Establish a long statute of limitations period for trafficking offences;69
Provide, to the greatest extent possible, for the tracing, freezing, and confiscating of the proceeds of trafficking, in both domestic cases and in aid of other Parties;70
Provide other Parties with mutual legal assistance in investigation, prosecution, and judicial proceedings for trafficking offences;71
Criminalise obstruction of justice;72
Protect victims and witnesses from potential retaliation or intimidation;73
Take appropriate measures to encourage those involved in trafficking to co-operate with or assist national authorities;74 and
Provide for channels of communication and police-to-police co-operation in relation to the investigation of trafficking offences.75
Table 3.1 Key provisions/obligations of States Parties to the Trafficking Protocol
The purposes of the Trafficking Protocol are:
“(a) To prevent and combat trafficking in persons, paying particular attention to women and children; Article 2
(b) To protect and assist the victims of such trafficking, with full respect for their human rights; and
(c) To promote cooperation among States Parties in order to meet those objectives.”
The key obligations of States Parties to the Trafficking Protocol are:
To criminalise ‘trafficking in persons’ as defined in the Protocol; and to impose penalties that take into account the grave nature of that offence. Article 5
To protect, to the extent possible under domestic law, the privacy and identity of victims of trafficking in persons; and to consider the provision of a range of social services to enable their recovery from trauma caused by their experiences. Article 6
To ensure that the legal system contains measures that offer victims the possibility of obtaining compensation. Article 6
To consider allowing victims to remain in their territory, whether permanently or temporarily, taking into account humanitarian and compassionate factors. Article 7
To accept the return of any victims of trafficking who are their nationals, or who had permanent residence in their territory at the time of entry to the receiving State. When returning a victim, due regard must be taken of their safety, with the return preferably being voluntary. Article 8
To establish policies, programmes, and other measures to prevent and combat trafficking and to protect victims of trafficking from re-victimisation. Article 9
To provide and/or strengthen training for officials in the recognition and prevention of trafficking, including human rights awareness training. Article 10
To strengthen such border controls as might be necessary to prevent trafficking, without prejudice to other international obligations allowing the free movement of people. Article 11
Obligations related to victim protection and support
Part Two of the Trafficking Protocol, dealing with protection of the trafficked person, contains several important protective provisions. However, there is very little in the way of ‘hard’ or detailed obligations. Parties are required to:
Protect the privacy and identity of trafficking victims in appropriate cases and to the extent possible under domestic law – including by making legal proceedings confidential to the extent that this is also possible under domestic law;76
Ensure that, in appropriate cases, victims receive information on relevant court and administrative proceedings, as well as assistance to enable their views to be presented and considered during criminal proceedings;77
Endeavour to provide for the physical safety of trafficking victims within their territory;78 and
Ensure that domestic law provides victims with the possibility of obtaining compensation.79
In terms of victim assistance and support, the relevant provision requires Parties to: “consider adopting legislative or other appropriate measures to provide for the physical, psychological and social recovery of victims of trafficking”.80 Special reference is made to the provision of housing, counselling, and information in a language the victim understands; medical, psychological, and material assistance; and employment, education, and training opportunities.81 In effect, this means that a State will not be breaching either the letter or the spirit of the Convention if it decides to provide no material, medical, or other assistance whatsoever to any victim of trafficking within its territory. States also retain an implied right under the Convention to link the provision of such assistance to victims’ willingness to co-operate with criminal justice agencies.
