Comments on SAARC Convention
Background
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rafficking in human beings is a heinous crime, which
violates the basic human rights of affected persons. Despite national and
international laws, which prohibit trafficking, the practice has been
flourishing throughout Asia. Due to the nature of the trade which involves
trans-border issues such as coordination between law enforcement agencies; lack
of extra-territorial and extradition laws; and highly organized trafficking
networks, crimes are committed with impunity. The non-existence of concerted
regional effort in combating trafficking has further exacerbated the problem.
Adoption of SAARC Convention on Preventing and Combating Trafficking in Women
and Children for Prostitution on January 5, 2002 at the Eleventh SAARC Summit
held in Kathmandu is a timely initiative and significant milestone in combating
and preventing trafficking.
It is an important step forward in the fight to preventing and
combating trafficking, especially since it recognizes the need for extraterritorial
application of jurisdiction; and extradition laws including a provision that
the Convention shall be effective and the States Parties to the Convention will
be bound to prosecute or extradite offenders in the absence of extradition
treaties between the concerned states.
Nevertheless, there are some pertinent issues, which have been
overlooked, in the proposed Convention. The definition provided in the
Convention is very narrow and focuses only on prostitution. Convention does not
address trafficking from broader perspective and has limited its application to
prostitution. Further, the Convention
lacks a strong treaty body and perspective on the rights of victims. Also the
Convention does not clarify the recipient country's accountability in rescue,
rehabilitation, repatriation and reintegration of affected persons. The
recipient country needs to be made accountable towards the well being of the
affected persons by providing mental and physical health care, legal advice and
financial compensation. Immigration policy is also required that allows
affected person to initiate proceedings against the offender in the country of
residence.
In this
context, the Convention is reviewed with the objectives of bringing necessary reformations for its effective
implementation, to develop a comprehensive tool against the atrocious crime
against humankind and establish regional mechanism to fight the crime. Many organizations and individuals helped us
while working on the Convention for which we are indebted. Technical inputs from Professor Jane H. Aiken, Ms. Shanti Dairiam,
Dr. Rajit Bhakta Pradhanang, Ms. Sapana Pradhan-Malla, Mr. Phanindra Gautam,
Mr. Sabin Shrestha, Mr. Som Luitel and Ms. Salina Joshi, significantly contributed to finalise the
comments.
Comments on SAARC Convention
on Preventing and Combating Trafficking in Women and Children for Prostitution,
2002
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Articles |
Comments
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Recommendations
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Justifications |
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Title
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SAARC
Convention on
Preventing and Combating Trafficking in Women and Children for Prostitution |
In addition to prostitution, women and children are trafficked as
forced labour, domestic servants, camel jockeys, and for organ
transplantation. Men are also trafficked for various purposes. |
SAARC Convention on Preventing and
Combating Trafficking in Persons, Especially Women and Children. |
The Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children supplementing the United Nations
Convention Against Transnational Organized Crime, 2000 (UN Protocol Against
Trafficking), describes these additional forms of trafficking and states that
anyone who is subject to trafficking is a victim, regardless of age or
gender. |
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Preamble
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Para. 1,
Emphasizing that the evil of trafficking in women and children for the
purpose of prostitution is incompatible with the dignity and honor of human
beings and is a violation of basic human rights. |
" |
Emphasizing that the crime of trafficking in persons for the
purpose of exploitation is incompatible with the dignity and honor of human
beings and is a violation of basic human rights. |
"Crime" is a more suitable word than "evil"
because it connotes the illegality, as well as the immorality, of
trafficking, punishable under criminal law. |
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Recognizing
that all countries in the SAARC region are parties to the Convention on the
Elimination of all Forms of Discrimination Against Women 1979 (CEDAW) and the
Convention on the Rights of the Child 1989 (CRC), and that accordingly the
governments of these countries have the obligation to work toward the
elimination of trafficking. |
To create linkages with other international conventions on related
issues. |
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Para. 2,
Recalling the decision of the Ninth SAARC Summit (May 1997) that the
feasibility of a regional Convention to combat the grave crime of trafficking
in women and children for prostitution should be explored. |
This paragraph ignores the 10th SAARC Meeting (July
1998, Colombo), which expressed concern with trafficking and suggested
