Julia Planitzer
1 Without prejudice to international commitments in relation to the free movement of persons, Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in human beings.
2 Each Party shall adopt legislative or other appropriate measures to prevent, to the extent possible, means of transport operated by commercial carriers from being used in the commission of offences established in accordance with this Convention.
3 Where appropriate, and without prejudice to applicable international conventions, such measures shall include establishing the obligation of commercial carriers, including any transportation company or the owner or operator of any means of transport, to ascertain that all passengers are in possession of the travel documents required for entry into the receiving State.
4 Each Party shall take the necessary measures, in accordance with its internal law, to provide for sanctions in cases of violation of the obligation set forth in paragraph 3 of this article.
5 Each Party shall adopt such legislative or other measures as may be necessary to permit, in accordance with its internal law, the denial of entry or revocation of visas of persons implicated in the commission of offences established in accordance with this Convention.
6 Parties shall strengthen co-operation among border control agencies by, inter alia, establishing and maintaining direct channels of communication.
A. INTRODUCTION 7.01
B. DRAFTING HISTORY 7.03
C. ARTICLE IN CONTEXT 7.05
D. ISSUES OF INTERPRETATION 7.07
1. Analysis of Article 7(1) of the CoE
Convention against Trafficking 7.07 2. The role of commercial carriers in the
context of border measures 7.10 3. Strengthening border controls to prevent
and detect trafficking in human beings 7.13
A. INTRODUCTION
After the 11 September 2001 attacks, migration became a matter of potential security risk for many governments. States decided that migration needed to be effectively managed or else it may become a threat to national security. At the same time, States argued that measures used to tighten border security, for instance, stricter visa requirements, were invaluable to combating
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transnational crimes, such as trafficking. Consequently, also trafficking in human beings became understood in the context of a border security problem.1
In light of the increased migration flows in the European region in recent years, the response of many States has been securitisation of borders. At the same time, strengthened border controls can make migrants’ journeys more dangerous.2 However, the purpose of Article 7 of the Council of Europe (CoE) Convention on Action against Trafficking in Human Beings3is to prevent trafficking in human beings and strengthen border controls which should enhance the prevention and detection of human trafficking.
B. DRAFTING HISTORY
Articles 7, 8 (Security and control of documents) and 9 (Legitimacy and validity of documents) of the CoE Convention against Trafficking correspond to Articles 11, 12 and 13 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.4In the beginning, it was not clear whether these provisions should be copied as such from the Palermo Protocol or be deleted completely.5 The added value of including these provisions would be the possibility to monitor their implementation by the Group of Experts on Action against Trafficking in Human Beings (GRETA), a mechanism the Palermo Protocol lacks.6
The non-governmental organisations (NGOs) lobbied during the drafting process to amend the wording of Article 7 to require the State Parties to ensure that the measures such as border controls are carried out in a manner consistent with the rights to seek and enjoy asylum.7 Despite these efforts, the CAHTEH decided that due to the reference to the principle of
1 Rebecca Miller and Sebastian Baumeister, ‘Managing Migration: Is Border Control Fundamental to Anti-Trafficking and Anti- Smuggling Interventions?’ (2013) 2Anti-Trafficking Review, 17.
2 IOM,Assessing the risks of migration along the central and eastern Mediterranean routes: Iraq and Nigeria as Case Study Countries(2016) 9; cited after Claire Healy,The Strength to Carry On: Resilience and Vulnerability to Trafficking and Other Abuses among People Travelling along Migration Routes to Europe(ICMPD 2019) 20.
3 Council of Europe Convention on Action against Trafficking in Human Beings, CETS No. 197, 16 May 2005 (thereinafter CoE Convention against Trafficking or Convention).
4 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2237 UNTS 319, 15 November 2000 (thereinafter Palermo Protocol).
5 CAHTEH, European Convention on Action against Trafficking in Human Beings: Revised Draft at its 2nd meeting, CAHTEH(2003)MISC7, 10 December 2003, 6 and CAHTEH, 2nd meeting (8–10 December 2003) – Meeting Report, CAHTEH(2003)RAP 2, 26 January 2004, para 48.
6 CAHTEH,5th meeting (29 June–2 July 2004) – Meeting Report, CAHTEH(2004)RAP5, 30 August 2004, paras 79–84.
7 CAHTEH, Draft Council of Europe Convention on Action against Trafficking in Human Beings: Contribution by Non-Governmental Organisations, Additional Comments by Amnesty International and Anti-Slavery International, CAHTEH(2004)17 Addendum IV, 30 August 2004, 13 and CAHTEH,Draft Council of Europe Convention on Action against Trafficking in Human Beings: Joint Statement of 127 Non-Governmental Organisations, CAHTEH(2004)17 Addendum X, 27 September 2004, para 21. See also the Parliamentary Assembly of the CoE Committee on Equal Opportunities for Women and Men supporting this in, CAHTEH,Draft Convention of the Council of Europe Action against Trafficking in Human Beings: Comments by the Parliamentary Assembly of the Council of Europe Committee on Equal Opportunities for Women and Men, CAHTEH(2004)23, 4 November 2004, 5.
