Do Viet Cuong, LL.D.; Nguyen Quang Ha
University of Law, Vietnam National University, Hanoi
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| Soldiers of Dao San border guard station in Phong Tho district, Lai Chau province, pay a visit to a local family__Photo: Quy Trung/VNA |
After more than a decade of implementing the 2011 Law on Prevention and Combat of Trafficking in Persons, it is the right time for the law to be reviewed and amended. This is an essential step to ensure that Vietnam is well-equipped to effectively respond to emerging trends and risks of trafficking in persons. This article gives appraisal of the current law on human trafficking combat and introduces major amendments to the law.
Evaluation of current legislation against human trafficking
It should be highlighted that the 2015 Penal Code of Vietnam aligns with international standards, strengthening cooperation in combating human trafficking. However, Vietnam’s legal framework on human trafficking combat comprises various laws, some of which need updating due to inconsistencies with international standards and changing socio-economic conditions. Particularly, it is necessary to revise the 2011 Law on Prevention and Combat of Trafficking in Persons (the 2011 Law), particularly the provisions on victim identification and support and cooperation in crime investigation and extradition. The revision also aims to institutionalize the Party’s viewpoint on human trafficking combat; ensure the coherence of the legal system and its compatibility with international instruments; and address existing shortcomings in the implementation of the Law so as to meet the requirements of current and future anti-trafficking efforts.
Actually, the 2011 Law forms the cornerstone of Vietnam’s efforts against trafficking in persons (TIP), establishing procedures for victim identification and support. The strengths of Vietnam’s current legal framework for combating human trafficking lie in its alignment with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (also known as the Palermo Protocol), which comprehensively addresses global human trafficking by defining the crime and emphasizing victim protection, and calling for support measures to prevent re-victimization. The Protocol promotes international cooperation for the prosecution of traffickers in response to the transnational nature of the crime and highlights a gender-sensitive approach. States have pledged to implement the Protocol through domestic laws and policies, contributing to a unified and effective response to global human trafficking. As a State Party to the Palermo Protocol, Vietnam has committed to taking measures to prevent, suppress and punish human trafficking. This includes criminalizing human trafficking acts, protecting and supporting victims, and internationally cooperating to address the transnational nature of the crime. Obviously, Vietnam’s engagement with the Palermo Protocol reflects its dedication to combatting human trafficking and aligning its policy frameworks with international standards to address this serious human rights violation.
In general, Vietnam’s regulations related to criminal offenses are relatively consistent with the international conventions of which the country is a member. However, there still exist incompatible provisions. To exemplify, Article 3 of the Palermo Protocol defines: “Trafficking in persons” means the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Meanwhile, under Articles 150 and 151 of the 2015 Penal Code of Vietnam, the act of transfer or receipt of persons will be considered constituting the crime of “trafficking in persons” or “trafficking in persons under 16 years of age” only when it is aimed at seeking material benefits or practicing sexual exploitation, forced labor or removal of organs. Thus, the concept of “human trafficking” under the Vietnamese legal system and the Palermo Protocol differs, leading to difficulties and uncertainties in identifying victims in criminal cases. In many instances, foreign authorities may treat individuals as victims of trafficking, but under Vietnam’s legal system, there might be insufficient grounds to recognize them as victims of human trafficking. This is one of the shortcomings of the current Vietnamese legislation against TIP.
It is observed that while Vietnam’s legal framework on TIP combat places a significant emphasis on criminal justice, there is a concern that this focus may overshadow the imperative for comprehensive victim support. Limited resources for victim assistance are likely to result in some individuals facing considerable challenges to rebuild their lives after experiencing trafficking. Several current provisions related to migration status or involvement in prostitution pose a risk of re-traumatizing victims rather than offering them the support they need. To tackle these issues, it is essential to streamline identification procedures, prioritize the development of comprehensive victim support programs, and reconsider and revise discriminatory provisions. These steps are crucial in ensuring effective protection and rehabilitation for survivors of human trafficking in Vietnam, aligning with contemporary standards and a more victim-centered approach.