creating a technical committee to study trafficking. |
Recalling the decision of the Ninth SAARC Summit
(May 1997) and Tenth SAARC Summit (July 1998) that the feasibility of a regional Convention to combat
the grave crime of trafficking in persons for exploitation should be
explored. |
To recognize the contributions made by the 10th SAARC Summit and to
reflect the concerns raised by various human rights instruments dealing with
the exploitation of women and children. |
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Para. 3,
Recalling also the relevant international legal instruments relating to
prevention of trafficking in women and children, including the Convention for
the Suppression of Trafficking in Persons and of the Exploitation of
Prostitution of Others, 1949; Convention on the Elimination of all Forms of
Discrimination against Women 1979; International Covenant on Civil and
Political Rights, 1966; and the Convention on the Rights of the Child, 1989. |
This paragraph recalls several important international instruments,
but leaves out other key instruments that should be included as well. |
Recalling also the relevant international legal
instruments relating to prevention of trafficking in persons, including: the
Convention for the Suppression of Trafficking in Persons and of the
Exploitation of Prostitution of Others, 1949; Convention on the Elimination
of all Forms of Discrimination Against Women 1979; International Covenant on
Civil and Political Rights, 1966 (ICCPR); Optional Protocol to ICCPR; International Convention
on Economic, Social and Cultural Rights, 1966 (ICESCR); ILO Convention
on Worst Form of Child Labor, No. 182; Refugee Convention, 1950; Convention
on the Rights of the Child, 1989 (CRC); Optional Protocol to the Convention
on the Rights of the Child on the Sale of Children and Child Prostitution and
Child Pornography, 2000; 2nd Optional Protocol to the CRC; the Slavery
Convention, 1926; Supplementary
Convention on the Abolition of the Slavery, the Slave Trade, and
Institution and Practices Similar to Slavery, 1956; Protocol to Prevent, Suppress, and Punish Trafficking in
Persons, Especially Women and Children Supplementing the United Nations Convention Against Transnational Organized Crime,
2000. |
ICCPR ensures civil and political rights whereas ICESCR ensures
economic and cultural rights, thus linking the two Conventions. The 2nd
Optional Protocol to the CRC and Worst Form of Child Labour Conventions are
relevant to trafficking due to the fact that many victims are children. The
UN Protocol Against Trafficking sets international standards against
trafficking that should be incorporated into the regional standards. |
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Para. 5,
Noting with concern the increasing exploitation by traffickers of women and
children from SAARC countries and their increasing use of these countries as
sending, receiving and transit points. |
In addition to women and children, men are also trafficked for
various purposes. |
Noting with concern the increasing exploitation by traffickers of
persons of SAARC countries and their increasing use of these countries as
sending, receiving and transit points. |
The UN Protocol Against Trafficking includes all persons as victims
and not just women and children. |
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Para 6, Recognizing in this regard the importance of
establishing effective regional cooperation for preventing trafficking for
prostitution and for investigation, detection, interdiction, prosecution and
punishment of those responsible for such trafficking. |
Persons are trafficked for various purposes such as forced labour,
slavery, organ transplant, and camel jockeying and not just for prostitution.
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Recognizing in this regard
the importance of establishing effective regional cooperation for preventing
and combating trafficking in persons, and paying particular attention to
women and children, for
investigation, detection, prosecution and punishment of those responsible for
trafficking. |
To make consistent with the UN Protocol Against Trafficking. |
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Para 7, Emphasizing the need to strengthen cooperation
in providing assistance, rehabilitation and repatriation to victims of
trafficking for prostitution. |
" |
Emphasizing the need to strengthen
cooperation among SAARC governments, as well as among civil societies and
NGOs, in providing assistance, rehabilitation and repatriation to victims of
trafficking. |
Cooperative and coordinated
efforts by the governments of SAARC countries and their civil societies and
NGOs would broaden the scope of their efforts' effectiveness and efficiency. |
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Article I: Definitions
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Art. I.2 "Prostitution" means the sexual
exploitation or abuse of persons for commercial purposes. |
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For the purpose of this Convention, "Exploitation" shall
include, at a minimum, the exploitation of the prostitution of others or
other forms of sexual exploitation, forced labour or services, slavery or
practices similar to slavery, servitude, or the removal of organs. |
Given that individuals are
trafficked for other purposes in addition to prostitution, the term
“Exploitation” more accurately encompasses the scope of trafficking purposes.
