The development of Vietnamese law in preventing and combating human trafficking

Over the years, our Party and State have made many efforts in the prevention and control of human trafficking, especially the trafficking of women and children, but the situation of human trafficking crimes remains complex.

Over the years, the Party and State of Vietnam have made many efforts in the prevention and combat of human trafficking, especially the trafficking of women and children, but the situation of human trafficking crimes remains complex.

Vietnam has issued numerous legal documents, creating an important and gradually完善 legal framework as a basis for the fight against human trafficking.

Vietnamese law on preventing and combating human trafficking.

Vietnam's most notable effort has been the enactment of policies and laws related to preventing and combating human trafficking.

Currently, Vietnamese legal regulations on preventing and combating human trafficking are enshrined in various documents such as: the 2015 Penal Code, the 2015 Criminal Procedure Code, the 2011 Law on Prevention and Combat of Human Trafficking, the 2007 Law on Mutual Legal Assistance, the 2016 Law on International Treaties, the 2015 Law on the Execution of Temporary Detention and Custody, the 2016 Law on Children, the 2015 Law on the Organization of Criminal Investigation Agencies, and other legal documents.

In addition, Vietnam has implemented the Government's Program on Combating Human Trafficking (Program 130/CP), with 100% of provinces and centrally-administered cities developing programs and plans for implementation, integrating it with the implementation of directives and resolutions of the Politburo , the Secretariat, the National Assembly, and the Government on crime prevention and control and social evils.

A series of sub-legal documents have also been issued to severely punish human trafficking crimes, while also providing solutions to support and protect victims. These documents are consistent with Vietnam's conditions and also with the agreements and conventions that Vietnam has signed.

Regarding the prevention of human trafficking in the field of employment and sending Vietnamese workers abroad under contract, along with the promulgation of the Law on Vietnamese Workers Going Abroad under Contract in 2020 (Law No. 69), a series of implementing guidelines have been issued. Government Decree No. 112/ND-CP dated December 10, 2021, detailing some articles and measures for implementing Law No. 69, stipulates that service enterprises will have their licenses revoked if they exploit the activity of sending workers abroad for human trafficking, exploitation, or forced labor.

Acts of exploiting or coercing Vietnamese workers for overseas employment, but not to the extent of criminal prosecution, will be severely punished according to the provisions of Decree 12/2022/ND-CP dated January 17, 2022, of the Government, which stipulates administrative penalties for violations in the fields of labor, social insurance, and Vietnamese workers going abroad under contract.

Regarding the prevention and combating of human trafficking, there are also several other important documents such as:

Government Resolution No. 28/NQ-CP dated March 3, 2021, promulgates the National Strategy on Gender Equality for the period 2021-2030, which assigns the Ministry of Public Security to preside over, develop, implement, and report on the results of tasks and solutions for preventing and combating human trafficking.

The program "Protecting and supporting children's healthy and creative interaction in the online environment in the period 2021-2025" (Decision No. 830/QD-TTg dated June 1, 2021, of the Prime Minister) aims to proactively prevent and detect acts of child abuse in the online environment, and to handle acts of exploiting the online environment to commit acts prohibited against children in any form according to the law.

The Program for the Prevention and Reduction of Child Labor in the period 2021-2025, with a vision to 2030 (Decision No. 782/QD-TTg dated May 27, 2021, of the Prime Minister), among many tasks and solutions, includes a solution to prevent and combat the crime of trafficking children for the purpose of exploiting their labor.

Since joining the ASEAN Convention on Trafficking in Persons, Especially Women and Children (ACTIP), Vietnam has actively incorporated ACTIP provisions into its domestic law through amendments and additions to existing legal documents.

Firstly, the crime of human trafficking was criminalized in the 1999 Penal Code. However, to align with ACTIP and other international treaties on preventing and combating human trafficking to which Vietnam is a signatory, the 2015 Penal Code amended and supplemented the crime of human trafficking, thereby classifying the crime of human trafficking into five separate offenses.

The 2015 Penal Code stipulates higher penalties than the 1999 Penal Code, with additional aggravating circumstances, in line with ACTIP regulations. This demonstrates Vietnam's determination to combat this type of crime.

Secondly, crime prevention. Current legal documents stipulate relatively specific measures for implementation, including information dissemination, propaganda, and education on new methods, tactics, and key areas of human trafficking; strengthening coordination and information exchange, establishing hotlines between law enforcement agencies of different countries, international organizations, and non-governmental organizations; and agreeing with countries sharing borders on coordination mechanisms for exchanging information on human trafficking crimes and repatriation of victims of human trafficking…

Thirdly, protecting and repatriating victims. According to the Law on Prevention and Combat of Human Trafficking of 2011, Vietnam facilitates cooperation between Vietnamese authorities and foreign agencies in rescuing and protecting victims.

Regarding the repatriation of victims, Vietnam facilitates the return of foreign victims to their country of citizenship or last known residence. Measures applied during the repatriation process must be based on Vietnamese law and agreements with other countries, ensuring the safety, health, honor, and dignity of the victims.

Fourth, international cooperation in preventing and combating human trafficking has been strengthened, thereby contributing to curbing crime and violations of the law, ensuring social order and safety, and promoting socio-economic development. The implementation of international cooperation in preventing and combating human trafficking is based on international treaties to which Vietnam is a signatory.

