International experience in building the legal mechanism for prevention and combat against human trafficking: Lessons for Vietnam

Nghiên cứu trao đổi ● Research-Exchange of opinion

Tạp chí Khoa học - Trường Đại học Mở Hà Nội 65 (3/2020) 51-57

51

INTERNATIONAL EXPERIENCE IN BUILDING

THE LEGAL MECHANISM FOR PREVENTION AND

COMBAT AGAINST HUMAN TRAFFICKING:

LESSONS FOR VIETNAM

Do Thi Ly, Quynh^*

Date received the article: 5/9/2019

Date received the review results: 5/3/2020

Date published the article: 25/3/2020

Abstract: At present, human traﬃcking is becoming very complicated. This is not only

a matter of every nation, every region, but also an international problem. This requires each

country to formulate eﬀective and consistent legal mechanisms in line with international

regulations in the ﬁght against human traﬃcking crimes. The study of experiences of countries,

including countries closely related to the situation of human traﬃcking in Vietnam such as

China, the Philippines and Thailand, is a reference channel for Vietnam to complete and

improve the legal mechanism to prevent and combat human traﬃcking in the coming time.

Keywords: human traﬃcking, legal mechanism, national and international problem, Vietnam.

Protocol on preventing, suppressing

and punishing human traﬃcking,

especially women and children (TIP

Protocol), complements the United

Nations Convention against Transnational

Organized Crime (The TOC) is the most

progressive and politically signiﬁcant

document and is an important international

legal basis for strengthening international

cooperation in the ﬁght against human

traﬃcking as well as in protecting victims.

This Decree was adopted by the United

Nations on November 15, 2000 and serves

asabasisforcountriestoreﬂectandperfect

the law on the prevention and combat of

human traﬃcking. However, each country

has established separate legal mechanisms

to prevent and combat human traﬃcking.

Therefore, the study of legal mechanisms

of countries, especially China, Thailand,

and the Philippines, is one of the channels

to apply to improve the legal mechanism

to prevent and combat human traﬃcking

in Vietnam.

1. The legal mechanism for the

prevention and combat of human

traﬃcking in a number of countries in

the world

1.1. In China

Article 240 of the Criminal Code

of the People’s Republic of China

* Peoples Security Academy

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Nghiên cứu trao đổi ● Research-Exchange of opinion

1997 stipulates penalties for each act

of traﬃcking in women and children,

including the highest penalty up to the

death penalty and conﬁscation of all

property of criminal objects.

Thus, it is clear that although the

legal provisions on traﬃcking in women

and children are quite heavy with the

highest penalty of death penalty, this

provision is still fundamentally diﬀerent

from the protocol in both acts, method and

purpose.

However, at present, China only

considers sexual exploitation, forced

labor and organ harvesting as human

traﬃcking without considering the act of

handing over people and receiving money

through marriage as human traﬃcking.

While China’s main need is to buy and sell

brides to address the shortage of women

in the country. This is also a diﬃculty in

coordinating as well as preventing human

traﬃcking from Vietnam.

In addition, Chinese law is ﬂawed

when men are not mentioned as victims

and China, despite being a destination for

traﬃcking crimes and complicated human

traﬃcking acts in the country, China still

has no anti-human traﬃcking law as

other countries in the region and Chinese

managers often develop plans and plans

to prevent and combat human traﬃcking

through each stage and now is the period

2013-2020.

In addition, as for the Chinese

law, Article 241 of the Penal Code, also

stipulates that the act of buying women

and children for sale is subject to a 3-year

penalty, labor re-education or probation.

But if they do not prevent them from

returning to their former residence

according to their wishes, without abusing

children who are traﬃcked, or preventing

their escape eﬀorts, they may not be

prosecuted for criminal liability.

Minors under Chinese law are under

18 years’ old

1.2. In Thailand

Thailand has enacted a Law on

Prevention and Combat of Human

Traﬃcking since 2008, which includes

57 articles which outline the concept of

human traﬃcking, the level of penalties

speciﬁc to each act, victim assistance and

nationalcooperationaswellasestablishing

an Anti-Traﬃcking Committee and

a human traﬃcking fund. Thailand’s

deﬁnition of human traﬃcking is similar

to the Protocol’s deﬁnition of recruiting,

Article 242 provides for acts of

using violence or intimidation to prevent

state oﬃcials from delivering women and

children to be sold.

Article

416

stipulates

the

responsibility of employees in state

agencies to rescue women and children.

