by Aretha Chakraborti
Human trafficking victims face tremendous barriers that prevent escape from their traffickers. Yet, for those who do get out, their path to free movement remains unclear. Due in part to national laws that allow states to hold undocumented survivors, and also in part to international laws that give states discretion in handling them, survivors often cannot assert their right to move nor submit successful claims to international courts against states restricting movement.
Trafficking in adult persons involves the recruitment, transportation, transfer, harboring, or receipt of persons using force, fraud, or coercion, to extract labor or commercial sexual services. According to the 2012 Trafficking in Persons (TIP) Reportreleased in June 2012, “as many as 27 million” people around the world are trafficking victims. Regarding those extraordinary victims that escape their traffickers, rights-based discourse emphasizes respect for their agency and autonomy. For example, the TIP Report states:
The essence of the trafficking experience is the denial of freedom – including the freedom to choose where and how you live, the freedom to work or choose not to work, the freedom from threats, and the freedom of bodily integrity… A fundamental premise of victim assistance programs should be to place choices back into the hands of the trafficking victims.
One choice seemingly protected by international law is the right to movement, which encompasses the rights to move within, into, and out of states. Yet survivors’ ability to move can be limited; for example, after escaping from their traffickers, survivors may be placed indefinitely into state shelters that operate as detention facilities. The extent to which trafficking survivors can move freely and thereby exert basic agency depends on how the movement right is defined both in national laws and in critical international human rights instruments – especially those that allow survivors to submit legal complaints against states party to an appropriate international body.
The UNHCHR notes, “The ability of individuals to complain about the violation of their rights in an international arena brings real meaning to the rights contained in the human rights treaties.” Unfortunately, not all international human rights instruments allow individuals to file complaints. One example is the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, which otherwise binds states to respect trafficking victims’ human rights, including their right to freedom of movement. Therefore, trafficking survivors cannot file freedom of movement violation complaints under this Protocol, even though it provides comprehensive rights protections for them.
Next, even when an instrument allows individual complaint submissions, survivors can still be denied under law. For instance, on movement, Article 12 of the International Covenant on Civil and Political Rights (ICCPR) provides that “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.” However, as the ICCPR hinges individuals’ movement rights on lawful presence within the state, trafficking survivors whose state identification materials were seized by traffickers (herein “undocumented”) cannot necessarily prove legal presence and therefore may be denied ICCPR protections.
Whether survivors receive protections depends partly on the definition of lawfully. The Human Rights Committee (HRC) comments that states retain the ability to define the term lawfully. So, whether an undocumented survivor can lawfully reside in a state depends on that state’s discretion.[i] If states determine that undocumented arrival or residence constitutes unlawful existence within their territories, then absent other allowances, undocumented survivors may be detained or otherwise restricted in movement due to their documentation status.
The HRC also notes that individuals who illegally entered states should gain the same rights as legal residents upon receipt of an official status – like refugee or asylum status – from the government. However states may limit the new rights for national security, public health and order, or other reasons stipulated in ICCPR Article 12(3).
Consequently, during the time when survivors lack either documentation that proves legal status or government-granted status designations, they can exist in a legal limbo – neither able to reside or move within the state to which they were trafficked, nor able or willing to return home. Despite its aims then, the ICCPR provides few protections for undocumented trafficking survivors’ right to move.[ii]
Other relevant treaties that include an individual complaints procedure, like the Convention on the Elimination of Racial Discrimination (CERD) and the Convention on the Elimination of Discrimination Against Women (CEDAW), also caveat movement rights to the detriment of survivors’ interests.[iii]
Beyond diminishing trafficking survivors’ abilities to bring a claim to the international justice system against a state that deprives them of their freedom of movement rights, the abovementioned treaties also hinder advocacy efforts emphasizing survivor agency. If states can justify movement restrictions with reasoning provided by binding international human rights laws, how can advocates cite the same laws to demand that states allow undocumented survivors to leave public detention or assistance facilities? Moreover, how should lawyers representing trafficking survivors reconcile conflicting legal obligations presented by the treaties here and other treaties that exclude an individual complaints procedure yet directly protect survivors’ rights?
Therefore, rights advocates – including authors of guidance like the Trafficking in Persons Report – must ensure that their calls for state agency protection also target those international laws that permit states to limit undocumented persons’ movement and in turn, impact victims’ ability to bring international human rights claims against states. As a first step, advocates might suggest that relevant international human rights bodies define universal exception groups, e.g. reasonably presenting human trafficking survivors, that – regardless of their documentation status – always retain their freedom of movement rights and in turn, their basic agency.
[i] In 2008, Anne T. Gallagher published a comprehensive legal analysis of the ICCPR’s limited reach for human trafficking victims’ freedom of movement as part of the Asia Regional Trafficking in Persons Project. She notes that the HRC also emphasizes that states treat victims with due regard to proportionality, i.e. their restrictions “…must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.” Read the full report here.
[ii] Gallagher, Anne T. & Elaine Pearson. (2010). “The High Price of Freedom: A Legal and Policy Analysis of Shelter Detention for Victims of Human Trafficking.” Human Rights Quarterly. 32:73, p. 92. Also, the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, through its Articles 6, 7, and 8 outline states’ obligations to assist trafficking victims, including providing statuses that allow legal residence within the foreign state; providing housing or shelter services; and assisting with appropriate repatriation efforts. However, the Protocol does not speak to victim movement rights, but does acknowledge states’ international commitments to freedom of movement (Article 11(1)).
[iii] For example, though CERD protects freedom of movement, it also declares “This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.” So unless a state limits survivors’ movement rights based on CERD-defined group memberships, undocumented survivors cannot invoke CERD to bring a claim against the state. Likewise CEDAW requires that “States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile.” A cursory reading suggests that unless a state both limits movement based on gender and does not limit movement solely for documentation status otherwise, an undocumented trafficking survivor cannot use CEDAW to bring a claim. Finally, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment yields little relevant discussion for this essay as it does not discuss freedom of movement.
About the Author
Aretha Chakraborti studies at Columbia Law School and was a Summer 2012 Policy Fellow at the Polaris Project, a nonprofit organization dedicated to assisting and advocating for victims of human trafficking.