Development of Vietnamese law in preventing and combating human trafficking

Over the past years, our Party and State have made many efforts in preventing and combating human trafficking, especially trafficking of women and children, but the situation of human trafficking crimes remains complicated.

Trong những năm gần đây, tình hình tội phạm mua bán người ở Việt Nam vẫn diễn biến hết sức phức tạp và có chiều hướng gia tăng về số vụ, tính chất nghiêm trọng với phương thức, thủ đoạn ngày càng tinh vi.

Vietnam has issued many legal documents, creating an important legal framework that is gradually being perfected as a basis for the fight against human trafficking crimes.

Vietnamese law on preventing and combating human trafficking

Vietnam's most prominent effort is the promulgation of policies and laws related to preventing and combating human trafficking.

Currently, the provisions of Vietnamese law on preventing and combating human trafficking are recorded in many different documents such as: Penal Code (PC) 2015, Criminal Procedure Code 2015, Law on Prevention and Combating Human Trafficking 2011, Law on Judicial Assistance 2007, Law on International Treaties 2016, Law on Detention and Temporary Imprisonment 2015, Law on Children 2016, Law on Organization of Criminal Investigation Agencies 2015 and other legal documents.

Along with that, Vietnam has implemented the Government's Program on Prevention and Combat of Human Trafficking (Program 130/CP) with 100% of provinces and centrally-run cities developing programs and plans for implementation, integrated with the implementation of directives and resolutions of the Politburo, Secretariat, National Assembly, and Government on prevention and combat of crimes and social evils.

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

Regarding the prevention of human trafficking in the field of employment and sending Vietnamese workers to work abroad under contracts, along with the promulgation of the Law on Vietnamese Workers Working Abroad under Contracts in 2020 (Law No. 69), a series of documents guiding its implementation were issued. Decree No. 112/ND-CP dated December 10, 2021 of the Government detailing a number of articles and measures to implement Law No. 69, stipulates that service enterprises will have their licenses revoked if they take advantage of sending workers to work abroad to traffic in people, exploit, and force labor.

Acts of taking advantage of the activities of sending Vietnamese workers to work abroad to exploit and force labor but not to the extent of criminal prosecution will be strictly punished according to the provisions of Decree 12/2022/ND-CP dated January 17, 2022 of the Government stipulating administrative sanctions in the fields of labor, social insurance, and Vietnamese workers working abroad under contracts.

There are also a number of other important documents related to the prevention and combat of human trafficking, such as:

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

The program "Protecting and supporting children to interact healthily and creatively in the online environment for 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 handle acts of taking advantage of the online environment to commit prohibited acts against children in any form according to the provisions of law.

The program to prevent and reduce child labor for 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 solutions to prevent and combat crimes of child trafficking for the purpose of labor exploitation.

Since joining the ASEAN Convention against Trafficking in Persons, Especially Women and Children (ACTIP), Vietnam has actively internalized ACTIP regulations through amending and supplementing current legal documents.

Firstly, criminalizing the crime of human trafficking, stipulated in the 1999 Penal Code. However, to comply with ACTIP and international treaties on preventing and combating human trafficking to which Vietnam is a member, the 2015 Penal Code has amended and supplemented the crime of human trafficking, thereby stipulating the group of crimes of human trafficking into 05 separate crimes.

The provisions on penalties in the 2015 Penal Code are higher than those in the 1999 Penal Code, with additional aggravating circumstances, in line with ACTIP regulations. This demonstrates Vietnam's determination in combating this type of crime.

Second, crime prevention. Current legal documents provide relatively specific provisions on implementation measures, including measures to inform, disseminate and educate about new methods, tricks and key areas of human trafficking; strengthen coordination, information exchange, establish hotlines between law enforcement agencies of countries, international organizations and non-governmental organizations; agree with countries sharing borders on coordination mechanisms in exchanging information on human trafficking crimes, repatriation of victims of human trafficking crimes, etc.

Third, protect and repatriate victims. According to the provisions of the 2011 Law on Prevention and Combating Human Trafficking, Vietnam creates conditions for Vietnamese authorities to cooperate with foreign agencies in rescuing and protecting victims.

