2.2 Norms Addressing Certain Issues
2.2.2 Nationality and Trafficking in Human Beings
The importance attached by states to nationality, i.e. the legal bond between an individual and a state,778 has already been discussed above, particularly in the sec-tions on minority rights.779 This importance is also reflected in the norms laid down in human rights instruments, with the UDHR, for instance, setting out everyone’s right to a nationality780 and the human rights norms on children and women also specifically addressing the issue.781 Among other things, nationality has significance in protecting a person against expulsion and ensuring his or her right to enter a country,782 and it has played a prominent role in the diplomatic protection provided for in international law.783 Although the important starting point for international human rights is that human rights belong to all individuals irrespective of their na-tionality, there are also many rights whose enjoyment is linked to nationality. This is discussed below in chapter 2.3.1.2.
The significance attached to nationality is visible also in the attempts to reduce statelessness, for instance, by adopting international conventions to this end.784
777. The CoE organised an ad hoc meeting of experts to exchange views on the implementation of the conclusions in February 2002. Additionally, ECRI has provided encouragement and guidance to the CoE member states concerning the elaboration of national action plans to combat racism, which was one of the key recommendations of the European Conference (as well as of the WCAR). CoE (2004), p. 18. See also the remarks infra in chapter 4.2.3.
778. For nationality as a legal bond, see the European Convention on Nationality, art. 2(a).
779. See the remarks supra in chapter 2.1.4.1. See also the remarks infra in chapters 2.3.1 and 780. 5.2. Art. 15.
781. The child’s right to acquire a nationality has been brought up e.g. in art. 24.3 of the ICCPR and in art. 7 of the Child Convention. The issue of the nationality of women has been ad-dressed in a separate UN instrument, the Convention on the Nationality of Married Wom-en, adopted in 1957, and also in art. 9 of the CEDAW.
It is also worth noting that the UN Declaration on Indigenous Peoples refers to the right of indigenous individuals to a nationality. See art. 6. Art. 33.1 refers to the right of indig-enous individuals to obtain citizenship of the states in which they live.
782. See e.g. Protocol 4 to the ECHR, art. 3, which prohibits the expulsion of nationals and sets out the right to enter the territory of the state of which one is a national.
783. See e.g. Brownlie (1990), pp. 402–403. For the significance of nationality, see also Hakapää (2003), pp. 198–204, and Hailbronner (2003).
784. The two important UN instruments are the Convention relating to the Status of Stateless Persons from the year 1954 and the Convention on the Reduction of Statelessness from the year 1961.
States have also been concerned about double or multiple nationality, which has been considered problematic particularly from the viewpoint of compulsory military service.785 However, states’ reservations towards multiple nationality have decreased in the course of time, and this somewhat more relaxed attitude is reflected in the text of the European Convention on Nationality adopted within the CoE in 1997.786 This Convention refers to the desirability of finding appropriate solutions to the consequences of multiple nationality, in particular as regards the rights and duties of multiple nationals (including military obligations).787 The Explanatory Report to the Convention also makes an explicit link between integration and nationality, and refers to the need for the integration of permanent residents.788 It also points out how multiple nationality is seen as both hindering and furthering the integration of individuals.789 It is worthy of note that while the document adopted at the CoE third summit draws attention to the laws governing the issue of nationality and to the promotion of acquisition of citizenship, it does not explicitly link these issues to integration.790
The terms “nationality” and “citizenship” are sometimes considered synonymous and sometimes not. The former approach applies, for example, in the case of the European Convention on Nationality.791 When the two concepts are not seen to be synonymous, a distinction is drawn whereby “nationality” denotes the legal status of recognised membership in the state, or formal citizenship, whilst “citizenship”
in a more general sense relates to members’ rights and duties in the civic, political,
785. This concern of states is reflected in the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality concluded in the CoE in 1963.
786. According to art. 27.1, this Convention is open for signature by the CoE member states and the non-member states which have participated in its elaboration.
787. Preambular paras 9 and 10. The prevention of statelessness is among the express aims of the Convention. See preambular para. 5, and arts 4(b) and 8. The Convention also refers to avoiding discrimination in matters relating to nationality. Preambular para. 6, and art. 5.
788. The Explanatory Report mentions the developments in Europe since 1963, including la-bour migrations between European states leading to substantial immigrant populations, the need for the integration of permanent residents, the growing number of marriages between spouses of different nationalities, and freedom of movement between EU member states.
See p. 2.
789. It is pointed out that in some states, especially when a large proportion of persons wish to acquire or have acquired nationality, the retention of another nationality may be seen as hindering the full integration of such persons. However, other states may consider it prefer-able to facilitate the acquisition of nationality by allowing persons to retain their nationality of origin and thus further their integration in the receiving state (e.g. to enable such persons to retain the same nationality as other members of the family or to facilitate their return to their country of origin if they so wish). See the Explanatory Report, p. 3.
