Human Trafficking : International Law and the Regulation of Sexual Exploitationof Women on the Internet

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J U R I D I C U M

Human Trafficking

International Law and the Regulation of Sexual Exploitation

of Women on the Internet

Frida Högfors

VT 2020

RV600G Rättsvetenskaplig kandidatkurs med examensarbete, 15 högskolepoäng Examinator: Adam Croon

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Abstract

The objective of this study is to examine human trafficking and in particular sexual exploitation of women. It further aims to understand the internet’s role in cases of sexual exploitation and what obligations states have in regulating internet. Therefore, it targets a further understanding of obligations of states to regulate internet intermediaries. The method of legal dogmatic has been added to this study in order to understand the applicable law that is relevant. This study has found that internet is a helping instrument for traffickers to sexually exploit women, resulting in an increased demand. Several international and regional instruments address human trafficking and impose obligations for states. Albeit, these legal instruments tackle human trafficking differently, either by a crime prevention approach or a human rights approach. It further shows that human rights are in fact protected on the internet. Additionally, it founds that states have certain obligations, although limited, in regulating internet intermediaries as the main providers for interactions online. Such obligations are limited to measures that oblige internet intermediaries to remove or block illegal content when it has come to their knowledge or by cooperation. It notes that the Convention on Cybercrime does not apply to human trafficking in favour of freedom of expression. This study argues that further regulation of internet intermediaries in sexual exploitation matters are necessary for a more comprehensive approach to the prevention of sexual exploitation. It concludes that the international legal framework lacks a proper regulation of internet intermediaries in matters of sexual exploitation of women on the internet.

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Table of Contents

1. Introduction ... 1

1.1 Background ... 1

1.2 Purpose and Research Questions ... 2

1.3 Delimitations ... 2

1.4 Method ... 2

1.5 Material ... 3

1.6 Structure ... 3

2. Human Trafficking ... 5

2.1 Introduction to Human Trafficking ... 5

2.2 Defining Human Trafficking ... 5

2.3 Sexual Exploitation of Women ... 6

2.4 Sexual Exploitation on the Internet ... 7

2.5 Conclusion ... 8

3. International Law Relevant to Trafficking ... 9

3.1 Human Trafficking is a Violation of Human Rights ... 9

3.2 International Conventions ... 9

3.2.1 The Palermo Protocol ... 9

3.2.2 Convention on the Elimination of All Forms of Discrimination against Women... 11

3.3 Regional Conventions ... 13

3.3.1 European Convention on Human Rights ... 13

3.3.2 Council of Europe Convention on Action against Trafficking in Human Beings ... 16

3.3.3 Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women ... 18

3.3.4 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa . 19 3.4 Conclusion ... 20

4. States’ Human Rights Obligations vis-à-vis the Internet ... 21

4.1 Human Rights are Protected on the Internet ... 21

4.2 States’ Obligations to Regulate Internet Intermediaries ... 22

4.3 Conclusion ... 26

5. Analysis ... 27

6. Conclusion ... 30

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List of Abbreviations

Anti-Trafficking Convention Council of Europe Convention on Action against Trafficking in Human Beings

CEDAW Convention on the Elimination of All Forms of

Discrimination against Women

Convention of Belém do Pará Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

EU European Union

ICJ Statute of the International Court of Justice

Maputo Protocol Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa Palermo Protocol Protocol to Prevent, Suppress and Punish Trafficking

in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime

UN United Nations

UNTOC United Nations Convention against Transnational

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1. Introduction

1.1 Background

Human trafficking has become more common through the years as a result of globalization and is seen as a form of slavery of the modern world. It is an organized crime which is fed by the high profit for the perpetrators and their low risk in getting caught.1 It is an industry that is

highly dependent on the victims, the traffickers and the consumers which all together contribute to seven billion dollars in profit each year.2

Human trafficking affects women and children the most. It is also a common understanding that women from developing countries are the only ones being trafficked. However, women in developed countries can also be trafficked for reasons such as homelessness and runaways3,

albeit the former being the most common. It is indeed a global issue which international law must regulate in order to prevent such acts.4

As already mentioned above, human trafficking and sexual exploitation is a profitable but illegal cross-border industry that generate billions of dollars each year. This will most likely not decrease due to the rising use of new technologies such as the internet.5 Although the

internet can be used for decent purposes, the internet can also be a place where criminal activities are taking place, inter alia sex trafficking.6

Internet creates further questions regarding human rights and how far states’ obligations reaches in matters of human trafficking. In international human rights law it has been established that human rights include women’s rights. Yet, internet is making the fulfilment of these rights more complicated due to its global nature.7

Internet intermediaries are those that make interactions on the internet possible as the main providers of this service. Although internet intermediaries mostly have established own policies that aim at reporting certain cases of gender-based violence, responsibilities regarding the regulation of them are poorly addressed in the international human rights framework.8 Further

problems are evident as offences, i.e. human trafficking as mentioned, many times occurs on an internet intermediary’s private platform.9 It is therefore important to examine how far the

regulation of internet intermediaries goes.

1 Pinghua Sun, Yan Xie, ‘Human Trafficking and Sex Slavery in the Modern World’ (2014) 7(1) Albany

Government Law Review 91, 93.

2 Kendall Vitale, ‘Barricading the Information Superhighway to Stop the Flow of Traffic: Why International

Regulation of the Internet is Necessary to Prevent Sex Trafficking’ (2011) 27(1) American University International Law Review 91, 98.

3 ibid.

4 ibid 102–103.

5 Donna M Hughes, ‘The Use of New Communications and Information Technologies for Sexual Exploitation of

Women and Children’ (2002) 13(1) Hastings Women’s Law Journal 127.

6 Vitale (n 2) 93–94.

7 Human Rights Council (HRC), ‘Report of the Special Rapporteur on Violence against Women, its Causes and

Consequences on Online Violence against Women and Girls from a Human Rights Perspective’ (18 June 2018) UN Doc A/HRC/38/47 paras 17–18.

8 ibid paras 71, 74. 9 ibid.