While the Protocol does not set out different and special measures for trafficked children, it does contain several provisions aimed at ensuring a relatively higher degree of protection. The most significant of these relates to the definition of trafficking in children – specifically: the omission of a means element. In applying the Protocol’s protection and assistance provisions, Parties are required to take into account the special needs of child victims, including appropriate housing, education, and care.82
Obligations related to legal status and repatriation
The status of the victim in the receiving State was a critical issue in the negotiations. While NGOs and the Inter-Agency Group argued strongly for the inclusion of some kind of right of trafficked persons to remain in the receiving country, at least temporarily, this option was never seriously under consideration. According to the travaux préparatoires:
Most delegations were concerned that the Protocol might inadvertently become a means of illicit migration if States Parties were obliged to adopt legislation permitting victims to remain in the countries to which they were trafficked.83
States recognised, however, that in some cases there would be a legitimate need for victims to remain in their country of destination – for example: “for humanitarian purposes and to protect them from being victimized again by traffickers”.84 The final text provides that the State Party is to consider adopting legislative or other measures permitting victims of trafficking to remain in their territories, “temporarily or permanently, in appropriate cases”85 –with appropriate consideration being given to “humanitarian and compassionate factors”.86
The related issue of repatriation, dealt with in a separate article,87 was also a very sensitive issue in the negotiations. The Ad Hoc Committee rejected a proposal that identification as a trafficked person be sufficient to protect them from immediate expulsion against their will, and that the protection and assistance provisions of the Protocol become immediately applicable.88 The final article on repatriation provides that States Parties of origin are to facilitate and accept, without undue or unreasonable delay, the return of their trafficked nationals and those who have a right of permanent residence within their territories.89 In returning a trafficking victim to another State Party, destination States are required to ensure that such return takes place with due regard both for the safety of the trafficked person and for the status of any legal proceedings relating to the fact of that person being a victim of trafficking.90 While such return “shall preferably be voluntary”,91 these words are to be understood as not placing any obligation on the returning State.92 In order to facilitate repatriation, Parties are required to communicate with each other in verifying nationalities, as well as travel and identity documents.93 The relevant article also contains several savings clauses, preserving rights that may be afforded victims under domestic law, as well as under any other bilateral or multilateral agreements that govern the issue of return of victims of trafficking.94
Obligations of prevention and co-operation
Article 31 of the UNCTOC contains a comprehensive list of measures to be taken by States to prevent transnational organised crimes, including trafficking in persons.95 Prevention provisions in the Trafficking Protocol itself operate to supplement those measures. These provisions are, for the most part, couched in qualified terms – making it difficult to isolate specific obligations. Parties are required to establish policies, programmes, and other m
easures aimed at preventing trafficking and protecting trafficked persons from re-victimisation.96 They are further required to endeavour to undertake additional measures, including information campaigns and social and economic initiatives, to prevent trafficking.97 These measures should include co-operation with NGOs, relevant organisations, and other elements of civil society.98 Parties are also required to adopt legislative or other measures “to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking”.99
Despite its attention being drawn to the issue,100 the Ad Hoc Committee did not directly address the problem of national anti-trafficking measures being used for discriminatory purposes or with discriminatory results. This gap is, however, at least partly ameliorated by a provision that the application and interpretation of measures pursuant to the Protocol “shall be consistent with internationally recognized principles of non-discrimination”.101 Discussions on the need to avoid conflict with existing principles of international law also produced a broad savings clause to the effect that nothing in the Protocol is to affect the rights, obligations, and responsibilities of States under international law, including international humanitarian law, international human rights law, and, in particular, refugee law and the principle of non-refoulement.102
More specific obligations of prevention are set out in relation to law enforcement and border controls – supplementing the extensive ones set out in the UNCTOC itself.103 In the area of law enforcement, Parties accept a general obligation to co-operate through information exchange aimed at identifying perpetrators or victims of trafficking, as well as methods and means employed by traffickers.104 Parties are also to provide, or strengthen, training for law enforcement, immigration, and other relevant personnel, aimed at preventing trafficking, as well as at prosecuting traffickers and protecting the rights of victims.105 Training is to include a focus on methods to protect the rights of victims.106 It should take into account the need to consider human rights, child-and gender-sensitive issues, and encourage co-operation with NGOs, as well as with other relevant organisations and elements of civil society.107
