The protection of victims of organ trafficking under international law

Abstract

Medical advances in the field of organ transplantation are one of the greatest achievements of mankind. The possibility of transplanting organs, tissues and cells enabled to save and prolong the lives of many people. Unfortunately, the high demand for human organs significantly outweighed the supply of organs. This has led to the emergence of illegal loopholes where organs can be obtained through illicit means. Often underprivileged and vulnerable people become the main target of traffickers and are exploited for the purpose of organ removal. Taking into account human suffering as a result of illicit organ removal, this thesis examines the protection available to the victims of organ trafficking under international law. When it comes to the illicit organ removal, two distinct phenomena can be identified: trafficking in human beings for the purpose of organ removal and trafficking in human organs. While the object of trafficking of the former phenomenon is a person, the latter trafficking occurs in relation to organs. Consequently, the aim of the thesis is to provide a comparative analysis of the protection afforded to both types of organ trafficking. By doing so, it examines the specialized organ trafficking frameworks, namely the Palermo Protocol and the Council of Europe Convention against trafficking in human organs. By placing the victim protection at the heart of the present thesis, human rights violations which arise from both types of organ trafficking are examined. Therefore, in order to provide a thorough and comprehensive legal research in the protection of victims, the thesis also considers other legal international human rights law frameworks that can be related to the rights of victims who are trafficked for the purpose of organ removal as well as victims whose organs are trafficked.

The main finding of the thesis is that despite the distinct nature of both types of organ trafficking, the legal frameworks can be used interchangeably in cases where a living donor is engaged in the process of trafficking. Moreover, in cases where specialised tools addressing organ trafficking provide insufficient protection for victims, it is possible to find protection under the existing international human rights instruments. However, it is also revealed that the failure to identify victims of trafficking as such is a common practice that may deprive them of their entitled human rights protection. That is why, in order to effectively protect victims, States must move towards the application of the non-punishment principle which uniformly helps vulnerable victims find redress for their violated rights as well as encourages them to report illicit activities to law enforcement authorities.