The international definition of trafficking is found in the “UN Trafficking Protocol” drafted in the Italian town of Palermo in 2000, and sometimes also referred to as the “Palermo Protocol”.
It’s official title is: “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.”
The Trafficking Protocol is one of three protocols (additional parts) of the United Nations Convention on Transnational Organised Crime (UNTOC). The other protocols concerns smuggling of migrants, and the trade in firearms.
It is the first global legally binding instrument with an agreed definition on trafficking in persons, and came into effect in 2003. No less than 171 countries have signed, ratified or acceded to the Protocol. (Four have signed but not ratified.) That’s almost 90% of countries who are member states of the UN. In other words, there is widespread agreement at the international level on what the definition of trafficking in persons is.
The definition itself, however, is somewhat complex:
(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article; .
A more memorable shorthand version might read: “the recruitment or movement of persons, through force or fraud, for the purpose of exploitation.” (While remembering that movement can include ‘non-movement’ parts of the journey like harbouring or receiving, and force/fraud can include threat, abuse of power, or ‘buying someone’.)
The three elements of ‘action‘ (recruitment or (non)movement), plus ‘means‘ (force, fraud, control), plus ‘purpose‘ (exploitation) are all required to be present in order to constitute the crime of trafficking.
The definition is different for children, defined in the protocol as people under eighteen years of age, for whom force/fraud/control is not necessary. Simply moving or recruiting children for the purpose of exploitation is sufficient to be considered trafficking. Exploitation must be present in all cases, however, either actual (already happened) or imminent (clearly about to happen).
It should be noted that prostitution itself is NOT considered trafficking in the UN Protocol. It is the ‘exploitation of the prostitution of another’ that is an element of trafficking. Unlike earlier laws on trafficking, the UN Trafficking Protocol makes clear people of all ages, and all genders, can be trafficked into a wide range of sectors.
It also important to note that Trafficking and Smuggling are not interchangeable words; they have separate Protocols to UNTOC for a reason. A trafficking offence involves exploitation at the end of the journey; it is considered a crime against the individual and specific protections are outlined for victims of this crime. Smuggling, which concerns benefiting from someone else’s transport over a border through unofficial means (and/or provision of false documents), is considered a crime against the state. While the rights to life, safety, and asylum of smuggled migrants are protected, they are still considered to have entered ‘illegally’ and repatriation is assumed to the likely outcome.
The UN High Commissioner for Human Rights published “Recommended Principles and Guidelines on Human Rights and Human Trafficking” in 2002, partly because although the Trafficking Protocol contains references to human rights and human rights law, it is not itself a human rights treaty as such. The UNTOC primarily concerns the area of criminal law, and in practice some would argue the Trafficking Protocol often has a greater focus on border protection rather than human rights protection (not least as repatriation of trafficked persons is only ‘preferably’ with their consent).
The Recommended Principles and Guidelines attempt to overlay a human rights approach to trafficking on top of the criminal law based framework, and can greatly assist states implementing domestic legislation to comply with the UN Trafficking Protocol (if they read it, carefully). The guidelines reassert the primacy of human rights, and highlight areas where issues related to trafficking overlap with other areas of international law – including rights of migrants, refugees and children.
In Europe, we have several additional layers of law. Firstly the Council of Europe adopted a Convention on Action against Trafficking in Human Beings in 2005. Then in 2011 the EU adopted a Directive ‘on preventing and combating trafficking in human beings and protecting its victims’.
Recently the Westminster Parliament adopted the “Modern Slavery” Act (2015)*, and the Scottish Parliament is currently developing legislation currently titled Human Trafficking and Exploitation (Scotland) Bill.
So going from international to domestic we have no fewer than five pieces of legislation to consider here in Scotland.
- UN Convention against Transnational Organized Crime – Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (pdf full text)
- Council of Europe – Convention on Action against Trafficking in Human Beings (html)
- EU Directive 2011/36/EU, on preventing and combating trafficking in human beings and protecting its victims (pdf)
- UK “Modern Slavery” Act (2015) (html)
- (Draft) Human Trafficking and Exploitation (Scotland) Bill (html)
Confused yet? You soon will be. The first three laws all use the identical definition of trafficking as outlined above. However, the UK Modern Slavery Bill (and it’s smaller Scottish draft sibling) use different definitions, that will require another post to describe, let alone comprehend.
Further (highly recommended) reading:
*As outlined in the referenced journal article, the term “Modern Slavery” has no legal meaning in international law and so quotation marks are used.