applicant had not exhausted domestic remedies because she had yet to pursue B9 relief after learning of the option and, moreover, judicial review of the decision on the applicant’s residency permit application was still pending.

In a dissenting opinion, three Committee members considered the complaint to be admissible and emphasized the State party’s obligation to exercise due diligence in identifying potential victims of trafficking and informing them of their rights. The dissent explicitly relied on the UN Trafficking Protocol to interpret States parties’ obligations under the Convention Article 6. Finding a violation of Article 6, the dissent (p. 175) recommended that the Netherlands take steps to determine whether the applicant was trafficked and, if so, to provide the protections required under the Protocol. Moreover, the dissent recommended that the Netherlands take measures to ensure that law enforcement officials are appropriately trained to interview and recognize trafficked persons at an early stage, including interview techniques that account for the vulnerable status of trafficked persons suffering post-traumatic stress disorder. The State party should also require that those identified as trafficked are referred for services and counselling and informed of procedures for seeking protection.28

B.  Travaux Préparatoires

I.  Article 6 Placement and Brevity

The placement and brevity of Article 6 are notable when compared to the other provisions of the Convention. Its placement in Part I, alongside the framework articles, seems odd at first glance, as its subject matter—trafficking and exploitation of prostitution—is more akin to the substantive articles located in the Convention Parts II to IV. The travaux préparatoires suggest that placement of the trafficking article in Part I was intentional, but offer no insight as to the rationale behind this choice.

With the exception of an early draft proposed by the USSR, which placed the trafficking article later in the Convention, with provisions labelled ‘Civil and Family Rights’,29 all drafts placed it with the framework articles in the first section of the treaty. Until shortly before the final draft, this first section was labelled ‘General Provisions’, in contrast to the headings ‘Political Rights’, ‘Social and Economic Rights’, and ‘Civil and Family Rights’ that organized the remaining articles.30 The final draft of the Convention deleted these headings, preferring the labels Parts I through IV, respectively.

One can only speculate as to why the trafficking article was placed in Part I (formerly ‘General Provisions’) of the Convention. One possibility is that the severity of the harms of trafficking and exploitation of prostitution, as compared to the other substantive articles, warranted elevating its status to the beginning of the Convention. Another possible rationale for article placement could stem from a recognition that effective suppression of trafficking and exploitation of prostitution would require compliance with all of the substantive obligations of the Convention. Yet another possibility is that the drafters conceived of trafficking and exploitation of prostitution as manifestations of discrimination distinct from, but of similar stature to, those described in the framework articles. Unlike the other framework articles, which set out States parties’ obligations in terms of measures to achieve equality, Article 6 requires States parties ‘to suppress’ trafficking and exploitation of prostitution. This unique framing suggests that trafficking is a particular form of discrimination, though it was not formulated as such until General Recommendation 19. Placement of the trafficking article in Part I ultimately does not appear, however, to have been factored into its interpretation by the Committee.

As to the brevity of the text of Article 6, the travaux préparatoires make clear that the drafters considered trafficking and exploitation of prostitution to be already sufficiently (p. 176) addressed under the 1949 Trafficking Convention, and, thus, ‘a detailed article [was] not considered necessary’.31 The final text of Article 6 was almost entirely derived from Article 8 of DEDAW.32 The earliest versions of the draft Convention article added to the DEDAW text a phrase obliging States parties to combat trafficking and exploitation of prostitution ‘in accordance with international conventions and agreements in this regard’,33 but this explicit reference to international law was soon deleted.34

II.  Scope of Subject Matter

1.  ‘All Forms of Traffic’

The Convention does not define ‘all forms of traffic’. The travaux préparatoires suggest, however, that the drafters intended the term to encompass only trafficking into the sex sector, despite a growing recognition that trafficking can occur for non-sexual purposes. When the Convention was drafted, the phenomenon of ‘exploitation of labour through illicit and clandestine trafficking’ outside the sex sector was actively being studied within the UN, including by the CSW, Commission on Human Rights, its Sub-Commission on the Prevention of Discrimination and Protection of Minorities, and the International Labour Organization. Whenever ‘exploitation of labour and illicit and clandestine trafficking in foreign labour’ was discussed specifically in relation to women and girls, however, it was always in the context of trafficking for forced prostitution.35 Indeed, in the course of the UN’s ongoing study, the CSW was explicitly directed to draw attention to the ‘plight of young girls and women who were lured into lives of prostitution by false promises of overseas jobs’.36

2.  ‘Exploitation of Prostitution’

As the text of the Convention and its travaux préparatoires make clear, the Convention was not intended to suppress prostitution as such, but rather to suppress only the ‘exploitation of prostitution’. During the drafting process, a few delegations attempted to expand the scope of the provision to encompass all prostitution. Early on, Norway proposed rewording the draft article to read: ‘States Parties agree to take all appropriate measures, including legislation, to combat prostitution and the illicit traffic in women’, to bring it into line with the Mexico City World Plan of Action.37 Shortly thereafter, Denmark proposed, and subsequently withdrew, an amendment to the same effect.38 Near the end of the drafting process, Morocco offered the following oral amendment: ‘States Parties shall take all appropriate measures, including legislation, to suppress prostitution, traffic in women and exploitation of prostitution (p. 177) of women in all its forms.’39 The Netherlands and Italy objected that the Moroccan amendment was inconsistent with the 1949 Trafficking Convention, which referred only to the exploitation of prostitution, and, thus, that it introduced a new element that their delegations could not accept. Ireland, Ethiopia, and Zambia objected that the phrase ‘exploitation of prostitution of women in all its forms’ was imprecise and ambiguous. Morocco’s amendment was rejected by forty-eight votes to nineteen, with forty-six abstentions.40 In the final text, Article 6 targets only the ‘exploitation of prostitution’.

3.  Other Harms

There was some discussion during the drafting process of expanding Article 6 to include harms other than prostitution and trafficking. A proposed amendment, that was later withdrawn owing to lack of support, was to broaden Article 6 to include ‘attacks on the physical integrity of women’.41 The need for such a provision dealing with attacks on the physical integrity of women was later noted,42 and it was proposed that Article 6 should refer to ‘combating also those forms of commercial advertisement and exploitation which use the female body in a way contrary to human dignity’.43 Another was for media exploitation to be taken into account.44 Ultimately, however, the drafters decided to keep the original text of the Article, limiting its coverage to trafficking and exploitation of prostitution.

C.  Issues of Interpretation

I.  ‘All Forms of Traffic’

Given the Trafficking Protocol definition of trafficking,45 international law now supports a much broader conception of the term ‘trafficking’ than that likely contemplated by the Convention drafters. Though the Committee has remained heavily focused on sex trafficking, consistent with evolving international anti-trafficking law, it has interpreted ‘all forms of traffic’ also to include trafficking for non-sexual purposes. General Recommendation 19, paragraph 14 notes that ‘[i]n addition to established forms of trafficking there are new forms of sexual exploitation, such as sex tourism, the recruitment of domestic labour from developing countries to work in developed countries and organized marriages between women from developing countries and foreign nationals’. These practices are ‘incompatible with the equal enjoyment of rights by women and with respect for their rights and dignity’, placing women at special risk of violence and abuse. Accordingly, the Committee has called upon States parties to monitor and address the continuing phenomenon of sex (p. 178) tourism46 and to address trafficking for non-sexual purposes,47 particularly the trafficking of women and girls for exploitative domestic work48 and forced marriage.49

II.  ‘Exploitation of Prostitution’

Also not defined in the text of the Convention, ‘exploitation of prostitution’ has been interpreted to cover any acts to obtain profit from prostitution such as pimping.50 CEDAW aims to suppress the exploitation of prostitution, as opposed to suppression of prostitution generally. International instruments adopted since the Convention, including, in particular, the Trafficking Protocol, have also not required suppression of prostitution generally, focusing instead on the suppression of its exploitation. As explained in the Trafficking Protocol interpretive notes and reiterated in subsequent UN guidance, States parties decided to leave the legal treatment of prostitution to the discretion of individual States.51

With international law decidedly agnostic on the issue, whether ‘trafficking’ encompasses non-coerced prostitution remains actively debated. On one side of the divide are the self-described ‘abolitionists’, who believe that all prostitution is inherently exploitative and degrading to women and amounts to sexual slavery. Consequently, ‘abolitionists’ believe that the failure of States to prohibit all prostitution violates a woman’s right to sexual autonomy. On the other side of the divide are those who oppose the ‘abolitionist’ view for diverse reasons. Some believe that women can choose prostitution as a viable livelihood option because the absence of adequate protections for prostitutes—not the sex industry itself—opens the door to trafficking and other abuses. Under this view, State action to penalize adults choosing to engage in prostitution amounts to a denial of individual liberty. Others acknowledge discomfort with the concept of sex as labour, yet none the less oppose the ‘abolitionist’ agenda on pragmatic grounds, believing that such policies—even those that seek to decriminalize the prostitute while penalizing all other actors involved in the sex industry—can work to harm prostitutes, for example, by driving the sex industry further underground.

Reflecting this deep divide, States vary enormously in how they characterize and address prostitution in their domestic laws, adopting one of three general approaches: (1) criminalization; (2) decriminalization; or (3) legalization/regulation of prostitution. The criminalization paradigm views prostitution as a social evil that should be subject to penal measures, though approaches vary as to whether prostitutes themselves are targeted. ‘Prohibitionist’ approaches criminalize all actors, whereas ‘toleration’ excludes the prostitute from penal measures. Decriminalization views prostitution as a personal choice between consenting adults, leaving relationships between prostitutes and pimps, brothel owners and clients outside the criminal framework and punishing only (p. 179) non-consensual acts. Legalization also seeks to address prostitution outside criminal law, and instead to regulate prostitution through zoning, licensing, and at times, mandatory health checks.