Also, to make consistent with the UN Protocol Against Trafficking, Sub Clause
of Article 3(a). Further, ICESCR, Article 6, mentions right to work, and UN
Guidelines[1] recognize
voluntary prostitution as work. |
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Art. I.3 "Trafficking" means the moving,
selling or buying of women and children for prostitution within and outside a
country for monetary or other considerations with or without the consent of
the person subjected to trafficking. |
Inadequate
coverage of all forms of Trafficking. |
(a) "Trafficking"
means the recruitment, transportation, transfer, harboring 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.[2] (b) The recruitment,
transportation, transfer, harboring or receipt of a child for the purpose of
exploitation shall be considered trafficking in persons even if this does not
involve any of the means set forth in subparagraph (a). |
To
make consistent with the UN Protocol Against Trafficking, Article 3(a). |
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Art. I.5 "Persons subjected to
trafficking" means women and children victimized or forced into
prostitution by the traffickers by deception, threat, coercion, kidnapping,
sale, fraudulent marriage, child marriage or any other unlawful means. |
The
use of the past tense for "victimized or forced" implies that women
and children who are rescued during or escape from a trafficking or attempted
trafficking situation would not be traumatized by it. |
"Persons
subjected to trafficking" means persons who are trafficked or in the
process of being trafficked by
deception, threat, coercion, kidnapping, sale, fraudulent marriage, child
marriage, or any other unlawful means. |
To
ensure all victims and potential victims are covered by the Convention. |
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Art. I.6 "Protective home"
means a home established or recognized by a Government of a Member State for
the reception, care, treatment and rehabilitation of rescued or arrested persons
subjected to trafficking. |
Victims
of trafficking should not be placed in a protective home against their will
because involuntary placement, i.e. without their consent, violates their
right to freedom from arbitrary arrest and detention. |
"Safe
home" means a safe environment recognized by a Government of a Member
State for the reception, care, treatment, rehabilitation and other necessary
services for victims, to be provided only with the victims' informed consent. |
ICCPR,
Article 9, protects against arbitrary arrest and detention. |
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Article II: Scope of the Convention |
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Art. II The purpose of this Convention is to
promote co-operation amongst Member States so that they may effectively deal
with the various aspects of prevention, interdiction and suppression of
trafficking in women and children; the repatriation and rehabilitation of
victims of trafficking and prevent the use of women and children in
international prostitution networks, particularly where the countries of the
SAARC region are the countries of origin, transit and destination. |
Involuntary repatriation would violate victims'
rights, since some may not want to return due to fear of being socially
stigmatized or for other reasons. |
The purpose of this Convention is to promote
co-operation amongst Member States so that they may effectively deal with the
various aspects of prevention, interdiction and suppression of trafficking in
persons; the voluntary repatriation and rehabilitation of victims of
trafficking and prevent the use of women and children in international
prostitution networks, particularly where the countries of the SAARC region
are the countries of origin, transit and destination. |
International instruments that prohibit or
restrict trafficking have recognized the importance of voluntary
repatriation, for example: the Human Rights Standards For The Treatment of
Trafficked Persons No. 28 (HRS) and the Human Rights and Trafficking in
Persons: A Handbook, GAATW, 2001. |
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Article III: Offences
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Art: III.2
The State Parties to the Convention, in their respective territories, shall
provide for punishment of any person who keeps, maintains or manages or
knowingly finances or takes part in the financing of a place used for the
purpose of trafficking and knowingly lets or rents a building or other place
or any part thereof for the purpose of trafficking. |
Does not
include all forms and stages of trafficking. |
The State
Parties to the Convention, in their respective territories, shall provide for
punishment of any person who transfers, transports, recruits, receives, buys,
sells, pledges, detains, keeps any person, and/or who maintains, manages,
controls, knowingly finances or takes part in the financing of a place or
vehicle used for the purpose of trafficking and/or knowingly lets or rents a
building or other place or any part thereof or vehicle for the purpose of
trafficking. |
To make
consistent with the UN Protocol Against Trafficking, Article 5. |
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Art. III.3
Any attempt or abetment to commit any crime mentioned in paras 1 and 2 above
or their financing shall also be punishable. |
Conspiracy
is not included. |
Any
attempt or conspiracy to direct or to abet any crime mentioned in paras 1 and
2 above or their financing shall also be punishable. |
UN
Protocol Against Trafficking, Article 5 (2)c, criminalizes the directing of
trafficking. |
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Art. III.4 |
Pornography
is one of the purposes of trafficking but this is not included as offence. |
Use of
persons for pornographic exploitation shall be serious offence. |
ILO
Convention, No. 182, and the 2nd Optional Protocol to the CRC,
Article 3, punishes the use of children for pornographic purposes. |
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Art. III.5 |
Advances
in communication technology and the rise of globalization could be used for
exploitative purposes and must be included. |
Use of
information and communication technology for the purpose of trafficking shall
be punishable. |
The
Convention on Cyber Crime has acknowledged these kinds of crimes. |
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Art. III.6 |
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State
parties shall provide additional punishment for crimes such as rape, assault,
slavery, debt bondage, forced pregnancy, fraud, bribery, unsafe transport of
victims, sexual exploitation and forced labour. |
To make
consistent with Human Rights Standards For The Treatment of Trafficked
Persons, No.11. |
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Article IV: Aggravating Circumstances
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Art. IV.1 The
State Parties to the Convention shall ensure that their courts having
jurisdiction over the offences committed under this Convention, can take into
account factual circumstances which make the commission of such offences
particularly grave, viz. |
No provision for additional punishment in cases with aggravating
circumstances. |
The
State Parties to the Convention shall ensure that their courts having
jurisdiction over the offences committed under this Convention, can take into
account factual circumstances which make the commission of such offences
particularly grave, viz and shall provide additional punishment for such
circumstances. |
To provide additional punishment in cases with aggravated
circumstances. |
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Art. IV.1a The
involvement in the offences of an organized criminal group to which the
offender belongs. |
Persons associated with such group are not mentioned. |
The involvement in the offences of an organized criminal group or a person associated with such a group.