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1.2 Purpose and Research Questions

The purpose with this study is to examine the role of the internet concerning human trafficking, focusing on sexual exploitation of women. It aims to look at what responsibilities states have in accordance with the international human rights instruments and if this responsibility reaches to the regulation of internet intermediaries. The role of the internet has grown lately in matters of human trafficking, exposing women to a greater extent, therefore this issue leaves several questions that need to be answered:

1. What is sexual exploitation on the internet?

2. Which international human rights instruments regulates human trafficking and what obligations do they impose?

3. Do these obligations and responsibilities extend to the internet and do states have an obligation to regulate internet intermediaries?

1.3 Delimitations

Delimitations has been done in this study. Some international instruments have been excluded and selection has been made based on relevance where human trafficking either is mentioned or interpreted into. This also due to the fact that this study examines the responsibilities and obligations of states and not the actual effects resulting from human trafficking. Further, as this study aims at examining the human rights aspect of trafficking and state responsibilities and obligations, this study therefore leaves out international criminal law. Also, as the focus lies on sexual exploitation of women, other forms of trafficking will not be described, albeit shortly mentioned. As there are several researches about private acts regarding human trafficking online, this study will only focus on regulating internet intermediaries in this matter. Additionally, the internet intermediaries’ responsibility has also been excluded from this study and will only focus on states responsibility to regulate them.

1.4 Method

Since this study will examine the existing international instruments and how they regulate sexual exploitation of women on the internet, the study will use the method of legal dogmatic. The method is chosen due to a systematization and interpretation of what is considered to form part of applicable law in the area of public international law.10 By using the legal dogmatic

methodology, the recognized legal sources under public international law will be used.11

While examining the relevant applicable law, this study will for the most part take an approach de lege lata.12 By taking this approach, the study will examine the existing laws that

are recognized in public international law. This in order to get a proper understanding of how protection of sexual exploitation of women on the internet looks like and states’ obligations regarding this matter. Further, it aims to very vaguely take an approach de lege ferenda in the

10 Aleksander Peczenik, ‘Juridikens Allmänna Läror’ (2005) Svensk Juristtidning 249. 11 Bert Lehrberg, ‘Praktisk Juridisk Metod’ (9th edn, Iusté 2016) 203.

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last chapter, i.e. how the law should be.13 Because the regulation of internet intermediaries is

poor in matters of sexual exploitation of women on the internet, this study will aim to explain the problem and how it can become more comprehensive.

1.5 Material

The recognized primary legal sources in public international law are stated in article 38 in the Statute of the International Court of Justice (ICJ). These sources include international conventions, international custom and general principles of law. In addition, also judicial decisions and teachings from publicists that are considered as highly qualified are considered as sources, but as a ‘subsidiary means for the determination of rules of law’.14

In order to understand how human trafficking is protected internationally, this study will be based on international treatises as well as judicial decisions. It will involve different international treaties that address human trafficking, either directly or indirectly. Judicial decisions will be used in order to interpret the relevant treatises or where such judicial decisions have established certain key aspects.

Soft law has also been taken into consideration and will play a key role in this study. Soft law are non-binding instruments such as resolutions from United Nations General Assembly, guidelines or declarations. Although not binding, these soft law instruments can nevertheless create a certain expectation on states.15 Since this study examines an issue which is not clearly

expressed in the relevant primary sources, this study will not only use resolutions and documents from different United Nations bodies but also declarations and guidelines.

Secondary sources will also be used as they analyses the law itself. These mainly include books, journal articles, dictionaries and encyclopaedias.16 Secondary sources will be considered

in first hand in order to get an understanding of the subject but will be used during the whole process as a means to analyse and to acquire different aspects. In this matter, the study will mainly consist of journal articles and books but will also use encyclopaedias.

1.6 Structure

Chapter 2 of this study consist of a general description and explanation of the subject, that is human trafficking. It aims to clarify what human trafficking is and how it is defined in international law. This is followed by further explanation of sexual exploitation of women. It targets the main issues which constitutes sexual exploitation and how that form of trafficking can look like. The chapter will lastly address how sexual exploitation can occur on the internet and the problematic issues resulting from it. Hopefully this will all together contribute to a more comprehensive view of the subject.

Chapter 3 will further clarify how both international and regional instruments address human trafficking. The main point in this chapter is to get an overview of the different

13 ibid.

14 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 15

UNCIO 355 (ICJ) art 38.

15 Marci Hoffman, Mary Rumsey, ‘International and Foreign Legal Research: A Coursebook’ (BRILL 2012) 9. 16 ibid 14.

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obligations of states regarding human trafficking as they address the problem differently. This due to the fact that a few of these instruments specifically address trafficking while others address the issue indirectly through other means.

Chapter 4 address the main issue of this study. Namely, how far obligations of states reach in the context of sexual exploitation occurring online. The first sub-chapter addresses if human rights are indeed protected online. This is important to clarify before examining the issue which is dealt with in the second sub-chapter, i.e. states obligation to regulate internet intermediaries. Chapter 5 of this study consist of an analysis that aims to analyse the issues described in the chapters before and address any loopholes that this study might find. It further addresses the research questions that this study aims to target.

Chapter 6 is a comprehensive conclusion of the study as a whole and it aims to conclude all issues that has been addressed.

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2. Human Trafficking

2.1 Introduction to Human Trafficking

This chapter aims at describing in general what human trafficking, and in particular sexual exploitation, is and how it can be expressed on the internet. Before continuing, it is important to explain the differences between human trafficking and migration, as those both have similarities but also differences. Migration means that a person of free will seeks a better life abroad, usually for employment. This might be partly true to human trafficking as well, as the person here similarly seeks employment and a better life abroad but is instead subjected to deception or coercion. It is the latter that distinct migration from trafficking, i.e. the part where a person is coerced or threatened into any situation that is of an exploitative nature.17

This chapter will in a descriptive manner generally explain what defines human trafficking, what sexual exploitation of women is and how the internet is currently by traffickers to sexually exploit women.

2.2 Defining Human Trafficking

During decades the international community has been struggling to define human trafficking. Starting in the early 20th century, the definition of human trafficking was limited to sexual

exploitation of women and children. Today the definition of human trafficking has been broadened.18 In 2000, the Protocol to Prevent, Suppress and Punish Trafficking in Persons,

Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime (Palermo Protocol) was adopted by the United Nations General Assembly.19 It today serves as the internationally accepted definition of human trafficking.20 In

article 3(a), the Palermo Protocol defines ‘trafficking in persons’ as:

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

17 Aiko Joshi, ‘The Face of Human Trafficking’ (2002) 13(1) Hastings Women’s Law Journal 31, 32. 18 John Cerone, ‘Human Trafficking’ (2007) in Max Planck Encyclopedias of Public International Law

(MPEPIL) (Online edn) accessed 20 April 2020 para 2.

