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Viewing cable 08BEIJING4347, Strengthening China's Anti-trafficking Legal Framework

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Reference ID Created Released Classification Origin
08BEIJING4347 2008-11-26 07:16 2011-08-23 00:00 UNCLASSIFIED//FOR OFFICIAL USE ONLY Embassy Beijing
VZCZCXRO7974
OO RUEHCN RUEHGH RUEHVC
DE RUEHBJ #4347/01 3310716
ZNR UUUUU ZZH
O 260716Z NOV 08 ZDK
FM AMEMBASSY BEIJING
TO RUEHC/SECSTATE WASHDC IMMEDIATE 1093
INFO RUEHOO/CHINA POSTS COLLECTIVE
RUEAIIA/CIA WASHDC
UNCLAS SECTION 01 OF 02 BEIJING 004347 
 
Sensitive 
 
SIPDIS 
 
DEPT FOR EAP/CM JCartin; EAP/RSP DTikvart; G/TIP MTaylor 
 
E.O. N/A 
TAGS: PHUM PGOV PREL KTIP KWMN KCRM KJUS CH
SUBJECT: Strengthening China's Anti-trafficking Legal Framework 
 
BEIJING 00004347  001.2 OF 002 
 
 
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 
 
BEIJING 00004347  002.2 OF 002 
 
 
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