Failure to deliver the rescue will result

in up to 5 years of imprisonment or re-

education. If the rescue is prevented, the

oﬀender will be sentenced to between

2 and 7 years of imprisonment or re-

education.

transporting,

harboring,

traﬃcking,

transferring the same methods as coercion,

kidnapping, deceiving, using force and

emphasizing exploitation. Regarding

punishment, Thai law stipulates penalties

based on the age of the victim as well as

the object of the oﬀense. As follows:

Nghiên cứu trao đổi ● Research-Exchange of opinion

53

Trading people who are imprisoned

Thailand has set up two committees

on this issue, the National Committee on

Human Traﬃcking and the Committee

for Coordinating and Monitoring Human

TraﬃckingPreventionwithbasictaskssuch

as: National Committee anti-traﬃcking

experts are responsible for advising the

government on the enactment of laws,

organizational structure, and international

cooperation. The coordination and

supervision committee are responsible

for overseeing the implementation of

legal policies, overseeing the organization

and implementation of tasks, promoting

awareness raising and training staﬀ

to meet requirements. The National

Commission on Human Traﬃcking is

chaired by the Prime Minister and other

ministers are members. The coordination

and supervision committee are chaired by

the Deputy Prime Minister (the president)

and the vice president is the Minister of

Human Security and Social Development,

operating 1300 hotline 24/7.

from 4 to 10 years, ﬁned from 56 million

to 140 million dongs (converted into

Vietnam dongs);

Victims from 15 - 18 years old:

imprisonment from 6 to 12 years, ﬁned

from 84 million to 168 million VND;

Victims under 15: imprisonment

from 8 to 15 years, ﬁned from 112 million

to 210 million VND.

In particular, if the organized crime,

the members must face penalties more

than 1/2 times the penalty prescribed by

law.

Bringing victims out of the Thai

border, or crimes committed by state

oﬃcials, is punished twice the penalty

prescribed by law.

Personnel directly involved in anti-

human traﬃcking and law enforcement

oﬃcials participating in human traﬃcking

will be penalized 3 times the penalty

prescribed by law.

Inaddition,Thailandalsoestablished

a human traﬃcking fund from conﬁscation

of property due to traﬃcking oﬀenses and

the support of societies in order to support

victims of human traﬃcking.

Thailand has strict and speciﬁc

regulations and aims to aggravate penalties

for acts committed by organized criminals,

by taking victims out of the border and by

people in the state apparatus. Thailand

also regulates the criminal liability of

legal entities.

1.3. In Philippine

In September 30, 2003, anti-

human traﬃcking law - law No. 9208

came into being marking the Philippines’

determination to ensure human rights,

prevention and combat human traﬃcking.

This law sets out the deﬁnition of human

traﬃcking in Article 3 - a deﬁnition quite

similar to the deﬁnition of the Protocol

with three signs of behavior, modes and

purposes. Deﬁne speciﬁc behaviors from

In addition, this law provides

speciﬁc sanctions to prevent the

disclosure of victims’ secrets. In addition,

individuals and organizations that provide

assets and meeting places for people who

are traﬃcked may be subject to additional

crimes in the Anti-Money Laundering

Law and conﬁscate all of the collected

property.

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Nghiên cứu trao đổi ● Research-Exchange of opinion

introduction, brokerage, abusing marriage

contracts, organizing tours, child adoption,

and abduction for kidnapping purposes.

thousand to 1 million pesos.

Inaddition, thelawofthePhilippines

also speciﬁes the responsibilities of

legal entities of associations, companies,

clubs or any legal entity that violates,

the company owner, the manager, must

also be punished and stripped permanent

business license. Or oﬃcials who do not

comply with the provisions of the law will

be ﬁred and end all beneﬁts.

However, this law also stipulates

acts that promote traﬃcking in persons

(Article 5) such as provision of housing

and accommodation; provide fake

documents; advertising and printing

materials in service of human traﬃcking;

and it is worth noting that the behavior

“intentionally beneﬁts ﬁnancially or

otherwise beneﬁts from a person’s labor

or services in a situation such as slavery,

forced or slave labor, or labor exploitation

or that service”

In particular, Article 11 states that

if a victim is used as a victim of sex

traﬃcking, he / she will be ﬁned 6 months

of public labor and 50,000 pesos for the

ﬁrst oﬀense. Second oﬀenses or more will

be subject to 1-year imprisonment and

100,000 pesos.