19 ibid para 6.

20 UNCHR ‘Report of the Special Rapporteur on the Human Rights Aspects of the Victims of Trafficking in

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services, slavery or practices similar to slavery, servitude or the removal of organs21

This definition of trafficking contains three criteria which must be fulfilled in order for an act to be considered trafficking. Those criteria are: an act, a meaning and a purpose, which all are expressed in the first meaning of the article.22 Firstly, the act-criterion, which means ‘the

recruitment, transportation, transfer, harbouring or receipt of persons’.23 Secondly, the

means-criterion, which states:

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 person24

Lastly, the purpose-criterion. This criterion states that the means shall be for a purpose, namely for exploitation.25 However, when it comes to children the criteria are different. As established

in article 3(c) of the Palermo Protocol, trafficking of children only need to consist of an act and a purpose, leaving out the meaning-criterion.26 Additionally, the consent of the victim is

irrelevant whenever ‘any of the means set forth in subparagraph (a) have been used’.27

Furthermore, it is worth mentioning that women and girls are not the only ones included in the definition, it includes men and boys as well.28

As seen in the last sentence of article 3(a), exploitation can take form in various ways, such as forced labour, servitude and sexual exploitation including exploitation for prostitution purposes.29

2.3 Sexual Exploitation of Women

Victims can be trafficked for several reasons: forced labour, illegal adoption, organ removal and sexual exploitation. However, of these four types of human trafficking, the most common one is sexual exploitation, which affects women and children the most.30 Sexual exploitation,

also known as commercial sexual exploitation, is both an international and a national matter which means that it operates within borders as well as worldwide.31

21 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,

supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319 (Palermo Protocol) art 3(a).

22 Anne T. Gallagher, ‘The International Law of Human Trafficking’ (CUP 2010) 29. 23 Palermo Protocol (n 21) art 3(a).

24 ibid. 25 ibid. 26 ibid art 3(c). 27 ibid art 3(b). 28 Gallagher (n 22) 47.

29 Palermo Protocol (n 21) art 3(a). 30 Vitale (n 2) 97–98.

31 Melanie Franco, ‘Human Sex Trafficking: An International Problem with an International Solution Requiring

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Trafficking for sexual exploitation can either be for purposes such as pornography, prostitution or for purposes relating to sex tourism.32 Hence, traffickers are most likely to find

their victims in developing countries and transferring them to developed countries33, although,

sex trafficking occurs domestically as well as earlier mentioned. Traffickers use different methods to lure or force victims into this industry, and these can be kidnapping, debt bondage, fraud and threats of violence. 34

Traffickers and consumers have a major role in the sex industry. The former aiming at luring vulnerable victims into sex trafficking who many times suffer from poverty, unemployment, disabilities and that might be uneducated, among other reasons. Their work is to recruit, transport and manage the housing and selling of the victims.35 Usually, the trafficker lures the

victims under false premises offering them money, work and education for a better life abroad.36

Instead, the victims can be placed in brothels in the new country with their belongings such as their passports taken away, restricting their freedom to a great extent. It is not uncommon either that the victims are facing threats and physical abuse by the trafficker to make them even more compliant.37

Consumers on the other hand, are the ones that are maintaining and increasing the demand. Although the regular consumers are men, they are not limited to a specific subgroup. Neither age, ethnicity nor country of origin is relevant in this matter as the consumers have all different kinds of backgrounds.38

However, as the demand is increasing, and the industry is gaining even more profit, this industry has found new ways to be maintained. Indeed, traffickers are now using relatively new technologies in order to sell and promote victims making social media a threat to combating sexual exploitation.39

2.4 Sexual Exploitation on the Internet

The borderless nature of the internet has created a new global phenomenon as communications and information are more easily accessible than before. Therefore, criminals now have a new platform where they operate, safe from any national boundaries due to the borderless nature of the internet as national law usually operates within its own territory.40

There are three ways which enables traffickers and consumers to operate through the internet. Firstly, the ability of anonymity. Before the internet, traffickers and consumers met underground in person in order to buy and sell. Nowadays, traffickers and consumers can do this anonymously and only with a few click on the computer at home. Further, the internet opens up to new ideas and new possibilities for consumers as they might be more tempted to 32 Vitale (n 2) 98. 33 ibid 102. 34 Sun (n 1) 98. 35 Vitale (n 2) 101. 36 Franco (n 31) 427. 37 ibid. 38 Vitale (n 2) 101–102.

39 UNGA ‘Report of the Secretary-General 73/263’ (2018) UN Doc A/73/263, para 26.

40 Explanatory Report to the Council of Europe Convention on Cybercrime (23 November 2001) ETS 185 paras

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try new things as they might not have tried before, for example sex tourism, as they are anonymous.41 Secondly, the ability to communicate more easily. In order to recruit and

purchase victims, websites, chatrooms and email are being used by traffickers and consumers to conduct their business. Internet also allows traffickers and consumers to locate victims in order to maintain their business. Websites where passwords can be used are also a challenge to eradicate this behaviour as it contributes to a more secure place for traffickers and consumers.42

Lastly, recruitment of victims are now being advertised on the internet. As earlier mentioned, usually the recruitment of victims happens under false pretences and traffickers are now luring victims with the help of the internet. Traffickers will make a false advertisement for jobs such as nannies, models and au pairs in order to attract women and later on forcing them into the sex industry.43

Internet is also the main platform where traffickers aim at exploiting women for pornography. In this field of sexual exploitation, the consequences of these activities are both physically, sexually and emotionally harmful for the exposed women. Thus, it has been argued that, just as in prostitution, coercion can exist in cases of pornography as well.44 Indeed, as seen

in article 3(a) of the Palermo Protocol, coercion is included in the means-criterion.45

2.5 Conclusion

The definition of human trafficking in the Palermo Protocol contributes to a comprehensive approach to this matter. Establishing the three criteria of an act, a means and a purpose is a helping tool in order to detect a situation of human trafficking. Sexual exploitation of women is further increasing with the growing role of the internet and its global nature. This industry has found a way to both expand and contribute to further situations where women can be exploited. Unfortunately, this problem continues to exist as long as traffickers keep feeding the demand coming from its consumers.