The Committee’s approach to prostitution in its consideration of States parties’ reports has been inconsistent, reflecting the ambiguity of the text and the prostitution reform debates.52 On the one hand, the Committee has expressed concern that criminalization of the purchase of sex could lead to clandestine prostitution and, consequently, increased vulnerability of women and girls to trafficking.53 On the other hand, it has equated prostitution with exploitation under Article 6,54 noting in particular that decriminalization could have unintended negative effects on migrant prostitutes.55 Rather than take a position on the legal treatment of prostitution, the Committee has focused on the need for States parties to assess the impact on prostitutes of whatever framework each State party has adopted, for example, the possibility that rehabilitation measures may stigmatize the prostitute, or that administrative detention of prostitutes may lead to denial of due process rights.56 The Committee has been clear, however, that any legal penalties attached to prostitution should not disproportionately penalize the prostitutes relative to traffickers, those who arrange for the exchange of sex for money (pimps), and those who purchase sex (johns).57

The Committee has increasingly targeted prostitution generally, however, expressing its concern that prostitution continues to thrive in some countries, and that it even involves ‘educated’ women.58 It has called upon States parties to discourage demand for prostitution,59 to develop programmes to prevent women from entering into prostitution,60 to provide information regarding the causes and extent of prostitution,61 and to monitor and address the link between sex tourism and prostitution.62 The Committee has (p. 180) noted its concern, for example, over the existence of illegal strip clubs63 and the lack of data concerning clandestine prostitution in massage parlours.64 It has also urged States parties to support women who want to stop practising prostitution, to provide training and/or education for alternative livelihoods, and to take measures to rehabilitate and reintegrate prostitutes.65 For example, noting how the impact of famine and natural disasters, particularly on rural women, can result in vulnerability to prostitution, the Committee called upon North Korea to ensure that rural women have equal access to food supplies.66 Similarly, it has called upon States parties to provide rural women with economic alternatives to prostitution,67 including specifically women who have lost their livelihoods due to changes in the agricultural sector.68

The Committee has also targeted the root causes of prostitution by focusing on the need to change society’s perception of women as sex objects. For example, it has urged States parties to ‘encourage a positive change of atmosphere regarding sex phone lines as they run counter to the efforts being made to portray women positively, and not as “sex objects”, in the media’;69 to ‘take appropriate measures to protect [cabaret dancers] from all forms of exploitation and to take action aimed at changing men’s and society’s perception of women as sex objects’;70 and has commended the use of regular mass media programmes, conferences, and seminars on violence, trafficking in human beings, prostitution, and elimination of stereotypes.71

D.  Equality in Context

While the Committee’s analysis of Article 6 has been limited, a comprehensive understanding of the processes of trafficking and exploitation of prostitution and their impact on women reveals how the phenomena are rooted in diverse forms of discrimination.

I.  Formal and Substantive Equality

General Recommendation 19 explicitly identifies trafficking as a form of gender-based violence against women, and ipso facto a violation of the norm prohibiting discrimination on the basis of sex.72 De jure and de facto discrimination feeds the trafficking cycle in countries of origin, transit, and destination.

In countries of origin, the lack of formal equal rights with respect to citizenship, inheritance and other property rights, employment, educational opportunities, and access to financial resources, all contribute to the feminization of migration, causing women to look beyond their home communities for income-earning options. Compounding the (p. 181) vulnerabilities are formal restrictions on women’s rights to out-migration based on sex or sex combined with age, marital status, pregnancy, or maternity status, occupation-specific restrictions, or requirements that women have written permission of male relatives to obtain a passport or migrate.

Women’s unequal access to training and education may restrict their access to reliable information on migration, thus increasing their vulnerability to being trafficked. These factors, in turn, can make women even more susceptible to the exploitative offers of third parties to facilitate their migration and search for employment. Since women generally have fewer assets than men, they tend to be more financially dependent on third parties who can charge usurious rates of interest or use their positions of power to exploit the women.73

Multiple forms of de jure and de facto discrimination may confront women upon their arrival in the destination countries.74 Governments may ban the formal employment of women, conforming to gendered notions of appropriate work for women that track women’s traditional roles as providers of domestic care and sex.75 Thus relegated to the informal labour market, women are often denied labour rights,76 such as minimum wage and overtime pay guarantees. Since prostitution is illegal in most countries, prostitutes tend not to benefit from labour protections. Moreover, because they are often stigmatized as inviting misfortune on themselves, prostitutes may be denied equal protection of laws against rape and other forms of violence.

Upon return to their home countries, compounding the push factors that led them to migrate in the first instance, trafficked women may face the social stigma attached to their having been trafficked, especially those trafficked for forced prostitution.77 Some countries of origin may not recognize their victim status as trafficked persons and deprive them of rights to nationality and social services otherwise provided to victims of crime. Other countries of origin may even prosecute trafficked persons for their unauthorized departure.78

Suppression of trafficking and the exploitation of prostitution thus requires the achievement of formal and substantive equality in many if not all of the political, social, economic, and cultural fields covered by the Convention.79 Only by achieving substantive equality in these fields can the root causes of trafficking be addressed and women’s and girls’ vulnerability to trafficking eliminated.

II.  Transformative Equality

Article 5 of the Convention requires the elimination of stereotypes or prejudices based on sex. The legal, political, and economic constraints on women that create vulnerability to trafficking and exploitation of prostitution are often deeply rooted in stereotypes, customs, and norms that promote a narrow view of women’s roles in their families and communities.80(p. 182)

Transformative equality necessitates the elimination of negative cultural stereotypes and expectations of women, and demands greater recognition and valuing of the social and economic contributions of women workers, particularly in the informal sector. Family structures based on traditional sex roles and division of labour impede women’s access to the formal labour sector and, hence, legally mandated workplace protections.81 Moreover, socio-cultural expectations of a woman’s subservience to her family can lead her to remit her earnings to a degree not expected of men; indeed, the income stream may bypass the woman wage-earner entirely and run directly to her spouse or extended family members. A sense of familial obligation to maintain the income stream may even override any concerns regarding the woman’s exploitive working conditions.

Stereotypes regarding women in the sex industry render them particularly vulnerable to exploitation and violence. Prostitutes are a marginalized group to whom significant social stigma is attached. As Justices Sachs and O’Regan of the South African Constitutional Court opined in their dissenting opinion in the Jordan case, anti-prostitution laws that characterize the prostitute as the primary offender reinforce a pattern of sexual stereotyping that conflicts with gender equality. The prostitute, typically female, is stereotyped as a social outcast, a fallen woman ‘who bring[s] misfortune on [herself] and invite[s] disregard for [her] bod[y]’; the male client, on the other hand, is regarded as having ‘given in to temptation, or as having done the sort of thing that men do’ and, thus, he ‘has not acted in a morally reprehensible fashion’. The difference in social stigma ‘tracks a pattern of applying different standards to the sexuality of men and women’.82

III.  Direct and Indirect Discrimination

Direct and indirect discrimination against women can feed the causes and exacerbate the consequences of trafficking and exploitation of prostitution. Laws that directly restrict, on the basis of sex, a woman’s right to employment in the formal sector, to education, to migrate, to access bank accounts, to claim, retain, or change her nationality, and to inherit property, are all examples of direct discrimination that increase women’s vulnerability to trafficking and exploitation of prostitution. Causal factors also can be found in laws that indirectly discriminate83 against women including, for example, labour laws that do not apply to the informal sector, including domestic work and prostitution. Similarly, laws criminalizing prostitution activities that target prostitutes with greater sanctions than their pimps or clients may constitute indirect discrimination on the basis of sex. Such discrimination can perpetuate the stigma against prostitutes, in turn denying them, in practice, equal protection of laws against rape and physical mistreatment. While the Committee has not directly made these linkages, they flow from an understanding of Article 1 as it operates in the trafficking context.

IV.  Intersectional Discrimination

As noted by the Human Rights Committee, ‘racism, racial discrimination and xenophobia contribute to discrimination against women and other violations of their rights, including (p. 183) cross-border trafficking of women and children, and enforced trafficking and other forms of forced labour disguised, inter alia, as domestic or other kinds of personal service’.84

Trafficking is often the product of multiple discriminations operating simultaneously, including discrimination on the basis of sex, class, race, ethnicity, nationality, immigration status, and age.85 Sociologists studying the demand for persons trafficked into domestic work and prostitution have found that racism, xenophobia, and prejudice against ethnic minority groups make it easier for consumers of such exploitation to justify the practice.86 The migrant comes from an impoverished and ‘uncivilized’ country, ‘and so is neither familiar with nor entitled to the rights, freedoms and respect owed to local workers, and even paying them for their labour can be construed as a favor’.87 Women and girls who are socially, economically, and politically marginalized are also devalued by employers and clients and are considered ‘the ‘natural’ or ‘ideal’ occupants of the lowliest positions in domestic work and prostitution.88

Regulating domestic work and prostitution does not, by itself, counteract racism, prejudice, and xenophobia against migrants and ethnic minority groups. Governments must address directly the social devaluation of migrants and their social, political, and economic marginalization.89 The Committee’s analysis of the rights of women migrant workers in General Recommendation 26 illustrates how sex-based discrimination renders this population at risk of trafficking ‘due to the various degrees of vulnerability they face’. Migrant women workers may not enjoy the protection of the laws of the origin, transit, or destination countries, at either de jure or de facto levels.90 Female migrants are in a different position from male migrants with respect to the availability of legal migration channels, the sectors into which they migrate, the forms of abuse they suffer, and the consequences thereof. The push and pull factors impelling women to migrate—poverty, the desire for new opportunities, natural disasters and wars, gendered cultural practices, and gender-based violence in countries of origin—are ‘exacerbated by sex-specific divisions of labour in the formal and informal manufacturing and service sectors in countries of destination, as well as a male-centred culture of entertainment’ that creates demand for women.91

E.  States Parties’ Obligation

I.  Nature of the Obligation

1.  ‘All Appropriate Measures’

The prohibition of trafficking and exploitation of prostitution should be analyzed with reference to the Convention’s overarching commitment to eliminating discrimination against women and promoting equality between women and men, including the requirements set out in Articles 2 and 5 of the Convention.(p. 184)

Given that trafficking and exploitation of prostitution are perpetrated primarily by non-State actors, by extending the reach of State party responsibility to encompass private persons, organizations, and enterprises, Article 2(e) is of critical importance in the trafficking context. As General Recommendation 19, paragraph 9 states, under general international law and specific human rights covenants, ‘States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence’, and may be obliged to provide compensation.92 Recent developments in international anti-trafficking law can be brought within this Convention obligation to exercise due diligence. They have clearly established States parties’ obligations to criminalize trafficking,93 to quickly and accurately identify victims of trafficking,94 to investigate and prosecute trafficking cases with due diligence,95 to provide victims with support and protection,96 to prevent trafficking,97 and to engage in international cooperation with other States.98 As discussed in detail below,99 measures to respect, protect, and fulfil these obligations include not just legislative measures, but also administrative measures and programmes, ideally developed with the input of civil society organizations.100

2.  Immediate Implementation

Article 6 places an immediate obligation on States parties to take measures to suppress trafficking and exploitation of prostitution. By using the language ‘States Parties shall take all appropriate measures’ (emphasis added)—as opposed to the aspirational language of States parties being required to ‘endeavour’ or ‘consider’ such measures—Article 6 does not contemplate the possibility of gradual implementation.

