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UN Palermo Trafficking Protocol Eighteen Years On: A Critique

  • Silvia ScarpaEmail author
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Abstract

The chapter describes the process that led to the adoption of the UN Trafficking Protocol as an instrument of transnational criminal law and comments on its most debated aspects, including the adoption of the first definition of trafficking in persons in an international treaty, the thin line separating trafficking in persons from the smuggling of migrants and the scarce measures aimed at protecting victims. The problematic aspects, loopholes, and lack of effectiveness and consistency in the UN Trafficking Protocol are discussed.

Keywords

Trafficking in persons Exploitation Definition of trafficking Protection of victims Smuggling of migrants 

The Adoption of the UN Trafficking Protocol as an Instrument of Transnational Criminal Law

The Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children (hereinafter the UN Trafficking Protocol) annexed to the Convention against Transnational Organized Crime was opened for signature at the High Level Political Signing Conference – attended by delegates from 148 countries – held in Palermo (Italy) in December 2000. It entered into forced only 3 years after, namely, on 25 December 2003. The Convention against Transnational Organized Crime (CTOC) entered into force on 29 September 2003 and it was also supplemented by the UN Protocol against the Smuggling of Migrants by Land, Sea, and Air (hereinafter the UN Smuggling Protocol) that entered into force on 28 January 2004. A third additional Protocol on Trafficking in Firearms was also added to the CTOC, but it is not taken into consideration by this study.

As of 14 December 2018, the CTOC has reached quasi-universal coverage, with 189 States Parties, the UN Trafficking Protocol follows with 173 ratifications and the UN Smuggling Protocol has collected 147 instruments of ratification. In October 2018, when opening the ninth session of the Conference of the Parties to the CTOC, Yury Fedotov, Executive Director of the United Nations Office on Drugs and Crime (UNODC) urged States Parties to strengthen their cooperation in this field, but also indicated that “the Convention and its Protocols have more than stood the test of time” (UNODC 2018). Besides the considerations on the overall framework, which is not examined by this study, it is also undeniable that the new anti-trafficking regime has generated much discussion, with scholars being divided among some who severely criticize it (Hathaway 2008; Chuang 2014; Allain 2014; Kotiswaran 2017), and others who fiercely defend it (Gallagher 2009). Therefore, 18 years after the adoption of the new anti-trafficking regime and 15 years after its entry into force, the time seems right for an overall assessment of its consistency, effectiveness, and of its shortcomings.

The process that led to the adoption of the CTOC and of its Protocols was set in motion by the 1994 Declaration of the Ministerial Conference of Naples, recognizing the need to adopt an international convention against transnational organized crime. As a follow-up, the General Assembly appointed in 1997 an Open-Ended Intergovernmental Group of Experts entrusted with the task of preparing a draft convention (General Assembly 1997) and subsequently decided to establish an Open-Ended Intergovernmental Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime that, by the end of 2000, would elaborate a treaty against transnational organized crime and would further discuss the elaboration of treaties dealing with “… trafficking in women and children, combating the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, and illegal trafficking in and transporting of migrants, including by sea.” (General Assembly 1999: 3). It is noted that the focus of the mandate given by the UN General Assembly to the Ad Hoc Committee was ambiguous in regard to human trafficking and to what was later labeled the smuggling of migrants; the same term – namely, trafficking – was, in fact, used to identify both the offences (Scarpa 2008). Moreover, it was also unfortunate that the drafting of a human trafficking treaty was not to be conducted under the slavery or human rights umbrellas but under the one of the fight against transnational organized crime. Eloquently, the UN Special Rapporteur on Violence against Women, Radhika Coomaraswamy, expressed her concerns about this issue, stating that:

[T]he first modern international instrument on trafficking is being elaborated in the context of crime control, rather than with a focus on human rights. [This is] a failure of the international human rights community to fulfil its commitment to protect the human rights of women. (UN Special Rapporteur on Violence against Women 2000: 7)

During the negotiations process, a preliminary draft of the UN Trafficking Protocol was initially submitted by the United States of America and it was subsequently integrated with additional elements proposed by Argentina (General Assembly 2000). This draft text was used by the delegations for finding consensus on a final document. It is also important to remember that the negotiations of the UN Trafficking Protocol generated much interest in non-governmental organizations (NGOs) and some of them participated in the negotiations of the UN Trafficking Protocol. They were subdivided into two groups: the International Human Rights Network and the Human Rights Caucus (Scarpa 2008). The two groups – namely, the radical feminist and the sex workers ones – promoted two different feminist approaches to prostitution, to the relationship between prostitution and the exploitation of prostitution and, consequently, to trafficking in persons for the purpose of sexual exploitation. Therefore, the NGOs included in the International Human Rights Network lobbied for a radical feminist view to be incorporated into the UN Trafficking Protocol by claiming that it is not possible to distinguish between forced and voluntary prostitution, since prostitution always amounts to a forced activity that, therefore, colludes with human trafficking (Raymond 2002). Within this view, even an adult cannot consent to prostitution, since the latter is in itself a violation of human rights akin to slavery (Scarpa 2008). Therefore, the International Human Rights Network lobbied to obtain a definition of trafficking in persons that would not have distinguished between victims who can demonstrate they were forced and those who cannot. Consequently, they sustained the irrelevance of adult victims’ consent when one of the improper means (including not only force, but also other lesser situations of vulnerability) had been used (Raymond 2002). On the other hand, the Human Rights Caucus promoted the sexual workers approach and lobbied for maintaining the distinction between free and forced prostitution (Scarpa 2008). This approach favors a view of prostitution as free sex work. For this reason, this group of NGOs lobbied to consider consent as a relevant issue and to omit the term “victim” from the text of the Protocol, substituting it with “trafficked person” as a form of empowerment (Ditmore and Wijers 2003; Doezema 2002).

