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Vladislava Stoyanova

The chapter discusses how human trafficking law operates in parallel with refugee law. human trafficking has increasingly become a focal point for a political debate and an object of law-making. This has resulted in the adoption of various anti-trafficking instruments at global and regional levels. These operate in parallel with international refugee law and other human rights norms that protect individuals from refoulement. It is thus important to investigate how the two regimes, i.e., the anti-trafficking regime and the protection regime, relate to each other. The chapter describes the six points of interaction but concludes that Whilst European anti-trafficking framework contains binding obligations to assist and protect victims of human trafficking, the universal framework is very weak and that the anti-trafficking and the interrelated anti-smuggling measures adopted by states have a negative impact on the refugees in terms of their possibilities to leave countries of origin and to access the territory of countries of asylum.

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Vladislava Stoyanova

This article addresses the interaction between international human rights law and national criminal law as exemplified and revealed in relation to the abuses of slavery, servitude, forced labour and human trafficking (THB). First, I point out the mismatch between the interpretative techniques of international human rights law and national criminal law. The reportedly low numbers of prosecutions and convictions for abuses against migrants has gathered increasing attention. As a reaction it has been suggested that the definitions of THB and of slavery, servitude and forced labour (where the latter have been specifically criminalized) have to be expansively construed. These suggestions ignore basic criminal law precepts. Criminal law has to remain faithful to the principle of legal certainty and to the rights of the accused which ban expansive interpretations. It is human rights law which celebrates liberal interpretations of concepts for the purpose of holding states internationally responsible for their failures to protect. Despite the difference in their interpretative standpoints, there is a clear interaction between these two fields of law. A manifestation of the interaction is that the ECHR obliges states to criminalize the abuses falling within the material scope of Article 4 of the ECHR. I argue that many states have failed to fulfil this obligation since the focus has been predominantly placed on the criminalisation of THB. This leads to failures to address abuses where there are no elements of recruitment, transportation, transfer etc. by means of deception/coercion. I also demonstrate that Article 4 of the ECHR obliges states to incorporate in their domestic criminal laws clear definitions of crimes intended to address the abuses falling within the scope of Article 4. An obligation which many states have failed to fulfil since they have directly copied the international definition of THB and/or the human rights definitions of slavery, servitude and forced labour, without further establishing the elements of the crimes at domestic level. Finally, I suggest that there needs to be a better articulation of the distinctions between different crimes meant to addresses abuses falling within the ambit of Article 4 of the ECHR.