B. DRAFTING HISTORY
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non-refoulement in Article 40(4) of the CoE Convention against Trafficking, no further reference would be necessary.8
C. ARTICLE IN CONTEXT
In comparison to Article 11(5) of the Palermo Protocol, the CoE Convention against Trafficking increases the level of obligation for the State Parties. Under Article 7(5) of the CoE Convention against Trafficking, the State Parties ‘shall adopt such legislative or other measures’ in order to allow the denial of entry or revocation of visas of persons implicated in the commission of trafficking, whereas under the Palermo Protocol, the State Parties ‘shall consider’ taking these steps.
Securitisation of border management to prevent and detect trafficking in human beings needs to be set in context with Article 5(4) and Article 10 of the CoE Convention against Trafficking. Article 5(4) asserts that the State Parties shall enable migration to take place legally, as ‘severely restrictive immigration policies are more likely to fuel organised, irregular migration than to stop it’.9While Article 5(4) obliges the State Parties to ‘to enable people to emigrate and immigrate lawfully’,10Article 7 works on a different level and reinforces already established migration regimes by strengthening border controls.
D. ISSUES OF INTERPRETATION
1. Analysis of Article 7(1) of the CoE Convention against Trafficking
Article 7(1) of the CoE Convention against Trafficking clearly states that strengthening border controls to prevent and detect trafficking in human beings must be without prejudice to international commitments in relation to the free movement of persons.11 The Office of the United Nations High Commissioner for Human Rights (OHCHR) Recommended Principles and Guidelines on Human Rights and Human Trafficking12 indicate that States should consider ‘protecting the right of all persons to freedom of movement and ensuring that anti-trafficking measures do not infringe upon this right’.13 However, as the freedom of
8 CAHTEH,8th meeting (22–25 February 2005) – Meeting Report, CAHTEH (2005)RAP8, 16 March 2005, para 17.
9 Anne Gallagher, ‘Trafficking, Smuggling and Human Rights: Tricks and Treaties’ (2002) 12Forced Migration Review, 28. See also Healy,The Strength to Carry On, 236. In addition, GRETA stresses to ‘ensure that migration policies and measures to combat migrant smuggling do not put at risk the lives and safety of trafficked people’, see GRETA, 5th General Report on GRETA’s Activities, February 2016, para 100.
10 Council of Europe,Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings, CETS No. 197, 16 May 2005, para 105.
11 CoE Convention against Trafficking, Art 7(1). Major international human rights treaties have enshrined the right to freedom of movement, for instance, International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966, entered into force 23 March 1976, Art 12. See also the Protocol No. 4 to the ECHR, ETS No 46, 16 September 1963, entered into force 2 May 1968, Arts 2–4 and the Protocol No. 7 to the ECHR, ETS No 117, 22 November 1984, entered into force 1 November 1988, Art 1.
12 OHCHR,Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002.
13 Ibid., Guideline 1.5.
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movement is not an absolute right, it can be restricted, for instance, on the grounds of national security or public order.14 The ‘denial of exit or entry visas or permits – whether generally applicable or only in relation to a group of persons identified as being especially vulnerable to trafficking’ would nevertheless be an example of an anti-trafficking measure that negatively impacts established rights.15
GRETA has shown concern regarding victims of trafficking going undetected and unidenti-fied by relevant authorities during the visa process. In GRETA’s first evaluation round, it asked State Parties which measures they have implemented in order to avoid issuing visas,
‘when there are reasonable grounds to believe that a person may be a victim of THB or implicated in THB’.16 Issuing visas should be based on an individual decision and circumstance.
Throughout the Convention drafting process, NGOs lobbied for an amendment of the text of Article 7 to include a specific reference to the right to seek and enjoy asylum from persecution and other forms of international protection17 since enhanced border measures could form an obstacle to the right to seek asylum.18 This potential conflict between strengthening border controls while ‘nominally upholding the right to asylum’ was already raised in the context of the Palermo Protocol.19The OHCHR’s Recommended Principles and Guidelines on Human Rights at International Borders explain that:
States shall ensure that measures aimed at addressing irregular migration and combating transnational organized crime (including but not limited to smuggling of migrants and trafficking in persons) at international borders, shall not adversely affect the enjoyment of the human rights and dignity of migrants.20
GRETA has emphasised that border measures concentrating on detecting undocumented migrants are unlikely to benefit efforts to detect and identify victims of trafficking.21
2. The role of commercial carriers in the context of border measures
Article 7(2) obliges the State Parties to adopt measures to prevent commercial carriers from being used for trafficking in human beings. The type of measure is left to the State Parties’
14 See for instance ICCPR, Art 12(3).
15 OHCHR,Human Rights and Human Trafficking, Fact Sheet No. 36 (United Nations 2014) 50.
16 GRETA, Questionnaire for the evaluation of the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the Parties, First evaluation round, GRETA(2010)1 rev4, Question 28.