The different feminist approaches to prostitution and the corresponding positions of States was an issue that was debated at length during the negotiation process of the UN Trafficking Protocol. States’ representatives were also divided between these two divergent views. However, it was also widely felt that it was necessary to avoid that the UN Trafficking Protocol would end up attracting a limited number of ratifications as it had happened to the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others adopted by the United Nations in 1949, which promoted an abolitionist approach against prostitution (Scarpa 2008). Therefore, according to Gallagher, “States merely agreed to sacrifice their individual views on prostitution to the greater goal of securing an agreed definition and maintaining the integrity of the distinction between trafficking and migrant smuggling” (Gallagher 2010: 28–29). Whether the two “greater goals” indicated by Gallagher represent good results is, however, questionable and it is further analyzed below.

Thus, it is not surprising that the final text of the UN Trafficking Protocol is a compromise treaty only composed by 20 Articles and that it surely constitutes the least achievable common denominator among the States that participated to the drafting process. The next sections discuss the most debated elements of the UN Trafficking Protocol, namely, the definition of the phenomenon and its distinction from the smuggling of migrants and the measures aimed at assisting trafficking victims. It is worth noting that protection measures are part of the UN Trafficking Protocol’s so-called 3/4-Ps approach, which also includes common measures designed to prevent and combat human trafficking and to promote co-operation among States Parties. However, since these measures were not subjected to serious criticism, they are not examined in this study.

The Definition of Trafficking in Persons

The adoption of the UN Trafficking Protocol in December 2000 introduced the first internationally recognized definition of the concept of trafficking in persons. The definitional complexity inherent in the UN Trafficking Protocol is immediately apparent if one considers that actually two definitions are respectively adopted for trafficking in adults and for child trafficking and the difference between them has to do with vitiated consent and the connected improper means used by traffickers on victims. Therefore, Article 3(a) of the UN Trafficking Protocol defines trafficking in adult persons as a process comprising:
  1. 1.

    The “recruitment, transportation, transfer, harbouring or receipt of persons”;

     
  2. 2.

    the use of improper means – namely, “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”;

     
  3. 3.

    the purpose of exploitation. Among the forms of exploitation, the trafficking definition specifically mentions “… 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.”

     

Article 3(b) further clarifies that if one of the means set forth in Article 3(a) is used, it is irrelevant whether the persons expressed their consent or not. The issue of consent was a difficult one to overcome during the negotiations of the UN Trafficking Protocol because of the above-mentioned different positions of States on the issue of prostitution/the exploitation of prostitution. The prevailing idea was, in the end, considering consent irrelevant only if one of the means listed in the definition is used to convince an adult victim (Scarpa 2008). Consequently, the Legislative Guide for the Implementation of the UN Trafficking Protocol acknowledges that: “Once it is established that deception, coercion, force, or other prohibited means were used, consent is irrelevant and cannot be used as a defence” (UNODC 2004). On the contrary, the definition of trafficking in minors contained in Article 3(c) does not take into consideration the issue of consent and improper means, so that the two-phases process of the recruitment, transportation, transfer, harboring and receipt of a child for the purpose of exploitation amounts to child trafficking.

The definition of human trafficking is problematic for various reasons. First of all, the use of the term “trafficking” suffers from the complexity of its historical heritage and strict connection with only one form of exploitation that is sexual exploitation and the thorny issue of consent in prostitution. The concept of “trafficking” constitutes in fact an evolution of the term traffic, which since early in the nineteenth century had been used to refer to the white slave trade or traffic phenomenon, namely, the abduction of European adult women and young girls, their transportation abroad, and their final exploitation in brothels. Four main international treaties were adopted early in the twentieth century for the purpose of fighting against this phenomenon, namely: the 1904 International Agreement for the Suppression of the White Slave Traffic; the 1910 International Convention for the Suppression of the White Slave Traffic; the 1921 International Convention for the Suppression of the Traffic in Women and Children; and finally the 1933 International Convention for the Suppression of the Traffic in Women of Full Age. None of them provided a definition of white slave trade or traffic, but they all referred to the procurement of women for “immoral purposes”, which was their common denominator. Significantly, none of the white slave trade or traffic conventions dealt with prostitution per se, which remained a matter of national jurisdiction (Scarpa 2008). Moreover, the 1921 and 1933 Conventions were adopted under the auspices of the League of Nations, which had also promoted the adoption of the 1926 Convention on Slavery aimed at fighting slavery and the slave trade.