3.  Specific and Non-specific Obligations

The language of Article 6 is specific with respect to the end result it seeks to obtain—the suppression of trafficking and exploitation of prostitution—but is non-specific with respect to how States parties are to achieve this result. As discussed below, established and evolving international anti-trafficking norms developed within the last decade help provide specific substantive content to Article 6. The Committee appears to have been informed by these developments in its responses to States parties’ reports.(p. 185)

II.  Implementation

Recent developments in international anti-trafficking law have given rise to a set of specific norms that complement and augment the Committee’s practice in guiding States parties towards compliance with its Article 6 obligations.

The adoption of the Trafficking Protocol in 2000 marked the beginning of a decade of rapid and progressive development of anti-trafficking norms at the international, regional, and national levels. The Trafficking Protocol created a much-needed international cooperation framework for preventing trafficking, prosecuting traffickers, and protecting trafficked persons. Developed in response to States’ concerns over the impact of trafficking on crime and border control, the Trafficking Protocol emphasizes criminal justice aspects of trafficking. By contrast, the Convention situates trafficking in a human rights framework. Recognizing that anti-trafficking measures tended to neglect the rights of trafficked persons in 2002, the Office of the UN High Commissioner for Human Rights developed the Recommended Principles and Guidelines on Human Rights and Human Trafficking (UNRPGs).101 The UNRPGs draw upon existing international human rights law, including Convention Article 6, and their accompanying Commentary provides practical, rights-based policy guidance on the trafficking issue, and reflects trends in normative development. The Council of Europe Trafficking Convention, adopted in 2005, codifies a number of these standards, confirming the significance of human rights protection to the effectiveness of anti-trafficking efforts, thus remedying (for European States parties to this Convention) a key weakness in the Trafficking Protocol.102

The Committee has called upon States parties to ratify the Trafficking Protocol,103 to comply with the UNRPGs,104 to adopt specific legislation on trafficking105 (including laws to deal with forced labour106) and national plans of action that include gender, race, and age dimensions,107 and to ensure that the laws and policies are fully implemented.108 Although the Committee has rarely provided detailed examples of what Article 6 requires, its recommendations are consistent with specific norms contained in international and regional anti-trafficking instruments, international human rights law, and relevant soft law.(p. 186)

1.  Obligation to Respect

a)  No Prosecution of Trafficked Women for Status Offences

Trafficked persons are victims of crime and human rights violations. In countries of transit or destination, however, trafficked persons are often arrested, detained, and even prosecuted for unlawful activities related to their trafficking experiences, including illegal entry into the country, working without a permit, or engaging in prostitution or begging. In countries of origin, trafficked persons are sometimes penalized upon their return for unlawful departure. The Committee has explicitly stated that trafficked women should not be criminalized or penalized for violations of immigration, anti-prostitution, or other laws for involvement in illegal activities that result from their trafficking.109

b)  No Routine Detention of Trafficked Women

Trafficked persons are often routinely detained in immigration detention centres or other facilities, sometimes for long periods of time. This frequently occurs when the victim is not correctly identified and is detained as an illegal migrant pending deportation, or when the victim is identified correctly but is unwilling or unable to cooperate with law enforcement in the criminal investigation of the alleged trafficker.110

The practice of victim detention is highly gendered,111 with females comprising the overwhelming majority of trafficked persons in detention.112 Women and girls are more likely to be identified through official channels as trafficked than men and boys, who are often misidentified as illegal migrants. Once identified as trafficked, female trafficked persons are assumed to be more in need of protection from harm than their male counterparts and therefore more likely to be detained.113

While the Committee has made clear that victims should not be sent to prisons or juvenile detention facilities,114 it has not provided a substantive assessment of detention practices. Strongly advising against such detention practices, the UNRPGs provides relevant guidance.115 When the detention is overwhelmingly directed at women and girls, it amounts to unlawful discrimination on the basis of sex, and may also be sufficient to support a claim of unlawful deprivation of liberty and/or arbitrary detention.116

c)  Respect for Established Rights

In an effort to prevent trafficking, countries of origin may take measures to prevent individuals from migrating, preventing, for example, women within a certain age group from emigrating to specified destinations and for specified occupations.117 Moreover, coun (p. 187) tries of destination may take (or not prevent private actors from taking) foreign victims of trafficking into ‘protective’ custody, and may prevent their return home until certain conditions are met, such as that the trafficked person provides testimony in criminal prosecution of the trafficker.118 States’ misidentification of a trafficked person as an illegal immigrant deserving of deportation rather than as a victim of crime and human rights violations can result in the failure to recognize the trafficked person as a seeker of asylum or other international refugee protection.119 Even where an individual is identified as a trafficking victim, States may believe, inaccurately, that the fact of the trafficking or the illegal migration involved in the trafficking is a basis for denying refugee status. Moreover, the State may fail to respect the individual’s right of ‘non-refoulement’ (non-return),120 applicable in situations where there are substantial grounds for believing the person would be subjected to persecution or torture if returned to her country of origin.

Anti-trafficking measures shall not affect the rights, obligations and responsibilities of States and individuals under international law.121 The Committee has not dealt specifically with the emigration restrictions—passed in the name of addressing trafficking—that violate the right to freedom of movement.122 However, the Committee has called upon destination countries either to ensure that the country of origin provides full protection to trafficked women, or to grant trafficked women asylum or refugee status in accordance with gender-based persecution grounds under international refugee law.123

d)  Trafficked Women’s and Girls’ Citizenship and Nationality Rights

The Committee has expressed its concern over reports that trafficked women and their children born abroad encounter social and legal difficulties resettling in their home State and lose their rights as nationals.124 The Committee has clearly noted that citizenship and nationality laws must not cause trafficked women to lose their nationality or their ability to convey their citizenship on their children born abroad, especially women who are trafficked as brides or for commercial sexual exploitation.125

e)  Discrimination against Prostitutes

General Recommendation 19, paragraph 15 notes that prostitutes are especially vulnerable to violence because their status, which may be unlawful, tends to marginalize them. Prostitutes who are also migrants may be particularly vulnerable to exploitation and violence, given the added layer of discrimination due to their migrant status generally, and migrant prostitutes’ relatively low status within the sex sector specifically. The Committee has noted that laws criminalizing prostitution have, in practice, penalized the prostitute (p. 188) rather than the exploiters of prostitution such as pimps and johns.126 Anti-prostitution laws should only penalize the actions of those who profit from the sexual exploitation of women, not the women themselves.127 The Committee has further directed that where laws permit women to work as prostitutes, they should not discriminate against migrant prostitutes.128 It did not, however, address this issue in its General Recommendation 26 on women migrant workers.

f)  Prompt and Accurate Identification of Trafficked Women

Prompt and accurate identification is critical to ensuring that a trafficked person does not suffer a further denial of her rights.129 Without adequate training of immigration and law enforcement officials, the additional elements that distinguish trafficking from illegal migration and migrant smuggling—the presence of force, coercion, or deception used for the purpose of placing the person in exploitation130—can be difficult to detect or to prove without active investigation.

Consistent with the UNRPGs and the European Trafficking Convention,131 the Committee has called upon States parties to ensure that training of border police and law enforcement officials provide them with requisite skills to recognize victims of trafficking and to provide support for them.132

2.  Obligation to Protect

Because the Convention obligates States parties to ‘overcome all forms of gender-based violence, whether by public or private act’,133 they must exercise due diligence with respect to the acts committed by non-State actors. As the European Court of Human Rights found in Rantsev v Cyprus and Russia, a State may be held accountable for failing to prevent, prosecute, and punish non-State actors subjecting persons to servitude and forced labour and for failing to provide appropriate protection for victims.134 In a similar vein, States parties’ duty of due diligence under Article 6 requires a wide range of measures. In some instances, the Committee has refrained from addressing in detail issues that have been dealt with elsewhere under international law, or to which the Committee has previously alluded—for example, the reference in General Recommendation 19 to trafficking of girls and trafficking in the context of armed conflict. The open-ended language of Article 6 (p. 189) would provide the Committee the scope to address these issues in greater detail, especially when read with other provisions of the Convention.

a)  Criminal Justice Responses to End Impunity

Any prohibition on trafficking would be meaningless in the absence of an obligation to criminalize trafficking, which is a central and mandatory provision of the UN Trafficking Protocol,135 and a requirement of all other regional and international anti-trafficking instruments.136 The Committee has called upon States parties to strengthen their law enforcement responses to trafficking, including increased prosecution and punishment of traffickers.137 It has also encouraged States parties to target demand for prostitution, though it has not explicitly called for its criminalization.

b)  Protection and Support for Victims

Consistent with the standards of the UN Trafficking Protocol, the European Trafficking Convention, the SAARC Convention, and the UNRPGs,138 the Committee has called upon States parties to provide victim assistance through counselling, reintegration, and rehabilitation programmes,139 and to provide victims with special shelter.140 The Committee has advised that protection measures be human-rights based, and that reintegration be long-term.141

In most national legal frameworks, victim support and protection is explicitly conditioned on the victim’s cooperation with law enforcement, and even where there is no conditionality as a matter of law, victims are pressured into providing information and testimony.142 As the UNRPG Commentary explains, separating protection and support from victim cooperation is a ‘fundamental tenet of a human rights approach to trafficking’.143 Conditional assistance can have negative consequences in that compelled testimony from a trafficked person, particularly one suffering from psychological and physical trauma, is unlikely to be helpful to the prosecution, and can foster distrust between the trafficked person and law enforcement bodies.

