LA TRANSFERENCIA PATRIMONIAL EN LAS CULTURAS INSERTAS

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3.3.2 State Response to Human Trafficking

In the area of legislation and combating human trafficking, arguments emerged focusing on measures used by regional authorities, and even some states, to control sources of human trafficking, which had been in place for a long time.

The discussion in this section explains how the United States Trafficking Victims Protection Act, (USTVPA), for example, focuses on protecting victims of trafficking and preventing future human trafficking, while the EU Decision focuses on criminalising trafficking, outlining penalties for punishing trafficking offences.

The subject of human trafficking has received increasing attention from some countries in the past two decades while the first legislation on human trafficking date back to the end of the nineteenth century when the first international agreement was drafted. It is important to issue and implement protective laws for the purposes of protecting migrant workers, and particularly domestic workers, from being victims of trafficking actions.

Some states have issued an anti-trafficking legislation in an effort to control and combat the phenomenon of human trafficking. Some of those states have gone further than others in issuing comprehensive legislation, for example the USTVPA. An examination of the USTVPA and its reauthorizations 2003 and 2005 will give a better idea of how state legislation can protect victims of trafficking and prevent future human trafficking.

The TVPA provides a comprehensive anti-trafficking law that aims to prevent human trafficking protect victims and punish traffickers. Shinkle sees the TVPA as departing from the prior patchwork legislative approach, which attempted to address trafficking using a variety of other related laws. The most basic change wrought by the TVPA was to acknowledge that those caught up in human trafficking, although often illegally present in the country

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of destination, were victims to be protected, not criminals to be punished and deported.²⁴¹

Similarly, in the prevention area of this Act, Shinkle adds that the multi-faceted TVPA and its reauthorizations create a policy and mechanisms for preventative measures to forestall trafficking across US borders and increase protection and services to trafficking victims already in the United States.

This includes access to the T-Visa, allowing victims to stay in the United States in exchange for assisting the investigation or prosecution of their trafficker, enhanced prosecution of traffickers and their accomplices and monitoring other nations’ anti-trafficking activities. It also distinguishes between smuggling and trafficking, which violates the rights of the victim.²⁴² Other regional bodies have taken into consideration the causes and the serious harm that trafficking does to people. European legislation focuses on criminalising trafficking, outlining penalties for punishing trafficking offenses and mandates the protective measures that states need to consider. It should be noted that this Decision was binding on all EU member states from August 2004.

In addition, in an effort to show the importance of the issue of human trafficking, some EU countries have passed legislation explicitly criminalising trafficking, while other countries continue to address it through other related instruments either nationally or internationally.²⁴³

Focusing on the European Legislation, Article 2 of the EU Directive on the Prevention and Combating of Trafficking in Human Beings and Protecting the Victims declares that ‘Member States shall take the necessary measures to

241 W Shinkle, ‘Prevention of Human Trafficking: An Evaluation of Current Efforts’ (see text to n 104);

242 W Shinkle, ‘Prevention of Human Trafficking: An Evaluation of Current Efforts’ (see text to n 104);

243 W Shinkle, ‘Prevention of Human Trafficking: An Evaluation of Current Efforts’ (see text to n 104);

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ensure that the following intentional acts are punishable...’.²⁴⁴ Also, Article 4 states that:

1) Member States shall take the necessary measures to ensure that an offence referred to in Article 2 is punishable by a maximum penalty of at least five years of imprisonment; 2) Member States shall take the necessary measures to ensure that an offence referred to in Article 2 is punishable by a maximum penalty of at least 10 years of imprisonment...²⁴⁵

There are other arguments, however, that discourage EU efforts to combat human trafficking by States Parties and the methods used to implement those laws. As Goodey argues, ‘in the ten years following the 1997 joint action by the Council of the EU, it serves to remind us that legislation that purports to be “for” trafficking victims is sometimes more focused on the needs of law enforcement in acquiring victim testimonies.’²⁴⁶

