Explanatory Report – Action against Trafficking in Human Beings, 16.V.2005 33 _________________________________________________________________________________________ that violence against women both violates and impairs or nullifies the enjoyment of their human rights and fundamental freedoms. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women affirms, in the Preamble, that violence against women constitutes a violation of their human rights and fundamental freedoms. The definition of violence against women in Article 2 of this Convention includes trafficking as a form of violence against women. The European Union, in its Council Framework Decision on Combating Trafficking in Human Beings of 19 July 2002 states that “trafficking in human beings comprises serious violations of fundamental human rights and human dignity…”(at para 3). Treaty monitoring bodies of the United Nations, including the Human Rights Committee and the Committee on the Elimination of Discrimination against Women, have also identified trafficking in human beings as a violation of human rights9. 43. Furthermore, the Rome Statute of the International Criminal Court in its Article 7 states that: “For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: […] (c) Enslavement; […] which “means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children”. 44. The horizontal application of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR) has been the subject of debate over many years. However, the case law of the European Court of Human Rights contains clear indications in favour of the applicability of the ECHR to relations between private individuals in the sense that the Court has recognised the liability of contracting States for acts committed by individuals or group of individuals when these States failed to take appropriate measures of protection. The first judgment in this sense was case X and Y v. The Netherlands10, where the Court held that there was an obligation on the state to adopt criminal-law provisions to secure the effective protection of individuals. Culpable state failure to act on this could therefore give rise to violation of the ECHR. In the case Young, James and Webster v. The United Kingdom11 , the Court stated that “Under Article 1 (art. 1) of the Convention, each Contracting State “ shall secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention"; hence, if a violation of one of those rights and freedoms is the result of non-observance of that obligation in the enactment of domestic legislation, the responsibility of the State for that violation is engaged. Although the proximate cause of the events giving rise to this case was the 1975 agreement between British Rail and the railway unions, it was the domestic law in force at the relevant time that made lawful the treatment of which the applicants complained. The responsibility of the respondent State for any resultant breach of the Convention is thus engaged on this basis […]” Since then12 the liability of Contracting states for acts committed by individuals or group of individuals in violation of the ECHR has been recognised. 45. Trafficking in human beings has become one of the Europe’s major scourges. This phenomenon affecting men, women and children has reached such an unprecedented level that we can refer to it as a new form of slavery. The ECHR prohibits slavery and forced labour in its Article 4: “1. No one shall be held in slavery or servitude; 2. No one shall be required to perform forced or compulsory labour […]”. The definition of “trafficking in human beings” contained in Article 4 of the present Convention refers specifically to “slavery” (see comments on Article 4 below). 46. The main added value of the present Convention in relation to other international instruments is its Human Rights perspective and its focus on victim protection. Therefore, paragraph 5 of the Preamble states that the respect for the rights and protection of victims and the fight against trafficking in human beings must be the paramount objectives. 9
See, inter alia, UN Docs: CCPR/CO/79/LVA, dated 06/11/2003 and A/53/38/rev.1, respectively. See also, The Permanent Council of the OSCE’s Decision No 557: Action Plan to Combat Trafficking in Human Beings, 24 July 2003 and the Budapest Declaration on Public Health and Trafficking in Human Beings of 19-21 March 2003. See also, the second paragraph of the Preamble to the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution. 10 Eur. Court HR, X and Y v. The Netherlands judgement of 26 March 1985, Series A no. 91, paragraph 23 11 Eur. Court HR, Young James and Websters v. The United Kingdom judgement of 13 August 1981, Series A, no. 44, paragraph 49. 12 See, inter alia, the following judgments: Eur. Court HR, A v. The United Kingdom judgement of 23 September 1998, Reports of Judgments and Decisions 1998-VI, paragraph 22; Eur. Court HR, Z and others v. The United Kingdom judgement of 10 May 2001, Reports of Judgments and Decisions 2001-V, paragraph 73; Eur. Court HR, M.C. v. Bulgaria judgement of 4 December 2003; application no. 39272/98.