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To
broaden the scope of the provision to include persons associated with
organized criminal groups in addition to persons who belong to such groups. |
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Art. IV.1c The
use of violence or arms by the offender. |
Mental and physical violence is not specified. |
The use of physical or mental violence, such as torture, drugs or
other life-threatening practices by the offender. |
Convention
Against Torture and Other Cruel and Inhuman and Degrading Treatment or
Punishment, 1984, Article 1 (CAT), recognizes both kinds mental and physical
torture as acts of violence. |
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The
trafficking of children for employment in reprehensible forms of child labor
and illegal activities.[3] |
The 2nd
Optional Protocol to the CRC, Article 3, prohibits the use of children in
forced labor and other illegal activities. |
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Offences
against people with physical or mental disabilities, calamity-affected or
uprooted people, or people whose access to justice systems is limited, denied
or controlled. |
The UN Declaration on the Rights of Disabled Persons, 1975,
Articles 2 and 10, protect against the exploitation of disabled persons. |
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Article V:
Judicial Proceedings
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Art. V.1 In
trying offences under this Convention, judicial authorities in Member States
shall ensure that the confidentiality of the child and women victims is
maintained and that they are provided appropriate counseling and legal
assistance. |
This fails to
provide adequate coverage of the rights of the victims, such as the
confidentiality of records, the right to privacy, identity protection and
access to justice. Further, other persons besides women and children are not
included. |
The Member
States agree to ensure that the confidentiality of records and the privacy
and identity of the victims are respected in the judicial proceedings
(including camera hearings) and that they are provided with appropriate
counseling and legal assistance. |
UN Protocol
Against Trafficking, Article 6, and the 2nd Optional Protocol to
the CRC, Article 8, have recognized these aspects of privacy and
confidentiality. The
International Criminal Court Statute (ICC), Article 68, guarantees camera
hearings. The International Criminal Tribunal for Former Yugoslavia Statute
(ICTY), Article 22, and the International Criminal tribunal for Rwanda
Statute (ICTR), Article 21, also provide for camera hearings. |
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Art. V.2 |
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The victims
shall have the right of access to prompt redress and to mechanisms of justice
that are expeditious, fair and inexpensive. |
The Human
Rights Standards For The Treatment of Trafficked Persons, No. 10, provides
for the supplying of trafficked persons with a competent, qualified
translator and legal representation before and during criminal proceedings
against traffickers. |
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Art. V.3 |
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The Member
States agree to ensure confidentiality, protection and financial support for
witnesses in judicial proceeding. |
Witnesses are
often uneducated and poor and therefore the Member States must facilitate
their participation in trials of traffickers, especially in cases where
witnesses have to travel abroad for trials. To make
consistent with Human Rights Standards For The Treatment of Trafficked
Persons, No.4. To make
consistent with the 2nd Optional Protocol to the CRC, Article 8;
ICTY, Article 22; ICTR, Article 21[4];
and ICC Statute, Article 68, include provisions for victims and witness
protection. |
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Art V.4 |
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The victim
shall have the authority to petition the court to order criminal prosecution
for the trafficking offense, if the government choose not to prosecute the
case. Any decision
not to prosecute a trafficking offense must be for good cause. A government
attorney who declines to prosecute must submit such cause in writing to the
court and the victim. |
The Convention
fails to esetablish accountability among government attorneys for decisions
not to prosecute trafficking offences. |
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Article VI: Mutual Legal Assistance |
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Art. VI.1 The
State Parties to the Convention shall grant to each other the widest measure
of mutual legal assistance in respect of investigations, inquiries, trials or
other proceedings in the requesting State in respect of offences under this
Convention. Such assistance shall include: |
The language is not sufficiently binding. |
The State Parties to the Convention shall undertake to develop strategies and mechanisms to grant to each
other the widest measures of mutual legal assistance with in respect to
investigations, inquiries, trials or other proceedings in the requesting