InArticle6, stipulatesthattraﬃcking

acts are considered serious when

traﬃcking in children; organized crime or

with 3 or more victims; The oﬀenders are

parents, siblings, and oﬃcials.

In 2012, by law No. 10364, the

Philippine government amended and

supplemented a number of articles in the

law against human traﬃcking in 2003, but

the core issues mentioned above were not

changed.

Article 7 provides for victim

protection and victim information

conﬁdentiality.

Article 10 stipulates speciﬁc

The Act also allows the Philippines

to set up an inter-agency committee to

combat traﬃcking, chaired by the Minister

of Justice and the Minister of Welfare

and Social Development, responsible for

coordinating with all ministries. Other

government departments to implement

the task of preventing and combating

traﬃcking in persons, setting up

programs, developing laws, supervising,

penalties:

human

traﬃcking

of

imprisonment of 20 years, a ﬁne of

1-2 million pesos; promoting acts of

imprisonment of 15 years and a ﬁne of

between ﬁve hundred thousand and one

million pesos; serious human traﬃcking

oﬀenses will result in life imprisonment

and a ﬁne of 2-5 million pesos; violations

of information security victims are subject

to a ﬁne of up to 6 years and a ﬁne of

between ﬁve hundred thousand and one

million pesos. Violation of Article 6 of

penalties can result in life imprisonment,

a ﬁne of from 2 to 5 million pesos.

Violating article 7 of penalties of up to 6

years’ imprisonment, a ﬁne of from 500

coordinating

activities,

educating,

addressing problems and implementing

chapters. reintegration process for victims.

In addition, the Philippines has set up

task forces to prevent and combat human

traﬃcking in places at high risk of human

traﬃcking activities such as harbors,

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55

airports and border areas, and operate the

Trans Crime Center. The nation is a match

for receiving news, storing information

and coordinating activities on preventing

and combating transnational crime.

the performance of non-governmental

organizations as well as establish trust

funds for victims.

In the context of globalization and

deepintegrationtoday,thesynchronization

and compliance with international law is

the basic foundation in all processes of

cooperation and is especially important

in the ﬁght against transnational crime in

whichtherearecrimesofhumantraﬃcking.

The internalization of conventions and

protocolstowhichVietnamisasignatoryis

not only a principle requirement stipulated

in the 1969 Vienna Convention to which

Vietnam is a signatory but also an activity

in accordance with the law of Vietnam

(International treaty law 2016). The legal

system is synchronized with international

regulations but needs to be in line with the

current legal system, from criminalizing

human traﬃcking acts to organizational

structure, operational methods, and public

In particular, the Philippine anti-

traﬃcking law places great emphasis

on protecting victims to assist victims

in reintegrating the community through

the establishment of trust funds from

the proceeds of the ﬁght against human

traﬃcking and the funds were donated

by individuals to focus on community

reintegration for victims, vocational

training as well as counseling and health

checks for victims. Licensing foreign

organizations to participate in community

reintegration activities for victims and

considering victim certiﬁcates issued

by these organizations is the basis for

implementing victim assistance measures.

2. Reference values for Vietnam

activities,

international

cooperation

After consulting the legal system,

measures, procedures for rescuing,

verifying, receiving and reintegrating the

community together with relevant laws

such as labor law, marriage and family

law, immigration law. It is necessary to

establish a mechanism for legal entities

to be responsible for human traﬃcking

and to gain from it. It is also necessary to

attach the responsibility of each individual

and organization with supplying and

beneﬁting from this activity. Vietnam

needs to research and create funding from

the conﬁscation of property due to criminal

activity that is available to assist victims

as well as studying the licensing model for

non-governmental organizations that have

the right to guardian the rescued victims.

It is necessary to agree that the age of

organizational

structure,

how

to

organize the operation of the anti-human

traﬃcking force in China, Thailand and

the Philippines. Diﬀerences in legal

regulations and organizational structure

have shown the complexity and diﬃculties

in international cooperation activities. In

addition to the diﬀerences, the study of

practical experience from these countries

has brought certain reference values to

Vietnam in perfecting the legal mechanism

to prevent and combat human traﬃcking

in the coming time.

Firstly, it is necessary to

develop a legal system to prevent and

combat human traﬃcking in sync with

international regulations, which promotes

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Nghiên cứu trao đổi ● Research-Exchange of opinion

children is under 18 years of age to have a

basis for carrying out the struggle. At the

same time, the criminal responsibility of

legal entities related to human traﬃcking

is needed to be considered.

policy making, plans and programs to

operation, inspection and supervision,

from implementing organizations to

international cooperation. Therefore, in

order to eﬀectively operate the mechanism

to avoid the dispersion of forces, it is

necessary to set up a task force in charge of

combating transnational crimes including

human traﬃcking crimes in order to create

the forefront of coordinating international

struggle and cooperation activities.

