Implementing treaty obligations to combat human trafficking: the Japanese Law reforms of 2005.
Author | Dean, Meryll |
Abstract
Throughout the twentieth century international organizations attempted to address human trafficking. As the trade increasingly became associated with transnational organized crime, the UN responded by creating a global legal framework, namely the Convention Against Transnational Organised Crime and three supplementary Protocols, one of which was the Trafficking Protocol. In 2002 Japan signed the Trafficking Protocol. The Japanese Government maintained that existing laws fulfilled its international obligations. At the same time reports identified Japan not only as a major destination for the trafficking of women for sexual exploitation, but also as a country lacking an adequate legal framework to combat the trade. In 2004 the Japanese government published an 'Action Plan of Measures to Combat Trafficking in Persons' which outlined the reforms necessary for it to meet its international obligations. Legislation was passed in 2005 aimed at providing a comprehensive framework to combat the increasing problem of human trafficking for sexual exploitation into Japan, ensuring the government implemented its treaty obligations.
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Introduction
Human trafficking is a worldwide problem that international organisations have attempted to address since the early part of the twentieth century. The League of Nations dealt with the issue in the context of the so-called white slave trade. (1) The League later addressed the specific topic of trafficking in the International Convention for the Suppression of the Traffic in Women and Children (2) and the International Convention for the Suppression of the Traffic in Women of Full Age. (3) Additionally, in 1926, the League passed the Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention. (4) The International Labour Organisation ('ILO'), which enshrined principles against forced labour in its 1919 Constitution and later adopted the Convention (1L0 No. 29) Concerning Forced or Compulsory Labour (5) in 1930, complemented the abovementioned work carried out by the League. These early attempts at combating slavery and trafficking were followed by the United Nations ('UN') in some of its first legal instruments.
Article 4 of the Universal Declaration of Human Rights ('UDHR') states that no one 'shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms'. (6) The UN proceeded to address the issue of slavery in more detail in 1956 when it adopted the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. (7) In the interim between the UDHR and the Supplementary Convention on the Abolition of Slavery the UN recognised that a more specific aspect of the slave trade needed to be addressed by international law, namely the movement of humans across national boundaries for the purpose of sexual exploitation. Accordingly in 1949 the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (8) was approved by the UN and subsequently came into effect in 1951. Although not expressly linked to human trafficking, the 1957 Convention (ILO No. 105) Concerning the Abolition of Forced Labour (9) added to the protection framework.
Later UN legal instruments moved away from the prevention of specific activities (such as slavery, forced labour, and prostitution) towards a more general humanitarian approach aimed at protecting the human rights of victims. (10) However, it was not until the 1990s that the international community recognised that human trafficking, like drug trafficking, was a transnational crime organised by international criminal gangs. (11) Providing a global response to such a challenge through international law resulted in the UN Convention against Transnational Organised Crime ('Organised Crime Convention') (12), adopted by the General Assembly ('GA') of the UN in 2000. (13) The Organised Crime Convention was supplemented by the following three Protocols: the Protocol to Prevent, Suppress and Punish Traffic king in Persons, Especially Women and Children ('Trafficking Protocol); (14) the Protocol against Smuggling of Migrants by Land, Sea and Air ('Smuggling Protocol); (15) and the Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition ('Firearms Protocol). (16) Collectively the Organised Crime Convention, the Trafficking Protocol and the Smuggling Protocol contextuaiised human trafficking as a human rights issue. Their aims were to increase international cooperation and encourage nations to develop their domestic law so as to prevent trafficking, protect those who are trafficked, and prosecute traffickers.
Japan became a member of the UN in 1956. Later it became a signatory to the six major international human rights law instruments. (17) For many decades it was not a destination country for immigration, asylum or trafficking in persons, but with economic stability and growing economic success, that situation changed. During the 1980s Japan became a destination country in all three categories. (18) Its rigid migration policies together with restrictive immigration and asylum laws initially prevented the international community identifying japan as a major destination for irregular migration and trafficking. Furthermore, as a major donor to humanitarian aid and assistance programmes, Japan was perceived by the international community to be a full and responsible participant. (19) Until recently these two factors combined to obscure Japan's limited domestic implementation of international legal obligations, particularly in relation to human trafficking. (20)
Japan is now considered a major destination country for the trafficking of humans, in particular the trafficking of women for sexual exploitation. (21) In this regard it is not alone since human trafficking is a worldwide problem from which almost no country is exempt. (22) Nevertheless, a government's response to international legal obligations in incorporating them into national law, may not only act as a measure of the efficacy of humanitarian legal instruments but may also serve as a measure of the seriousness with which the international legal framework is viewed within a national context. Although national law determines the status and force of law that treaty obligations are given, some caution needs to be exercised since the impeccable de jure implementation of a country's international legal obligations is no guarantee that those obligations will be fulfilled in practice. Thus, whilst an examination of a national legal framework may contribute to an evaluation of a country's response to a particular issue addressed by international law, it does not necessarily measure its de facto implementation. Accordingly, part of that examination requires consideration of whether a country, in this case Japan, has merely sought to meet its international obligations through formal revision of national law, or whether genuine attempts have been made to fulfil the purpose of those obligations (namely by putting a stop to trafficking).
From the late 1990s onward a number of reports identified Japan as a country that did not fully comply with minimum international standards aimed at combating human trafficking. (23) In 2004 the Japanese Government published an 'Action Plan of Measures to Combat Trafficking in Persons' ('2004 Action Plan'). (24) This set out a programme of reforms focused on proposed changes to the domestic law. In 2005, important changes to the law came into effect and established the foundation for the significant progress that Japan is currently making towards providing a legal framework aimed at combating trafficking in persons.
The purpose of this article is to consider the impact of international human rights law in assisting Japan in implementing its obligations to combat human trafficking. The international legal framework and the law reforms in Japan aim to combat all forms of human trafficking. However, since the vast majority of those trafficked into Japan are women brought into the country to work in the sex industry, this article will focus on that topic. (25) There will initially be an examination of the international and domestic legal frameworks in part one of this article, which will be followed by an analysis of the challenges presented by Japan's ratification of the Trafficking Protocol in part two. The article will then critically assess the recent law reforms in Japan, and will conclude with an evaluation of the likely impacts that these reforms will have on tackling human trafficking for exploitation at a national and international level.
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Japan's International and Domestic Legal Framework
Trafficking in persons involves a serious infringement of an individual's human rights. (26) So enormous is the scale and seriousness of human trafficking that there are those who argue that it is now capable of being viewed as a crime against humanity. (27) Moreover, if the trafficking takes place in a situation of armed conflict it is capable of being treated as a war crime. (28) As a signatory to the major human rights instruments that condemn human trafficking, Japan has accepted express obligations in international law to take steps to circumvent the practice, punish perpetrators, and protect those who fall victim to this transnational trade. Article 98(2) of the Japanese Constitution states that the 'treaties concluded by Japan and established laws of nations shall be faithfully observed'. Whilst the theoretical primacy of international law is acknowledged as overriding domestic law, in practice the observance of international law norms, together with their implementation and enforcement in national law and domestic courts, is problematic. (29) In human rights litigation the Japanese courts 'are generally reluctant to adjudicate on the...
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