It is also a need to deal with the inadequacies in Vietnam’s law on TIP prevention and combat that hinder effective tackling of human trafficking. The criteria for victim identification fail to reflect actual situations that many victims have to encounter, creating significant hurdles for them to benefit from support programs. Fund limitations also obstruct adequate victim assistance. The current victim support regime falls short of addressing the full spectrum of needs, primarily providing limited psychological counseling during shelter stays. Meanwhile, numerous victims further require ongoing psychological support and, upon reintegration, grapple with trauma, fear of retaliation, and community stigmatization. Victims from impoverished backgrounds are excluded from the eligibility for vocational training and initial hardship allowance, which are crucial necessities in rebuilding their lives. The current level of initial hardship allowance remains insufficient to ensure their successful reintegration and community inclusion. The lack of specific regulations regarding support procedures further exacerbates these challenges.
To deal with these shortcomings, revising victim identification criteria, expanding eligibility for comprehensive support programs, and increasing the initial hardship allowance are necessary steps toward ensuring victims’ recovery and sustainable reintegration. Notwithstanding that, it is crucial for the State to remain committed to preventing and combatting human trafficking, which continues to persist. This concern has been underscored in the recommendations of the Universal Periodic Review (UPR), Cycle III, from the United Nations Human Rights Council, urging Vietnam to adopt effective measures.
A step forward: new law - new approach
In January, the Ministry of Public Security submitted the draft revised Law on Prevention and Combat of Trafficking in Persons (the revised draft Law) to the Government. The draft offers hope for a more robust and victim-centered approach in line with Vietnam’s ratification of the ASEAN Convention Against Trafficking in Persons (ACTIP). The draft Law consists of 62 articles arranged in eight chapters, four articles more than the 2011 Law (with 35 articles amended and supplemented, five articles added and one article removed). In conjunction with overarching provisions, the draft introduces specific provisions concerning the prevention of human trafficking. It aims to identify and address violations in terms of TIP prevention and combat. Moreover, the draft Law defines responsibilities for receiving, identifying and safeguarding individuals undergoing identification as victims or those confirmed as victims. It also outlines support measures for individuals to self-identify as victims. Additionally, it underscores roles and responsibilities of state agencies and other organizations in TIP prevention and control. Furthermore, the draft Law incorporates provisions concerning international cooperation to prevent and combat TIP.
It should be noted that the draft Law incorporates key aspects of the ACTIP, emphasizing victim empowerment and involvement. Generally, the ACTIP’s objectives are to prevent and combat TIP, ensure the proper punishment of traffickers, and promote legal cooperation in the fight against TIP within the region. These are in line with the objective of the Palermo Protocol. The ACTIP serves not only as a regional security document but also as a human rights protection instrument. This dual status resulted from the promotion of a human rights-based approach by the ASEAN Intergovernmental Commission on Human Rights. The human rights-based approach is considerably notable since earlier regional instruments provide almost merely a singular focus on the criminalization of TIP, specifically on the identification and punishment of traffickers. Hence, the ACTIP’s scope of purpose is praised to be wider compared to the Palermo Protocol, which emphasizes the prevention, suppression and punishment of TIP, and excludes the rights and protection of TIP victims. The inclusion of TIP victims’ human rights in the ACTIP underscores the ASEAN’s commitment to integrating a human rights perspective into its strategy against TIP, affirming its indivisible connection with the broader counter-TIP efforts. For instance, one notable principle adopted by the ACTIP is non-discrimination, implying that its provisions should be applied fairly to everyone of any gender, race and nationality. In contrast, the Palermo Protocol excludes similar victim protection principles. Instead, it only provides one single article on victim support that allows member states’ situational implementation. Additionally, while the Palermo Protocol solely addresses transnational trafficking in persons when there is involvement by organized criminal groups, the ACTIP comprehensively applies to all forms of transnational TIP disregarding such involvement. Given these fundamental differences in approach between the ACTIP and the Palermo Protocol, Vietnam’s amendment to the 2011 Law in line with the ACTIP poses a novel fundamental human rights-based perspective to its domestic legal framework on TIP prevention and combat.
To align with the ACTIP, the draft Law intends to make it easier for victims to identify and report TIP cases. It also prioritizes providing care to victims with trauma-informed practices and offers enhanced victim assistance programs with proper funding and resources. Furthermore, it ensures alignment and compliance with other international conventions to which Vietnam is a member. These include the Palermo Protocol and other relevant treaties such as the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women.