However, in the coming period,

Vietnamese victims will still be mainly

traﬃcked and brought to China, while

China has a diﬀerent legal system that is

not consistent with the provisions of the

Protocol as well as the legal provisions.

In Vietnamese law, it is noteworthy that

China does not consider the act of handing

over money to people through marriage

as a human traﬃcking, which greatly

impedes coordination in the ﬁght. It is

also diﬃcult in a short time to improve as

expected because of internal problems in

Chinese society itself. Therefore, Vietnam

has identiﬁed a case of human traﬃcking,

but China thinks it is legal. Therefore,

the functional forces should actively

implement appropriate measures and

solutions such as better implementation

of propaganda to raise public awareness,

manage subjects as well as enhance

activities and patrol and control the border

to step up acts of traﬃcking in people

from inland.

In order to create a comprehensive

and eﬀective legal mechanism, it is

impossible not to mention the highly

qualiﬁed and experienced, well-trained,

specialized oﬃcials. This training

needs to be conducted at various levels

from training in specialized schools,

training through experience exchange,

in training to improve skills, training

through seminars at home and abroad.

Especially, in the ﬁght against organized

and transnational crimes, the training to

raise awareness about international law as

well as related country law, and how skills

in international relations are especially

important. On the other hand, due to

the crime area, the transit area of the

crime is mainly border areas, islands are

complicated with mainly ethnic minorities

with low awareness as well as diﬃcult

economic conditions. Therefore, in order

to operate eﬀectively in this area, oﬃcials

in charge of prevention and ﬁghting need

to know the ethnic languages, customs,

mindset of the people and the skills to

mobilize and mobilize prestigious people

and village elders, the village chief and

the people in the movement of all people

protect the security and order. These skills

need to be trained not only with oﬃcials

Secondly, it is necessary to study

and establish specialized forces to ﬁght

transnational crimes including human

traﬃcking crimes.

In order to eﬀectively operate the

Anti-human traﬃcking legal mechanism,

the system needs to be operated smoothly

from the central to local levels by one

of the heads of government in order to

mobilize maximum resources, allocating

forces and organizations from the

Nghiên cứu trao đổi ● Research-Exchange of opinion

57

directly involved in the ﬁght against

human traﬃcking, but also in the political

system, mass organizations focusing on

the Women’s Union, Youth Union...

the implementation of models to prevent

human traﬃcking and associated program

to promote economic development, gender

equality and to promote public awareness

education on human traﬃcking crimes.

Thirdly, the legal mechanism for

preventing and combating traﬃcking

in persons needs to be operated in

combination with the target programs on

socio-economic development, focusing on

prevention.

References:

[1]. Đinh Bích Hà dịch (2007), Criminal Code

of the People’s Republic of China, Nxb Tư

Pháp, Hà Nội. tr.159

[2]. National Assembly of the Socialist

Republic of Vietnam, Law on Prevention and

Combat of Traﬃcking in Persons 2011

Human traﬃcking is an act that is

not only identiﬁed as a crime but must also

be identiﬁed and recognized as a social

problemtobeaddressed.Crimearisesfrom

the urgent problems of social life, from

poverty, from the motivation to escape

poverty, from the factors of instability and

inequality that exist in society. Therefore,

to solve this problem, it must also come

from society to solve problems arising

in the heart of society. In addition, to

improve people’s knowledge, equipping

awareness, prevention as well as investing

in specialized forces, it is impossible

not to come up with and implement

economic development programs and

policies, remove sustainably reduce

hunger and poverty, and prevent unsafe

migration. Countries should coordinate

[3]. Ministry of Justice (2013), “Regulations

of the 1999 Penal Code on traﬃcking in

persons, traﬃcking, fraudulently exchanging

or appropriating children - actual situation

and recommendations for improvement”

[4]. United Nations (2000), Protocol to

Prevent, punish and suppress traﬃcking in

persons, especially women and children.

[5].http://hrlibrary.umn.edu/research/

Philippines/RA%209208%20-%20Anti-

Traﬃcking%20Law.pdf

[6]. https://www.oﬃcialgazette.gov.ph/2013/

02/06/republic-act-no-10364/

Author address: Peoples Security Academy

Email: doquynh83@gmail.com