The Context. As a research fellow, I approach the study of human rights and forced migration as a multidisciplinary, international, and multi-sectoral practice that incorporates academic, practitioner, agency and local perspectives. The aim of the study is to develop a Model-of-Practice monograph that illustrates and promotes little known international laws for the protection and prevention of human rights abuses, namely human trafficking, of forced-displaced migrants and refugees, with an emphasis on child rights.
Geographically, as a contributor to international institutional migration colloquiums and child rights empowerment projects under the umbrella of Bangor University Law School and Swansea University’s Wales Observatory for Youth and Human Rights’ ‘Children Displaced Across Borders’, my field research centered on three eastern European countries and cities – Moscow, Russia; Belgrade, Serbia; and Belfast, Hungary (captioned photograph: National Research University Higher School of Economics, Moscow, Russia – 2017, ‘New Trends and Directions of Migration’, standing with the Bangor University’s Wales Observatory for Youth and Human Rights banner, http://www.swansea.ac.uk/law/wales-observatory/).
In recent months and years, these countries have directed substantial resources and forums in earnest efforts to address migrant populations and a myriad of concerns that are foundationally linked to peaceful self-determination and legal empowerment. I was fortunate to be invited as a scholar-practitioner, whereas I saw my role was to present and encourage advocates and institutional partners to examine the international law and follow the archetypal procedures, policies, and guidelines that provide protections and can subsequently promote both United Nations concepts – self-determination and legal empowerment.
As forced migrants, refugees, and displaced persons are the demographic focus of this research, the group is reflective of those highly susceptible to denial of universal respect and observance of their respective human rights. In relation to peaceful self-determination through legal empowerment, I focus on three separate, although sometimes simultaneous and inter-related, types of forced migration populations. The literature identifies the three types by category according to their causal factors: conflict, development policies and projects, and disasters. Irrespective of the type of forced migrant, children are inevitably often the collateral recipient of the hurt, harm, and danger. It is during these migration journeys, by land and sea, where reports show that human rights violations occur, the tenets of peaceful self-determination blur, and the need for legal empowerment become more prevalent.
Initial discussion warrants clarity on the adopted meaning of ‘forced migration’ promoted by the International Association for the Study of Forced Migration (IASFM), which describes it as ‘a general term that refers to the movements of refugees and internally displaced people (those displaced by conflicts) as well as people displaced by natural or environmental disasters, chemical or nuclear disasters, famine, or development projects.’ More inclusively in this group, this targeted regional research specifically focuses on vulnerable children, where children are subjected to violence, are in the midst of armed conflict, without birth registration and declared stateless, engaged in forced labour, engaged in a child-marriage, without parental care, used for commercial sexual exploitation, and female children subjected to genital mutilation / cutting, trafficked, and exploited children.
The issues of forced displacement and migration are wide-ranging and present a complex set of phenomena compounded by perils and a host of surrounding issues impacting governments and citizens alike across the globe. The imagery of ineffable suffering and denial of human rights are no longer esoteric as in generations past with incidents spread by word-of-mouth. Instead, today, the internet and television broadcast real-time tragedies of the forced-displaced with no affirmed root-cause remedies identified. As a result, questions abound on the ‘why’ and ‘what’ can be done. My research approach focuses on a state obligation framework to address these issues. Many human rights treaties impose a duty on States Parties to try and prevent human rights abuses inherent. This obligation is measured with a ‘due diligence’ standard. It is commonly recognized in international law that Member States have a duty to prevent violence against women and children, regardless of whether those acts are perpetrated by a State or by private persons. However, the extent of this duty is ambiguous and is contained mostly in soft law. The responsibility to discharge due diligence obligations to prevent violence against women and children, including trafficking, has primarily been discharged by the adoption of legislation by States and the development of awareness-raising campaigns for specified professional groups.
My research postures that legal empowerment is emblematic of peaceful self-determination through activities that focus on promoting awareness and enforcement of existing international law. The legal premise is that the protections that promote the rights to self-determination and the right for people to determine their own destiny lies within the scope of international laws that have already been ratified by many countries. As such, a plausible interpretation is that the right to self-determination is recognized in international law as a right of process belonging to the individual person and not to states or governments.
Legal empowerment benefits the disadvantaged, which involves optimizing and exercising community-based justice services, such as paralegals, alternative dispute mechanisms, street, and mobile courts more commonly referred to as street-law. These efforts tend to be readily accessible and generally accepted in communities across the globe. More importantly, research denotes that these activities have the capacity to address the needs of the poor and vulnerable. These mechanisms have proven to empower people in protecting their rights, pursuing their economic interests and demanding accountable and responsive governance from public institutions. Unquestionably, the incongruous elements of forced displacement and migration enhance the subterfuge that vulnerable groups experience in their journeys and quest for survival and freedoms.