The white slave traffic conventions’ scope was consolidated and extended by the 1949 Convention for Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, whose adoption was promoted by the United Nations. However, this Convention has only been ratified by 82 States and is regarded by some as being “obsolete and ineffective” (European Parliament 1996). Particularly contested was its choice of the abolitionist model to manage prostitution, so that prostitution per se is prohibited alongside with trafficking for the purpose of sexual exploitation, victims’ penalization is prohibited and consent is always considered irrelevant. Article 1 of the 1949 Convention requires in fact States Parties to: “punish any person who, to gratify the passions of another: (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2) Exploits the prostitution of another person, even with the consent of that person.” Therefore, the different consideration given to the issue of consent clearly distinguishes the 1949 Convention from the UN Trafficking Protocol.

While eight States ratified the 1949 Convention in the last decade, so that this treaty cannot be considered as fully obsolete, its regime remains in place only among a minority of the States of the world. The ethical debate centered on the possibility to distinguish between free and forced prostitution is a key element when discussing the UN Trafficking Protocol’s definition of human trafficking. The different points of view of groups of feminists – the radical feminists and the sex-workers one – and also of States on the issue were hardly reconcilable. Therefore, States Parties remain free to set the boundaries in this area since prostitution is treated as a matter of internal affairs that fully remains within the States Parties’ jurisdiction, leading to an evident lack of consistency in the universal legal approach (Scarpa 2018). This applies equally regionally, since Article 3 of the 2005 Council of Europe Convention on Action against Trafficking in Human Beings, Article 2 of the 2015 Association of Southeast Asian Nations (ASEAN) Convention against Trafficking in Persons, Especially Women and Children, as well as Article 2 of the EU Directive 2011/36/EU on prevention and combating trafficking in human beings and protecting its victims include definitions of trafficking based on the one included in the UN Trafficking Protocol.

However, the policies in the field of prostitution of the States Parties to the UN Trafficking Protocol might affect human trafficking for the purpose of sexual exploitation, so it would be wrong to believe that the two issues can be kept fully separated. This has been particularly evident in Europe, where countries have adopted different models aimed at dealing with prostitution (Scarpa 2017; Scarpa 2010). Recently, Cho and others conducted an empirical analysis with a cross section of up to 150 countries in which prostitution is legal and concluded that the legalization of prostitution increases trafficking in persons for the purpose of sexual exploitation (Cho et al. 2013). In this respect, it is important to highlight how the recent report by Walby and others at the request of the European Commission proposes that:

Wherever there are legal sanctions to regulate prostitution, the presumption should be that the burden of compliance and of sanctions should be borne first by those that take profits (or rents or fees) from prostitution and second by those that purchase sex, avoiding wherever practical placing sanctions for non-compliance on the sellers of sex. (Walby et al. 2016: 197)

According to the authors of the study, this first step is to be followed by a de-criminalization of the sale of sex “as being necessary in order … to allow for the reaching of victims to provide them with assistance and to facilitate the prosecution of traffickers and other criminal exploiters” (Walby et al. 2016: 197). A harmonization of States’ legislations along these lines would constitute a first important step not only at the European level but also eventually at the global one, within the framework of the States Parties to the UN Trafficking Protocol.

Secondly, another issue which lacks proper consideration by the UN Trafficking Protocol, as well as more generally by universal and regional efforts aimed at tackling human trafficking, is whether the lack of consistency in the global approach to prostitution, the exploitation of the prostitution of others and other forms of sexual exploitation and human trafficking for the purpose of sexual exploitation – if summed up to the diversity of national laws and policies and to other technical, political, economic and social factors – might indirectly risk contributing to the proliferation of side effects, such as inter alia an increase in sexual exploitation of children in travel and tourism. The role of other factors is clearly emphasized by Capaldi in an ECPAT International’s Report:

The use of new ICTs and other technical and socio-economic developments have also contributed in recent years to a boom in the travel and tourism industries in many regions of the world. Despite a growing awareness of the sexual exploitation of children in travel and tourism, the opening up of new tourism destinations such as in Southeast Asia, Eastern Europe and Latin America is providing new locations for child sex offenders (including the prostitution of street-based boys which is often found as a significant problem in certain tourist resorts). … Recent research has shown that travelling sex offenders are moving away from major cities to more remote locations where awareness about sexual abuse and exploitation is lower and a traditional ‘culture of silence’ can contribute to victims and their families not speaking out. (Capaldi 2015: 12)

The link between the lack of a consistent universal approach and the various national frameworks in place in this field would instead require to be further studied and subjected to increased attention by the States Parties to the UN Trafficking Protocol.

