FROM BONDAGE TO FREEDOM
32
aliens have been provided with the advantage of such rights being vested
in the individual and not the State. Core rights, such as the prohibition
on slavery, forced labour and debt bondage, which are all relevant for
trafficking in persons do appear to be protected. Several of the provisions
of the UDHR, and the two Covenants (International Covenant on Civil
and Political Rights and the International Covenant on Economic, Social
and Cultural Rights, 1966) have been interpreted as applying equally to
non-nationals71. As explained above, State responsibility arises from
international human rights law, the constituents of which – customary
international law, treaty law, resolutions / declarations and jus cogens
would be discussed next.
Customary International Law
Customary international law is international law that has been
formed through the general practice of States and ‘opinio juris’, there is
no written document to turn to as evidence of customary law, unless a
treaty has codified the practice. The lack of written instruments makes it
difficult to determine whether obligations fall under the rubric of
customary international law, but once the State practice and opinio juris
is established as evidence of customary international law, then all States
are committed to upholding these obligations.72 For example, the UDHR
though not a binding instrument, has become a part of customary
international law for the States have been following the ideals of the
declaration in their State practises and they act in this particular way
because they feel that international law demands them to do so, therefore
there is a sense of legal obligation or opinio juris present in the above
State practice.
The customary international law thus indirectly helps the State to
follow humanitarian standards in the treatment of trafficked persons as a
victim of human rights violation.
Treaty Law
For international obligation flowing from treaty law, one must look
to the written document signed and ratified by that State. Only States
71
See, for example, General Covenant No. 13 of the Committee on Economic and Cultural Rights
on the Right to Education (1999) available at http://www.unhchr.ch.
72
For a detailed analysis of customary international law see Michael Akehurst, A Modern
Introduction to International Law, Taylor and Francis Books Ltd, London, 1987, pp. 25-34.