BY DAVID MATAS

Presentation to a Parliamentary briefing 11 January, 2017, Riga, Latvia

There are two requests I would make of the Parliament of Latvia. One is implementation of the European Union Parliament resolution on organ harvesting in China endorsed in December 2013. One component of that resolution, and I quote, “Calls for the EU and its Member States to raise the issue of organ harvesting in China; recommends that the Union and its Member States publicly condemn organ transplant abuses in China and raise awareness of this issue among their citizens travelling to China;”

This call is not just addressed to the European Union. It is also addressed separately to Member States of the European Union. Moreover, there is a triple call. Member states are urged to engage in three distinct activities.

They are supposed, to repeat,

1) to raise the issue of organ harvesting in China;
2) to condemn publicly organ transplant abuse in China; and
3) to raise awareness of this issue among their citizens travelling to China.

Each of the requested initiatives deserves comment. The European Union has a bilateral human rights dialogue with China. European Union states participate in this bilateral dialogue. Most of the states of the European Union do not have their own bilateral human rights dialogue with China. Nonetheless, the European Parliament, in full awareness of this reality, called on Member States to raise the issue of organ harvesting in China.

It would be improper and a violation of the intent of the European Union Parliament resolution for any Member state to leave concern about organ abuse in China to the European Union China bilateral human rights dialogue. The concern should be raised individually as well as collectively, in state capitals with Chinese embassies, in Beijing with embassies there and to visiting Chinese delegations.

The resolution calls for public condemnations. It is not enough to raise the concerns about organ transplant abuse privately, behind closed doors. It is all too easy for the Government of China to ignore private pleas. Public condemnations impose a cost to China for this abuse, the least cost they should bear. Public condemnations should be visible as possible, at the highest level, and should continue as long as the abuse continues.

The third component, raising awareness of this issue among their citizens travelling to China, should be directed particularly to transplant tourists. A Policy Statement of Canadian Society of Transplantation and Canadian Society of Nephrology on Organ Trafficking and Transplant Tourism provides in part:

“Physicians … as members of the medical community, … have a duty to prevent harm to other individuals [besides their patients]. Patients [with end organ failure] should be educated about the harms that may come to those who provide organs through transplant tourism. .. organs have allegedly been taken by force, and individuals may even been killed to obtain their organs.”

Member states of the European Union should be encouraging transplant professionals in each of their countries to develop a similar policy.

The Latvian constitution, in its preamble, states: “The people of Latvia … condemn the Communist … totalitarian regimes and their crimes.” Now, it is all very well to condemn the Communist totalitarian regimes and their crimes in the abstract. But to give that statement content, the crimes have to be condemned, crime by crime, as they occur. Organ transplant abuse in China is a crime of a totalitarian Communist regime. The Latvian constitution calls for its condemnation.

Though there may be other European Union member states with a similar provision in their constitution, I am not aware that this is so. This preambular provision in the Latvia constitution imposes on Latvia a special responsibility to condemn organ transplant abuse in China.

The second request I would make is legislation preventing complicity in Chinese transplant abuse through implementation of the Council of Europe Convention against Trafficking in Human Organs. The Council of Europe in March 2015 approved the Convention. To date, there are seventeen signatory states, and one ratifying state, Albania.

Latvia has not yet either ratified or even signed the treaty. The Government of Latvia has announced their intention to do so. When that happens and the Government introduces legislation to implement the Convention and to approve ratification, the Government and Parliament should go beyond the bare minimum requirements of the Convention in three respects.

The Convention requires states parties to criminalize forced organ harvesting and organ brokerage and obligates states parties to criminalize violations of Convention standards by nationals of states parties abroad. Whether the Convention should have created an international offence applicable to residents and visitors caused division within the Council at the drafting stage, with 18 states supporting and 20 opposed. The Convention does not obligate states parties to create an international offence applicable to permanent residents and visitors. But there is nothing preventing states, should they wish to do so, from legislating such an offence.

The Convention is explicit about this option. It states: “Without prejudice to the general rules of international law, this Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with its internal law.” Given the division at the time of drafting about whether to require states parties to make the offences international and the failure to agree on this matter by a narrow margin, this “without prejudice” clause can be read as a go ahead to states who want on their own to legislate the treaty offences to have international reach. The clause amounts to saying that, while we do not require states parties to legislate the offences to have extra-territorial effect for residents and visitors, they are certainly free to do so, should they wish.

All states should sign, ratify and implement the Council of Europe Convention on Organ Trafficking. All states should go beyond the obligations of this Convention and assert jurisdiction over perpetrator residents and visitors, as well as perpetrator nationals.

Second, implementing legislation should impose compulsory reporting by health professionals to health authorities of transplant tourism so that the authorities know about the offence when committed. Israel, Spain and Taiwan have enacted such compulsory reporting laws. Legislators in Canada, Belgium, France and Australia have proposed such laws.

Health professionals will know about transplant tourism, because patients, after transplantation abroad, need anti-rejection drugs at home. Voluntary reporting will not be effective. If it could be effective, there would have already been voluntary reporting systems established. Yet, they do not exist.