Thirdly, the use of improper means necessary to vitiate the consent of adult trafficking victims applies equally to all the forms of exploitation included in the definition, such as slavery, practices similar to slavery, forced or compulsory labor, servitude, the exploitation of the prostitution of others, and other forms of sexual exploitation and the removal of organs. However, it is to be noted that the trafficking framework includes for the first time various prohibitions having both an absolute and relative nature under international law in a process-oriented crime. While in fact slavery and the practices similar to slavery are defined in the 1926 and 1956 Conventions as absolute prohibitions, the prohibition of forced or compulsory labor is relative, since relevant exceptions are included in Article 2(2) of the ILO Convention No. 29 – including military service for work of purely military character, normal civic obligations, work of convicted prisoners, work in emergencies and other minor communal services – as well as in Article 8.3(b) and (c) of the 1966 International Covenant on Civil and Political Rights (ICCPR), Article 4.3 of the 1950 European Convention on Human Rights (ECHR), and Article 6.3 of the 1969 American Convention on Human Rights (ACHR). Moreover, such distinction between absolute and relative prohibitions is also mainstreamed in international human rights law since no interference, limitation or exception is allowed to the prohibitions of slavery and servitude and they are considered nonderogable even in situations of public emergency threatening the life of the State by Article 4.2 ICCPR, Article 15.2 ECHR and Article 27.2 ACHR (see chapter “The Nebulous Definitions of Slavery: A Critique of the Interpretations of the 1926 Slavery Convention’s Definition and of Some Recent Sociological Proposals”). Notwithstanding this distinction, an analysis of these practices shows potential clashes between the ways in which the definition of trafficking in adults takes into consideration the issue of consent and how they are defined or interpreted according to international treaty law (Scarpa 2013). In particular, if the focus tends to be disproportionally placed on consent, the inclusion of practices – such as slavery, the practices similar to slavery and servitude – that are founded on absolute prohibitions among the forms of exploitation becomes extremely problematic (Scarpa 2013). On one hand, in fact, slavery, debt bondage, and serfdom are defined in the 1926 and 1956 Conventions in such a way so that they include both voluntary and involuntary practices; servitude is left undefined by international treaty law, but still it is worth remembering how, during the drafting process of the 1948 Universal Declaration of Human Rights, the Third Committee of the General Assembly of the United Nations believed that it was necessary to eliminate servitude whether it was voluntary or not, as a way to avoid offering to slave holders the possibility of arguing that their victims had voluntarily accepted such a condition (General Assembly 1948). On the other hand, the practices regarding women included in Article 1(c) of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery are defined in such a way so that the decision regarding their fate is taken by someone else and, secondly, that the final outcome of the decision – the marriage, the transfer or the inheritance of the woman – cannot be challenged by them, so that consent is absent. These conclusions clash with the definitional framework of trafficking in adults, given the inclusion of a second element of vitiated consent and the use of improper means (Scarpa 2013). In addition to this, additional problems arise with legal concepts having a relative nature, such as forced or compulsory labor; if in fact coercion and involuntariness are already elements of the crime of forced or compulsory labor, the relevance of the other improper means included in the trafficking framework is deemed to be scarce or nonexistent (Scarpa 2013).

Finally, the thorny issue of consent also affects other practices for which the definition, boundaries and regulation are a matter of national jurisdiction, such as the exploitation of the prostitution of others as well as other forms of sexual exploitation and, to a certain extent, the issue of organ removal (Scarpa 2013). In both cases, States Parties to the UN Trafficking Protocol remain free to legislate on prostitution and organ removal, so that what ends up being included as an exploitative practice within the realm of the trafficking framework varies from State to State and consent is used exactly for maintaining in the case of adults such complex distinction in place (Scarpa 2013). Moreover, given its specificity and fundamental difference from all the other exploitative practices, the issue of organ removal should have deserved more attention during the drafting process and the provision of additional measures within the UN Trafficking Protocol. While the Council of Europe recently adopted the 2015 Convention against Trafficking in Human Organs, as a way of filling in many of the loopholes existing in this field, the treaty – which is open for signature and ratification by both CoE Member States and Non-Member States – has so far only collected six ratifications.

States Parties to the Trafficking Protocol are aware of the complexity of the issue of consent. In 2010, the Working Group on Trafficking in Persons established by the Conference of the Parties to the Convention against Transnational Organized recommended that clarifications be provided inter alia on this issue (Working Group on Trafficking in Persons 2010). This led to the adoption by UNODC of an issue paper on consent drafted by Gallagher, which confirms the problematic nature of this issue, the variety of approaches adopted by States Parties and the impossibility for the victim to consent when his/her inalienable rights are at stake; according to the author these include rights to the prohibitions of slavery, servitude, and forced labor (Gallagher 2014).