Like other human rights treaty bodies,144 and consistent with the UNRPGs and the European Trafficking Convention,145 the Committee has recognized the need to de-link (p. 190) victim support and protection from cooperation. It has called upon States parties to provide for the extension of temporary protection visas, reintegration, and support services to all victims of trafficking, including those who are unable or unwilling to cooperate in the investigation and prosecution of traffickers due to, for example, fear of retaliation by their traffickers.146 The Committee has also emphasized the importance of allowing victims a ‘reflection and recovery period’. This measure allows trafficked persons who lack immigration status a temporary stay of deportation to allow them to recover and escape the influence of their traffickers so that they can make an informed decision as to whether to cooperate in the investigation and prosecution of their traffickers.147 While the Committee has not specified an acceptable length of time for a reflection period, it has concluded that thirty days ‘is insufficient for the victims to recover from their ordeal and prepare for re-entry to their countries of origin’.148

c)  Legal Assistance, Protection, and Temporary Residence Permits

International law requires that trafficked persons be afforded the legal and other assistance necessary to ensure that they are able to participate in any proceedings against their traffickers in a fully informed and safe manner.149 Given these security concerns, the UNRPGs and the European Trafficking Convention recommend specific measures to protect victims’ privacy.150 While the Committee has not addressed privacy issues specifically, it has called upon States parties to provide trafficked persons the support necessary for them to participate in the prosecution of their traffickers,151 including witness protection,152 and residence permits153 regardless of whether the victims testify154 or the perpetrators are punished.155

d)  Safe and Preferably Voluntary Return and Options for Residency in Appropriate Cases

Trafficked persons are routinely deported from countries of transit and destination, often due to a failure to identify the individual as having been trafficked, and sometimes notwithstanding the authorities’ knowledge of the trafficking. Deportation can result in (p. 191) trafficked persons being subjected to intimidation and violence by their traffickers, stigmatization and rejection by their families and communities, and detention and prosecution by their countries of origin for unauthorized departure and other alleged offences.156 Such conditions can place the trafficked person at risk of re-victimization and possibly re-trafficking. On the other hand, some trafficked persons prefer to return to their countries of origin and are entitled to do so without unreasonable or undue delay as a matter of international human rights law.157 In either case, safe158 and preferably voluntary repatriation, combined with reintegration assistance159, is critical to protecting the trafficked person from re-victimization and re-trafficking.160

The UNRPGs and the European Trafficking Convention make clear that where return would place the trafficked person at ongoing risk, or where there are humanitarian concerns, alternatives to repatriation such as temporary or permanent residency permits should be considered.161 Consistent with these standards, the Committee has called upon States parties to ensure that trafficked women are either provided with full protection in their countries of origin, or granted asylum or refugee status in the countries of transit or destination,162 for example, in accordance with gender-based persecution grounds under the 1951 Refugee Convention.163

e)  Safe, Fair, and Equal Labour Migration Opportunities

General Recommendation 26 notes that women migrant workers are vulnerable to trafficking.164 One critical source of vulnerability for women is the lack of safe labour migration options and the lack of information regarding the dangers associated with trafficking.

The European Trafficking Convention requires States parties to take measures to enable migration to take place legally, particularly through dissemination of accurate information on the conditions enabling legal entry and stay in the territory.165 In a similar vein, the Committee recommended that a State party ensure adequate wages, decent working conditions, including days off, benefits, medical insurance, and access to complaint and redress mechanisms.166 It also urged that a law requiring employers to post a security bond for domestic workers must not limit the domestic worker’s freedom of movement under any circumstances.167

f)  Special Protective and Punitive Measures in Conflict Contexts

General Recommendation 19 paragraph 16 notes that wars, armed conflicts, and the occupation of territories often lead to increased prostitution, trafficking in women, and sexual assault of women, which require specific protective and punitive measures. During conflict, individuals may be trafficked by military groups to provide labour, soldiers, and sexual services, while post-conflict civilian populations may be under extreme economic or other pressure to move and thus are vulnerable to traffickers’ threats, coercion, and (p. 192) deception.168 Weak criminal justice systems can create a culture of impunity for trafficking, and even the presence of international military and peacekeeping forces can present a threat of trafficking of women and girls, in particular.169

In noting the need for special protections in the conflict context in General Recommendation 19, the Committee has expanded upon international anti-trafficking treaty law, but the Committee has not developed the point further through concluding observations. The UNRPGs thus provide useful guidance in this area, recommending that States focus on transforming socio-cultural norms that prescribe roles and encourage privilege based on sex, rebuilding family and community support systems, and improving accountability mechanisms, among other examples.170

g)  Special Protection for Girl Victims of Trafficking

While child victims of trafficking are entitled to the same rights and protections as adults, they should be treated separately from adults and provided special protections due to their increased vulnerability to exploitation and the particular physical and psychosocial harm suffered.171 Although the Committee has yet to address this issue, relevant international norms establish that the best interests of the child are to be paramount at all times.172 Accordingly, measures include, for example, the appointment of a guardian and special procedures with respect to a child’s participation in criminal proceedings, among others.173

3.  Obligation to Fulfil

a)  Access to Remedies

As victims of crime and human rights violations, trafficked persons have a right to access effective and appropriate remedies under international human rights law. In General Recommendation 19, the Committee identified as among the measures necessary to provide effective protection of women against gender-based violence ‘civil remedies and compensatory provisions to protect women against all kinds of violence’.174 The Committee has specifically emphasized the need for States parties to provide trafficked women access to remedies.175 While the Committee has not elaborated on this recommendation, evolving international anti-trafficking norms recommend that States provide options for civil or criminal actions against traffickers, compensation measures for trafficked persons, and residency permits to enable trafficked persons to pursue these remedies.176

b)  Data Collection

Comprehensive understanding of the extent and nature of the trafficking phenomenon remains elusive. The clandestine nature of the activity complicates data collection and statistical analysis. Notwithstanding the adoption of an international legal definition of trafficking under the Trafficking Protocol, States parties vary in their interpretation of the (p. 193) range of activities that qualify as ‘trafficking’. Moreover, the impact of trafficking interventions adopted around the world remains gravely under-explored with the few studies conducted thus far revealing serious deficiencies.177

Consistent with the Trafficking Protocol, the European Trafficking Convention, and the UNRPGs, the Committee has called upon States parties to collect data, including comprehensive statistics, on trafficking and the impact of measures taken to address the phenomenon.178 Specifically, they should evaluate the causes of trafficking,179 monitor and compile data regarding victims’ ages and national origins,180 trends in trafficking, and on court cases, prosecutions, and victims assisted, as well as results achieved in prevention.181 With an eye to vulnerability factors, the Committee has called upon a State party to collect statistics on the situation of migrant women in employment, education, and health, and on the various forms of violence they experience so the Committee can get a clear picture of their de facto situation.182 States parties are to monitor the effects of anti-trafficking laws and policies183 and conduct gender impact assessments, including with respect to laws and policies concerning immigration184 and prostitution. The unintended effects of laws concerning prostitution—whether they criminalize or decriminalize the practice—are to be assessed, particularly with respect to migrant prostitutes.185

c)  Addressing Demand as a Root Cause of Trafficking

Trafficking is perpetuated by a global market that seeks cheap, exploitable labour and the goods it produces. Demand reduction is an important component of any effective prevention strategy.186 Exploring the demand side of trafficking requires inquiry into what shapes demand, who are the individuals that exploit or consume trafficked labour, and how States—whether through action or inaction—construct or facilitate the conditions under which such exploitation can occur.187(p. 194)

International law obliges States to adopt measures (legislative, educational, social, or cultural) to discourage the demand that fosters all forms of exploitation.188 The Committee thus far has addressed demand only with respect to trafficking into the sex sector. It has called upon States parties to discourage the demand for prostitution,189 including by combating sex tourism190 and taking action to change men’s and society’s perception of women as sex objects.191

d)  Promoting Trafficking Awareness in All Sectors of Society

Key to combating trafficking is the need to encourage awareness of the problem of trafficking among both public officials and the general population. Though most countries have adopted some form of anti-trafficking legislation and/or plans of action, more training of judicial and law enforcement officials to recognize and address trafficking is necessary.

International law obliges States to develop public awareness campaigns to prevent demand for trafficked persons’ labour or exploitation and to lessen vulnerability to trafficking among at-risk populations.192 In a similar vein and consistent with Covention Article 5, General Recommendation 19 calls upon States parties to ensure that the media respect and promote respect for women, and to use public information and education programmes to eliminate prejudices and change attitudes concerning the roles and status of men and women.193 The Committee specifically has called upon States parties to encourage awareness in all sectors, particularly judicial and public security authorities, educators, and parents, with a view to implementing measures to prevent sexual exploitation.194 Information and training on anti-trafficking laws should be provided to the judiciary, law enforcement agents, including border police, public officials, and social workers.195

e)  Structural Remedies to Address the Causes of Trafficking and Exploitation of Prostitution

As General Recommendation 19, paragraph 14 notes, poverty and unemployment increase opportunities for trafficking in women, and force many women into prostitution. Because poverty severely restricts a person’s opportunities to pursue one’s well-being with respect to basic capabilities (eg, adequate food, clothing, and shelter), it can lead one to make decisions that increase vulnerability to trafficking.196 Inequality within and between countries and inequality of opportunity between the sexes—eg, manifested (p. 195) in discriminatory nationality, property, migration, and migrant labour laws—further compound this vulnerability.