Regarding the repatriation of victims, Vietnam creates conditions for foreign victims to return to the country of their nationality or last place of residence. Measures applied during the repatriation of victims must be based on legal regulations and agreements between Vietnam and other countries, ensuring the safety of life, health, honor and dignity of the victims.

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

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

Development of Vietnamese law on preventing and combating human trafficking

Although a basic legal framework has been developed and promulgated to prevent human trafficking, compared to the practical situation, it is still necessary to review and supplement a more synchronous legal system.

Vietnam ratified ACTIP on December 13, 2016, which officially came into effect on March 8, 2017. Affirming Vietnam's regional commitment to cooperation in preventing and combating human trafficking, Vietnam has actively internalized ACTIP's provisions and to date, Vietnam's laws on preventing and combating human trafficking are basically compatible with ACTIP's provisions.

The legal regulations on preventing and combating human trafficking have overcome many shortcomings, limitations, difficulties and obstacles in practical application. However, there are still some incompatibilities that need to be amended and supplemented to improve the effectiveness of cooperation between Vietnam and ASEAN member countries on preventing and combating human trafficking:

Firstly, the provisions on the criminal elements of the 2015 Penal Code are narrower than those of the ACTIP Convention and other international treaties. While the provisions of the ACTIP recognize the acts constituting the crime of human trafficking such as the acts of transferring, receiving, recruiting, transporting, and harboring as independent of each other. When any of these acts are performed for the purpose prescribed by the Convention, it will constitute 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 unintentionally narrows the scope of crimes as prescribed in the Convention.

Therefore, it is necessary to expand the scope of criminal handling of human trafficking and human trafficking under 16 years of age for the acts of recruiting, transporting, and harboring people for the purpose of sexual exploitation, labor exploitation, removal of body parts, or other inhumane purposes.

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Second, the provisions of Vietnamese law are still not fully compatible with international standards, especially the provisions on the age of child victims of human trafficking in Article 151 of the 2015 Penal Code as those under 16 years old, while international law stipulates that the age of child victims of human trafficking must be under 18 years old.

Thus, the Penal Code has a policy to handle the crime of human trafficking from 16 to under 18 years old in Article 150 “Crime of human trafficking”. Meanwhile, the trafficking of people under 18 years old according to international practices as well as international treaties is child trafficking and has severe sanctions to protect the best interests of this subject.

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

Third, the criminal responsibility between the crime of human trafficking, the crime of trafficking in persons under 16 years old and some other crimes in the Penal Code is not clearly differentiated. Clause 1, Article 150 and Clause 1, Article 151 of the 2015 Penal Code stipulate that people commit acts of human trafficking for many different purposes, including the purposes of "sexual exploitation", "forced labor" or "to take the victim's body parts".

For the two purposes of “sexual exploitation” and “forced labor”, both of these laws do not continue to stipulate that the aggravating circumstances of criminal liability are “sexual exploitation” or “forced labor” if the sexual exploitation or forced labor has actually been carried out…

Vietnam's efforts and commitments in preventing and combating human trafficking in recent times have been recognized and highly appreciated internationally.

In particular, the tasks and solutions set out in the Program on Prevention and Combat of Human Trafficking for the 2021-2025 period and orientation to 2030 are considered to be breakthroughs 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 for preventing, detecting, investigating, prosecuting and punishing human traffickers.

In addition, Vietnam regularly exchanges policies, efforts and achievements in preventing and combating human trafficking in Human Rights Dialogue sessions with the US, EU and Australia as well as meetings and working sessions with foreign partners, and actively implements international cooperation activities to effectively prevent and combat human trafficking crimes.

An effective legal framework and cooperation and linkage to prevent and combat human trafficking are currently effective and urgent measures, therefore the cooperation mechanism creates an important foundation in the work of preventing and combating human trafficking crimes.

References

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

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

3. Vietnam Penal Code 2015.

4. Vu Ngoc Duong (2019), Crime of human trafficking, especially women and children under the ACTIP Convention and implementation practices in Vietnam, Vietnam Lawyers, Vietnam Bar Federation, No. 1+2, pp.37-41.

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

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

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

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