Equally, Schinkle asserts that ‘on the side of adopting legislation in regards to human trafficking […] these improvements consist of regulations and while these laws provide a credible framework, they and others are more limited reforms and their implementation remains in question.’²⁴⁷

These strategies raise a question about the purpose of adopting legislation with no intention of implementing it domestically, or without knowing how to implement it in the first place. A country, which is able to adopt laws to combat human trafficking, should have a strategic plan that will help the

244 The EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, and Replacing Council Framework Decision 2002/629/JHA

<http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011:EN:PDF> accessed 05/8/2011

245 The EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, and Replacing Council Framework Decision (see text to n 219)

246 J Goodey, ‘Human Trafficking: Sketchy Data and Policy Responses’ (see text to n 40); Note that in 2004, legislation covering trafficking for labour exploitation was introduced under the Asylum and Immigration Act 2004

247 W Shinkle, ‘Prevention of Human Trafficking: An Evaluation of Current Efforts’ (see text to n 104);

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immediate implementation of these laws or within an acceptable period of time.

While some argue that EU efforts to combat trafficking were not enough, others assert that EU efforts were clearly shown by adopting the Brussels Declaration on Preventing and Combating Trafficking in Human Beings.

Efforts were also shown subsequently through the establishment of a Commission made up of a group of experts on trafficking in human beings, with the remit to write a report containing concrete proposals for implementing the Brussels Declaration.²⁴⁸

Goodey criticises the sum of legislation that the EU has passed in the last ten years, stating that ‘it is clear that there has been a great deal of activity in recent years in recognition of legal responses to human trafficking, however, the information which has served to inform these legal developments, and the extent and nature of human trafficking is not clear.’²⁴⁹

None of the research is able to argue that the EU has made a great effort to combat trafficking; however, equally, the opposite cannot be argued either. It should be admitted that the EU did something at the end of the last century to combat human trafficking, whether by holding conferences or by initiating regional statutes on human trafficking. Yet, one must add to this statement that even with all this effort from the EU, a clear plan to implement laws domestically, or to prevent human trafficking was not given.

A very clear statement made by Goodey shows that the UK as an EU member state comes under certain European legislative obligations, and as a signatory to the UN trafficking protocol has since 2000 been actively incorporating the

248 T Obokata, Trafficking of Human Beings from a Human Rights Perspective (see text to n 4) 10-12. Note that this declaration was a result of the European Conference on Preventing and Combating Trafficking in Human Beings 2002, which was organised under the framework of the European Commission’s STOP programme with the co-operation of IOM, the European Commission, the Parliament and EU Member States.

249 J Goodey, ‘Human Trafficking: Sketchy Data and Policy Responses’ (see text to n 40);

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anti-trafficking measures into its domestic law.²⁵⁰ More specifically, in 2002 an explicit offence of human trafficking in relation to prostitution was introduced for the first time into UK legislation, as part of the Nationality, Immigration and Asylum Act 2002.

In addition, this action was followed by the Sexual Offences Act 2003, which went further than the UN protocol by stating that trafficking would be identified without any use of coercion, deception or force from the traffickers during the recruitment process.²⁵¹ It can be said; that the efforts that have been made by the UK government in response to human trafficking are well organised and in time will show the required results.

The step of moving beyond the UN protocol definition on human trafficking is the kind of step that human rights defenders are looking for to end human trafficking. It shows the state’s willingness and efforts to combat the issues and could persuade other states to act in a similar way.

An example on how states willingness to combat the human trafficking can be seen in the EU directives that lay down certain end results, which can be achieved in every EU Member State. All EU National authorities can adapt their laws to meet these goals and the Directives may concern one or more Member States, or all of them. Each EU directive specifies the date by which the national laws might adapt within the deadlines necessary to take account of differing national situations. Directives are used to bring different national laws into line with each other.²⁵²

The EU Anti-Trafficking law was made up of 3 instruments; 1) Council Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking who co-operate with competent

250 J Goodey, ‘Human Trafficking: Sketchy Data and Policy Responses’ (see text to n 40);

251 J Goodey, ‘Human Trafficking: Sketchy Data and Policy Responses’ (see text to n 40);

252 Krieg, Sarah H. "Trafficking in human beings: The EU approach between border control, law enforcement and human rights." European Law Journal 15.6 (2009): 775-790.