International law obligates States to take measures to alleviate the poverty and inequality that render individuals vulnerable to trafficking.197 Recommended measures include improved education opportunities; improved access to credit, finance, and productive resources; elimination of any de jure or de facto barriers to employment; legal and social measures to ensure rights in employment including a minimum wage that ensures an adequate standard of living; and the provision of technical and other assistance to countries of origin to enable them to address inequalities that contribute to trafficking-related vulnerabilities.198 The Committee has called upon States parties to focus on the causes of trafficking and exploitation of prostitution through measures aimed at poverty alleviation and women’s economic empowerment.199 Recognizing that vulnerability to exploitation begins at an early age, the Committee has specifically called upon States parties to protect girl domestic workers from exploitation and abuse and to ensure that they can exercise their right to education.200 It has also encouraged States parties to develop advocacy programs to prevent forced prostitution and trafficking,201 with the cooperation of NGOs.202 States parties are also encouraged to establish programmes to rehabilitate and reintegrate prostitutes and to support women who want to stop practising prostitution203 through providing shelter, subsistence, health services, and education and training for alternative livelihoods.204 The Committee has cautioned, however, against rehabilitation measures (for example, administrative camps) that may stigmatize victims of prostitution and deny them due process rights.205

By taking the same approach as the specialist treaties on trafficking, the Committee contributes to consistency and coherence in the development of international anti-trafficking law while ensuring that the human rights of women and girls remain a priority. These measures, combined with those recommended with respect to other articles of the Convention—particularly Articles 10 (education), 11 (employment), 13 (economic and (p. 196) social life), 14 (rural women), and 15 (legal capacity)—provide a comprehensive approach to eliminating the conditions that render women and girls vulnerable to trafficking.

f)  Bilateral and Multilateral Cooperation

Effective efforts to combat trafficking require a comprehensive, collaborative approach among countries of origin, transit, and destination. Trafficking cases often involve alleged offenders, trafficked persons, and evidence that are located in more than one country, giving rise to criminal investigations and prosecutions in multiple jurisdictions.206 Cooperation mechanisms between national law enforcement agencies, as well as legal mechanisms such as extradition and mutual legal assistance are thus critical to ensuring that traffickers do not enjoy impunity. Cooperation regarding adoption and enforcement of labour migration agreements could also help eliminate trafficking and related exploitation.207 Consistent with a core purpose of international anti-trafficking laws,208 the Committee has called upon States parties to engage in bilateral and multilateral collaboration and cooperation in their efforts to combat trafficking.209

g)  Cooperation with Civil Society in the Design and Implementation of Anti-Trafficking Interventions

Civil society organizations play a crucial role in efforts to combat trafficking. Often the first point of contact with trafficked persons, NGOs have rare and valuable access to victim perspectives and a practical understanding of victim needs. The Committee has clearly stated that governments should work in partnership with civil society organizations and to increase their funding.210 But governments should also fully fund national anti-trafficking plans, rather than outsource their implementation to NGOs.211

The multiple and overlapping areas of State obligation identified above highlight the need for a holistic social and legal approach to the trafficking of women and girls. The Convention’s broad framework for eliminating discrimination against women in all spheres of life thus holds tremendous potential for addressing this human rights problem.

Footnotes:

* I would like to thank Anne Gallagher, Nathan Briggs, Matthieu Riviere, Kyle Ingram, Meredith Owen, and Sara Waldron.

Following the usage of art 6, this text uses the terms ‘prostitution’ or ‘prostitutes’ and not ‘sex-work’ or ‘sex-worker’.

Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (Trafficking Convention) (opened for signature 21 March 1950, entered into force 15 July 1951) 96 UNTS 271.

A Gallagher, The International Law of Human Trafficking (2010) 12–42.

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Trafficking Protocol) (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319.

Convention Against Transnational Organized Crime (Organized Crime Convention) (adopted 15 November 2000, entered into force 29 September 2003) 2225 UNTS 209.

CO Poland, CEDAW/C/POL/CO/6 (2007) para 21; CO Guinea-Bissau, CEDAW/C/GNB/CO/6 (2009) para 30.

Trafficking Protocol art 3(a)-(b).

CO India, A/55/38, 22nd Session (2000) para 62; CO Democratic Republic of the Congo, A/55/38, 22nd Session (2000) para 215; CO Cameroon, A/55/38, 23rd Session (2000) para 54.

CO Nicaragua, A/56/38, 25th Session (2001) para 315; CO Mauritania, CEDAW/C/MRT/CO/1 (2007) para 32.

10  CO Belarus, A/59/38, 30th Session (2004) paras 350–4; CO Portugal, CEDAW/C/PRT/CO7 (2007) paras 44–5.

11  UNCHR, ‘Integration of the Human Rights of Women and the Gender Perspective: Violence against Women’ (2000) UN Doc E/CN.4/2000/68 paras 54–60.

12  eg US Department of State, ‘Trafficking in Persons Report’ (2008) 7 (claiming 80 per cent of transnational trafficking victims are female). This statistic reflects, however, that trafficking has been seen, until very recently, exclusively as an issue of sexual exploitation affecting women and children.

13  Council of Europe Convention on Action against Trafficking in Human Beings (Council of Europe Trafficking Convention) (opened for signature 16 May 2005, entered into force 1 February 2008) CETS 197; Convention on Preventing and Combating Trafficking in Women and Children for Prostitution by the South Asian Association for Regional Cooperation (SAARC Convention) (adopted 5 January 2002).

14  Convention to Suppress the Slave Trade and Slavery (Slavery Convention) (adopted 25 September 1926; entered into force 9 March 1927) 60 LNTS 253; Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (Supplementary Slavery Convention) (adopted 7 September 1956, entered into force 30 April 1957) 226 UNTS 3.

15  ILO Convention concerning Forced or Compulsory Labour (ILO Convention No 29) (adopted 28 June 1930, entered into force 1 May 1932) 39 UNTS 55; ILO Convention concerning the Abolition of Forced Labour (ILO Convention No 105) (adopted 25 June 1957, entered into force 17 January 1959) 320 UNTS 291; ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (ILO Convention No 182) (adopted 17 June 1999, entered into force 19 November 2000) 2133 UNTS 161.

16  The Rome Statute art 7(2)(c); Organized Crime Convention.

17  Convention on the Rights of the Child (CRC) (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 arts 32, 34, and 35.

18  See the discussion in section E: State Obligation below.

19  Economic and Social Commission for Asia and the Pacific, Violence against and Trafficking in Women as Symptoms of Discrimination: The Potential of CEDAW as an Antidote (Gender and Development Discussion Paper Series No 17, 2005).

20  E Novikova, ‘Poverty, Prostitution, and Trafficking’ and K Morvai, ‘Personal Reflection: Rethinking Prostitution and Trafficking’ in HB SchÖpp-Schilling and C Flinterman (eds), The Circle of Empowerment: Twenty-Five Years of the UN Committee on the Elimination of Discrimination Against Women (2007) 124–40, 141–4.

21  See discussion in section C (nn 50–1 below).

50  Working Group on Trafficking in Persons, ‘Analysis of Key Concepts of the Trafficking in Persons Protocol’ (9 December 2009) CTOC/COP/WG.4/2010/2 paras 9–12.

22  GR 26 n 4.

23  GR 19 para 7.

24  See also the discussion in ch on violence against women.

25  GR 26 n 4.

26  Ibid.

27  Zhen Zhen Zheng v Netherlands, Communication 15/2007 (2008) CEDAW/C/42/D/15/2007 para 7.4.

28  Ibid para 9.1.

29  UN Doc E/CN.6/AC.1/L.2 (1974) 9.

30  eg UN Doc E/CN.6/AC.1/L.6 (1974) 3; UN Doc E/CN.6/591 (1976) 113; UN Doc A/C.3/34/WG.1/CRP.6 (1979) 3–5.

31  UN Doc E/CN.6/573 (1973) para 77. Report of the Secretary General, ‘Draft Convention on the Elimination of Discrimination against Women’ (1977) UN Doc A/32/218 para 50.

32  DEDAW art 8: ‘All appropriate measures, including legislation, shall be taken to combat all forms of traffic in women and exploitation of prostitution of women.’ UNGA Res 2263 (XXII) (7 November 1967) UN Doc A/RES/48/104. Aside from changing ‘combat’ to ‘suppress’, art 6 is identical.

33  UN Doc E/CN.6/AC.1/L.6 (1974) 3.

34  UN Doc CN.6/AC.1/L.17 (1974) 10.

35  UNCHR, ‘Report of the Special Rapporteur: Exploitation of Labour through Illicit and Clandestine Trafficking’ (1975) UN Doc E/CN.4/Sub.2/L.640 paras 82–9.

36  Ibid paras 6, 31, and 32; see also UN Doc E/CN.6/SR.613–28 (1974) 71–3.

37  UN Doc E/CN.6/591 (1976) 19, 61; World Plan of Action for the Implementation of the Objectives of the International Women’s Year, Mexico City 19 June–2 July 1975, UN Doc E/CONF.66/34 (1976) para 159.

38  UN Doc E/CN.6/SR.638 (1976) paras 40–9.

39  UN Doc A/C.3/34/SR.72 (1979) para 17.

40  Ibid paras 17–32. During discussions of the final text of the Convention, Guinea and Jordan stated that they would have preferred that art 6 include suppression of prostitution itself, 13 UNYB (31 December 1979) 849.