17 CAHTEH(2004)17 Addendum IV, 13 and CAHTEH(2004)17 Addendum X, para 21.
18 CAHTEH(2004)23, 5 and Parliamentary Assembly,Draft Council of Europe Convention on Action against Trafficking in Human Beings, Opinion 253(2005), 26 January 2005, para 14(ii).
19 Gallagher, ‘Trafficking, smuggling and human rights: tricks and treaties’, 28.
20 OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders (United Nations 2014), Principle A.5.
21 GRETA,Report on Bosnia and Herzegovina, I GRETA(2013)7, para 96.
D. ISSUES OF INTERPRETATION
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discretion. GRETA recommends that, in general, Parties should develop awareness within transport companies for enhanced detection of trafficking victims.22
Based on Article 11 of the Palermo Protocol, Article 7(3) obliges commercial carriers to ensure that passengers abroad are in possession of the travel documents required for entry into the receiving State.23 According to Article 7(4) of the CoE Convention against Trafficking, Parties must implement sanctions on the carrier in case they violate their obligation to check travel documents.
The obligation to impose sanctions on carriers impacts on the overarching aim of Article 7 of the CoE Convention against Trafficking, the prevention of trafficking. Research shows that carrier sanctions are harmful to international legal and human rights obligations and increase the risk of persons in search of protection.24 Consequently, such sanctions can drive asylum flows underground and ‘irregularise’ movement towards the European Union meaning that protection seekers need to rely on smuggling services. In some cases, protection seekers, in their attempts to reach safety, fall prey to traffickers.25
3. Strengthening border controls to prevent and detect trafficking in human beings In several GRETA reports, it is recommended that the State Parties make further efforts to detect and prevent trafficking through border control measures.26 This recommendation is usually linked to a suggestion to provide regular trainings for relevant State officials in order to improve their abilities to detect potential cases of trafficking in human beings and identify trafficked persons.27GRETA recommends introducing a checklist to facilitate the detection of trafficking risks as part of States visa application and processing procedure as it would improve the relevant authority’s ability to detect possible victims of trafficking.28In addition, the State
22 GRETA,Report on Belgium, II, GRETA(2017)26, para 94; GRETA,Report on France, II GRETA(2017)17, para 126;
GRETA,Report on Ireland, II GRETA(2017)28, para 105; GRETA,Report on North Macedonia, II GRETA(2017)39, 23 See on the emergence of carriers sanctions in international instruments, Tilman Rodenhäuser, ‘Another Brick in the96.
Wall: Carrier Sanctions and the Privatization of Immigration Control’ (2014) 26International Journal of Refugee Law, 226 et seq.
24 Theodore Baird, ‘Carrier Sanctions in Europe: A Comparison of Trends in 10 Countries‘ (2017) 19European Journal of Migration and Law, 310. See on the risk of carrier sanctions on refugees’ entitlement to special protection Violeta Moreno-Lax, ‘Must EU Borders have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers’
Sanctions with EU Member States’ Obligations to Provide International Protection to Refugees’ (2008) 10 European Journal of Migration and Law, 350.
25 Violeta Moreno-Lax, Accessing Asylum in Europe: Extraterritorial Border Controls and Refugee Rights under EU Law (Oxford University Press 2017) 468.
26 See for instance GRETA, Report on Belgium, II GRETA(2017)26, para 94; GRETA, Report on Norway, I GRETA(2013)5, para 121; GRETA,Report on Romania, I GRETA(2012)2, para 109.
27 See for instance GRETA, Report on Greece, I GRETA(2017)27, para 128; GRETA, Report on Hungary, I GRETA(2015)11, para 121; GRETA,Report on Luxembourg, I GRETA(2013)18, para 82; GRETA,Report on Malta, I GRETA(2012)14, para 98.
28 See for instance GRETA,Report on Cyprus, I GRETA(2011)8, para 104; GRETA,Report on Italy, I GRETA(2014)18, para 119; GRETA,Report on Iceland, I GRETA(2014)17, para 112; GRETA,Report on Malta, II GRETA(2017)3, para 71.