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authorities; and 2) Council Framework Decision 2002/629/JHA on combating trafficking in human beings; and 3) Council Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings (The UK opted out of this Framework Decision).²⁵³

Van der Leun argues that, these three instruments lacked the application, enforcement and comprehensive approach necessary to prevent trafficking and protect victims.²⁵⁴ The argument goes further by stating that, the EU took steps towards codifying its trafficking law into a binding Directive 2011/36/EU, which incorporates and replaces Framework Decision 2002/629/JHA.²⁵⁵

Francesca Ferraro, argues as well that, with the entry into force of the Treaty of Lisbon in December 2009, Article 34 of the Treaty on the European Union was repealed and Framework Decisions can no longer be adopted and any legislation can now be adopted in the form of either Directives or Regulations. ²⁵⁶ These Directives on Preventing and Combating Trafficking in Human Beings and Protecting its Victims sets out minimum standards to be applied throughout the European Union in preventing and combating trafficking in human beings and protecting victims.

Similarly, the Convention on Action against Trafficking in Human Beings was adopted by the Council of Europe Committee of Ministers on 3 May 2005, following a series of other initiatives by this council in the field of

253 Krieg, Sarah H. "Trafficking in human beings: The EU approach between border control, law enforcement and human rights." European Law Journal 15.6 (2009): 775-790.

254 Van der Leun, Joanne, and Anet van Schijndel. "Emerging from the shadows or pushed into the dark? The relation between the combat against trafficking in human beings and migration control." International Journal of Law, Crime and Justice 44 (2016): 26-42.

255 Van der Leun, Joanne, and Anet van Schijndel. "Emerging from the shadows or pushed into the dark? The relation between the combat against trafficking in human beings and migration control." International Journal of Law, Crime and Justice 44 (2016): 26-42.

256 FERRARO, Francesca, and J. Carmona. "Fundamental Rights in the European Union: The role of the Charter after the Lisbon Treaty." (2015).

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combating trafficking in human beings.²⁵⁷ This Convention entered into force on 1 February 2008, following its 10th ratification. While building on existing international instruments, the Convention goes beyond the minimum standards agreed upon in them and strengthens the protection afforded to victims. ²⁵⁸

Going through this Convention, it has a comprehensive scope of application, encompassing all forms of trafficking and taking in all persons who are victims of trafficking. It has to be noted that, the forms of exploitation covered in this Convention are, at a minimum, sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude and the removal of organs.

The main added value of the Convention is its human rights perspective and focus on victim protection.²⁵⁹ Its Preamble defines trafficking in human beings as a violation of human rights and an offence to the dignity and integrity of the human being.²⁶⁰ The Convention provides for a series of rights for victims of trafficking, in particular the right to be identified as a victim, to be protected and assisted, to be given a recovery and reflection period of at least 30 days, to be granted a renewable residence permit, and to receive compensation for the damages suffered.²⁶¹

Another important added value of the Convention is the monitoring system set up to supervise the implementation of the obligations contained in it, which consists of two pillars: the Group of Experts on Action against

257 Nestorova, Petya. "Trafficking in Human Beings and Human Rights: The Role of the Council of Europe Convention on Action against Trafficking in Human Beings." International Journal of Refugee Law 27.1 (2015): 207-209.

258 Nestorova, Petya. "Trafficking in Human Beings and Human Rights: The Role of the Council of Europe Convention on Action against Trafficking in Human Beings." International Journal of Refugee Law 27.1 (2015): 207-209.

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Trafficking in Human Beings and the Committee of the Parties. The Convention is not restricted to Council of Europe member states; non-members states and the European Union also have the possibility of becoming Party to the Convention.