Fourth, the first element of the trafficking definition, namely, the action, comprises various activities, including the “recruitment, transportation, transfer, harboring, or receipt of persons”. None of these terms is defined in the UN Trafficking Protocol, which is in itself a problematic issue, but – as stated above – each one of them is sufficient if combined with the purpose of exploitation (for minors) and with both an improper means and purpose of exploitation (for adults) for establishing the offence of human trafficking (UNODC 2004). In this respect, the inclusion of concepts (such as recruitment, harboring, and receipt) that are not connected with the idea of “movement” is considered as positive (Scarpa 2008; Gallagher 2010). In this way, cases in which victims are not moved but simply recruited or harbored or received from others – if the other elements of the definition are also met – are to be considered as human trafficking ones. However, scholars such as Allain (2014) and some States Parties to the UN Trafficking Protocol fail to recognize this issue. Consequently, the definition’s potential broad interpretation that goes beyond movement is to be promoted. Unfortunately, it is to be noted that since movement was intrinsic in the concept of traffic/trafficking used at the supra-national level before the adoption of the UN Trafficking Protocol, the promotion of a new broader interpretation might prove challenging.

Fifth, the interpretation of the improper means, namely, “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” included in the second part of the definition of trafficking in adults also generated much discussion (Gallagher 2010). None of them are defined in the UN Trafficking Protocol and limited guidance has been offered to States Parties on how to reproduce them into their national legal frameworks.

Sixth, the UN Trafficking Protocol’s trafficking definition also suffers from the complexity inherent in the fact that – besides the exploitation of the prostitution of others – it incorporates various other exploitative practices, including slavery, the practices similar to slavery, forced or compulsory labor, servitude, and the removal of organs. None of them is defined by the Protocol, even if at least some of them (including, slavery, the practices similar to slavery, and forced or compulsory labor) were already defined by other treaties. However, the interpretations of all the definitions – for both defined and undefined concepts in international treaty law – are problematic and contours as well as overlaps among the various concepts remain unclear (Scarpa 2018). Issues arise also in terms of the status of the prohibitions of these practices from the point of view of the sources of international law, with only the prohibition of slavery being widely considered as a peremptory norm of international law (jus cogens). Given this already problematic framework, the Trafficking Protocol’s definition connects for the first time these concepts with a process-oriented crime. This process, however, can be long and actions can happen in different moments and places – as including across borders – thus potentially rendering the prosecution of trafficking cases more complex than, for instance, the one of slavery or forced labor issues (Scarpa 2018).

Additionally, the concept of “exploitation” included in the UN Trafficking Protocol remains undefined and the list of exploitative practices listed in the definition is nonexhaustive (Scarpa 2008). Consequently, it is clear that the door remains open for further exploitative practices to be eventually added at universal, regional, and national levels. While, on one hand, the possibility of amending the definition included in the UN Trafficking Protocol exists, it is not believed that it is an appropriate solution to the definitional challenges existing in this area of international law. However, on the other hand, it is possible that in the near future a universal customary concept of exploitation different from the one included in the UN Trafficking Protocol is developed. At the European subregional level, Articles 2(1) and 2(3) of the Directive 2011/36/EU have already broadened the UN Trafficking Protocol’s concept of exploitation by adding other forms, namely, begging and criminal activities to the list. Moreover, the Preamble of the Directive also refers to illegal adoptions and forced marriages. Finally, practices that might be included in the definitional framework of human trafficking at the national level are, for instance: early and forced marriages; serious labor exploitation in agriculture, construction, mines, factories, fishing, etc.; the use of the victims in illicit activities, in circuses, races, etc.; forced street begging; domestic exploitation; the use of victims in armed conflicts; practices of child illegal adoptions for exploitative purposes; the use of women for forced commercial surrogacy (Scarpa 2008; European Parliament 2016; European Parliament 2011). On a parallel level, it is, however, legitimate to ask whether only severe practices deserve to be included in the definition of trafficking or if States Parties remain free to set the boundaries of the concept of “exploitation,” with an evident risk of diluting the nature of the prohibition of a serious crime (Kotiswaran 2017). This issue clearly contributes to increasing the complexity of the trafficking framework and further diluting its consistency too.