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Parties should provide written information to migrants informing them about the risks of trafficking and about their rights and where to get assistance if needed.29
(a) Providing trainings to relevant State officials
Trainings in the context of Article 7 of the Convention are not limited to border guards. They should include all relevant officials, in particular, law enforcement officials, immigration officials, staff working in refugee centres, child and youth welfare institutions, diplomatic and consular staff30and custom officials.31
Generally, trainings should be conducted regularly and follow a human rights and a victim-centred approach32and underscore the difference between human trafficking and smuggling of migrants.33 Part of the trainings should be trafficking indicators34 and clear instructions on how to proceed when someone is detected or identified as a victim of trafficking.35
(b) Detecting potential victims among asylum-seekers and unaccompanied or separated children
GRETA regularly calls on the State Parties to step up their efforts to identify possible victims of trafficking among vulnerable groups, such as migrants and asylum seekers, including unaccompanied and separated children, who are particularly susceptible to exploitation.36 Although the number of unaccompanied and separated children arriving in the State Parties has considerably increased in recent years, there has been ‘little or no information on the identification of trafficked persons among unaccompanied and separated children’.37In order to improve the identification of trafficked or potentially trafficked persons among migrants, a proactive approach is necessary.38 Setting up clear procedures for identification with opera-tional indicators and referrals to competent organisations are highly relevant.39In the context
29 GRETA,Report on Azerbaijan, I GRETA(2014)9, para 110; GRETA,Report on Italy, I GRETA(2014)18, para 119;
GRETA, Report on Luxembourg, I GRETA(2013)18, para 82; GRETA,Report on Poland, I GRETA(2013)6, para 131; GRETA,Report on Spain, I GRETA(2013)16, para 138; GRETA,Report on United Kingdom, I GRETA(2012)6, para 200.
30 GRETA,Report on Austria, I GRETA(2011)10, para 91.
31 GRETA,Report on Azerbaijan, I GRETA(2014)9, para 127; GRETA,Report on Belgium, I GRETA(2013)14, para 120.
32 GRETA,Report on Spain, I GRETA(2013)16, para 137.
33 GRETA,Report on Bosnia and Herzegovina, I GRETA(2013)7, para 96.
34 GRETA,Report onUkraine, I GRETA(2014)20, para 124; GRETA,Report on Andorra, I GRETA(2014)16, para 60.
35 GRETA,Report on Spain, I GRETA(2013)16, para 137.
36 See for instance GRETA,Report on Albania, II GRETA(2016)6, paras 84 and 86; GRETA, Report on Croatia, II GRETA(2015)33, paras 81 and 93; GRETA,Report on Italy, II GRETA(2018)28, paras 119 and 141; GRETA,Report on Montenegro, II GRETA(2016)19, para 87; GRETA,Report on North Macedonia, II GRETA(2017)39, para 97;
GRETA,Report on Slovenia, II GRETA(2017)38, para 87.
37 GRETA,6th General Report on GRETA’s, May 2018, para 109.
38 GRETA,Report on Azerbaijan, I GRETA(2014)9, para 127; GRETA,Report on Italy, II GRETA(2018)28, paras 141 and 158.
39 GRETA,Report on Hungary under Rule 7 of the Rules of Procedure for evaluating implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, GRETA(2018)13, 23 March 2018, para 58. GRETA,Report on Italy under Rule 7 of the Rules of Procedure for evaluating implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, GRETA(2016)29, 30 January 2017, para 72.
D. ISSUES OF INTERPRETATION
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of Hungary, GRETA urged the State to allow NGOs with experience in identification of and assistance to victims of trafficking, to have regular access to transit zones.40
GRETA has expressed concern that the lack of co-ordination between different national authorities, such as relevant border officials, ‘increases the risk of migrant and asylum-seeking children, particularly those who are unaccompanied, falling victim to trafficking’.41 In the context of mixed migration movements, the United Nations Special Rapporteur on trafficking in persons, especially women and children, Maria Grazia Giammarinaro, recommends imple-menting a new protection scheme based on an individual assessment in co-operation with civil society organisations ‘as soon as migrants arrive’.42Screening and referrals should be individu-alised. In addition to international and child protection schemes, identification and referral procedures for trafficked persons should be established.43
40 GRETA,Report on Hungary under Rule 7, GRETA(2018)13, para 58.
41 GRETA,6th General Report, para 109.
42 UNGA,Report of the Special Rapporteur on trafficking in persons, especially women and children, A/HRC/38/45, 14 May 2018, para 69.
43 Ibid., para 73 (a). See on this also OHCHR and Global Migration Group,Principles and Guidelines, supported by practical guidance, on the human rights protection of migrants in vulnerable situations, 2018, Principle 5, Guideline 5, 29.
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