V. RELATIONSHIP WITH DUE DILIGENCE STANDARD
The above analysis has sought to establish that States Parties to the Protocol
have a transnational duty to take or strengthen measures to alleviate poverty,
underdevelopment and lack of equal opportunity that make people, but
especially women and children, vulnerable to trafficking. It is argued that a plain
reading of this paragraph creates a particularly strong obligation on countries of
destination to share the responsibility of addressing root causes of trafficking in
countries of origin.
This provision creates a significantly higher standard of behavior than the
more general due diligence obligations to prevent trafficking, particularly in
relation to transnational prevention obligations. In this circumstance, the more
onerous standard of the Protocol will apply to States Parties. This is determined
by employing the lex specialis legal maxim.
When the particular rule is not "setting aside" the general rule, in other
words when there is no normative conflict between the two standards, the
principle of lex specialis is formally speaking not required.131 In this case, there is arguably no normative difference between the two rules. The Protocol is
arguably not creating an exception to the due diligence obligations but rather
imposing a higher standard of behavior on that duty. However, regardless of this
maxim's formal application, the rule in the Protocol will "trump" the less
onerous due diligence obligations at least with respect to transnational
prevention obligations. In either case, the maxim is still a useful mechanism to
understand the relationship between the Protocol's transnational prevention
obligations and due diligence obligations in human rights law.
V. RELATIONSHIP WITH DUE DILIGENCE STANDARDThe above analysis has sought to establish that States Parties to the Protocolhave a transnational duty to take or strengthen measures to alleviate poverty,underdevelopment and lack of equal opportunity that make people, butespecially women and children, vulnerable to trafficking. It is argued that a plainreading of this paragraph creates a particularly strong obligation on countries ofdestination to share the responsibility of addressing root causes of trafficking incountries of origin.This provision creates a significantly higher standard of behavior than themore general due diligence obligations to prevent trafficking, particularly inrelation to transnational prevention obligations. In this circumstance, the moreonerous standard of the Protocol will apply to States Parties. This is determinedby employing the lex specialis legal maxim.When the particular rule is not "setting aside" the general rule, in otherwords when there is no normative conflict between the two standards, theprinciple of lex specialis is formally speaking not required.131 In this case, there is arguably no normative difference between the two rules. The Protocol isarguably not creating an exception to the due diligence obligations but ratherimposing a higher standard of behavior on that duty. However, regardless of thismaxim's formal application, the rule in the Protocol will "trump" the lessonerous due diligence obligations at least with respect to transnational
prevention obligations. In either case, the maxim is still a useful mechanism to
understand the relationship between the Protocol's transnational prevention
obligations and due diligence obligations in human rights law.
การแปล กรุณารอสักครู่..