International Law Framework. Framed upon the strands of hard law, I look to a self-evident proposition that a Member State has an obligation to prevent crime and protect forced-displaced vulnerable groups on both land and sea. Intuitively, I promote to scholars, advocates, and institutional partners that pining for new laws to ensure theopathic freedoms and positive liberty is a redundant and often a futile process. The inference is that law reform is based upon the ‘administration’ of existing policies, practices, and application of the law. Subsequently, I propose that the attention should be redirected to current state obligations, protections, and the febrile associated with the abuse that hinders and adversely impacts the capacity of vulnerable groups, such as those in forced displaced and migration status, to achieve desired freedoms and liberty.
The hard law syllogism hinges upon the Palermo Protocols, which stands as an effigy. Though the Anti-trafficking Protocol is fundamentally a human rights treaty, there is a distinct difference from other human rights treaties in that a violation has the capacity to address a transnational crime criminally. More importantly, the Charter of the United Nations includes an obligation to promote universal respect and observance of human rights. The Palermo Protocols are essential as they provide binding and essential protections, especially to vulnerable groups, and outlines an array of measures that address violations. The three protocols were adopted by the United Nations to supplement the 2000 Convention against Transnational Organized Crime (the Palermo Convention). Research across a broad spectrum of resources denotes that a nexus exists between deprivation of human rights in the areas of forced labor and transnational crime that can be manifested by the lack of peaceful self-determination.
Similarly, research by the United Nations General Assembly resolution 63/142, 11 December 2008, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/63/142, supports that legal empowerment for the poor allows the law to work for everyone. The report details how impoverished, exiled, and highly vulnerable populations are highly subjected to abuses that are prohibited under the Palermo Protocols. Therefore, target populations can be recipients of the prevention, protection, and prosecution mechanisms afforded to Member States – legal empowerment. Under the auspices of the protocols, member states can receive technical assistance to develop tools that support implementing the United Nations standards and norms. Resource guides are available for use in English, French, Spanish, Arabic, Chinese, and Russian. Specifically, paragraph 9(4) of the Protocol requires,
‘States Parties to take or strengthen measures including through bilateral and multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.’
The protocol obliges Member States to uphold the three objectives. ‘Preventing’ the crime of human trafficking – Palermo Protocol Article 9 requires States Parties to establish “comprehensive policies” to prevent trafficking and adopt or strengthen measures to reduce demand that fosters exploitation. ‘Protecting’ the victims – Palermo Protocol Articles 6 and 7 call on States Parties to adopt specific measures for victim recovery and to consider adopting measures to allow victims to remain in the country’s territory in appropriate cases; ensures that a ‘government makes serious and sustained efforts to eliminate trafficking – measures the strength of countries’ victim protection efforts, including whether legal alternatives to removal exist’, according to the 2016 Trafficking in Persons Report. ‘Prosecuting’ traffickers – Article 5 of the Protocol requires that States Parties criminalize ‘trafficking in persons,’ as defined by the Protocol. In addition, Article 11 of the UN Convention against Transnational Organized Crime, which applies to the provision of the Palermo Protocol mutatis mutandi, requires that ‘State Parties ensure that criminal sanctions for trafficking in persons take into account the gravity of the offense’; also, there are established standards that measure countries’ punishments for trafficking. Article 5 of the Protocols takes on the role of vertical enforcement, and my research tethers the States Parties’ obligations with the preventive pillars of the Responsibility to Protect. (R2P) and the Responsibility to Prevent (R2Prev).
Equally, as critical, the Protocols direct States Parties to establish comprehensive policies to prevent and combat trafficking as well as protect victims of trafficking from re-victimization. With these provisions, States Parties must endeavor to conduct mass media campaigns and other social and economic measures to prevent trafficking within their borders. They must also establish policies to cooperate with non-governmental organizations and other civil society groups. Equally as important, the Protocol indicates that States Parties are ‘obliged to adopt or strengthen educational, social or cultural measures to discourage the demand that fosters human trafficking.’ My research links each element of Article 9, paras 1, 2, 3, and 5 as an embodiment of how legal empowerment can foster development by strengthening and empowering the voices of women and children, facing multiple and intersecting grounds of exclusion and protection measures.
Throughout my three-country field-research, the study follows the international law accepted definitions of human trafficking and others such as stateless, refugee, forced-displacement and migration that are provided within the scope of international law. The research also addresses the United Nations Convention on the Rights of the Child (UNCRC), the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). I reiterate the need for an expanded and global ratification of the Palermo Protocols as an international law ‘conjunctive partner’ to other aforementioned existing laws to protect and prevent the many harms and atrocities of populations forced-displaced. As of September 2017, one or more of the Palermo Protocols have been ratified by 170 parties, and only 20 countries have not ratified. Each of the three countries within the scope of this field research, Russia, Serbia, and Hungary, has ratified the Palermo Protocol. I invite readers to join me in recapturing my Fall 2017 field-research experiences.
Dr. Tanya Herring, ICO Research Fellow
Ph.D., Doctor of Management, Doctor of Laws Candidate, International Criminal Law and Human Rights Bangor University Law School, Bangor, Wales UK and Researcher, Wales Observatory for Youth and Human Rights
E-mail: [email protected]