Nora Katona
B. DRAFTING HISTORY
Most of the parts of the Convention’s preamble were adopted without amendments after the first reading. However, on some aspects, the delegations could only agree after some time.9 The wording of the preamble changed in some paragraphs following the 5th meeting of the Ad hoc Committee on Action against Trafficking in Human Beings (CAHTEH). It had been further amended in the 7th meeting before being adopted in its current version.
The preamble explicitly refers to relevant instruments of the CoE and the EU. Concerning UN instruments, the preamble mentions exclusively the UN Convention against Transnational Organized Crime10 (UNTOC) and the Protocol thereto to Prevent, Suppress and Punish
3 Ibid., para 46.
4 See for further elaboration section B.
5 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969, entered into force 27 January 1980.
6 Malcolm N. Shaw,International Law(Cambridge University Press 2008) 934.
7 International Law Commission (ICL),Report of the International Law Commission to the General Assembly, 21 U.N.
GAOR Supp. No. 9, U.N. Doc. A/6309/Rev.1 (1966) 221.
8 Max H. Hulme, ‘Preambles in treaty interpretation’ (2016) 164U. Pa. L. Rev.1281, 1297 et seq.
9 CAHTEH,5th meeting (29 June–2 July 2004) – Meeting Report, CAHTEH(2004)RAP5, 30 August 2004, paras 20–38;
CAHTEH,7th meeting (7–10 December 2004) – Meeting Report, CAHTEH(2005)RAP7, 6 January 2005, paras 11–16.
The wording has been updated after the European Union Council Directive of 29 April 2004 came into force; see CAHTEH,Revised Draft Council of Europe Convention on action against trafficking in human beings: Following the 5th meeting of the CAHTEH (29 June–2 July 2004), CAHTEH(2004)INFO4, 5 July 2004, 5.
10 United Nations Convention against Transnational Organized Crime, 2225 UNTS 209, entered into force 29 September 2003.
B. DRAFTING HISTORY
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Trafficking in Persons, Especially Women and Children.11Despite the comments of various delegations including Italy and the representatives of the International Labour Office (ILO), the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),12 the UN Convention on the Rights of the Child (CRC)13 and the ILO Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour14 were not included into the preamble. However, their importance was considered by explicitly naming them as relevant international instruments in the Convention’s Explanatory Report.15
1. Trafficking in human beings ‘constitutes a human rights violation’
Concerning the third paragraph of the preamble, on the one hand some delegations, including the Netherlands and Denmark, suggested rephrasing the provision to emphasise that traffick-ing in human betraffick-ings ‘seriously undermines the enjoyment of human rights’. Their reasontraffick-ing consisted of the view that violations of human rights could only originate in actions by states.
On the other hand, the case law of the ECtHR was highlighted, as it recognised state liability also for acts committed by private individuals. The Committee acknowledged that for some delegations, the recognition of trafficking in human beings as a human rights violation would have consequences for the national systems.16 As no agreement on the wording could be reached in the 5th CAHTEH meeting, the Committee offered two versions for further discussion: ‘trafficking in human beings seriously undermines the enjoyment of human rights’
and ‘trafficking in human beings constitutes a human rights violation’.17
The Non-governmental Organisations’ (NGOs) representatives from Amnesty International and Anti-Slavery Initiative reiterated their explicit support for adopting the version ‘trafficking in human beings constitutes a human rights violation’ as they noted that this option accurately characterised trafficking in human beings in line with existing instruments previously adopted by the CoE, the EU, the UN, the Organization for Security and Co-operation in Europe (OSCE) and the Organisations of American States. In the statement, they recalled that states not only have the responsibility to respect human rights (i.e., do not interfere) but also to criminalise the perpetrators as well as to respect and protect the human rights of the trafficked persons.18With similar arguments, the Committee on Equal Opportunities stated that there is
11 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2237 UNTS 319, 15 November 2000 (thereinafter Palermo Protocol).
12 Convention on the Elimination of All Forms of Discrimination against Women, 1249 UNTS 13, 18 December 1979, entered into force 3 September 1981.
13 Convention on the Rights of the Child, 1577 UNTS 3, 20 November 1989, entered into force 2 September 1990.
14 International Labour Organisation (ILO), Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, C182, 17 June 1999, entered into force 19 November 2000 (thereinafter ILO Child Labour Convention).
15 Council of Europe,Explanatory Report – CoE Convention against Trafficking, CETS No. 197, para 8.
16 CAHTEH,5th meeting – Meeting Report, CAHTEH(2004)RAP5, paras 22 et seq.
17 Ibid., para 25.
18 CAHTEH, Council of Europe Draft Convention on Action against Trafficking in Human Beings: Contribution by Non-Governmental Organisations,CAHTEH(2004)17, Addendum IV, 30 August 2004.
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no reason why trafficking in human beings should not be recognised and thus explicitly inserted in the text as a human rights violation.19
At the 7th CAHTEH meeting, the wording of paragraph three was deliberated. Besides the two options, an additional wording was introduced for the vote. Taken from the Council of the EU’s Framework Decision on combating trafficking in human beings20 it was suggested to amend the wording to ‘trafficking in human beings comprises serious violations of funda-mental rights’. Since the delegations could not agree on the wording, an indicative vote was conducted. The majority of states voted for ‘trafficking constitutes a human rights violation’ as it reads in the final text.21
2. Paramount objectives of the CoE Convention against Trafficking
Early drafts of the CoE Convention against Trafficking considered the ‘best interest of the victims of trafficking in human beings’ to be the paramount objective. In this context, it was argued that the best interest of the victim could only be pursued insofar as it was compatible with the Member State’s national law and thus was limited by national regulations in its scope.