41  UN Doc E/CN.6/SR/638 (1976) para 40 (Belgium); UN Doc A/32/218 (1977) para 51 (Portugal).

42  L Rehof, Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (1993) 91.

43  UN Doc E./CN.6/591 (1976) para 68 and Annex I, 61.

44  Rehof (n 42 above) 92.

45  Trafficking Protocol art 3.

46  CO Thailand, CEDAW/C/THA/CO/5 (2006) para 28.

47  CO Gabon, CEDAW/C/GAB/CC/2–5 (2005) paras 28–9; CO Saudi Arabia, CEDAW/C/SAU/CO/2 (2008) para 24.

48  CO Mauritania, CEDAW/C/MRT/CO/1 (2007) paras 31–2; CO Singapore, CEDAW/C/SGP/CO/3 (2007) para 22.

49  CO China, CEDAW/C/CHN/CO/6 (2006) paras 33–4.

51  Trafficking Protocol art 3; Interpretative notes on the Trafficking Protocol (2000) UN Doc A/55/383/Add.1 para 64.

52  A Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23 Human Rights Quarterly 975, 1001–2.

53  CO Sweden, A/56/38, 25th Session (2001) paras 354–5; CO Norway, CEDAW/C/NOR/CO/7 (2007) para 22; CO Fiji, CEDAW/C/FIJI/CO/4 (2010) para 25.

54  CO Ecuador, A/58/38, 29th Session (2003) para 313; CO Republic of Korea, CEDAW/C/KOR/CO/6 (2007) para 20.

55  CO The Netherlands, A/56/38, 25th Session (2001) para 210; CO New Zealand, A/58/38, 29th Session (2003) para 414); CO New Zealand, CEDAW/C/NZL/CO/6 (2007) paras 28–9; CO The Netherlands, CEDAW/C/NLD/CO/4 (2007) paras 21–2.

56  CO China, CEDAW/C/CHN/CO/6 (2006) para 19; CO Vietnam, CEDAW/C/VNM/CO/6 (2007) para 18.

57  CO Guyana, A/56/38, 25th Session (2001) para 180; CO Mauritius, CEDAW/C/MAR/CO/5 (2006) paras 20–1; CO China, CEDAW/C/CHN/CO/6 (2006) para 19.

58  CO Malawi, CEDAW/C/MWI/CO/5 (2006) para 23; CO Thailand, CEDAW/C/THA/CO/5 (2006) para 28; CO Cuba, CEDAW/C/CUB/CO/6 (2006) para 21; CO Egypt, CEDAW/C/EGY/CO/7 (2010) para 25.

59  CO Latvia, A/59/38, 31st Session (2004) para 60; CO Spain, A/59/38, 31st Session (2004) para 337; CO Syrian Arab Republic, CEDAW/C/SYR/CO/1 (2007) para 24; CO Cook Islands, CEDAW/C/COK/CO/1 (2007) para 27; CO Honduras, CEDAW/C/HON/CO/6 (2007) para 21; CO Japan, CEDAW/C/JPN/CO/6 (2009) para 40; CO Libya, CEDAW/C/LBY/CO/5 (2009) para 28; CO Botswana, CEDAW/C/BOT/CO/3 (2010) para 28.

60  CO Australia, CEDAW/C/AUS/CO/5 (2006) para 21; CO Denmark, CEDAW/C/DEN/CO/6 (2006) para 25; CO Luxembourg, CEDAW/C/LUX/CO/5 (2008) para 30.

61  CO Venezuela, CEDAW/C/VEN/CO/6 (2006) para 28; CO Saint Lucia, CEDAW/C/LCA/CO/6 (2006) para 20; CO Mauritius, CEDAW/C/MAR/CO/5 (2006) para 21; CO Luxembourg, CEDAW/C/LUX/CO/5 (2008) para 29.

62  CO Cook Islands, CEDAW/C/COK/CO/1 (2007) para 27; CO Belize, CEDAW/C/BLZ/CO/3 (2007) para 22; CO Kenya, CEDAW/C/KEN/CO/6 (2007) para 30.

63  CO Iceland, CEDAW/C/ICE/CO/6 (2008) paras 23–4.

64  CO Finland, CEDAW/C/FIN/CO/6 (2008) para 17.

65  CO The Netherlands, A/56/38, 25th Session (2001) para 210; CO New Zealand, A/58/38, 29th Session (2003) para 414; CO Angola, A/59/38, 31st Session (2004) para 157; CO Maldives, CEDAW/C/MDV/CO/3 (2007) para 22; CO Suriname, CEDAW/C/SUR/CO/3 (2007) para 22; CO Botswana, CEDAW/C/BOT/CO/3 (2010) para 28; CO Egypt, CEDAW/C/EGY/CO/7 (2010) para 26; CO Fiji, CEDAW/C/FJI/CO/4 (2010) para 25.

66  CO Democratic People’s Republic of Korea, CEDAW/C/PRK/CO/1 (2005) paras 41–2.

67  CO Colombia, CEDAW/C/COL/CO/6 (2007) para 21.

68  CO Saint Lucia, CEDAW/C/LCA/CO/6 (2006) para 20.

69  CO Finland, A/56/38, 24th Session (2001) para 304.

70  CO Switzerland, A/58/38, 28th Session (2003) para 123.

71  CO Hungary, A/57/38, Exceptional Session (2002) para 308.

72  GR 19 paras 13–16.

73  GR 26 para 13.

74  Ibid para 14.

75  See the discussion in ch on art 11.

76  CO Saudi Arabia, CEDAW/C/SAU/CO/2 (2008) paras 38–9 (excluding migrant domestic workers from labour law protections).

77  CO Armenia, CEDAW/C/ARM/CO/4/Rev.1 (2009) para 24; CO Azerbaijan, CEDAW/C/AZE/CO/4 (2009) para 23.

78  Gallagher (n 3 above) 161 (discussing Lao PDR as example).

79  See the discussion in ch on art 3.

80  See the discussion in ch on art 5.

81  See the discussion in chs on arts 11 and 16.

82  Jordan and Others v the State [2 October 2002] Constitutional Court of South Africa CCT 31/01 (dissenting opinion, Sachs, J and O’Regan, J) paras 64 and 87.

83  See the discussion in ch on art 1.

84  CCPR, ‘Contributions to the World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance’ (13 March 2001) UN Doc A/CONF.189/PC.2/14 para 18.

85  eg CO Germany, A/59/38, 30th Session (2004) para 394; CO The Philippines, CEDAW/C/PHI/CO/6 (2006) para 21; CO Ecuador, CEDAW/C/ECU/CO 7 (2008) para 23; CO Albania, CEDAW/C/ALB/CO/3 (2010) para 29.

86  J O’Connell Davidson and B Andersen, ‘Is Trafficking in Human Beings Demand Driven? A Multi-Country Pilot Study’ (‘Demand Study’) [2003] International Organization for Migration (IOM) Migration Research Series, No 15, 42.

87  Ibid.

88  Ibid; CO Ecuador, CEDAW/C/ECU/CO/7 (2008) para 22.

89  Demand Study (n 86 above) 44.

90  GR 26 para 4.

91  Ibid para 8.

92  For an analysis of States’ duty of due diligence, see the discussion in chs on Violence Against Women and art 2. See also, GR 28 paras 13 and 19.

93  Trafficking Protocol art 5.

94  Council of Europe Trafficking Convention art 10.

95  UNCHR, ‘Recommended Principles And Guidelines On Human Rights And Human Trafficking, Report Of The United Nations High Commissioner For Human Rights To The Economic And Social Council, Addendum’ (‘UNRPGs’) (20 May 2002) UN Doc E/2002/68/Add.1 principle 2; Velasquez-Rodriguez Case Inter-American Court of Human Rights Series C No 4 (29 July 1988) 28 ILM 291 (1989).

96  Trafficking Protocol arts 6–8; Council of Europe Trafficking Convention arts 11–16; UNRPGs (n 95 above) principles 7–11, guideline 6.

97  Trafficking Protocol art 9; Council of Europe Trafficking Convention arts 5–6; UNRPGs (n 95 above) principles 4–6, guideline 7.

98  Trafficking Protocol art 2(c); Council of Europe Trafficking Convention art 32; UNRPGs (n 95 above) guideline 11.

99  See section E. II. below.

100  Trafficking Protocol art 6(3); Council of Europe Trafficking Convention art 35; UNRPGs (n 95 above) guidelines 1(3), 1(7), and 5(2).

101  UNRPGs (n 95 above).

102  A Gallagher, ‘Recent Legal Developments in the Field of Human Trafficking: A Critical Review of the 2005 European Convention and Related Instruments’ (2006) 8 Eur J of Migration and L 163.

103  eg CO Mauritius, CEDAW/C/MAR/CO/5 (2006) para 21; CO Vietnam, CEDAW/C/VNM/CO/6 (2007) para 19; CO Mongolia, CEDAW/C/MNG/CO/7 (2008) para 28; CO Yemen, A/63/38, 41st Session (2008) para 370; CO Papua New Guinea, CEDAW/C/PNG/CO3 (2010) para 32.

104  eg CO Switzerland, CEDAW/C/CHE/CO/3 (2009) para 30.

105  eg CO Romania, A/55/38, 23rd Session (2000) para 309; CO Estonia, A/57/38, 26th Session (2002) para 102; CO Ireland, A/60/38, 33rd Session (2005) para 389 bis; CO Malaysia, CEDAW/MYS/CO/2 (2006) para 24; CO Syria, CEDAW/C/SYR/CO/1 (2007) para 22; CO Guatemala, CEDAW/C/GUA/CO/7 (2009) para 24; CO Egypt, CEDAW/C/EGY/CO/y (2010) para 26.

106  eg CO Mauritania, CEDAW/C/MRT/CO/1 (2007) para 32.

107  eg CO Brazil, CEDAW/C/BRA/CO/6 (2007) paras 23–4.

108  eg CO Macedonia, CEDAW/C/MKD/CO/3 (2006) para 22; CO Kazakhstan, CEDAW/C/KAZ/CO/2 (2007) para 35; CO Bahrain, CEDAW/C/BHR/CO/2 (2008) para 27; CO Lao People’s Democratic Republic, CEDAW/C/LAO/CO/7 (2009) para 28; CO Russian Federation, CEDAW/C/USR/CO/7 (2010) para 27.