41 Vitale (n 2) 106–107. 42 ibid 107–108. 43 ibid 109. 44 Hughes (n 5) 137.

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3. International Law Relevant to Trafficking

3.1 Human Trafficking is a Violation of Human Rights

Human trafficking is considered to be a violation of human rights46 but it also includes and

amounts to gender-based violence.47 This is also confirmed by the Declaration on the

Elimination of Violence against Women which states that violence against women shall include ‘[p]hysical, sexual and psychological violence occurring within the general community, including ... trafficking in women and forced prostitution’.48 It has been argued that

gender-based violence constitutes customary international law.49 Trafficking in women leads to several

human rights violations in itself, however, the gender perspective is clearer in sex trafficking as it affects women simply because they are women.50

As trafficking in itself is a human rights violation, it also affects the exercise of other human rights of women. Therefore, positive obligations of states arise in this matter where they are required to act in due diligence in order to prevent human trafficking, but also to make sure that perpetrators are punished, and further, assist and protect victims of human trafficking.51 As the

following chapter will explain, these obligations will be imposed on states in several international and regional treaties dealing with this matter. Starting with the two main international treaties followed by regional treaties addressing the issue of human trafficking.

3.2 International Conventions

3.2.1 The Palermo Protocol

To begin with, the definition of trafficking in persons has already been addressed in chapter 2.2 and will therefore not be further explained in this chapter. However, there will be an explanation of states’ obligations under the Protocol in this chapter.

It is worth mentioning that the Palermo Protocol is a supplement to the United Nations Convention against Transnational Organized Crime (UNTOC) and accordingly must be interpreted in light of the Convention.52 Article 1(2) of the Palermo Protocol also provides that

the provisions established in UNTOC shall be applied mutatis mutandis to the Palermo Protocol.53 Meaning, when applying the provisions in UNTOC to the Palermo Protocol, only

necessary modifications regarding application and interpretation can be made.54 Further, a state

46 A/73/263 (n 39) para 3. 47 ibid para 18.

48 UNGA Res 48/104 (20 December 1993) UN Doc A/RES/48/104 art 2(b).

49 Committee on the Elimination of Discrimination against Women (CEDAW), ‘General Recommendation 35’

(26 July 2017) UN Doc CEDAW/C/GC/35 para 2.

50 E/CN.4/2006/62 (n 20) para 63.

51 UNGA Res 72/195 (23 January 2018) UN Doc A/RES/72/195, 1. 52 Palermo Protocol (n 21) art 1(1).

53 ibid art 1(2).

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can only become a party to the Palermo Protocol if the state has become a party to UNTOC.55

As this chapter will have its main focus on the Palermo Protocol, it is important to mention the scope of UNTOC for further understanding. UNTOC will apply if the crime is transnational, is considered as a serious crime and ‘involves an organized criminal group’.56 Additionally, these

criteria of ‘transnational’ and ‘organized criminal group’ are also applicable to the Palermo Protocol as stated in its scope of application in article 4.57 Albeit, in order for a crime to be of

a transnational character, it can either involve two states58, or it can be transnational if it is

committed in one state but ‘has substantial effects in another’59 or has a ‘substantial part of its

preparation, planning, direction or control takes place in another state’.60 This is particularly

relevant as a state might be party to the Convention but not to the protocols thereto61 and the

scope of the Convention is seemingly broad in its wording. Therefore, human trafficking can be addressed under this instrument as well62 and the Convention is applicable to cases where

victims have been transferred both internationally as well as domestically.63

Moreover, the purposes for the Palermo Protocol is established in article 2 with three aims. First, ‘[t]o prevent and combat trafficking in persons, paying particular attention to women and children’.64 Second, ‘[t]o protect, and assist the victims of such trafficking, with full respect for

their human rights’.65 Last, ‘[t]o promote cooperation among States Parties in order to meet

those objectives’.66

Obligations that follow of being a state party to the Palermo Protocol require states to take legislative measures in order to criminalize the practices established in article 3(a) of the Palermo Protocol.67 Additionally, states must also take legislative measures in order to

criminalize any attempt, participation and organizing or directing another person any of the offences which are mentioned in article 3(a).68 However, it is not the elements alone that are to

be criminalized, instead ‘it is the combination of constituent elements making up the crime of trafficking that are to be criminalized’.69 In addition, both natural and legal persons are included

in this obligation.70

Preventative measures can be found in part three of the Palermo Protocol. In this chapter, the Palermo Protocol emphasizes the need for states to establish inter alia programmes and policies in order to prevent trafficking and to avoid revictimization of victims.71 These policies

55 Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 29

September 2003) 3335 UNTS 209 (UNTOC) art 37(2).

56 ibid art 3(1)(b).

57 Palermo Protocol (n 21) art 4. 58 UNTOC (n 55) art 3(2)(a). 59 ibid art 3(2)(d).

60 ibid art 3(2)(b). 61 ibid art 37(3). 62 Gallagher (n 22) 75.

63 Jean Allain, ‘No Effective Trafficking Definition Exists: Domestic Implementation of the Palermo Protocol’

(2014) 7(1) Albany Government Law Review 111, 114.

64 Palermo Protocol (n 21) art 2(a). 65 ibid art 2(b). 66 ibid art 2(c). 67 ibid art 5(1). 68 ibid art 5(2). 69 Gallagher (n 22) 80. 70 ibid.

