PART B: QUESTIONS POSED BY THE TERMS OF REFERENCE The Advisory Council of Jurists has been asked to respond to specific questions. After carefully considering the same the responses offered are as follows: (i) The nature and scope of state responsibility for trafficking and related conduct taking into account that much trafficking activity is undertaken by non-state entities It is widely accepted that human rights violations are an important root cause of trafficking and that the trafficking process itself constitutes a serious violation of human rights3. However, in most parts of the world, traffickers are private individuals or criminal groups, not State officials or instrumentalities. In addressing the issue of State responsibility for trafficking, it is relevant to examine the nature of a State’s obligations vis a vis human rights. States are under an international legal obligation to respect, protect and fulfill human rights.4 The obligation to respect rights requires the State to refrain from any act or omission that violates rights. The obligation to protect rights requires the State to take active measures aimed at preventing violations whether committed by agents of the State or by non-State actors. Finally, the obligation to fulfill rights requires the State to implement affirmative measures to enable all persons to realize their rights. The fact that much trafficking activity is undertaken by non-State actors does not prevent States from being held responsible under international law for such actions. Where human rights violations (such as those arising in trafficking) occur with official support then the State is held to be complicit and therefore directly responsible for the violation itself5: for example, direct involvement of law enforcement or border officials in trafficking rackets. In situations where the government has allowed the violative act to take place without adopting effective measures to prevent it, or to punish those responsible, then the State 3 The most recent General Assembly resolution on this subject asserts that “sexual violence and trafficking in women and girls for purposes of economic exploitation, sexual exploitation through prostitution and other forms of sexual exploitation and contemporary forms of slavery are serious violations of human rights”. A/RES/55/67. 4 (a) Charter of the United Nations (b) Universal Declaration of Human Rights, 1948, Preamble and Article 4. (c) International Covenant on Civil and Political Rights, 1966, Article 4. 5 The jurisprudence on this point is relatively recent and somewhat scant. The usual citation for the principle is the Velasquez-Rodriguez case, Judgement of July 29, (1988) Inter-Am. Ct.H.R. (Ser.C) No. 4, para. 182: “What is decisive is whether a violation of the rights recognized by the [Inter-American Convention on Human Rights] has occurred with the support or acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible”. See as a general reference on this subject Shearer, I. A. Starks International Law” 11th edition, Butterworths, Chapter 10. 10