790. Action Plan of the third summit, Part I, para. 3, subpara. 7.
791. The Explanatory Report attached to it notes that with regard to the effects of the Conven-tion, the terms “nationality” and “citizenship” are synonymous. See p. 5.
economic, and social realms.792 Various documents of relevance in the area of hu-man rights, as well as the views and opinions of international expert bodies and ac-tors, use both terms and refer to both “nationals/non-nationals” and citizens”;793 often it is impossible to see if any difference between the concepts of nationality and citizenship is envisaged.794
Trafficking in human beings is part of the phenomenon of migration, and also has links both to (transnational) crimes and human rights.795 Trafficking in human beings, which takes place both within countries and across borders and in which particularly women and children are victimised,796 has become one of the gravest human rights problems that needs to be addressed in contemporary Europe. The problem of trafficking in human beings is by no means a new phenomenon, and attempts to tackle it through international documents have been made since the beginning of the 20th century. Over the years, and in the era of globalisation, traf-ficking has nevertheless acquired new dimensions, providing most profitable sources of income for traffickers. Since the 1990s, increasing attention has been attached to this issue by various international organisations and actors.
Two central and often mentioned international documents in the area of traf-ficking in human beings are the Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Wom-en and ChildrWom-en (the so-called Palermo Protocol on Trafficking), both of which were adopted within the UN in 2000.797 These instruments are not human rights treaties per se, since they were primarily concluded to combat transnational organised crime.
However, the Palermo Protocol on Trafficking also includes important provisions on the protection of trafficking victims. In addition, it is the first international in-strument to define trafficking in human beings.798 While the need to fight
traffick-792. Ireland (2004), p. 2, n. 1.
793. See e.g. the use of these concepts by the international bodies discussed infra in chapter 4.
794. For the tendency to associate closely the concepts of citizenship and nationality, as well as frequently not seeing them as distinct, see EESC (2002), p. 65.
795. While trafficking has been addressed in the framework of human rights, the two forms of undocumented migration – i.e. smuggling of migrants and trafficking in human beings – are predominantly considered from the viewpoint of crime prevention. See also the re-marks supra in chapter 2.1.3.1, and on the two Protocols attached to the UN Convention infra. Due to their connections to organised crime, which is nowadays often transnational in nature, both smuggling and trafficking are linked closely to the security of states. See also the remarks supra in chapter 1.1.
796. International instruments also contain express references to the victimization of women and children.
797. Another protocol was adopted to supplement the main convention on the issue of smug-gling.
798. See the definition in art. 3. The scope of application of the instrument has two significant limitations: it concerns offences which are transnational in nature and involve an organised
ing has also been incorporated into such human rights documents as the CEDAW 799 and the Child Convention,800 the Convention on Action against Trafficking in Human Beings, adopted within the CoE in 2005, deserves particular mention for being the first international convention to address the issue of trafficking in human beings broadly from the viewpoint of human rights.801
The OSCE has paid attention to the problem of trafficking in human beings in its commitments since 1991.802 In recent years the OSCE has intensified its focus on the phenomenon,803 and, while it previously treated it primarily in the context of organised crime, it has increasingly linked it to human rights.804 In 2003, the OSCE adopted the OSCE Action Plan to Combat Trafficking in Human Beings,805 and subsequently it has drawn particular attention to trafficking in children.806
The issue of trafficking in human beings is also dealt with to some extent in the documents on migrant workers discussed above in this research,807 and it is promi-nently addressed in the area of anti-racism by the Durban Document.808
The norms addressing trafficking contain some express references to the issue of integration. The primary aim that can be seen in international documents is to repa-triate victims of trafficking or return them to the country they entered from and to assist them in reintegration.809 However, the possibility of the victims remaining in
criminal group. See art. 4.
799. The CEDAW obligates the states parties to it to take measures to suppress all forms of traf-fic in women and exploitation of prostitution of women. See art. 6.
800. Arts 35 and 36. In 2000 an Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography was added to the Convention aiming at enhancing efforts to ad-dress trafficking in children.
801. The definition of trafficking set out in art. 4 of the CoE Convention follows that of the Palermo Protocol on Trafficking. However, the CoE Convention differs from the Palermo Protocol in that it concerns also intra-state trafficking and trafficking having no links to organised crime. See art. 2.
802. The 1991 Moscow Document draws attention to traffic in women and exploitation of pros-titution of women. See para. 40.7. The 1999 Charter for European Security addresses the elimination of sexual exploitation and all forms of trafficking in human beings. See para. 24.
803. This is apparent in several decisions adopted by the OSCE Ministerial Council in the course of the 2000s.
804. See the pertinent commitments and decisions in ODIHR (2005), pp. 210–230.
805. The Action Plan is a detailed document consisting of recommended actions at the national level as well as tasks for OSCE institutions and bodies. The definition of trafficking stipu-lated therein follows that of the Palermo Protocol on Trafficking.
806. See e.g. Ministerial Council Decision No. 13/04 on Child Victims of Trafficking (2004), and the Permanent Council Decision on Child Victims of Trafficking (2005). The OSCE has also had a Special Representative on Combating Trafficking in Human Beings since 2004. See the OSCE website at http://www.osce.org.
807. See the remarks supra in chapter 2.1.3.1.1.
808. See the remarks supra in chapter 2.2.1.1.3.
809. See e.g. the Optional Protocol to the Child Convention on the Sale of Children, Child Pros titution and Child Pornography, art. 10.2; the Palermo Protocol on Trafficking, art. 8;
the territory of the receiving state has also been envisaged. This possibility, as well as measures of inclusion and (re)integration, have been mentioned particularly with respect to child victims of trafficking.810