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Cablegate: Strengthening China's Anti-Trafficking Legal Framework

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SUBJECT: Strengthening China's Anti-trafficking Legal Framework

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Summary
-------

1. (SBU) Participants from the Chinese Government and key
non-governmental agencies agreed at a recent symposium that China
must improve its efforts to combat human trafficking. Attendees
discussed in detail whether China's existing laws could be modified
to address trafficking better. Despite some concerns that China not
be seen as responding to foreign pressure, participants ultimately
agreed that China should modify its criminal code and ratify the
UN's hallmark anti-trafficking protocol (Palermo Protocol). End
Summary.

What Constitutes Trafficking?
-----------------------------

2. (SBU) On October 23-24 in Beijing, the Ministry of Foreign
Affairs (MFA) hosted a symposium on China's anti-trafficking legal
framework and its accession to the UN Convention on Transnational
Organized Crime (UNTOC) Protocol to Prevent, Suppress and Punish
Trafficking in Persons (Palermo Protocol). Participants included
government officials from 36 agencies, experts, scholars,
practitioners, non-governmental organization (NGO) and UN
representatives from 18 organizations, diplomats, journalists and
members of the UN Office on Drugs and Crime (UNODC) in Vienna.

3. (SBU) Because Chinese criminal law defines trafficking
differently than the Palermo Protocol, China's biggest challenge is
to determine how to apply the language of the Protocol to China's
legal system, noted Xu Yu, Deputy Division Chief at the Ministry of
Foreign Affairs Department of Treaty and Law. He admitted that some
trafficking-related issues are "neglected" in the Chinese legal
system, and that this needs to be remedied. Huang Taiyun, Deputy
Director General at the Standing Committee of the National People's
Congress (NPC) Legislative Affairs Commission Criminal Legislation
Office disagreed. He claimed that China's legal system criminalizes
a range of different behaviors related to trafficking, such as
obstruction of rescue operations of trafficking victims, and that
this makes Chinese law more effective than the Protocol.

4. (SBU) Martin Fowke of UNODC's Anti-Human Trafficking Unit
explained that in ratifying the Palermo Protocol, states need to
ensure that the concepts addressed in the Protocol exist within
their legal systems. Specific terms and definitions do not need to
be replicated word for word, he explained. Li Xiao, a judge at the
Research Office of the Supreme People's Court (SPC), indicated that
certain provisions of China's legal system could be revised and
adjusted, if needed, to match the Protocol.

Can China Change?
-----------------

5. (SBU) Xu seconded Judge Li's opinion, pointing out that, based on
views expressed during the symposium, it seems that China is ready
to make the needed changes to its legal framework to meet the
standards of the Protocol. He stressed that these changes would be
made consistent with China's unique tradition and culture, resulting
in the same if not better outcomes than those prescribed by
international law.

6. (SBU) Professor Liang Shuying from the School of International
Law at China University of Political Science and Law said that China
needs to "fill the gaps" in its criminal law, and perhaps consider
returning to legislation that was in place in 1979 that addressed
all human trafficking, not just trafficking of women and children.
She insisted that legislation specific to trafficking and
trafficking-related activities needs to be drafted, and that it is
not enough for perpetrators of these activities to simply be
punished under administrative or civil law. It is important, she
added, that they be punished under sufficiently stringent
anti-trafficking criminal legislation, otherwise trafficking victims
would be ill-served.

7. (SBU) China's legal definition of "minor" will have to be
modified to comply with the Palermo Protocol. At present, China
defines a minor as a person under 14 years of age. Adjusting
China's definition under the criminal law will be difficult, noted
NPC's Huang, due to harsh realities in China's rural areas where
families are often forced to earn additional income through their
children. However, SPC's Judge Li does not consider this obstacle
insurmountable. Li pointed out that as a signatory to the
International Labor Organization's (ILO) Convention on the Worst
Forms of Child Labor, China adjusted its labor laws to recognize
minors as being individuals under 18 years of age, and could do the
same for its criminal laws.

8. (SBU) Fowke added that a decision to ratify the Protocol does not
obligate a country to change its legal system, but rather to simply

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agree to review its legislation with the intent to adjust its laws
and regulations in the future. He noted that although there is
still some debate about the best way to handle the differences in
Chinese and international law related to trafficking, there seems to
be "political will" in China to move forward and adhere to the
Palermo Protocol.

9. (SBU) Fowke stressed that the Protocol's main focus is to
criminalize all forms of trafficking, to punish all actors involved
in trafficking and trafficking-related activities, to protect all
forms of trafficking victims and to ensure that punishments are
sufficiently severe for trafficking-related crimes. He reiterated
that specific terms are not necessarily needed in each country's
legal framework in order to comply with the Protocol's provisions.
Instead, the Protocol requires that legislation be drafted to combat
and prohibit "conditions of work inconsistent with human dignity."

Is the Protocol Necessary?
--------------------------

10. (SBU) Huang mused that given China's unique legal structure,
current anti-trafficking provisions within Chinese criminal law
might be better suited to China's situation than the Palermo
Protocol. Building on this, other delegates agreed that China's
legal system covers many aspects included in the Protocol, and
pointed out that the Protocol and Chinese law share the same basic
principles and are therefore compatible. For example, Chen Shiqu,
Director at the Ministry of Public Security (MPS) Criminal
Investigation Department Office to Combat Human Trafficking, argued
that a number of similarities exist between the Protocol and current
Chinese criminal law, including common objectives of protecting
victims, respecting and safeguarding human rights, cross-agency
participation and international cooperation.

11. (SBU) MPS Criminal Investigation Department Office to Combat
Human Trafficking Deputy Director Yin Jianzhong went one step
further and said "to ratify the Protocol is imperative for China
both in terms of the international aspects of the (trafficking)
problem and Chinese international cooperation." He added that he
thought "there are no substantive conflicts" between Chinese law and
international law regarding anti-trafficking measures.

12. (SBU) A representative from the All-China Women's Federation
(ACWF) agreed, emphasizing that "China needs to bear its
responsibilities by ratifying the Protocol," thereby helping to
improve regional development. Judge Li emphasized to participants
that she believes a ratification of the Protocol would be in China's
interest and would not necessarily be viewed as a reaction to
external pressure.

What's Next?
------------

13. (SBU) In a closing discussion, Professor Liang noted that legal
differences are "not an obstacle" to China's accession, and urged
MFA to push forward with a timetable for ratification. In his
closing remarks, MFA's Xu noted that most symposium participants
agreed that ratification of the Protocol would enhance China's
efforts to combat human trafficking and strengthen its
anti-trafficking legal framework as well as its cooperation with the
international community on combating cross-border trafficking. The
symposium ended with a call to ratify the Protocol as soon as
possible.

RANDT

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