1. The historical development of international human trafficking law
There were at least 5 international treaties that paved the way for the development of laws against human trafficking.
First there was the International Agreement for the Suppression of White Slave Traffic of 1904. The United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, India, Germany, Prussia, Belgium, Denmark, Spain, the French Republic, Italy, Netherlands, Portugal and of the Algarves, the Russias, Sweden and Norway were the contracting parties to the 1904 treaty, 1. As per article 1 of the provisions applying to colonies, the 1904 treaty applies to colonies when the country signatory has exercised their right to accede to the treaty on behalf of their colonies. As per article 2, the Danish colonies are not parties to the treaty, but may become so if Denmark exercises the right to accede which it has chosen to reserve. Also based on the same article, the French government has declared that their colonies are parties to the treaty, 2. The French government played a special role in the enforcement of the 1904 treaty. As per article 7 of the 1904 treaty, the French government has the obligation to acquaint all contracting parties, and non signatory states that choose to adhere to the agreement, of their obligations that arise from the agreement, 3.
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As per article 8, the 1904 treaty came into force 6 months after the exchange of ratifications. The 1949 treaty amended the 1904 treaty to the extent that it added additional details to the penalties that may be imposed, the prosecution of offenders who are sent back to their countries, and the reconciliation of domestic laws to the international agreement. The 1949 treaty also added more details on the procedures that states need to employ in coordinating with 1 another. The protocols are in the Chinese, English, French, Russian and Spanish texts, 4.
The second article of the 1904 treaty requires the guarding of railway stations and ports of embarkation against persons who are in charge of women and girls headed to a life of immorality. From the same article, arises the obligation to require their officials to obtain information that will lead to the detection of criminal traffic, and to notify the places of destination, diplomatic or consular agents or other authorities of the arrival of such persons who are either engaged in, or are victims of, the crime. Article 3, paragraph 2 of the 1904 treaty requires states to entrust destitute victims of trafficking to a public or private charitable institution or a private individual who may offer the needed security, 5.
The 1904 Treaty sought to prevent white slave traffic by a number of measures:
- By establishing an authority that will coordinate information relative to the procurement of women and girls for immoral purposes abroad, and corresponding with similar authorities in the contracting states;
- By keeping a watch along railways and ports of embarkation against persons transporting women and children for immoral purposes, and obtaining information towards the detection of criminal trafficking, and notifying authorities on the arrival of criminals or victims of trafficking;
- By taking the declarations of foreign women and children who work as prostitutes and communicating such declarations to the country of origin for their repatriation;
- By entrusting destitute victims of trafficking to charitable institutions, or others who can provide the needed security, until they can be repatriated, 6.
The 1904 treaty may be considered racist if it is interpreted to imply that, while trafficking of white slaves is wrong, there is no law prohibiting the trafficking of colored slaves. It can be considered racist based on the doctrine that where there is no law prohibiting an act, the act cannot be punished. And when there is no law imposing a punishment for a crime, it is not a crime (Nullum crimen, nulla poena sine lege).
Second, there was the International Convention for the Suppression of the White Slave Traffic of 1910. Article 1 required the punishment for procuring, enticing or leading away of a woman or girl under age for immoral purposes or the gratification of another even if the same is committed in different countries. Article 2 required the punishment for the use of fraud, violence, threats or other manifestations of force against a woman or girl over age for the same purposes and places as the first article. Article 3 required the contracting parties to amend their legislation in order to accommodate the offences mentioned in articles 2 and 3. Article 1 and 2 are for the purposes of broadening the scope of the treaty to include all women regardless of age, and to avoid any loophole with regard to jurisdiction of countries by allowing punishment even outside borders.
Article 3 is for the purpose of making sure that contracting parties abide by their duties to combat the trafficking of women within their respective jurisdictions, and to avoid any loophole with regard to arguments that trafficking is not punishable locally. The determining factor for age is 20. Under age refers to below 20 and overage refers to 20 completed years or more, 7. This treaty made reference to extradition which is the process of requesting a country, which is housing a citizen facing charges of a crime, to send back the citizen to his own country to face his charges.