Finally, highly debated was the fact that Article 4 of the UN Trafficking Protocol inevitably limited its scope of application “to the prevention, investigation, and prosecution of the offences established in accordance with Article 5 … where those offences are transnational in nature and involve an organized criminal group, as well as to the protection of victims of such offences.” The UN Trafficking Protocol was initially criticized for narrowing human trafficking only to the situations where these two elements are met. Therefore, both internal trafficking without any transnational element, which is widespread in some countries of the world, and the one organized by individuals or groups of two people or by groups that cannot be considered as structured ones would have risked being excluded from the UN Trafficking Protocol. However, the UNODC Legislative Guide clarified that “the Trafficking in Persons Protocol also applies to the protection of victims regardless of transnationality and involvement of an organized criminal group” (UNODC 2004). The same conclusion can be reached by jointly taking into consideration Article 34 CTOC and Article 1 of the UN Trafficking Protocol. This implies that States Parties shall introduce in their criminal legislations the crime of human trafficking, regardless of transnationality or the involvement of criminal organizations and they cannot discriminate between victims of internal and transnational trafficking, as well between the ones exploited by a structured group – as defined by the Convention against Transnational Organized Crime – or by an individual or any other kind of group. The minimum protection – examined below – provided by the UN Trafficking Protocol shall, consequently, be granted to all victims of human trafficking. Notwithstanding the UNODC Legislative Guide’s clarification, it is evident that the trafficking definition and anti-trafficking action both suffer from the framework within which they were promoted. The latter is based not only on “an interest in suppressing crimes against the person, such as enslaving or trafficking a person, but [on] a preoccupation with irregular migration and a determination to prioritize crimes related to migration, rather than focusing on the rights of migrants or even violations of the human rights of migrants” (Dottridge 2017: 63). This issue continues to severely affect the implementation of the UN Trafficking Protocol.

The UN Trafficking Protocol’s definition represents a complex compromise among the States’ representatives that participated in the negotiations. The concept of human trafficking for multiple forms of exploitation has the potential to be broadly interpreted as covering the greatest majority of exploitative practices existing today (Scarpa 2008; Gallagher 2010). However, a rigid interpretation of such a framework that places too much emphasis on vitiated consent (for adults), and focuses more on the process than on the exploitative outcome does not support the aim of including most of the forms of exploitation existing today within the human trafficking umbrella and instead risks its being undermined (Scarpa 2018). Moreover, the UN Trafficking Protocol’s definition extends the boundaries of the phenomenon, recognizing that trafficking is connected to various forms of exploitation and that men, women, and children can be trafficked. While the boundaries of the definition remain fuzzy and unclear, the trafficking framework founded on the UN Trafficking Protocol’s definition stands today as one of the three fundamental regimes – including the ones on slavery and practices similar to slavery and on forced and compulsory labor – against serious forms of exploitation. It is also to be acknowledged that the interpretation of the concept has not so far been devoid of politicization; especially in some countries, such as the United States, an “exploitation creep” has been noticed, so that:

… diverse advocates have appropriated the “trafficking” label so that the activities covered by the term trafficking remain very much in the eye of the beholder. The definitional muddle has resulted in indiscriminate conflation of legal concepts, heated battles over how best to address the problem, and an expanding crowd of actors fervently seeking to abolish any conduct deemed “trafficking.” (Chuang 2014: 610)

Finally, the various forms of exploitation included in the trafficking framework have received various degrees of attention. Sexual exploitation has been the predominant issue in trafficking discourse for almost a decade since the adoption of the UN Trafficking Protocol. Subsequently, “[f]rom around 2012 onwards, trafficking became increasingly reframed in terms of both slavery and forced labour” (Kotiswaran 2017: 18), with increased attention for labor exploitation and global supply chains. However, many other forms of exploitation connected to human trafficking are still waiting to receive the necessary level of attention which would be needed for seriously tackling them.

The (Thin) Line Between Trafficking in Persons and the Smuggling of Migrants

As stated supra, the UN Convention against Transnational Organized Crime is also supplemented by a Protocol on the smuggling of migrants by land, sea, and air. Article 3(a) of this treaty defines the smuggling of migrants as: “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.” The adoption of the UN Smuggling Protocol was determined by the deficiencies in the universal system of international law aimed at targeting those who profit from the facilitation of irregular migration at a time in which some States, including in particular those in Western Europe and North America, were increasingly worried about this phenomenon (Gallagher 2015).

While certain key differences are clearly apparent from the comparison between the definitions of human trafficking and migrant smuggling, the “theory” in this field does not fully match the reality, so that serious overlaps between the two exist (Bhabha and Zard 2006; Scarpa 2008). UNODC clarifies that there are three main differences between the two definitions and they have to do with consent, exploitation and transnationality. As regards the first issue, namely, consent, as stated above, the UN Trafficking Protocol’s definition presupposes that consent of adult trafficking victims is vitiated by the use of improper means. However, consent is considered irrelevant in the case of minors. Consequently, the UN Trafficking Protocol considers trafficked persons as “victims”. Differently, the UN Smuggling Protocol considers smuggled persons as migrants who freely decide to buy an illegal transportation service from a smuggler to reach their desired destination while crossing borders irregularly. Moreover, the UN Smuggling Protocol’s definition of smuggling presumes that the relationship between the smuggler and the smuggled migrant ends once the latter arrives at destination. Exploitation is another key difference: the UN Trafficking Protocol’s definition considers the latter as the ultimate outcome of the trafficking process and a fundamental element within that framework. The UN Smuggling Protocol’s definition instead does not include any reference to exploitation, assuming as stated above, that the relationship between smuggler and smuggled person ends once that migrants arrive at their destination. However, Article 6.3(c) of the UN Smuggling Protocol allows States Parties to introduce aggravating circumstances for the criminal offence of smuggling of migrants and includes exploitation among them. Finally, the last difference between the two offences is that smuggling in migrants always takes place across national borders, although this is not always the case for trafficking in persons. Therefore, smuggled migrants are always irregular immigrants while trafficked persons can both be trafficked internally and transnationally and in the latter case, they may have entered into the State of destination both legally or irregularly.

