Julia Planitzer and Helmut Sax
D. METHODOLOGICAL APPROACH
Based on Article 31 of the Vienna Convention on the Law of Treaties (VCLT),54 an international treaty should be interpreted ‘in the light of its object and purpose’. Supplementary means of interpretation includes the preparatory work of the treaty (Art 32 VCLT), which has been consistently addressed in the discussion of every Article in this commentary. Further-more, a particularly relevant source for interpreting the Articles of the Convention is provided by the work of the monitoring body GRETA and its country evaluation reports. It should be noted that GRETA is not a judicial body and has no competence in taking decisions on individual complaints. Nevertheless, as the monitoring body established directly by the Convention, GRETA’s evaluation findings are directly based on the application of its provisions and, thus, offer essential guidance for the interpretation of the Convention.55 As held by the ECtHR inChowdury vs Greecein relation to Article 4 ECHR, ‘the member States’
positive obligations under Article 4 of the Convention must be construed in the light of the
50 Vladislava Stoyanova,Human Trafficking and Slavery Reconsidered, 3.
51 International Labour Office (ILO) and Walk Free Foundation,Global estimates of modern slavery: Forced labour and forced marriage(ILO 2017).
52 See Helmut Sax, ‘Child Trafficking – a Call for Rights-based Integrated Approaches’ in Piotrowicz, Rijken, Heide Uhl, 53 OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking: Commentary253. (United Nations
2010) 83.
54 See Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969, entered into force 27 January 1980.
55 See the Commentaries on Arts 36–38 on the role of GRETA and the evaluation procedure.
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Council of Europe’s Anti-Trafficking Convention’.56 Furthermore, the ‘Court is guided by that Convention and the manner in which it has been interpreted by GRETA’.57
GRETA has developed its own unique methodology for the assessment of State Parties’
compliance with Convention provisions, by distinguishing between three different levels of conclusions and recommendations. These levels correspond to three different verbs used in the assessment: ‘urge’, ‘consider’ and ‘invite’. When stating an ‘urge’, GRETA assesses this situation as particularly serious and not in compliance with the Convention provision. In case of ‘consider’, further improvements are necessary in order to fully comply with an obligation of the Convention.58 Apart from the country-specific evaluation reports, GRETA publishes annual ‘General Reports’ on its activities, which contain thematic sections on different trafficking-related aspects; these thematic sections provide further explanation and guidance on the outcomes of the evaluation procedure.59
Analysing findings of monitoring bodies of the Council of Europe has also played a vital role, with a particular focus on the European Committee of Social Rights. As shown above, positive obligations under Article 4 of ECHR ‘must be construed in the light of the Council of Europe’s Anti-Trafficking Convention’.60 To a certain extent, selected case law of national courts of State Parties of the Convention has been taken into account, however, within the limits of a concise guidebook, the commentary cannot provide for a comprehensive review of domestic case law of all State Parties. Furthermore, the Commentary has taken into account also the practice of United Nations treaty monitoring bodies including special procedures of the Human Rights Council, in particular the Special Rapporteur on trafficking in persons, especially women and children. Finally, relevant literature has been taken into account.
In relation to the terminology used, it is pointed out that reference to ‘the Convention’ or ‘CoE Convention against Trafficking’ always relates to the Council of Europe Convention on Action against Trafficking in Human Beings. Authors have been free to use ‘trafficking in human beings’ or ‘human trafficking’. In addition, it was decided to use the term ‘trafficking for the purpose of labour exploitation’ when referring to trafficking in human beings for the purpose of forced labour or services, slavery or practices similar to slavery or servitude.
Furthermore, ‘trafficking for the purpose of sexual exploitation’ is used for trafficking in human beings for the purpose of the exploitation of the prostitution of others or other forms of sexual exploitation.61 Throughout the commentary, both terms, ‘victim’ and ‘trafficked person’, will be found, depending on the context. The authors are aware that the term ‘victim’ can also imply negative connotations and concepts of weakness, vulnerability and passivity of the person,62which is contrary to a rights-based empowerment of trafficked persons. At the same
56 Chowdury and Others v. Greece, para 104.
57 Ibid.
58 See for further explanations on the methodology, GRETA,4th Report on GRETA’s Activities, GRETA(2015)1, March 2015,31–3, and the Commentary on Art 38 of the CoE Convention against Trafficking.
59 See GRETA’s Website, at https://www.coe.int/en/web/anti-human-trafficking/general-reports (accessed 10 August 2020).
60 Chowdury and Others v. Greece, para 104.
61 CoE Convention against Trafficking, Art 4(a).
62 See for instance Marjan Wijers, La Strada – European Network Against Trafficking in Women – Facts & Practices (International La Strada Association 2005) 25; Rutvica Andrijasevic and Nicola Mai, ‘Editorial: Trafficking (in)
D. METHODOLOGICAL APPROACH
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time, ‘victim’ is a well-established legal term63that entitles to certain ‘victims’ rights’. Hence, particularly in the context of the discussion of the Articles of Chapter III of the Convention (‘Measures to protect and promote the rights of victims, guaranteeing gender equality’) and Articles 28 and 30 of the Convention, the term ‘victim’ has been used as well.
Discussion of all substantive articles of the Convention follow the same structure. The chapter starts with an introduction, which is followed by an analysis of the drafting history. Further-more, relations with other Articles in the CoE Convention against Trafficking or provisions in other relevant standards are discussed in the sub-chapter ‘Article in Context’. The main part of each Article’s discussion forms the sub-chapter ‘Issues of Interpretation’.64
The manuscript was drafted over a three-year period and finalised in April 2020. The commentary takes into account published reports of GRETA of the first and second evaluation round. All chapters were reviewed by the editors, Julia Planitzer and Helmut Sax. Further-more, the work of the authors was supported by an advisory group consisting of the long-standing eminent experts Mike Dottridge, Professor Manfred Nowak and Georgina Vaz Cabral.
Representations: Understanding the Recurring Appeal of Victimhood and Slavery in Neoliberal Times’ (2016) 7 Anti-Trafficking Review, 2.
63 A ‘victim’ within the meaning of the CoE Convention against Trafficking is any ‘natural person who is subject to trafficking in human beings’ as defined in Art 4 of the CoE Convention against Trafficking.
64 In some exceptional cases, the discussion ends with a summarised ‘conclusion’.
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