“National and International Reporting and Monitoring Mechanisms on Trafficking in Persons”
A Side Event to the United Nations Commission on Crime Prevention and Criminal Justice
UNODC
Vienna, Austria
April 20, 2009
Mohamed Y. Mattar
Executive Director
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I am delighted to be here.
I am grateful to Rikka Puttonen for allowing me to organize this side event.
Although I will not call it a side event because I think it is addressing a main issue that to me is really important in moving the anti-trafficking agenda a step further.
Our issue is how to monitor the status of trafficking in persons after 10 years of the passage of the United Nations Protocol on Trafficking.
And I am encouraged by the most recent development under international law, and that is:
Allowing victims of trafficking to file individual complaints making a State accountable for failure to comply with international legal standards.
I am referring here to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
And the good news is that for the first time a Communication was submitted to the CEDAW Committee under Article 6 in 2007 by a Chinese woman who was trafficked to the Netherlands for the purpose of prostitution but was not granted a residency status in accordance with the Dutch law although the Dutch law allows such status for victims of trafficking.
But in addition to individual complaints the other means of enforcing rules of international law is the mechanism of reporting.
When we talk about reporting, I want to distinguish among three kinds of reporting.
The first is State reporting.
And States are under an obligation to report on the status of trafficking in persons under two conventions:
· Art. 6 of CEDAW provides that “State parties shall take all appropriate measures including legislation to suppress all forms of trafficking in women and exploitation of prostitution of women”.
And in accordance with Article 18, State parties must submit a report every four years on progress made regarding the implementation of CEDAW including Article 6.
The most recent report to my knowledge was submitted by Singapore this month, exactly April 3, 2009.
The report explicitly refers to amendments made to the penal code that became effective in February 1, 2008 including criminalizing child sex tourism.
Two of the reports that were submitted at the end of 2008:
A report by Turkey refers to approximately 3000 sex workers that are employed in 56 officially inspected brothels in Turkey.
Another report by Argentina refers to the “National Focal Point for Comprehensive Assistance to Victims of Crime” (OFAVI) including the crime of trafficking.
· Article 35 of the Convention on the Rights of the Child (CRC) requires State parties to take the necessary measures “to prevent…trafficking in children for any purpose or in any form”.
And in accordance with Article 44 of the CRC State parties are required to submit every five years a report on the rights of the children including their right to be protected against trafficking.
The most recent report to my knowledge was submitted by Mozambique, on March 23, 2009.
I am not going to get into details of all these reports but I have a couple of observations:
One, is that these reports mainly focus on legislative provisions rather than the implementation of such provisions.
Two, these reports tend to say that everything is okay, although both conventions require states to indicate “factors and difficulties affecting the degree of fulfillment of (their) obligations”.
And that is why I am a big fan of shadow reports or what is called alternative reports. NGOs must have a say. I understand that sometimes governments are sensitive about the role of NGOs but that is a very essential role and we have to keep trying.
So, the question becomes whether there is a similar reporting requirement under the UN Protocol on Trafficking.
The Protocol was silent as to the issue of reporting or any monitoring mechanism as it was silent regarding other issues including:
· Identification of victims of trafficking;
· The status of a victim who commits a trafficking related offence;
However, under Article 32 of the Organized Crime Convention, a “Conference of the Parties” is responsible for the periodic examination of the implementation of the Convention and of course this applies to the Trafficking Protocol.
At its first session in September 2004, the Conference of the Parties asked the parties to submit reports on their compliance with the UN Protocol.
And, in October 2005, a questionnaire was sent to countries on the status of Article 5, criminalization. 56 states responded. The report showed a legislative movement toward criminalizing the act of trafficking at the national level in accordance with Article 3 of the Protocol.
And here, one has to say that the legislative map looks very good.
According to the February 2009 UNODC Global Report on Trafficking in Persons, as of November 2008, 98 countries of the 155 countries that were included in the report have specifically criminalized trafficking in persons for sex and labor purposes whether in adult or children and 27 more countries did so but only regarding sex or children. That means that there is a total of 125 countries with specific anti-trafficking provisions in their criminal code.
The picture does not look as rosy when it comes to protection.
In October 2006, in a second reporting cycle, the UN questionnaire asked about Articles 6, 7, 8 and 9 of the UN Protocol. Fewer countries responded.
And of course, you may blame the Protocol as much as you blame the countries since the Protocol, although providing for protective measures for victims of trafficking, unfortunately did not make most of these measures mandatory.
I am here referring to a gap in the Protocol and as you can see I distinguish between gaps and omissions. Issues that the Protocol was silent to, as I mentioned before.