The 1910 treaty does not cover a situation wherein a woman is detained in a brothel against her will as this situation is subject to internal legislation. In other words, the treaty leaves the law making authorities of the respective contracting parties to decide on the punishment for such an act, 8. Third, there was the International Convention for the Suppression of the Traffic in Women and Children of 1921. The 1921 treaty was aimed at increasing the scope of child trafficking to include children of both sexes, and to increase the protection to the age of 21. The 1904-1910 treaties only recognized female children while the 1921 covered children of both sexes. Also, the 1904-1910 treaties set the age limit of children to 20 while the 1921 treaty raised the age to 21. In the 1921 treaty, the age of children was moved to 21 complete years from 20 complete years, 9.
The 1904 treaty did not address issues of employment and giving women precautions against the threats of trafficking. Such issues are addressed in article 6 and 7 of the 1921 treaty. Article 6 obliges the licensing and supervision of employment agencies, and to prescribe regulations to ensure that women are protected when they seek employment abroad. Article 7 requires that women are warned of the dangers of trafficking when they are in emigrant ships, railway stations the 1921 treaty are found in English and French texts, 10. Article 12 0f the 1921 treaty states that a contracting party may denounce its membership with a 12 month prior written notice to be communicated to the Secretary General, 11.
The absence of the word 'white' is a significant development in the 1921 treaty since this implies an abandonment of the racial implication of the past treaties and the attitude that only white girls and women needed to be protected. From a legal standpoint, this also implies that the trafficking of coloured people is already recognized as a crime. Fourth, there was the International Convention for the Suppression of the Traffic in Women of Full Age of 1933. The 1933 treaty extended the scope of punishable acts to those which are merely attempted and preparatory to the consummated act. It also extended the scope of country to include colonies and protectorates. Lastly, it aimed to require the contracting parties to communicate their records and conventions with each other, 12.
Article 3 of the 1933 treaty aimed to achieve its objectives by requiring communication with the contracting parties information about committed offenses and those attempted to be committed covered in conventions 1910 or 1921. These information include conviction records and relevant information like description, methods of operation and the like, or measures to obtain admission or expulsion applied. Article 3 also required the immediate transmission of records to the authorities of the concerned countries and in all cases when the offense, conviction, refusal to admit or expulsion has been established, 13.
The 1933 treaty does not cover underage girls. The first article specifically states that the treaty applies to a woman or girl of full age, 14. Article 4 requires the settlement of disputes on the interpretation and application of the 1933 treaty, as well as the 1910 and 1921 treaties, through diplomacy or the agreements in force between the disputing parties. In case no agreement for the settlement of international disputes is in place, arbitration or judicial settlement shall be resorted to. At the request of any of the disputing parties, the dispute may be referred to the Permanent Court of International Justice if the parties involved are also parties to the December 16, 1920 protocol relating to the statute of that court. Otherwise, they shall resort to an arbitral tribunal created under the Hague Convention of October 18, 1907 for the Pacific Settlement of International Disputes, 15.
Fifth, there was the United Nations Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others of 1949. There are at least 2 articles in the 1949 treaty that implies a different approach from the earlier treaties. Article 2 aims to punish not only persons who exploit others for prostitution but also persons who play a part in the maintenance of brothels for the activity, and persons who offer their place for the activity. Article 16 urges the use of educational, health, social and economic services to prevent prostitution, and rehabilitate the social adjustment of the victims of prostitution, 16.
The 1949 treaty also made a few changes with regard to become parties to the protocol. In the 1904 treaty, article 4 outlines that states may become parties to the protocol via signature with or without acceptance, or acceptance effected by a deposit of the instrument to the United Nations Secretary General. As per article 8 of the 1910 treaty, the French government has to be notified of a state's intention via a declaration to accede to the treaty. The French government will then communicate a certified copy of this declaration, along with the laws of acceding nation relative to the convention, to the other contracting parties. 6 months from the time the acceding nation has deposited its declaration, it becomes a contracting party. With the 1949 treaty, there is no more option of signing with reservation for acceptance and the French government no longer plays a role in the enforcement of the treaty.