The Need to Integrate a Human Rights Perspective into the Irish Initiatives Combatting Human Trafficking

Date01 January 2015
AuthorAdriana Ferreira Dos Santos Norbert Costa
The Need to Integrate a Human Rights
Perspective into the Irish Initiatives
Combating Human Trafcking
An analysis of the current legal framework on
the protection of victims of human trafcking at
international, regional and domestic levels
The trafcking of human beings for exploitation purposes has been
classied by the United Nations (UN) as the new form of slavery, a practice
that unfortunately affects “all regions and countries, whether as countries
of origin, transit countries, or destination countries”.1 It is also one of the
fastest growing criminal activities in the world.2
The term “trafcking in human beings” applies to all persons in general,
with no distinction as to gender or age. However, it is widely acknowledged
that the large majority of victims of human trafcking are women and
children. This seems to be the reason why the UN normative instrument
on this matter, the Protocol to Prevent, Suppress and Punish Trafcking
in Persons, Especially Women and Children [hereinafter the Palermo
Protocol],3 focuses precisely on these two groups. This article will focus on
the trafcking of women.
Apart from the Palermo Protocol, there are also initiatives combating
human trafcking both at regional and domestic levels. Special attention
will be drawn in this paper to the European legal and administrative
framework, which includes the Council of Europe Convention on Action
against Trafcking in Human Beings, Warsaw [hereinafter the Council
of Europe Convention],4 the EC Directive 2004/81/EC of 19 April 2004
1 The Ofce of the United Nations High Commissioner for Human Rights (OHCHR),
Report of the Special Rapporteur on Trafcking in Persons, Especially Women
and Children (U.NDocA/HRC/10/16 2009), cited in Viviana Waisman, “Human
Trafcking: State Obligations to Protect Victims’ Rights, the Current Framework and
a New Due Diligence Standard” (2010) 33 HICL Rev 385, p.389
2 ibid, p.388
3 Supplements the UN Convention against Transnational Organized Crime 2000
4 Council of Europe Convention on Action against Trafcking in Human Beings 2005
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[hereinafter the Council Directive]5 and the Directive of the European
Parliament and of the Council 2011/36/EU of 5 April 2011,6 which replaced
the Council Framework Decision 2002/629/JHA [hereinafter the Directive
The initiatives on combating human trafcking in Ireland, which include
the Criminal Law (Human Trafcking) Act 2008 [hereinafter the 2008 Act],
the Criminal Law (Human Trafcking)(Amendment) Act 2013 [hereinafter
the 2013 Act] and the Administrative Immigration Arrangements for the
Protection of Victims of Human Trafcking [hereinafter Administrative
Arrangements],8 will also be examined.
The existing framework at international, regional and domestic levels
shows that the main concern of governments seems to lie within law
enforcement rather than the protection and assistance of victims. The
Palermo Protocol, as Anne Gallagher puts forward, was drafted by the UN
Crime Commission and not by a human rights body, which results in its
“relatively weak language regarding human rights protections and victim
assistance”.9 The European scheme is commonly criticised for the same
reason and also for treating the victims as means to an end—the States tend
to provide the victims with protection against the risk of retribution so long
as they give evidence that can support prosecution of the perpetrators10
and the Irish model follows the same path.
It is important to bear in mind that the protection of victims of human
trafcking is not only a legitimate concern from a moral point of view.
Under international human rights law, States have the obligation to protect
victims of human trafcking within their jurisdictions, since, according to
that branch of law, they have the duty not only to refrain from committing
violations themselves through their agents; they must also adopt measures
to ensure that rights are not abused by others. More specically, States
must organise the governmental apparatus and set up “in general all the
structures through which public power is exercised so that they are capable
5 Council Directive (EC) No 81/2004 of 19 April 2004 on the residence issued to third-
country nationals who are victims of human beings or who have been subject of an
action to facilitate illegal immigration, who decide to cooperate with the competent
6 Council Directive (EC) No 36/2011 of 5 April 2011 on preventing and combating
trafcking in human beings and protecting its victims
7 Council Framework Decision No 629/2002 of 19 July 2002 on combating trafcking
in human beings
8 Irish Naturalisation and Immigration Service – Department of Justice and Equality,
available at [Accessed 8 April
9 Anne Marie Gallagher, “Triply Exploited: Female Victims of Trafcking Networks
– Strategies for Pursuing Protection and Legal Status in Countries of Destination”
(2004–2005) 19 G.I.L.J. 99, p.102
10 Ryszard Piotrowicz, “European Initiatives in the Protection of Victims of Trafcking
who Give Evidence Against Their Trafckers” (2002) 14 I.J.R.L. 263, p.267
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