109  eg CO Cambodia, CEDAW/C/KHM/CO/3 (2006) paras 19–20; CO Malaysia, CEDAW/C/MYS/CO/2 (2006) para 23; CO Uzbekistan, CEDAW/C/UZB/CO/3 (2006) para 25; CO Vietnam, CEDAW/C/VNM/CO/6 (2007) paras 18–19; CO Syria, CEDAW/C/SYR/CO/1 (2007) para 24; CO Pakistan, CEDAW/C/PAK/CO/3 (2007) para 30; CO Singapore, CEDAW/C/SGP/CO/3 (2007) paras 21–2; CO Cook Islands, CEDAW/C/COK/CO/1 (2007) para 26; CO Lebanon, CEDAW/C/LBN/CO/3 (2008) paras 28–9.

110  A Gallagher and E Pearson, ‘The High Cost of Freedom: A Legal and Policy Analysis of Shelter Detention for Victims of Trafficking’ (2010) 74 Human Rights Quarterly 73; OHCHR, UNRPG: Commentary (2009) s 7.1.

111  UNRPG: Commentary (n 110 above) s 7.4.

112  Ibid.

113  Ibid.

114  eg CO Syria, CEDAW/C/SYR/CO/1 (2007) para 24; CO The Netherlands, CEDAW/C/NLD/CO/5 (2010) para 29.

115  UNRPGs (n 95 above) guidelines 2(6) and 6(1).

116  UNRPG: Commentary (n 110 above) s 7.4.

117  Gallagher (n 3 above) 161–4; UNCHR, ‘Report of the Special Rapporteur on Violence against Women’ UN Doc E/CN.4/2000/68 (2000) para 48.

118  UNRPG: Commentary (n 110 above) s 3.3.

119  Ibid s 3.4.

120  See CAT art 3(1); ICCPR art 7; CRC art 22; CAT (2000) UN Doc CAT/C/SR.422 para 31.

121  Trafficking Protocol art 14; Council of Europe Trafficking Convention art 40(4); UNRPGs (n 95 above) principle 3.

122  See Gallagher (n 3 above) 162–4 discussing the right to leave.

123  eg CO The Netherlands, A/56/38, 25th Session (2001) para 21; CO Spain, A/59/38, 31st Session (2004) para 337; CO Spain, CEDAW/C/ESP/CO/6 (2009) para 22; CO Argentina, CEDAW/C/ARG/CO/6 (2010) para 46. For discussion of when trafficked persons may qualify for refugee status, see UNHCR, ‘Guidelines on International Protection: the application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the status of refugees to victims of trafficking and persons at risk of being trafficked’ (2006) HCR/GIP/06/07.

124  CEDAW, ‘Summary Record of the 759th meeting (Chamber B)’ (2007) CEDAW/C/SR.759 paras 30 and 33; CO Vietnam, CEDAW/C/VNM/CO/6 (2007) para 18.

125  eg CO Indonesia, CEDAW/C/IDN/CO/3 (2007) para 28. See also the discussion in ch on art 9.

126  eg CO Japan, CEDAW/C/JPN/CO/6 (2009) para 29.

127  eg CO Fiji, A/57/38, 26th Session (2002) para 65; CO Korea CEDAW/C/KOR/CO/6 (2007) para 20; CO Kenya CEDAW/C/KEN/CO/6 (2007) paras 28–9.

128  eg CO The Netherlands, A/56/38, 25th Session (2001) paras 209–10; CO The Netherlands, CEDAW/C/NLD/CO/4 (2007) paras 21–2.

129  See Zhen Zhen Zheng v Netherlands (n 27 above) dissenting opinion.

130  Compare Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime (adopted 8 January 2001, entered into force 28 January 2004) 2241 UNTS 507.

131  See Council of Europe Trafficking Convention art 10; UNRPGs (n 95 above) guideline 2. Also, UNRPGs (n 95 above) guidelines 2(1)-(3).

132  eg CO Portugal, A/57/38, 26th Session (2002) para 336; CO Slovenia, A/58/38, 28th Session (2003) para 424; CO Nigeria, A/59/38, 31st Session (2004) para 244; CO Maldives, CEDAW/C/MDV/CO/3 (2007) para 20; CO Guatemala, CEDAW/C/GUA/CO/7 (2009) para 24; CO Tanzania, CEDAW/C/TZA/CO/6 (2008) para 28.

133  GR 19 para 24(a). See Convention arts 2(e)-(f) and (5); GR 28 paras 13 and 19. For in-depth analysis of due diligence, see the discussion in ch on Violence against Women.

134  Rantsev v Cyprus and Russia [2010] ECHR 25965/04. Note that because the decision pre-dates the Council of Europe Trafficking Convention, the decision does not reference ‘trafficking’ per se.

135  Trafficking Protocol art 5.

136  Council of Europe Trafficking Convention art 18; SAARC Convention art 1.

137  eg CO India, A/55/38, 22nd Session (2000) para 77; CO Kazakhstan, A/56/38, 24th Session (2001) para 98; CO Switzerland, A/58/38, 28th Session (2003) para 125; CO Korea, CEDAW/C/KOR/CO/6 (2007) para 20; CO Nicaragua, CEDAW/C/NIC/CO/6 (2007) para 22.

138  Trafficking Protocol art 6(3); Council of Europe Trafficking Convention art 12; SAARC Convention art IX(3); UNRPGs (n 95 above) principles 7–11, guideline 6.

139  eg CO Lithuania, A/55/38, 23rd Session (2000) para 153; CO Vietnam, A/56/38, 25th Session (2001) para 261; CO Estonia, A/57/38, 26th Session (2002) para 102; CO France, A/58/38, 29th Session (2003) para 274; CO Nigeria, A/59/38, 30th Session (2004) para 302; CO The Netherlands, CEDAW/C/NLD/CO/4 (2007) para 24; CO Honduras, CEDAW/C/HON/CO/6 (2007) para 21; CO Pakistan, CEDAW/C/PAK/CO/3 (2007) paras 31–2; CO Armenia, CEDAW/C/ARM/CO/4/Rev.1 (2009) para 25; CO Turkey, CEDAW/C/TUR/CO/6 (2010) para 27.

140  eg CO Latvia, A/59/38, 31st Session (2004) para 58; CO Azerbaijan, CEDAW/C/AZE/CO/4 (2009) para 24; CO Cameroon, CEDAW/C/CMR/CO/3 (2009) para 31; CO Ukraine, CEDAW/C/UKR/CO/7 (2010) para 31.

141  eg CO Serbia, CEDAW/C/SCG/CO/1 (2007) para 26; CO Brazil, CEDAW/C/BRA/CO/6 (2007) para 24.

142  UNRPG: Commentary (n 110 above) s 8.2.

143  Ibid.

144  CAT CO Australia, CAT/C/AUS/CO/1 (2008) para 32.

145  UNRPGs (n 95 above) principle 8; Council of Europe Trafficking Convention art 5(6).

146  Eg CO The Netherlands, CEDAW/C/NLD/CO/4 (2007) para 24; CO The United Kingdom, CEDAW/ C/UK/CO/6 (2009) para 283; CO The Netherlands, CEDAW/C/NLD/CO/5 (2010) para 28.

147  See eg Council of Europe Trafficking Convention art 13.

148  CO Denmark, CEDAW/C/DEN/CO/6 (2006) paras 22–3.

149  Trafficking Protocol art 6(2); SAARC Convention art V; Council of Europe Trafficking Convention art 12(1)(c)-(e); UNRPGs (n 95 above) principle 9, guideline 6(5).

150  eg the UNRPGs and the Council of Europe Trafficking Convention recommend specific measures to protect victims’ privacy. UNRPGs (n 95 above) principle 9; UNRPG Commentary (n 110) s 9.4; Council of Europe Trafficking Convention art 11(3). Victim protection should not, however, be at the expense of the accused’s right to a fair trial. UNRPG: Commentary (n 110 above) s 8.4.

151  eg CO Portugal, A/57/38, 26th Session (2002) para 336; CO Albania, A/58/38, 28th Session (2003) para 71; CO Bangladesh, A/59/38, 31st Session (2004) para 244; CO Singapore, CEDAW/C/SGP/CO/3 (2007) para 22; CO Guatemala, CEDAW/C/GUA/CO/7 (2009) para 24; CO Panama, CEDAW/C/PAN/CO/7 (2010) para 31.

152  eg CO Russia, A/57/38, 26th Session (2002) para 396; CO Nigeria, CEDAW/C/NGA/CO/6 (2008) para 26; CO Albania, CEDAW/C/ALB/CO/3 (2010) para 29.

153  eg CO Switzerland, A/58/38, 28th Session (2003) para 125; CO Belgium, CEDAW/C/BEL/CO/6 (2008) para 42; CO Switzerland, CEDAW/C/CHE/CO/3 (2009) para 30. See also Trafficking Protocol art 8(2); Council of Europe Trafficking Convention arts 16(2) and 14(1)(b).

154  eg CO France, A/58/38, 29th Session (2003) para 274; CO The Netherlands, CEDAW/C/NLD/CO/4 (2007) paras 27–8; CO The United Kingdom, CEDAW/C/UK/CO/6 (2008) para 283.

155  eg CO France, A/58/38, 29th Session (2003) para 274. See also Council of Europe Trafficking Convention art 28; Organized Crime Convention art 24.

156  UNRPG: Commentary (n 110 above) s 11.1.

157  UDHR art 13(2); ICCPR art 12(4).

158  UNRPG: Commentary (n 110 above) s 11.2.

159  Ibid s 11.3.

160  Trafficking Protocol arts 8 and 9; Council of Europe Trafficking Convention art 16(1)-(4).

161  Council of Europe Trafficking Convention art 14(1); UNRPGs (n 95 above) principle 11.

162  eg CO The Netherlands, A/56/38, 25th Session (2001) para 212; CO Denmark, CEDAW/C/DEN/CO/7 (2009) para 33.