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and programmes should contain cooperation efforts with non-governmental organizations (NGO) and other organizations that might be relevant.72 Factors that make women (and

children) more vulnerable to trafficking are also to be condemned by states and therefore they are obliged to take further measures in order to prevent such factors. Those factors can be ‘poverty, underdevelopment and lack of equal opportunity’.73 Further, one can read that states

shall condemn ‘the demand that fosters all forms of exploitation of persons ... that leads to trafficking’ by either strengthening or adopting legislative measures.74

Information exchange and training between local authorities (immigration, law enforcement and other relevant authorities) are also an obligation that states have under the Protocol. Such information exchange can inter alia include the determination of the means and methods that is used by the perpetrators.75 Local authorities should also have their training strengthened

focusing on prevention and that the rights of the victims are protected, among others.76 State

parties to the Protocol shall also establish appropriate measures for border controls in order to detect victims of trafficking.77

Indeed, one might think that the Palermo Protocol is a human rights treaty as it regulates human trafficking, but it is in fact considered as a criminal law treaty as its main focus is on the prevention of the crime itself, as can be noted in the explanation above.78 On the other hand,

the Palermo Protocol does mention some aspects of human rights. For example, as already mentioned above, states have an obligation to respect the human rights of the victims but also to protect these rights.79

3.2.2 Convention on the Elimination of All Forms of Discrimination against Women

The most far-reaching treaty focusing on human rights of women is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).80 It condemns any form

of trafficking in its article 6 which provides ‘States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women’.81 However, although the Convention is the main instrument regarding the human

rights of women, this provision is somewhat vague in the matter of its terminology.82 Some

argue that the Convention does not specifically define the phrase ‘all forms of traffic in women’ in a broader sense.83 Yet, the Committee on the Elimination of Discrimination against Women

in its General Recommendation 19, the Committee has indeed expressed that other forms of 72 ibid art 9(3). 73 Ibid art 9(4). 74 ibid art 9(5). 75 ibid art 10(1)(c). 76 ibid art 10(2). 77 ibid art 11(1). 78 Allain (n 63) 121.

79 Joan Fitzpatrick, ‘Trafficking and a Human Rights Violation: The Complex Intersection of Legal Frameworks

for Conceptualizing and Combating Trafficking’ (2003) 24(4) Michigan Journal of International Law 1143, 1151.

80 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979,

entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).

81 ibid art 6.

82 Gallagher (n 22) 64. 83 ibid.

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trafficking has appeared lately. For example, forced marriages, domestic labour and sex tourism.84

Obligations that states have under the Convention does not merely include the addressing of the circumstances of trafficking, it reaches to address the underlying causes of trafficking as well.85 Discrimination has been argued to be a main cause of trafficking in women86 and the

Convention’s main focus is on discrimination-issues where trafficking is included.87 Indeed, in

article 1 of CEDAW, ‘discrimination of women’ means:

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.88

Human trafficking, as mentioned above, is considered to be included in the definition of discrimination and state parties to the Convention are therefore subject to certain obligations under article 2. States parties to the Convention must prohibit discrimination in any form by adopting appropriate legislative measures in order to prevent such discrimination and to eliminate any inequalities between men and women and implement the principle of equality into their constitutions.89 Additionally, any law, regulation, custom and practice that might

constitute discrimination states are obliged to abolish or modify.90 Furthermore, the Convention

establishes that appropriate protection against discrimination along with other rights for victims are also safeguarded by states that are parties to the Convention.91

However, the obligations are not only limited to conducts made by states themselves, the obligations reach to conducts made by private actors as well.92 This is expressed in article 2(e)

which oblige states ‘to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise’93, making the obligations even more significant as

the main actors in trafficking are acting in the private sphere.94 Moreover, this is specifically

relevant if states have failed to act in due diligence or failed in the process of investigation and punishment, but also where compensation has not been provided for.95

This was the case in Zhen Zhen Zheng v Netherlands, where a Chinese woman filed a communication under article 2 of the Optional Protocol of the Convention. Article 2 of the

84 Committee on the Elimination of Discrimination against Women (CEDAW), ‘General Recommendation 19’

(1992) UN Doc [11th Session] para 14.

85 Gallagher (n 22) 65. 86 ibid 196.

87 Marsha A Freeman, ‘Article 6’ in Christine Chinkin, Beate Rudolf (eds), ‘Oxford Commentaries on

International Law: UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary’ (OUP 2012) 261.

88 CEDAW (n 80) art 1. 89 ibid art 2(a)–(b). 90 ibid art 2(f). 91 ibid art 2(c). 92 Freeman (n 87) 271. 93 CEDAW (n 80) art 2(e). 94 Freeman (n 87) 271.

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Optional Protocol allows individuals to submit a communication if their right under the Convention has been violated.96 In the case in question, the Chinese woman was trafficked to

the Netherlands for the purpose of forced prostitution.97 The Committee, however, found the

case inadmissible due to non-exhaustion of domestic remedies98 but three members of the

Committee had a dissenting opinion about the case. They were of the opinion that it was evident that the victim was subject to human trafficking and that the Immigration and Naturalization Service (IND) in the Netherlands should have realized that from the victim’s second hearing. In the second hearing the victim had asserted that she was raped multiple times, have sexual intercourse with several men and held in captivity.99 Consequently, they considered that the

State had not acted in due diligence100 and that the case should have been declared admissible.101

3.3 Regional Conventions

3.3.1 European Convention on Human Rights

The European Convention on Human Rights (ECHR) prohibits slavery and forced labour in its article 4 which states ‘[n]o one shall be held in slavery or servitude’102 and ‘[n]o one shall be

required to perform forced or compulsory labour’.103 Yet, the term ‘trafficking’ is not

mentioned in the article. This is however established in case Rantsev v Cyprus and Russia where the European Court of Human Rights (ECtHR) recognized that trafficking is in fact included in article 4:

There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention ... the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention104

Rantsev v Cyprus and Russia concerned an applicant from Russia whose daughter, Ms Rantseva, worked in Cyprus as a cabaret artist on a ‘artiste’ visa.105 The applicant’s daughter

later left her residence and workplace, stating that she wanted to go back to Russia. However, both the owner and the manager of the cabaret claimed that she was in the country illegally and

96 Optional Protocol to the Elimination of all Forms of Discrimination Against Women (adopted 6 October 1999,

entered into force 22 December 2000) 2131 UNTS 83 (Optional Protocol) art 2.

97 Zhen Zhen Zheng v Netherlands, Communication no 15/2007 (27 October 2008) UN Doc

CEDAW/C/42/D/15/2007 para 2.2.

98 ibid para 7.3. 99 ibid para 8.6. 100 ibid para 8.7. 101 ibid para 8.2.

102 Convention on the Protection of Human Rights and Fundamental Freedoms (European Convention on Human

Rights, as amended) (ECHR) art 4(1).

103 ibid art 4(2).