Even if theoretically the above-mentioned three elements should allow to clearly distinguish between trafficking in persons and the smuggling of migrants, in reality the two phenomena may well overlap, as there is a considerable grey area between them. Traffickers and smugglers might adopt the same routes for their illegal activities, so that “clients” and “victims” may travel together and the difference between them may not be apparent to border guards. Furthermore, it is always possible that smuggled migrants may find themselves in difficulties leading to a condition of exploitation. On the other hand, trafficked victims travelling across borders risk being conflated with irregular/smuggled migrants, so that if they are not properly identified they lose access to the minimum protection measures included in the UN Trafficking Protocol (Scarpa 2008; Gallagher 2010). The UN Smuggling Protocol in fact contains on a comparative perspective lesser measures dealing with the protection of smuggled migrants. Moreover, smuggled migrants might end up being trafficked and/or exploited at their destination because of their irregular entry and the consequent lack of documents, which does not allow them to apply for regular jobs. Therefore, it is believed that the two phenomena should be considered as partially intersecting, with full consideration of their unclear contours and serious overlaps (Scarpa 2008).

The (Scarce) Protection of Trafficking Victims

Given that the UN Trafficking Protocol is a transnational criminal law instrument primarily designed to punish human traffickers, it should not be surprising that it contains only three articles dedicated to victims’ protection and they do not create strong obligations for States Parties. The main reasons behind the discretionary language used in many protection measures are connected with the lack of interest by States’ delegates to enhance the protection of trafficked victims, who were mainly considered as a financial burden or as witnesses deserving only minimum rights. The division between the two groups of NGOs – namely, the Human Rights Caucus and the International Human Rights Network – lobbying during the negotiations was also undermining the final result in terms of victims’ protection (Scarpa 2008).

The provisions on the protection of trafficking victims are included in Section II of the UN Trafficking Protocol, entitled “Protection of Victims of Trafficking in Persons” that comprises articles 6, 7, and 8. Four years after the adoption of the UN Trafficking Protocol, the Legislative Guide adopted by UNODC intervened on the discretionary character of some of these provisions on the protection of trafficked victims. Unfortunately, the Guide clarified that Article 6, paragraphs 3 and 4 on social assistance, victims’ protection, and the special needs of children and Article 7 on the status of victims are optional provisions with no binding effect on the States Parties. The distinction was made along the lines of first and second generations’ human rights, so that according to the Legislative Guide:

Generally, the provisions of the Protocol setting out procedural requirements and basic safeguards are mandatory, while requirements to provide assistance and support for victims incorporate some element of discretion … The nature of the social obligations reflects concerns about the costs and difficulties in delivering social assistance to all victims (or indeed, the general population) in many developing countries. (UNODC 2004: 283)

Article 6 is the core provision of the Section and it is composed of six paragraphs stating that the Contracting Parties: (1) consider both protecting the identity and privacy of trafficked victims and making legal proceedings related to such offence confidential; (2) if appropriate, adopt in their domestic legal or administrative systems measures designed to provide trafficking victims with information on relevant proceedings and assistance to enable them to testify against their traffickers; (3) examine the possibility of guaranteeing to trafficking victims physical, psychological, and social recovery and, in particular appropriate housing, counselling, and information in a language that they can understand at least on their legal rights, medical, psychological, and material assistance, education, the opportunity to find an employment, and to attend professional courses; (4) take into account the age, gender, and special needs of trafficking victims, particularly those of children, especially relating to housing, education, and care; (5) make efforts to provide for the physical safety of the victims residing in their territory; (6) introduce measures in their domestic systems to guarantee that trafficked victims may obtain compensation for damage suffered. Article 7 suggests that States Parties consider adopting measures to guarantee trafficking victims the right to remain within their territory, temporarily or permanently, giving consideration to “humanitarian and compassionate factors” and, finally, Article 8 contains a set of measures to facilitate the return of trafficked persons to their State of nationality or of permanent residence. The limited approach of Articles 7 and 8 of the Protocol, which is based on a presumption that trafficking victims are irregularly present in the countries of destination, is self-evident.