Some delegations argued that in keeping the proposed wording, it could be interpreted broadly and oblige states to grant residence to the victims in the destination country, ‘even if for purely economic reasons’.22 Upon the initiative of some of the delegations including Germany, United Kingdom and Denmark, the term ‘best interest’ was removed and replaced by a reference to ‘respect for the rights and the protection of victims’.
In order to emphasise the importance and the overall objectives of the Convention, and to counter the lack of a reference about preventing and combating trafficking in human beings in the initial draft, the initial text of the preamble was modified. The final wording was adopted in the 7th CAHTEH meeting and instead of ‘(…) the fight against trafficking in human beings (…)’ the wording ‘(…) action to combat trafficking in human beings must be the paramount objectives’ was adopted.23
19 CAHTEH, Council of Europe Draft Convention on 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.
20 Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings (OJ L203/1).
21 Four delegations voted for the wording ‘trafficking in human beings seriously undermines the enjoyment of human rights’, 18 delegations voted for the wording ‘trafficking in human beings comprises serious violations of fundamental rights’ and 23 delegations voted for the wording ‘Trafficking in human beings constitutes a human rights violation’, see CAHTEH,7th meeting – Meeting Report, CAHTEH(2005)RAP7, para 13.
22 CAHTEH, Draft Convention of the Council of Europe on Action against Trafficking in Human Beings: Amendments to Preamble and to articles 1 to 24 proposed by national delegations and observers, CAHTEH(2004)14, 11 June 2004, 5;
CAHTEH,5th meeting – Meeting Report, CAHTEH(2004)RAP5, para 27.
23 CAHTEH, Revised Draft Council of Europe Convention on Action against Trafficking in Human Beings: Following the 7th meeting of the CAHTEH (7 – 10 December 2004), CAHTEH(2004)INFO7, 10 December 2004; CAHTEH, Draft Council of Europe Convention on Action against Trafficking in Human Beings: Following the 8th meeting of the CAHTEH (22 – 25 February 2005), CAHTEH (2004)INFO10, 25 February 2005; CAHTEH, 7th meeting – Meeting Report, CAHTEH(2005)RAP7, 6 January 2005, para 14.
B. DRAFTING HISTORY
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3. All actions must be ‘non-discriminatory, take gender equality into account as well as a child-rights approach’
Early drafts had no reference to non-discrimination, gender equality or a child-rights approach in the preamble. On the initiation of numerous delegations, first, a ‘gender perspective’24and a
‘child sensitive approach’ were included in a separate paragraph of the preamble after the 5th CAHTEH meeting. During that meeting, it was also accentuated that the application of a gender-sensitive perspective should not be restricted to prevention but should be a paramount principle also in assistance to victims, as well combating trafficking in human beings. The wording ‘all actions or initiatives on action against trafficking in human beings’ adhere to this broad understanding.25
In the 7th CAHTEH meeting, the text was amended, and also non-discrimination was explicitly referred to in the text.26 Further, the wording was adapted by including that these three aspects (non-discrimination, gender equality and child-rights approach) ‘must’ and not only ‘should’ be taken into account in all actions and initiatives against trafficking in human beings. Further, the wording was changed from child-sensitive to child-rights approach.27 4. Purpose and added value of the CoE Convention against Trafficking
The last paragraph of early drafts of the preamble read ‘[t]aking into account the fact that despite the existence of other international legal instruments, there is no comprehensive international legal instrument that strikes a proper balance between matters concerning human rights of victims of trafficking and criminal law’.28 The paragraph was amended, as it was argued that it would suggest ‘a negative view of the Palermo Protocol’.29The preamble should rather focus on its key elements of added value, in particular on the protection of the victim’s human rights and the monitoring mechanism, which should be explicitly referenced in the preamble.30The wording was revised and adopted accordingly.
24 The French delegation expressed reservations about the use of the term ‘gender perspective’. See CAHTEH,5th meeting – Meeting Report, CAHTEH(2004)RAP5, para 30.
25 See e.g., CAHTEH,Draft Convention of the Council of Europe on Action against Trafficking in Human Beings: Contribution by the delegations of Denmark, Germany, Italy, Liechtenstein, Norway, Sweden, United Kingdom and by the observer of European Women’s Lobby, OSCE, UNICEF, CAHTEH(2004)13, 9 June 2004; CAHTEH,5th meeting – Meeting Report, CAHTEH(2004)RAP5, para 30; CAHTEH,Revised draft Council of Europe Convention on Action against Trafficking in Human Beings: Following the 5th meeting of the CAHTEH, CAHTEH(2004)INFO4, 5 July 2004, 5.
26 See on this also the Commentary on Art 3 of the CoE Convention against Trafficking, section B.
27 CAHTEH, Draft Council of Europe Convention on Action against Trafficking in Human Beings: Following the 8th meeting of the CAHTEH, CAHTEH(2004)INFO10, 25 February 2005, 5; CAHTEH, 7th meeting – Meeting Report, CAHTEH(2005)RAP7, 6 January 2005, para 15.
28 CAHTEH,Revised draft Council of Europe Convention on action against trafficking in human beings: Following the 4th meeting of the CAHTEH (11 May–14 May 2004), CAHTEH(2004)12, 17 May 2004, 5.
29 CAHTEH,5th meeting – Meeting Report, CAHTEH(2004)RAP5, 10.
30 Ibid., para 37.
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