Without compulsory reporting, we are caught in a vicious circle. We are left only with anecdotal information to gauge the extent of the problem, inevitably understating it. And the artificial minimization of the problem without compulsory reporting leads to inaction in combating the abuse.

Third, the legislation should make clear that organ trafficking encompasses transplant tourism. There should wording in the legislation to that effect.

The United Nations Convention on Transnational Organized Crime (UNTOC) has a Protocol on Trafficking in Persons. The United Nations Office on Drugs and Crime has taken the position that this protocol does not encompass transplant tourism.

The NGO Taiwan Association for International Care of Organ Transplants (TAICOT) in March 2014 asked to meet with Ilias Chatzis, Chief, Human Trafficking and Migrant Smuggling Section, Organized Crime and Illicit Trafficking Branch, United Nations Office on Drugs and Crime at its headquarters in Vienna

“to present to you latest updates from Asia about organ tourism in China and to discuss with you how best to prevent and stop unethical organ harvesting, a new form of cruel torture against humanity.”

The request added:

“For your reference, on December 12th, 2013, the European Parliament (EP) adopted an urgency resolution, calling on the Chinese government to end immediately the practice of harvesting organs from prisoners of conscience, including large numbers of Falun Gong practitioners.”

Mr. Chatzis, replied in part, on March 21, 2014:

“A meeting would … not be productive as my Section’s work does not include what you refer to as organ harvesting nor the other issues covered in your e‑mail. My Section covers the UNTOC Protocols on Trafficking in Human Beings and on Migrant Smuggling. I am sorry that I cannot be more helpful at this stage.”

Mr. Chatzis could not have been more clear. The e-mail requesting a meeting referred to organ tourism. The refusal of a meeting stated that the work of his Section does not cover “the other issues covered in your e-mail”, that is to say, organ tourism. Moreover, because his Section covers the UNTOC Protocol on Trafficking in Human Beings, it is his view that the UNTOC Protocol on Trafficking in Human Beings does not cover organ tourism.

Lest there be any uncertainty in this matter, I wrote to Yury Fedotov, Executive Director UN Office of Drugs and Crime Vienna, Austria, on July 30th, 2014 asking him to reject the views of Mr. Chatzis. On August 8th, 2014, on behalf of Mr. Fedotov, Mr. Tofik Murshudlu, Officer in Charge, Organized Crime and Illicit Trafficking Branch, Division for Treaty Affairs, United Nations Office on Drugs and Crime in a verbose and evasive reply failed to do so.

The Declaration of Istanbul on Organ Trafficking and Transplant Tourism defines transplant tourism to be travel for transplantation:
“which involves organ trafficking and/or transplant commercialism or if the resources (organs, professionals and transplant centers) devoted to providing transplants to patients from outside a country undermine the country’s ability to provide transplant services for its own population.”

That definition presents alternatives. One of those alternatives is travel for transplantation which involves organ trafficking. If you travel for transplantation and, at the place at which you arrive, the organ which you receive is trafficked, then that is transplant tourism.

China is a party to the Trafficking in Persons Protocol to the Transnational Organized Crime Convention. The Government of China would likely contest any interpretation of the UN Protocol which brings under the jurisdiction of the UN Office on Drugs and Crime the transplant misbehaviour of the Chinese Government.

Given the geopolitical weight of China and a desire not to annoy its Government, the UN Office of Drugs and Crime may be making every effort to avoid a confrontation with the Government of China by avoiding the issue. The responses of Mr. Chatzis and Mr. Fedotov may have been influenced by the Government of China either directly or through fears of what that Government might have thought. Regardless, their sort of behaviour is not a good sign.

I contest the interpretation of the Protocol Mr. Chatzis has given. But I also acknowledge that China uses its political weight at all United Nations institutions to seek impunity for its human rights violations. My interpretation of UN treaties is not going to change that.

The Council of Europe Convention can be signed by the member States of the Council of Europe, the European Union and the non‑member States which enjoy observer status with the Council of Europe. It is also can be signed by any other non‑member State of the Council of Europe upon invitation by the Committee of Ministers.

The Council of Europe Convention sets out international standards and mechanisms to combat transplant tourism not available through the United Nations system. Latvia and all other states should take advantage of the opportunity the Convention provides.

Links:

Articles 4,5, 7 and 8
European Committee on Crime Problems (CDPC) Draft Council of Europe Convention against Trafficking in Human Organs, footnote 3 Strasbourg, 07 December 2012, CDPC (2012) 21

Article 10(8)
Organ Transplant Act 2008 http://www.declarationofistanbul.org/resources/legislation/267-israel-transplant-law-organ-transplant-act-2008

http://www.ont.es/infesp/Legislacin/ExtractoLeyOrganica_5_2010.pdf

Taiwan legislation sets a new standard in the combat against rogue organ harvesting practices

Bill C‑500 on February 5, 2008, the second time as Bill C‑381 on May 7, 2009, Bill C-561- December 6, 2013

http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6375892&File=4

Sénat de Belgique Session de 2006 2007, December 13, 2006
http://www.assemblee-nationale.fr/13/propositions/pion2797.asp

Human Tissue Amendment (Trafficking in Human Organs) Bill 2013