Even if it is included in the last section of the Protocol, namely, Chapter IV, Article 14, which is dedicated to saving clauses, should also be mentioned among the protection measures. Its first paragraph provides in fact that the UN Trafficking Protocol does not affect existing rights and obligations under international law and, in particular, those provided by international humanitarian law and international human rights law. Specific mention is made of the 1951 Convention relating to the Status of Refugees, of its 1967 Protocol and of the principle of non-refoulement. The latter is a fundamental principle of international refugee law, which is enshrined in Article 33.1 of the 1951 Convention relating to the Status of Refugees, and it provides that States shall not return a refugee or asylum seeker against his/her will to a territory where he/she fears persecution. However, the principle is also included in some international human rights treaties. It is worth mentioning, at the universal level, Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) prohibiting return when there is a fear that the returned individual might be subjected to torture and Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) for risks of enforced disappearance upon return. At the regional one, the principle is included in Article 22.8 ACHR if the “right to life or personal freedom [of the returned individual] is in danger of being violated because of his race, nationality, religion, social status, or political opinions,” and Article 19.2 of the Charter of Fundamental Rights of the European Union for risks of death penalty, torture or other inhuman or degrading treatment or punishment upon return. The second paragraph of Article 14 of the UN Trafficking Protocol contains a non-discrimination clause, ensuring that trafficking victims are not discriminated against and that the UN Trafficking Protocol is interpreted consistently with the well-established international principles of non-discrimination.

However, the lack of a specific provision on the identification of trafficking victims in the UN Trafficking Protocol – given the evident risk especially in irregular transnational trafficking that if not properly identified they might end up being considered as irregular or smuggled migrants – is evident (Scarpa 2008). Moreover, the trafficking protection framework has been implemented in some States – including in particular, the United States and European countries – through the promotion of a very limited rescue framework. The latter might work for some trafficking victims, including in particular, those irregularly within the country of destination who escape from sexual exploitation and ruthless traffickers, but it does not fit victims possessing other statuses (citizens, refugees, etc.) and exploited in other sectors.

Conclusion

The UN Trafficking Protocol has been widely criticized for having been adopted within the framework of the fight against transnational organized crime, to the detriment of other relevant approaches. The interest of many States Parties, which is not “merely an interest in suppressing crimes against the person, such as enslaving or trafficking a person, but a preoccupation with irregular migration and a determination to prioritize crimes related to migration, rather than focusing on the rights of migrants or even violations of the human rights of migrants” (Dottridge 2017) undermines the potential of the trafficking framework.

The problematic nature of the definition of human trafficking and the lack of clarity on its contours and interpretation add further issues, diluting consistency and leading to “alternative understandings at the global, national and local levels” (Merry 2017). Scholars, judges, and professionals working in this field have an important responsibility and role to play worldwide while interpreting the definition, for the purpose of guaranteeing greater consistency, as well as effectiveness of the global framework on the fight against human trafficking.

Moreover, since human trafficking is a multifaceted and complex issue, it is problematic that certain dimensions were not appropriately taken into consideration by the UN Trafficking Protocol through specific additional measures. These issues include intersections between human trafficking and (transnational and internal) migration and refugee protection, the protection of victims’ human rights, children’s rights and gender mainstreaming, concerns about various forms of labor exploitation and their connection to global supply chains, as well as clarifications on organ removal.

However, demonizing the regime by claiming that it is “flawed” (Allain 2014) brings with it many risks, given the outdated nature of the two Slavery Conventions and the limited number of ratifications, namely, 27, received so-far by the new Protocol of 2014 to the Forced Labour Convention.

Notwithstanding all the limitations identified in this chapter, it should also be acknowledged that, on the (limited) positive side, the UN Trafficking Protocol surely represents a landmark achievement if compared to the previous white slave trade or traffic conventions that for nearly a century had condemned the practice but had never defined it. Moreover, it is important to note that the Conference of the Parties to the Convention against Transnational Organized Crime, which was established pursuant to Article 32.1 CTOC, created a Working Group on Trafficking in Persons and, with its resolution 7/1, decided that this is a permanent element of the Conference (Conference of the Parties 2014). The Working Group has been so far actively involved in promoting consistency in the implementation of the UN Trafficking Protocol by the States Parties. Moreover, a process aimed at establishing a reporting mechanism for reviewing implementation of the Convention against Transnational Organized Crime and the Protocols is ongoing; this might constitute an important aspect for favoring a more consistent and coherent approach by the States Parties.

Finally, it is worth noting that, according to Article 18 of the UN Trafficking Protocol, 5 years after its entry into force, any State Party may propose amendments to it. The proposals shall be voted on by the Conference of the Parties and if approved, the amendments are subject to ratification, acceptance, or approval by the States Parties. Therefore, this author fully supports the introduction of additional protective measures for trafficking victims in the near future. These measures could be easily framed, keeping into consideration the ones included in European instruments, such as the Council of Europe Convention on Action against Trafficking in Human Beings and the European Union Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. In this way, existing loopholes within the universal protection system currently in place with the UN Trafficking Protocol might be eliminated.

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Copyright information

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2019

Authors and Affiliations

  1. 1.Department of Political Science and International AffairsJohn Cabot UniversityRomeItaly
  2. 2.Department of LawLUISS Guido Carli UniversityRomeItaly

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