104 Rantsev v Cyprus and Russia, App no 25965/04 (ECtHR, 7 January 2010) [282]. 105 ibid [15].

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wanted the police to arrest her.106 The owner and the manager subsequently found Ms Rantseva

and placed her at the residence of another employee, although, the manager also stayed in that place during the same time.107 Nonetheless, Ms Rantseva body was later found on the street and

it was said that she fell from the balcony.108

The ECtHR later found Cyprus to violate article 4 due to lack of a legal as well as administrative framework as the ‘artiste’ visa was not considered to protect Ms Rantseva effectively from trafficking.109 Further, Cyprus had also failed in taking protective measures as

no examinations were made in regard to if Ms Rantseva were indeed a victim of trafficking, among other reasons, such as being left in the custody of the manager. And lastly, the ECtHR found a violation of article 4 as Cyprus lacked in its procedural obligations where they were obliged to effectively investigate the issue.110 Russia was also considered to violate article 4 on

the same ground as they had not taken further investigation regarding the recruitment of Ms Rantseva and how and where that recruitment had taken place.111

Since human trafficking is included in article 4, it comes naturally that positive obligations under the Convention will arise for states, as the ECtHR reiterated in Rantsev. Firstly, a positive obligation ‘to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour’.112 Consequently, prohibition

and punishment of trafficking is dependent on a legislative and administrative framework which states are required to establish in order to comply with the obligations arising from article 4.113

Secondly, protecting both existing as well as potential victims by operational measures. Such an obligation will take place where states ‘were aware, or ought to have been aware’114 of

situations where a victim could be or might become a victim of trafficking. And lastly, procedural obligations where states must provide effective investigations once being aware of any potential situation of trafficking and such investigation does not need to be triggered by a complaint.115

Obligations to investigate is not limited to the domestic area, it also means to effectively cooperate with other states. In Rantsev, the ECtHR reiterates that offences of trafficking can arise both in the state of origin, the transit state and the destination state and therefore it is crucial for states to adopt ‘a comprehensive international approach’, stated in the Palermo Protocol’s preamble.116

As one can see from Rantsev, obligations can be relevant in cases where the offences have been conducted by private actors and where the state has failed to act under article 4. This was also the case in S.M. v Croatia that concerned a woman who had been forced into prostitution. The perpetrator was a former policeman who physically and psychologically forced her to give sexual services to other men. When she did not obey his demands, she was physically injured. 106 ibid [17]. 107 ibid [21]–[22]. 108 ibid [26]–[28]. 109 ibid [293]. 110 ibid [298]–[300]. 111 ibid [309]. 112 ibid [285]. 113 ibid. 114 ibid [286]. 115 ibid [288]. 116 ibid [289].

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Afterwards, when she successfully was able to leave, she was threatened by the perpetrator and so was her family.117 Furthermore, after the escape, the perpetrator used a social-network

website in order to try to reach her. He threatened to tell her parents as well as threatening her with publishing naked pictures of her.118

The ECtHR noted three elements in this case. Firstly, the existence of a legal and regulatory framework. This framework, as mentioned above, must prohibit and punish acts related to forced or compulsory labour, servitude and slavery. In addition, states must criminalise such acts in their legislation, including forced prostitution.119 Croatia had indeed a legislative

framework prohibiting prostitution, where forced prostitution is included as well as sexual services that are being offered, in its criminal code. Henceforth, the rights of victims are also protected under the Croatian legislative framework and also measures of the prevention of trafficking. Therefore, the ECtHR considered that Croatia had fulfilled its obligation.120

Secondly, providing support for the victim. Croatia emphasized that support had been given in the form of counselling, free legal aid and opportunity to present evidence under the trial alone without the alleged person present. This was accepted by the ECtHR as Croatia had recognized her as a victim of trafficking and was offered support.121

Lastly, and most relevant, if the procedural obligations were satisfied by the state. This is where ECtHR found a violation of article 4 of the Convention. The victim had in fact explained to the authorities that she was forced into prostitution by the alleged person. As this fact came into the hands of the authorities, they had an obligation to investigate the circumstances in depth. This was not done due to two aspects. Firstly, several relevant witnesses were not interviewed.122 Secondly, elements that identifies trafficking such as being economically

dependent on the alleged person, coercion, threats and false promises of job opportunities, was overseen by the authorities.123 Therefore, procedural obligations were not complied with by the

authorities and led to a violation of article 4.124

Procedural obligations were also questioned by a dissenting judge in M. and Others v Italy and Bulgaria, the ECtHR came to the conclusion that the alleged offences did not constitute trafficking under article 4 of ECHR and the case was declared inadmissible.125 However, there

was a dissenting opinion about the Court’s reasoning.

As to the facts of the case, which concerned four applicants living in Bulgaria where the first applicant was a minor, and the others consisted of her mother, father and her sister-in-law.126 The applicants met a Serbian man who had promised them work in Italy. After a while,

the parents were forced to leave under threats and were being paid to do so, leaving their daughter behind to marry the Serbian man’s nephew.127 During this time, the first applicant

117 S.M. v Croatia, App no 60561/14 (ECtHR, 19 July 2018) [6]. 118 ibid [16]. 119 ibid [62]. 120 ibid [65]–[68]. 121 ibid [72]. 122 ibid [77]. 123 ibid [79]. 124 ibid [81].

125 M. and Others v Italy and Bulgaria, App no 40020/03 (ECtHR, 31 July 2012) [155]–[156]. 126 ibid [6].

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suffered from rape, threats and constant surveillance. When her parents later returned to Italy, her mother feared that her daughter had been subject to forced prostitution.128

In the opinion of the dissenting judge Kalaydjieva, it was surprising that the Italian authorities did not continue further investigation. This due to the fact that these complaints consisted of sexual acts of a minor that was of a non-consensual character and information of a possible forced prostitution. The dissenting judge found, unlike the rest of the Court, that the Italian authorities did not act with ‘promptness and diligence’.129

3.3.2 Council of Europe Convention on Action against Trafficking in Human Beings

The failure of the United Nations (UN) to adopt a binding human rights treaty regarding human trafficking led the Council of Europe to adopt the Convention on Action against Trafficking in Human Beings in 2005 (Anti-Trafficking Convention).130 This convention aims at developing

and improving the standards set out in the Palermo Protocol with a human rights approach and a focus on gender equality.131 The definition of human trafficking in the Anti-Trafficking

Convention has been implemented directly from the Palermo Protocol as a whole132 and is

stated in article 4 of the Anti-Trafficking Convention.133 Exception is however done in article

4(e) which clarifies the definition of victims and provides that ‘”Victim” shall mean any natural person who is subject to trafficking in human beings as defined in this article’.134 The

Convention consequently applies to both women, children and men.135

Henceforth, the Convention has a broad applicability as it applies to all situations of human trafficking which can be both national or transnational, regardless of if it is considered as an organised crime or not.136 For instance, this is another point in the Convention which differs

from the Palermo Protocol, as the latter is only applicable to crimes which are transnational in nature and involves an organized criminal group.137 Principle of non-discrimination is

enshrined in article 3 which emphasizes that any provision is to be secured without discrimination on the grounds such as ‘sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’.138

The preventative measures concerning trafficking can be found in chapter 2 of the Anti-Trafficking Convention. States parties to the Convention are obliged to take measures to

128 ibid [10].

