Isabella B. Ruggeri. Isabella is a JD Candidate (2021) at the Sandra Day O’Connor College of Law at Arizona State University and is interested in international human rights law and humanitarian law. She is an IRLS Fellow during the 2019-2020 academic year.
When I first found out I was going to be an intern for the Initiative for Strategic Litigation in Africa (ISLA), a pan-African, feminist organization located in South Africa, I was thrilled. The opportunity to be abroad and to help ISLA in their work furthering sexual and women’s rights across Africa was unlike any other experience I have had. However, this opportunity was impacted by the Covid-19 pandemic, so instead of having an exciting adventure in South Africa fighting for women’s and LGBTQ+ rights, I was stuck at home, researching from my usual desk.
This was discouraging at first, but I soon realized that despite being unable to meet the organization’s attorneys and travel to their country, I could still do my part to further the organization’s mission from afar. My first assignment was to research the international obligations of consular representatives concerning human trafficking survivors. This was an important legal question in one of ISLA’s cases and an opportunity to have a real impact on their work. “This is exactly why I wanted to work here,” I thought.
I imagined there would be clear consular obligations to address issues related to human trafficking, considering the often-international nature of it. However, I soon found out that I was mistaken. Although there is an international treaty on consular relations, it only outlines general obligations and human trafficking treaties have no specific mention of consular officials. It quickly became clear that the international obligations of consular officials concerning human trafficking survivors have yet to be properly addressed in international law.
The answer to the question concerning consular obligations to help trafficking survivors relied on a two-step analysis. First, there had to be extraterritorial jurisdiction; that is, human rights obligations had to apply outside of the country. Only after establishing this could I analyze which international human trafficking obligations apply to consulate representatives, if any.
Although extraterritorial jurisdiction has different reaches depending on the interpretation of each international or regional body, there seems to be an agreement that it applies when a State representative exercises effective control or authority over a right-holder. This principle has been recognized by various UN treaty bodies like the Human Rights Committee and the Committee Against Torture as well as the African, European, and American regional human rights bodies. International bodies have applied extraterritorial jurisdiction in cases of military actions abroad, failure to conduct a proper investigation on actions abroad, and improper confiscation of the passport of a national by a consular official, among others. In one case, however, the Inter-American Commission of Human Rights rejected the idea that Argentina exercised effective control over a right-holder when it failed to aid a national during a death penalty criminal trial. The national claimed Argentina had a duty to provide him legal representation abroad when there was a risk his right to life would be violated by another country. This seems to imply that extraterritorial jurisdiction concerning consular representatives applies mostly when a country acts in a way that exercises its authority as opposed to when a country simply fails to act to help nationals.
Also important to this analysis are the general powers and duties given to consular representatives by the Vienna Convention on Consular Relations. Consular officials must assist nationals and are given various powers to fulfill this duty, such as the powers to issue passports and other documents, to freely communicate with local and national authorities, and to provide legal assistance to nationals in trouble abroad. The International Court of Justice ruled in Germany v. United States that the Vienna Convention grants not only a state’s right to provide consular assistance but also an individual’s right to consular assistance.
Once it is established that extraterritorial jurisdiction applies to a situation related to human trafficking, the analysis turns to the human trafficking obligations outlined in international documents such as the UN Trafficking Protocol. Although this treaty does not expressly set forth consular officials’ obligations, many of the obligations outlined can be interpreted to apply to consular officials when considering their powers granted by the Vienna Convention. The obligation to verify a survivor’s nationality or legal status and to issue any required travel and re-entry document upon the request of the receiving state are two of them.
Other provisions in the UN Trafficking Protocol are also crucial in the context of consular relations. One is the requirement to “consider implementing measures to provide for the physical, psychological, and social recovery of victims of trafficking…including…counselling and information, in particular as regards their legal rights.” Another is the obligation to “facilitate and accept, with due regard for the safety of that person, the return of that person without undue or unreasonable delay.”
Soft law, that is quasi-legal instruments with weaker or no legal binding force, and secondary sources provide a little more guidance on the consular obligations concerning human trafficking survivors. The UN Trafficking Principles and Guidelines says consular officials must ensure “trafficked persons are informed of their right of access to diplomatic and consular representatives from their State of nationality,” which involves providing appropriate training to consular staff on how to respond to these cases. It also points out the importance of consular support when survivors have been illegally detained. Finally, it says states must ensure that all “appropriate legal, diplomatic and consular means” are available to help survivors exercise their rights.
The Council of the Baltic Sea States also published a Handbook for Diplomatic and Consular Personnel on How to Assist and Protect Victims of Human Trafficking. Although this is only a secondary source of law, it provides some guidance on the consular duties concerning human trafficking survivors. The handbook requires consular representatives to assist survivors with any documentation, translation, or interpretation services and, where necessary, to refer survivors to services such as medical, legal, psychological, and social, among others. Finally, they must also ensure the survivor’s safe return, which involves discussing the return process with the survivor and any overseeing organization, identifying whether the survivor understands the process and requires or desires any travel support, including accompaniment during the return or upon arrival.
Despite these sources, the obligations of consular representative concerning human trafficking survivors still represent a gap in international law that needs to be addressed, especially considering that this violation can be international in nature. Consular representatives are in an especially advantageous position to help survivors and combat trafficking, but without specific obligations, efficient consular action to help survivors relies on decisions of individual representatives, most of whom are not trained in these issues. Imposing obligations and mandatory training could significantly improve efforts to help survivors and fight human trafficking. Despite taking place at my ordinary desk at home, this internship provided me with an exceptional opportunity to help identify a gap in human trafficking policy and create arguments to try to address it.