163  eg CO Spain, CEDAW/C/ESP/CO/6 (2009) para 22; CO Argentina, CEDAW/C/ARG/CO/6 (2010) para 46.

164  GR 26 n 4.

165  Council of Europe Trafficking Convention art 5(4).

166  eg CO Singapore, CEDAW/C/SGP/CO/3 (2007) paras 23–4.

167  Ibid.

168  UNRPG: Commentary (n 110 above) s 5.6.

169  Ibid.

170  Ibid.

171  UNRPGs (n 95 above) guideline 8; UNRPG: Commentary (n 110 above) s 10.

172  CRC arts 32–9; SAARC Convention art III; UNICEF ‘Guidelines for the Protection of the Rights of Child Victims of Trafficking’ (2006) guideline 2; UNRPGs (n 95 above) principle 10.

173  Ibid.

174  GR 19 paras 24(t)(1) and 24(i).

175  eg CO Singapore, CEDAW/C/SGP/CO/3 (2007) para 22; CO Australia, CEDAW/C/AUS/CO/7 (2010) para 31.

176  Trafficking Protocol art 6(6); Legislative Guide to the Organized Crime Convention and its Protocols (2004) para 368; Council of Europe Trafficking Convention art 15(2)-(4); UNRPGs (n 95 above) principle 17, guideline 9(3).

177  eg Global Alliance Against Trafficking in Women, Collateral Damage: the Impact of Anti-Trafficking Measures on Human Rights Around the World (2007); Gallagher and Pearson (n 110 above).

178  CO Kazakhstan, A/56/38, 24th Session (2001) para 98; CO Portugal, A/57/38, 26th Session (2002) para 336; CO El Salvador, A/58/38, 28th Session (2003) para 313; CO Bhutan, A/59/38, 30th Session (2004) para 124; CO Korea, CEDAW/C/KOR/CO/6 (2007) para 20; CO Niger, CEDAW/C/NER/CO/2 (2007) paras 26 and 32; CO Peru, CEDAW/C/PER/CO/6 (2007) para 31; CO Myanmar, CEDAW/C/MMR/CO/3 (2008) para 27; CO Guinea-Bissau, CEDAW/C/GNB/CO/6 (2009) para 30; CO Egypt, CEDAW/C/EGY/CO/7 (2010) para 26. See also Trafficking Protocol art 9(2); UNRPGs (n 95 above) guideline 3; Council of Europe Trafficking Convention arts 5(2) and 6(a).

179  CO Belarus, A/59/38, 30th Session (2004) para 350; CO Austria, CEDAW/C/AUT/CO/6 (2007) paras 25–6; CO Nicaragua, CEDAW/C/NIC/CO/6 (2007) para 22.

180  CO Japan, A/58/38, 29th Session (2003) para 364.

181  CO Indonesia, CEDAW/C/IDN/CO/3 (2007) para 25.

182  CO Switzerland, A/58/38, 28th Session (2003) para 123.

183  CO Belize, CEDAW/C/BLZ/CO/3 (2007) para 22; CO Serbia, CEDAW/C/SCG/CO/1 (2007) para 26; CO Brazil, CEDAW/C/BRA/CO/6 (2007) paras 20 and 24; CO Kazakhstan, CEDAW/C/KAZ/CO/2 (2007) para 28; CO Austria, CEDAW/C/AUT/CO/6 (2007) paras 26 and 30; CO Indonesia, CEDAW/C/IDN/CO/3 (2007) para 25; CO Hungary, CEDAW/C/HUN/CO/6 (2007) para 23; CO Sierra Leone, CEDAW/C/SLE/CO/5 (2007) para 29.

184  CO Canada, A/58/38, 28th Session (2003) paras 357–8.

185  CO Sweden, A/56/38, 25th Session (2001) para 355; CO The Netherlands, A/56/38, 25th Session (2001) para 210; CO New Zealand, A/58/38, 29th Session (2003) para 414; CO The Netherlands, CEDAW/C/NLD/CO/4 (2007) para 22; CO Iceland, CEDAW/C/ICE/CO/6 (2009) para 24.

186  UNRPGs (n 95 above) principle 4; Trafficking Protocol art 9(5); Council of Europe Trafficking Convention art 6.

187  Demand Study (n 86 above) 44.

188  CO Sweden, A/56/38, 25th Session (2001) para 355; CO The Netherlands, A/56/38, 25th Session (2001) para 210; CO New Zealand, A/58/38, 29th Session (2003) para 414; CO Belarus, A/59/38, 30th Session (2004) para 352.

189  CO Latvia, A/59/38, 31st Session (2004) para 60; CO Syria, CEDAW/C/SYR/CO/1 (2007) para 24; CO Cook Islands, CEDAW/C/COK/CO/1(2007) para 27; CO Honduras, CEDAW/C/HON/CO/6 (2007) para 21.

190  CO Cook Islands, CEDAW/C/COK/CO/1 (2007) para 27; CO Kenya, CEDAW/C/KEN/CO/6 (2007) paras 29–30; CO Belize, CEDAW/C/BLZ/CO/3 (2007) paras 21–2.

191  CO Switzerland, A/58/38, 28th Session (2003) para 123; CO Finland, A/56/38, 24th Session (2001) para 285.

192  Trafficking Protocol art 9(2); Council of Europe Trafficking Convention art 6.

193  GR 19 para 24(d), (f), and (t)(2).

194  CO Nigeria, A/59/38, 30th Session (2004) para 312; CO Niger, CEDAW/C/NER/CO/2, 38th Session (2007) para 26; CO Colombia CEDAW/C/COL/CO/6 (2007) para 21.

195  CO Mozambique, CEDAW/C/MOZ/CO/2 (2007) para 29.

196  UNRPG Commentary (n 110 above) s 5.3.

197  Trafficking Protocol art 9(4).

198  UNRPG Commentary (n 110 above) s 5.3.

199  eg CO Romania, A/55/38, 23rd Session (2000) para 309; CO Vietnam, A/56/38, 25th Session (2001) para 269; CO Ecuador, A/58/38, 29th Session (2003) para 310; CO Kyrgyzstan. A/59/38, 30th Session (2004) para 164; CO Mauritania, CEDAW/C/MRT/CO/1 (2007) para 32; CO Cook Islands, CEDAW/C/COK/CO/1 (2007) paras 27 and 32; CO Niger, CEDAW/C/NER/CO/2 (2007) paras 26 and 32; CO Austria, CEDAW/C/AUT/CO/6 (2007) para 26; CO Indonesia, CEDAW/C/IDN/CO/3 (2007) para 25; CO Nicaragua, CEDAW/C/NIC/CO/6 (2007) para 22; CO Estonia, CEDAW/C/EST/CO/4 (2007) para 13; CO Colombia, CEDAW/C/COL/CO/6 (2007) para 21; CO Hungary, CEDAW/C/HUN/CO/6 (2007) para 23; CO Sierra Leone, CEDAW/C/SLE/CO/5 (2007) para 29.

200  eg CO Mauritania, CEDAW/C/MRT/CO/1 (2007) paras 31–2.

201  eg CO Democratic Republic of Congo, A/55/38, 22nd Session (2000) para 220.

202  eg CO Lithuania, A/55/38, 23rd Session (2000) paras 153 and 168.

203  eg CO Equatorial Guinea, A/59/38, 31st Session (2004) para 204; CO Norway, CEDAW/C/NOR/CO/7 (2007) para 22; CO Korea, CEDAW/C/KOR/CO/6 (2007) para 20; CO Maldives, CEDAW/C/MDV/CO/3 (2007) para 22. CO Norway, CEDAW/C/NOR/CO/7 (2007) para 22; CO Kenya, CEDAW/C/KEN/CO/6 (2007) para 30; CO Tajikistan, CEDAW/C/TJK/CO/3 (2007) para 24.

204  CO Guyana, A/56/38, 25th Session (2001) para 181; CO Russian Federation, A/57/38, 26th Session (2002) para 394; CO Switzerland, A/58/38, 28th Session (2003) para 123; CO Latvia, A/59/38, 31st Session (2004) para 58; CO Korea, CEDAW/C/KOR/CO/6 (2007) para 20; CO The Netherlands, CEDAW/C/NLD/CO/4 (2007) para 32; CO Suriname CEDAW/C/SUR/CO/3 (2007) para 30; CO Maldives CEDAW/C/MDV/CO/3 (2007) para 22.

205  CO Vietnam, CEDAW/C/VNM/CO/6 (2007) para 18.

206  International anti-trafficking laws establish jurisdictional rules to coordinate States’ exercises of jurisdiction in trafficking cases. See, eg, Council of Europe Trafficking Convention arts 15, 21, and 31.

207  UNRPGs (n 95 above) guideline 11.

208  Trafficking Protocol art 2; Council of Europe Trafficking Convention art 1.

209  CO Lithuania, A/55/38, 23rd Session (2000) para 153; CO Finland, A/56/38, 24th Session (2001) para 304; CO Iceland, A/57/38, 26th Session (2002) para 248; CO Brazil, A/58/38, 29th Session (2003) para 116; CO Bhutan, A/59/38, 30th Session (2004) para 124; CO Israel, CEDAW/C/ISR/CO/3 (2005) para 30; CO Gambia, CEDAW/C/GMB/CO/1–3 (2005) para 28; CO Malaysia, CEDAW/C/MYS/CO/2 (2006) para 24; CO Cape Verde, CEDAW/C/CPV/CO/6 (2006) para 22; CO Colombia, CEDAW/C/COL/CO/6 (2007) para 21; CO Morocco, CEDAW/C/MAR/CO/4 (2008) para 23; CO Nigeria, CEDAW/C/NGA/CO/6 (2008) para 26; CO Saudi Arabia, CEDAW/C/SAU/CO/2 (2008) para 24.

210  CO Australia, CEDAW/C/AUS/CO/5 (2006) para 32; CO The Philippines, CEDAW/C/PHI/CO/6 (2006) para 20.

211  CO Moldova, CEDAW/C/MDA/CO/3 (2006) para 25.