If you ask me, “What gaps?” and I am afraid nobody will ask but I will say it anyway, I will mention two for now:
· The immigration status of a victim of trafficking;
· Combating demand;
I believe in the dialogue between these UN Committees and State parties and I am happy to report to you that a similar Committee has just been established as a part of the Arab League in accordance with the Arab Charter on Human Rights that explicitly prohibits in Article 10 trafficking in persons.
This is a seven member committee and now Arab countries must submit reports every three years on the status of human rights including trafficking in persons.
The second type of reporting is international reporting.
I just mentioned the UNODC report.
And I can add reports published by the Special Rapporteur on Trafficking in Persons and here I will take the opportunity to congratulate Ms. Joy who was appointed in August 1, 2008 and I want to thank her for her first report which was published on February 20, 2009.
Ms. Joy, I like your analysis of the “5 Ps”, which I always talk about, although you talk about protection, prosecution, punishment, prevention, promotion (of international cooperation).
But anyway, here is my “5 Ps”, protection, provision, prosecution, prevention and participation.
But the third type reporting is what I want to spend more time on and that is what I call self- reporting and you also may call it national reporting but do not confuse national reporting with State reporting.
There are different models of self-reporting or national reporting. I would like to mention a few that are working.
And I will definitely start with my favorite and that is selecting a National Rapporteur who is independent from the government.
The concept of a National Rapporteur goes back to the April 26, 1997 Hague Declaration and was first implemented by the Netherlands in April 1, 2001.
I would like to take this opportunity to thank the Dutch National Rapporteur who kindly sent me the Sixth Report and the good thing about these reports is that they are submitted to the Parliament and they include recommendations that as the history of these reports show are implemented by the Government.
Earlier in 1998, Sweden chose a government ministry to serve as a national Rapporteur and that is the National Police Board that publishes “Situation Reports” providing for “proposal of measures”.
As you all know, Sweden is the only country beside the United States that appointed an Ambassador on Human Trafficking.
Similar reports are published by:
· The Romanian National Agency Against Trafficking in Persons which publishes what is called the “Semestrial Progress Reports”;
· The Czech Republic Ministry of Interior;
· The U.S. Department of Justice;
According to the Attorney-General’s report published in May 2008, during the year 2007,
· 230 victims of trafficking applied for a T-visa, 70 were denied and 279 (some from the previous year) were granted a T-Visa.
· 149 family members of trafficking victims applied for a T-visa, 52 were denied and 261 T-visa’s were granted.
Of course I am not talking here about the famous Trafficking in Persons Report that reports on the status of severe forms of trafficking in foreign countries and classifies countries in tiers and provides for the possibility of imposing sanctions upon tier 3 countries.
Also, I am not going to discuss the role of Congressional hearings in the United States as you all know U.S. Congress holds periodical hearings on human trafficking examining the appropriate response whether in the U.S. or abroad and I think this is a good thing.
Congressional or Parliamentary hearings are a good means of monitoring and reporting on trafficking in human beings.
You all remember the special hearing that was held on trafficking in Germany at the time of the World Cup in 2006.
You all remember also the special hearing that was held on mail-order brides in 2004 that led to the adoption of the International Marriage Broker Regulation act of 2005 that passed as part of the Violence Against Women Act.
I also like the Parliamentary hearing that was held in Canada in 2007 by the standing committee on the status of women. The Committee published a wonderful report in February 2007 that covered various aspects of trafficking.
I have to mention here, the Handbook for Parliamentarians on Combating Trafficking in Persons that was just released by the UNODC and the Inter-Parliamentarian Union.
I am proud that I was part of this important publication that provides best practices from many legal systems around the world.
But as you can see, countries differ as to the appropriate agency that should be entrusted with the function of reporting.
Should it be the Ministry of Interior or the Ministry of Justice or maybe the Ministry of Human Rights in some countries?
The Council of Europe Convention, makes it clear that it prefers a National Rapporteur model of monitoring. Article 29 calls upon state parties to consider appointing a national Rapporteur.
In fact, the explanatory report to the Convention makes a reference to the model adopted by the Netherlands as a good model.
Two more Articles are worth mentioning:
· Article 36 sets up a group of experts (GRETA);
· Article 37 establishes a “Committee of the parties”.
I believe that an independent reporting agency is the most appropriate but this is not enough.
What is more important is giving such agency authority.
And I define authority here to include what I call the “4 Rs”. Namely, research, report, review and recommend.
And, when such agency makes recommendations, they should be actionable and they should be implemented by the government.
To conclude, let me just say that I encourage reporting on the status of trafficking and I am encouraged that I see this happening - Egypt just published a report on the status of trafficking in the country, the United Arab Emirates did the same and that is why we devoted these two hours to reporting.
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