Regarding mutual legal assistance in criminal matters, including human trafficking, Vietnam joined the ASEAN Agreement on Mutual Legal Assistance in Criminal Matters in 2004 and enacted the Law on Mutual Legal Assistance in 2007.

The development of Vietnamese law on preventing and combating human trafficking.

Although a basic legal framework for preventing human trafficking has been established and promulgated, compared to the actual situation, a more comprehensive legal system still needs to be reviewed and supplemented.

Vietnam ratified ACTIP on December 13, 2016, and it officially came into effect on March 8, 2017. Affirming Vietnam's regional commitment to cooperation in combating human trafficking, Vietnam has actively incorporated ACTIP provisions into its domestic laws, and to date, Vietnamese law on combating human trafficking is essentially compatible with ACTIP provisions.

Legal regulations on combating human trafficking have addressed many shortcomings, limitations, and practical difficulties. However, some inconsistencies remain that need to be amended and supplemented to enhance the effectiveness of cooperation between Vietnam and ASEAN member countries on combating human trafficking.

Firstly, the definition of the crime in the 2015 Penal Code is narrower than that of the ACTIP Convention and other international treaties. While the ACTIP Convention recognizes the acts constituting the crime of human trafficking—such as transfer, reception, recruitment, transportation, and harboring—as independent of each other, any one of these acts, when performed with the purpose stipulated in the Convention, constitutes the crime of human trafficking.

The Penal Code stipulates that the act of recruiting, transporting, or harboring people for the purpose of transferring or receiving new people is considered human trafficking; however, the act of recruiting, transporting, or harboring people for the purpose of exploitation is not considered human trafficking. This inadvertently narrows the scope of the crime as defined in the Convention.

Therefore, it is necessary to expand the scope of criminal prosecution for the crime of human trafficking and the crime of trafficking in persons under 16 years of age to include the recruitment, transportation, and harboring of individuals for the purpose of sexual exploitation, labor exploitation, organ harvesting, or other inhumane purposes.

Secondly, Vietnamese law is not yet fully compatible with international standards, particularly regarding the age of victims of child trafficking in Article 151 of the 2015 Penal Code, which stipulates that victims of child trafficking must be under 16 years old, while international law stipulates that victims of child trafficking must be under 18 years old.

Thus, the Penal Code currently has a policy of handling the crime of trafficking in persons aged 16 to under 18 in Article 150, "Crime of Trafficking in Persons". Meanwhile, trafficking in persons under 18, according to international practices and international treaties, is considered child trafficking and carries severe penalties to best protect the rights of this group.

Therefore, it is necessary to raise the age of victims of human trafficking in Article 151 to under 18 years old instead of the current regulation of under 16 years old, and to amend the name of the crime accordingly.

Thirdly, the criminal liability for human trafficking, trafficking of persons under 16 years of age, and other offenses in the Penal Code has not been clearly differentiated. Clause 1 of Article 150 and Clause 1 of Article 151 of the 2015 Penal Code state that those who commit human trafficking do so for various purposes, including "sexual exploitation," "forced labor," or "organ harvesting."

Regarding the two purposes of "sexual exploitation" and "forced labor," both laws no longer stipulate that "having committed sexual exploitation" or "having committed forced labor" is an aggravating circumstance in determining criminal liability if the sexual exploitation or forced labor has actually been carried out...

Vietnam's efforts and commitment to combating human trafficking in recent years have been recognized and highly appreciated by the international community.

In particular, the tasks and solutions outlined in the Program for the Prevention and Combat of Human Trafficking for the period 2021-2025 and the orientation towards 2030 are considered groundbreaking and comprehensive, demonstrating Vietnam's determination to address this issue through multilateral international cooperation. The bilateral agreements that Vietnam has signed are important legal tools serving the prevention, detection, investigation, prosecution, and punishment of human traffickers.

Furthermore, Vietnam regularly exchanges information on policies, efforts, and achievements in combating human trafficking during human rights dialogues with the US, EU, and Australia, as well as in meetings and working sessions with foreign partners. It also actively implements international cooperation activities to effectively prevent and combat human trafficking.

An effective legal framework and cooperation in combating human trafficking are currently the most effective and urgent measures; therefore, cooperation mechanisms form a crucial foundation in the prevention and fight against human trafficking crimes.

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References

1. ASEAN Convention on Combating Trafficking in Persons, Especially Women and Children

2. The United Nations Convention on the Rights of the Child, 1989.

3. The Vietnamese Penal Code of 2015.

4. Vu Ngoc Duong (2019), The crime of trafficking in persons, especially women and children, according to the ACTIP Convention and its implementation in Vietnam, Vietnamese Lawyers, Vietnam Bar Association, No. 1+2, pp. 37-41.

5. Vinh Hoang, Hoang Giang (2021), Continuing to improve the law on preventing and combating human trafficking, see: https://baochinhphu.vn/tiep-tuc-hoan-thien-phap-luat-ve-phong-chong-mua-ban-nguoi-102296531.htm, accessed June 19, 2023.

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(*) Lecturer, Faculty of International Law, Hanoi Law University

(**) Lecturer, Faculty of University Training, Academy of Courts

Source: https://baoquocte.vn/su-phat-trien-cua-phap-luat-viet-nam-trong-phong-chong-mua-ban-nguoi-236973.html