129 M. and Others v Italy and Bulgaria, App no 40020/03 (ECtHR, 31 July 2012) (Dissenting Opinion of Judge

Kalaydjieva)

130 Allain (n 63) 122.

131 Council of Europe Convention on Action against Trafficking in Human Beings (16 May 2005) ETS 197

(Anti-Trafficking Convention) preamble.

132 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings (16

May 2005) ETS 197 para 72.

133 Anti-Trafficking Convention (n 131) art 4. 134 ibid art 4(e).

135 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings (n

132) para 51.

136 Anti-Trafficking Convention (n 131) art 2. 137 Palermo Protocol (n 21) art 4.

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coordinate nationally between its agencies139 (such as, inter alia, police, migration, NGO’s140)

and also to adopt policies and programmes, especially to those vulnerable to trafficking as well as professionals dealing with cases of trafficking. Thus, specifically stressing the importance of research, educational programmes, social and economic initiatives and awareness-raising to eradicate trafficking.141 Training programmes and social and economic initiatives are

specifically important as the main causes of trafficking often lies in poverty, unemployment or oppression.142 States are also obliged when implementing these programmes described above

to take a human rights approach when dealing with this matter.143

Further, the Convention aims at discouraging the demand-side of trafficking. This is expressed in article 6, where states parties have an obligation to take legislative, social, administrative and cultural measures to eradicate the demand144 whether if the demand refers

to sexual exploitation, forced labour, slavery or organ removal.145 Specific preventative

measures with an aspect of more security and control is enshrined in articles 7–9146 where

border controls, control and security of documents and the validity of documents are regulated.147

Moreover, chapter 3 of the Convention establishes the rights and protection for victims. Protection after a victim of human trafficking has been detected is similarly important as many things can still go wrong. Therefore, the Convention includes several provisions regarding the treatment and the assistance of victims.148 Additionally, the Convention, unlike the Palermo

Protocol, has adopted a gender equality clause which provides that gender equality is to be promoted when measures under this chapter is made.149 Thus, the aim with this provision is not

to ignore the discrimination clause. Rather, it aims to promote gender equality due to the fact that women are more likely to be victims of trafficking (particularly in sexual exploitation cases150) and are often being marginalised.151

Criminalisation of trafficking, using of the services of the victims, and criminal acts relating to identity and travel documents can be found in articles 18-20. A human trafficking offence under article 18 of the Convention can be established even before the specific offence has occurred. Indeed, it is enough that the victims ‘have been subjected to one of the acts in the definition by one of the means in the definition for the purpose of exploitation’.152 The provision

regulating the use of services of the victims, stated in article 19, are directed to the clients

139 ibid art 5(1).

140 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings (n

132) para 102.

141 Anti-Trafficking Convention (n 131) art 5(2).

142 Anke Sembacher, ‘The Council of Europe Convention on Action against Trafficking in Human Beings’

(2006) 14(2) Tulane Journal of International and Comparative Law 435, 443.

143 Anti-Trafficking Convention (n 131) art 5(3). 144 ibid art 6.

145 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings (n

132) para 108.

146 ibid 101.

147 Anti-Trafficking Convention (n 131) art 7–9. 148 Sembacher (n 142) 445.

149 Anti-Trafficking Convention (n 131) art 17.

150 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings (n

132) para 208.

151 ibid para 210. 152 ibid para 225.

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irrelevant of which form of trafficking it concerns.153 For example, a client that desires to use

the services of a prostitute might be subject to an offence under article 19 if the client were aware that the prostitute was a victim of trafficking.154 Offences under article 18 shall be

effectively and proportionally sanctioned, namely deprivation of liberty, against natural persons with the possibility to extradition155 while legal persons may be subject to either criminal,

administrative or civil sanctions.156

3.3.3 Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women

The Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará) is a regional convention aiming at eradicating violence against women and protect their fundamental rights.157 The Convention defines

violence against women as:

any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere158

Article 2 of the Convention further underlines that sexual, psychological and physical violence against women that either occurs in the private sphere, in the public sphere or by the state or agents of the state are included in the definition set out in article 1.159 Further in the same article,

one can learn that trafficking in persons and forced prostitution are included as a form of violence against women that occurs in the community.160 However, it is not only limited to

physical, psychological and sexual violence as expressed in the article. Indeed, violence in itself can evolve and states have a duty to recognize such evolvement and respond to the future forms that may arise.161

Noteworthy, violence ‘that is perpetrated or condoned by the state or its agents’ as stated in article 2(c)162 might make a state responsible for private acts, also called state-tolerated

violence. State-tolerated violence will occur in cases where the state has failed to act in due diligence or if they have failed in providing an effective investigation or punishment of such acts.163

153 ibid para 231. 154 ibid para 232.

155 Anti-Trafficking Convention (n 131) art 23(1).

156 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings (n

132) para 253.

157 Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women

(adopted 9 June 1994, entered into force 5 March 1995) OAS (Convention of Belém do Pará) preamble.

158 ibid art 1. 159 ibid art 2. 160 ibid art 2(b).

161 Follow-up Mechanism to the Belém do Pará Convention, ‘Guide to the Application of the Inter-American

Convention on the Prevention, Punishment, and Eradication of Violence against Women’ (2014)

OEA/Ser.L/II.6.14 (MESECVI) <http://www.oas.org/en/mesecvi/docs/BdP-GuiaAplicacion-Web-EN.pdf> accessed 11 May 2020, 20.