Basic changes in the draft Law
Numerous changes have been introduced in Chapter I of the draft Law. Specifically, the Law’s scope of regulation in Article 1 is amended. The draft also amends or supplements the definitions of “trafficking in persons”, “individual undergoing victim identification process”, “relative of individual undergoing victim identification process”, “victim”, “sexual exploitation”, and “forced labor” to ensure consistency in terminology with international agreements and within the domestic legal system.
In addition, the draft adds four prohibited acts, including (i) Condoning, shielding, inadequately prosecuting or mishandling cases of human trafficking; (ii) Hindering the rescue, receipt, protection, verification and support of victims or those undergoing victim identification; (iii) Exploiting cyberspace for human trafficking; and (iv) Breaching legal provisions and this Law’s provisions when engaging in anti-human trafficking efforts. This revision ensures comprehensive coverage and alignment with the evolving landscape of anti-human trafficking initiatives, meeting the demands of this crucial work in the foreseeable future. In addition, the draft Law introduces rights of victims and individuals undergoing victim identification process, coupled with the right to refuse protective measures. If victims and individuals undergoing victim identification process fail to comply with protection requirements or choose to refuse protective measures, they have to be responsible for their own safety.
Chapters II and III of the draft Law deal with the prevention, detection and handling of violations. In regard to TIP prevention, the draft touches upon various measures that involve information dissemination, education, counselling, management of public order and security, business activities, and immigration. The draft also aims to include the prevention content in socio-economic development programs, and clearly define the rights and responsibilities of related individuals and organizations. The draft introduces various measures to detect and handle violations such as reporting, informing, petitioning for prosecution, and accusing violative behaviors. It also covers detecting violations through inspection, supervision, and crime prevention operations. The draft also addresses crime reporting and information and provides petitioning for the prosecution of trafficking activities. Additionally, it outlines necessary steps for handling violations.
The provisions on the receipt, verification and protection of victims are provided in Chapter IV of the draft. This Chapter contains three new articles and amends eight articles compared to the 2011 Law. The criteria for identifying victims are updated to align with new legal documents, ensuring accuracy and effectiveness. The process of receiving and verifying victims comprises steps from receiving information and verifying identity, to providing support and protection to victims. Victim protection covers safety measures, psychological and medical support, community reintegration, and protection of information confidentiality.
Meanwhile, Chapter V of the draft Law outlines comprehensive provisions regarding support recipients, support systems, support-providing bodies, and assistance facilities dedicated to victims and those undergoing victim identification process. Compared to the 2011 Law, this chapter shows several notable improvements. First, it includes provisions concerning payment of translation expenses for victims who do not speak Vietnamese. Second, it revises support schemes for individuals undergoing victim identification, encompassing essential needs, transportation, healthcare, psychological aid, legal aid, and translation services. Last, there is an augmentation in comprehensive support mechanisms for victims. These amendments aim to provide specific support policies for victim identification, enhance victims’ rights, and ensure alignment with socio-economic conditions and international human rights protection commitments.
Conclusion
Indeed, combatting TIP in Vietnam necessitates a multifaceted approach that tackles not only the immediate manifestations but also the underlying causes. Poverty, gender inequality and a dearth of access to education and employment provide fertile grounds for traffickers to exploit vulnerable individuals. Policymakers, law enforcement agencies and the public must collaborate with one another to dismantle traffickers’ networks and forge a society where everyone, particularly women and children, can flourish free from the shadow of exploitation and abuse. The effectiveness of the revised draft Law will depend on unwavering implementation and a steadfast commitment to safeguarding the fundamental human rights of all individuals. The draft’s emphasis on victim empowerment and participation, echoing the ACTIP, is laudable. By acknowledging the specific vulnerabilities of women and children and bolstering protections against forced marriage, domestic servitude, and child sexual exploitation, the draft takes a significant step toward a more victim-centered approach.
Nevertheless, challenges still remain. Converting promises into tangible action demands sustained political will and robust institutional collaboration. Law enforcement agencies, social workers and society must work hand-in-hand to dismantle trafficking networks and provide comprehensive support to survivors. Furthermore, building public awareness and tackling societal stigmas are equally vital in eradicating TIP. In the battle against TIP, knowledge is a potent tool. Improving awareness about the issue is essential for empowering individuals to recognize and report suspected cases. At the same time, informing the public, law enforcement agencies and frontline workers about the signs of trafficking, as well as the rights of victims, can contribute to a more effective response.-
