Chapter 5: Protecting trafficked persons from refoulement: re-examining the nexus
It is now accepted as axiomatic that the category of refugee may extend to trafficked persons, as the ‘savings clause’ in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) (‘the Trafficking Protocol’) recognizes. Article 14 of the Trafficking Protocol preserves ‘the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law’. It also refers ‘in particular’ to ‘the 1951 Convention and 1967 Protocol relating to the Status of Refugees’ and to ‘the principle of non-refoulement as contained therein’. In 2006 the UNHCR issued guidelines which recognized the potential overlap between trafficked person and refugee status. This is important as the law assigns different consequences to legal categories of forced migrants which do not necessarily reflect the specific situations and needs of such migrants. Thus in this chapter I examine the overlap between trafficked person and refugee status, particularly in relation to protection, and the potential for cross-fertilization of legal norms in these two areas of law. Over the last decade a more nuanced understanding of the phenomenon of trafficking as a process has developed alongside a broader notion of gender-based persecution. For example, in its 2002 guidelines on Gender Related Persecution, which largely focused on the position of women, the United Nations High Commissioner for Refugees (UNHCR) characterized trafficking ‘for the purposes of forced prostitution or sexual exploitation’ as a form of persecution. By contrast, in its 2011 note on ‘Age, Gender and Diversity Policy’,
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