162 Convention of Belém do Pará (n 157) art 2(c). 163 MESECVI (n 161) 23.

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Article 7 of the Convention of Belém do Pará establishes several obligations that are immediate for states to comply with, while article 8 contains specific measures that are to be complied with progressively.164 The former aiming at eradicating violence against women by

establishing policies for the purpose of preventing, punishing and eliminating such violence.165

Obligations set out in article 7 are that states shall not engage in activities relating to violence against women and act in due diligence.166 Further, states shall also adopt legislative or other

measures in order to: provide penal, civil and administrative provisions in their domestic legislation, prevent perpetrators to commit such violence, repealing or amending laws or customary practices which tolerates violence against women, access to justice for women subject to violence and lastly, provide reparations and effective remedies.167

Article 8, however, is to be implemented progressively and include several social, financial, administrative and educational measures. Consequently, the objective for these measures are to target the full realization of rights for women.168 Some examples of these measures are

awareness-raising, modify social and cultural patterns between women and men as well as prejudice and customs, educating professionals in justice administration and law enforcement, research in order to target the causes and consequences and international cooperation.169

3.3.4 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) was adopted in 2003 and condemns all forms of violence against women.170 The Maputo Protocol embraces three elements: discrimination against women,

harmful practices and violence against women, which all are defined in article 1 of the Protocol. Starting with discrimination, the Maputo Protocol defines discrimination as:

any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their marital status, of human rights and fundamental freedoms in all spheres of life171

Further, the Maputo Protocol has included ‘harmful practices’ into the Protocol where it is defined as ‘all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls’.172 Lastly, violence against women is defined as:

164 ibid 39.

165 Convention of Belém do Pará (n 157) art 7. 166 ibid art 7(a)–(b).

167 ibid art 7(c)–(g). 168 MESECVI (n 161) 50.

169 Convention of Belém do Pará (n 157) art 8.

170 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted 1

July 2003, entered into force 25 November 2005) OAU (Maputo Protocol) preamble.

171 ibid art 1(f). 172 ibid art 1(g).

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all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflicts or of war173

Article 3 establishes obligations for states to take appropriate measures so that any degradation and exploitation of women is prohibited. Further in the same article, states are obliged to make sure that women do not suffer from any form of violence, with an emphasis on verbal and sexual violence.174

Human trafficking, however, is regulated in article 4 of the Maputo Protocol. It is specifically expressed in article 4(g) which oblige states to condemn and prevent trafficking, punish such acts and make sure that vulnerable women are protected.175 Additionally, this

provision oblige states to inter alia enact laws with the purpose to prohibit violence against women, identifying causes of violence as well as the consequences of it, punish perpetrators, provide rehabilitation and reparation for victims, among others.176

3.4 Conclusion

There is no doubt that obligations will arise for states’ parties to the treaties mentioned above. However, these obligations will take various forms as they all are addressing the problem of human trafficking differently.

For example, the Palermo Protocol is a criminal treaty and will not regulate the human rights aspect of human trafficking but has its main focus on crime prevention. This was noted by the Anti-Trafficking Convention that was adopted in order to add a human rights aspect but has implemented several provisions from the Palermo Protocol. CEDAW on the other hand is an international human rights convention but address human trafficking in its prohibition of discrimination against women where trafficking is included. Likewise do the Convention of Belém do Pará address human trafficking but through prohibition of gender-based violence. The Maputo Protocol on the other hand addresses human trafficking through the prohibition of both discrimination and violence against women. The ECHR do not mention human trafficking but has instead in its article 4 established in case Rantsev v Cyprus and Russia that trafficking indeed was included.

173 ibid art 1(j). 174 ibid art 3(3)–(4). 175 ibid art 4(2)(g). 176 ibid art 4(2).

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4. States’ Human Rights Obligations vis-à-vis the Internet

4.1 Human Rights are Protected on the Internet

Several international and regional legal instruments concerning human trafficking and states obligations to comply with them have previously been explained. Therefore, this chapter will further examine if these human rights obligations reaches to the internet and the regulation of internet intermediaries. The former will be addressed in this chapter and the latter in chapter 4.2.

Human rights of trafficked women have been further affected lately as new information and communication technologies, such as the internet, have created new forms of violence against women. Although new technologies are not a completely new phenomenon, these new forms of violence have hindered women to enjoy their protected rights and in turn hindered the development of gender-equality.177 New technologies in this matter can be said to be

two-faceted. First, as mentioned earlier, traffickers are using the internet in order to recruit and control victims, therefore contributing to further discrimination and gender-based violence, with the purpose to exploit them. Second, these new technologies can on the other hand play a role in preventing and combating human trafficking with inter alia awareness-raising.178

Although the Palermo Protocol is not considered as a human rights treaty, it is worth mentioning that article 9(5) of the Protocol oblige states to ‘discourage the demand that fosters all forms of exploitation of persons ... that leads to trafficking’.179 At the same time, internet

serves as a helping hand for traffickers to exploit women for sexual purposes. Information availability regarding pornography, sex tourism and prostitution are easily accessed on the internet which further normalizes the exploitation of women for sexual purposes, resulting in an increased demand.180 Likewise, the increased demand is consequently increasing further

abuses of women.181 Nevertheless, it is both the supply and the demand that are feeding the

sexual exploitation of women and violations of their rights,182 which is indeed accelerated by

the internet.183

As human trafficking and sexual exploitation of women are a form of gender-based violence and is considered as a form of discrimination against women, it naturally follows that states have certain obligations. In fact, it has been affirmed that human rights online shall be equally protected as offline.184 Accordingly, states are obligated to protect women from violations from

the State itself and non-state actors by acting in due diligence to prevent, provide effective investigation and prosecute such acts.185 Albeit, to act in due diligence might require further

cooperation between states since offences on internet are borderless and consequently will make such obligations slightly more complicated to comply with.186

177 A/HRC/38/47 (n 7) paras 14–16. 178 A/RES/72/195 (n 51) 4.

179 Palermo Protocol (n 21) art 9(5). 180 Vitale (n 2) 119.

181 Hughes (n 5) 128.

182 E/CN.4/2006/62 (n 20) paras 73–74. 183 Vitale (n 2) 119.

184 HRC Res 20/8 (16 July 2012) UN Doc A/HRC/RES/20/8, para 1. 185 A/HRC/38/47 (n 7) para 62.

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