state with respect to offences under this Convention. Such assistance shall
include: |
The identification of specific roles make the language more binding
on State Parties' obligations. |
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Art. VI.2
Requests for assistance shall be executed promptly in accordance with their
national laws and in the manner requested by the Requesting State. In the
event that the Requested State is not able to comply in whole or in part with
a request for assistance or decides to postpone execution it shall promptly
inform the Requesting State and shall give reasons for the same. |
The language is not sufficiently binding. |
The State Parties to the Convention agree to promptly execute
requests for assistance in
accordance with their national laws and in the manner requested by the
Requesting State. In the event that the Requested State is not able to comply
in whole or in part with a request for assistance or decides to postpone
execution it shall promptly inform the Requesting Sate and shall give reason
for the same. |
The identification of specific procedures make the language more
binding on State Parties' obligations. |
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Article VII: Extradition or Prosecution |
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Art. VII.1 The
offences referred to in the present Convention shall be regarded as
extraditable offences in any extradition treaty that has been or may
hereinafter be concluded, between any of the Parties to the Convention. |
This provision lacks a time frame in which to conduct or complete
negotiations. |
The offences referred to in the present
Convention shall be regarded as extraditable offences in any extradition
treaty that has been or may hereinafter be concluded, between any of the
Parties to the Convention. In the absence of an extradition treaty, extradition
treaties shall be concluded within a reasonable time period from the date on
which this Convention enters into force. |
This specifies a time frame which the State Parties must abide. |
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Article
VIII: Measures to Prevent and Interdict Trafficking in Women and Children
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Art.
VIII.1 The State Parties to the Convention shall provide
sufficient means, training and assistance to their respective authorities to
enable them to effectively conduct inquiries, investigations and prosecution
of offences under this Convention. |
This ignores the need for
adequate personnel with specialized knowledge and providers of specialized
services. It also fails to provide training to enable service providers to
distinguish between the different types of trafficking and the corresponding
different types of services victims will need. |
The State Parties to the Convention agree to develop and provide
sufficient human resources and means, and provide training and assistance to
their respective authorities to enable them to effectively conduct inquiries,
investigations and prosecutions of offences under this Convention so as to
prevent, control, combat and curb trafficking in persons and the crimes
related to it. |
This allows for the inclusion
of special service providers and the development of greater expertise in this
area. The UN Protocol Against Trafficking, Article 10, and the Human Rights
Standards For The Treatment of Trafficked Persons, No 21, provide for
training for officers in law enforcement, immigration and other related fields. |
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Art.
VIII.2 The State Parties to the Convention shall sensitize
their law enforcement agencies and the judiciary in respect of the offences
under this Convention and other related factors that encourage trafficking in
women and children. |
Immigration officers and
lawyers are not included. |
The State Parties to the Convention shall sensitize their law
enforcement agencies, immigration officers, border police, legal
professionals and the judiciary in respect of the offences under this
Convention and other related factors that encourage trafficking in persons. |
UN Protocol Against
Trafficking, Article 10, provides for the training for immigration officers. |
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Art.
VIII.3 The State Parties to the Convention shall establish a
Regional Task Force consisting of officials of the Member States to
facilitate implementation of the provisions of this Convention and to
undertake periodic reviews. |
The Task Force includes only
officials of the State Parties and excludes other individuals or groups
active in these fields, thus it seems more like a fact-finding body that
would lack the capacity to make recommendations to Member States. |
For the purpose of considering progress made in the implementation
of the present Convention, there shall be established a committee of seven
members from each state of competence in the field covered by the Convention.
The representatives shall be nominated by the State Parties from among their
nationals and shall serve in their personal capacity. |
UN Charter, Article 2,
recognizes the principle of sovereign equality. | |||