Tuesday, November 20, 2007

Council of Europe Convention to enter into force February 2008

The Convention on Action against Trafficking in Human Beings of the Council of Europe, a pan-European organization with 47 member states (and 1 applicant country, Belarus), is set to come into force on February 1, 2008. The Convention was actually opened for signature in 2005 by the Committee of Ministers and has been signed by 37 member countries. Only ten countries, however, have ratified the document. Ukraine is not one of them. Yet.

According to Darina Malko of the Ministry of Justice during a conference last week in Kyiv entitled "New challenges in providing social assistance to trafficked persons in the countries of origin, transit, and destination," there is a hold-up within the Ministry of Transportation regarding the articles and subsections related to the obligation of commercial carriers to check travel documents:
Article 7, subsection 3: Where appropriate, and without prejudice to
applicable international conventions, such measures shall include establishing
the obligation of commercial carriers, including any transportation company or
the owner or operator of any means of transport, to ascertain that all
passengers are in possession of the travel documents required for entry into the
receiving State.
Of course, a representative of a relevant Rada committee also complained the text is quite complicated, and they want to ensure correct translation of the document as well as understand the potential consequences of ratifying it. This individual claimed that some parts of the Convention actually overlap or contradict the Palermo Protocol (which Ukraine has ratified), making The CoE Convention difficult to ratify. Actually, the Palermo Protocol has the exact same clause related to carrier obligations. In fact, one of the final chapters of the CoE Convention is about its "Relationship with other international instruments" and the first article deals with Palermo. It states that the Convention shall not affect the rights and obligations of member states to the Palermo Protocol, but is in fact "intended to enhance the protection afforded by it and develop the standards contained therein."

The CoE basically states that the difference between this convention and other existing international protocol and framework is that it is more specific in regards to the protection of victims.

The Council of Europe considered that it was necessary to draft a legally binding instrument which goes beyond recommendations or specific actions.
While other international instruments already exist in this field , the Council of Europe Convention (Warsaw, 16 May 2005) is a comprehensive treaty mainly focussed on protection of victims of trafficking and the safeguard of their rights. It also aims at preventing trafficking as well prosecuting traffickers. In addition, the Convention provides for the setting up of an effective and independent monitoring mechanism capable of controlling the implementation of the obligations contained in the Convention.

The enhanced protection of victims' rights is one of the more important contributions of the CoE Convention as it provides for victims' rights during the identification process (so that one will not be removed before the identification process is complete). It also requires (destination) States to provide for a "Recovery and Reflection Period" at a minimum of 30 days so the victim may contemplate whether to stay and testify, and requires provisions to be taken during the repatriation process so that the programmes avoid re-victimisation.

The Convention is especially protective of children's rights and calls for measures to be taken to provide child victims with appropriate housing, education, counseling, and legal representation, and also requires that child victims shall not be returned to their state of origin if it is determined by a risk and security assessment that the return would put the child in a dangerous situation.

Other unique features of the Convention provide for measures to discourage the demand for TIP, as well as the punishment and sanctioning of traffickers, witness protection, and a monitoring mechanism that has specific protocol to observe the implementation of the Convention (known as GRETA). The articles provide for everything from the creation of the group to the steps that will be taken in order for GRETA to complete it's monitoring program efficiently and transparently.

You can view the State-by-State signature and ratification process and involvement here. Even if a state, such as Ukraine, signed it now, the Convention requires three months in between the submission of the ratification instrument and its entry into force within the state so the earliest it would start would be March. Nonetheless, a country bound to this document is committing to a major leap forward in the protection of the human rights of TIP victims. It has been said that Ukraine will jump on board by early next year so we will have to wait and see.

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