Border controls, sanctions on commercial carriers, and measures relating to travel or identity documents are all seen as important means of deterring traffickers. During the drafting process, the Inter-Agency Group recommended that emphasis in relation to border control should be on measures to assist border authorities in identifying and protecting victims, as well as intercepting traffickers.108 The final text requires Parties to strengthen border controls, as necessary, to detect and prevent trafficking,109 to take legislative or other appropriate measures to prevent commercial transport being used in the trafficking process, and to penalise such involvement.110 Parties are also to take steps to ensure the integrity of travel documents issued on their behalf, and to prevent their fraudulent use.111
Improved co-operation between countries on the issue of trafficking is the raison d’être of the Protocol;112 and the obligation of co-operation is, accordingly, integrated into a range of provisions, including those related to the sharing of information113 and the repatriation of victims.114 Cross-border co-operation is also envisaged with respect to the strengthening of border controls and general law enforcement against trafficking.115 These specific provisions are supplemented by the Convention, which, as noted above, constructs a detailed model of mutual legal and other assistance to facilitate co-operation between States in the prevention and suppression of transnational organised crime. The Protocol also makes brief reference to the need for improved co-operation within countries: specifically, between criminal justice and victim support agencies in matters related to the prevention of trafficking and the provision of assistance to victims.116
Part 3: impacts and challenges
The impact of the Trafficking Protocol, almost two decades after its adoption, has been profound. This instrument has done more than any other single legal development of recent times to place the issue of human exploitation firmly on the international political agenda. It has served to crystallise a phenomenon that, for too long, was left conveniently undefined and under-regulated. It has provided the international community and States with an invaluable – albeit incomplete and imperfect – roadmap. The single achievement that made all this possible was the incorporation into the Protocol of a definition of “trafficking in persons”. As long as the concept of trafficking remained unclear, it was virtually impossible to formulate substantive obligations and hold States to account for violations. The adoption of an international legal definition of trafficking in persons was a genuine breakthrough because it provided the necessary pre-prerequisite for the elaboration of a meaningful normative framework. Obligations that are now taken for granted, for example to criminalise trafficking and to protect victims, would be meaningless without the anchor of an agreed definition. The definition was also critical in forging a common vision between States. Today, the twentieth-century idea of trafficking as being concerned solely with the cross-border sexual exploitation of women and children has lost all authority. While States continue to prioritise certain forms of trafficking over others, their laws almost uniformly recognise the essence of the Protocol’s conception of trafficking: that it can take place within as well as between countries; that it can be used against women, men, and children; and that the purposes of trafficking extend to many of the ways in which individuals are severely exploited for private gain.
More generally, on an issue that had long been marginalised by States and the international community, the Trafficking Protocol proved to be a game-changer, triggering unprecedented levels of action. In the years following the Protocol’s adoption, a major regional treaty on the subject was developed,117 along with important soft law including, in 2002, the United Nations Recommended Principles and Guidelines on Human Rights and Human Trafficking.118 Intergovernmental bodies outside the United Nations system, along with civil society groups, became involved in researching the issue and initiating or supporting anti-trafficking efforts. Ratification of the Protocol was extremely rapid – allowing it to enter into force a mere two years after adoption.119 States very quickly began implementing its core obligations by introducing new laws and policies aimed at criminalising trafficking as well as, in most cases, providing at least minimal protection for victims. After being noticeably absent from the Trafficking Protocol’s negotiations, and prevaricating in the years that followed, the International Labour Organization (ILO) has come to the fore in recent years, adding its voice to the global movement against exploitation by adopting instruments on domestic servitude120 and forced labour,121 and by issuing increasingly authoritative studies of the scope and scale of trafficking-related exploitation.122 In 2015, the Association of Southeast Asian Nations (ASEAN) adopted a regional treaty on trafficking, closely modelling this instrument on the Protocol and the Organized Crime Convention.123 There can be no doubt that the nature and pace of developments since 2000 would have been very different without the impetus and foundation provided by the Protocol.
While lauding its considerable impact and achievements, it would be unwise to overlook the challenges and obstacles that the Trafficking Protocol has either generated or contributed to.
The challenge of fragile human rights protections
It is not useful or realistic to lament the Trafficking Protocol’s criminal justice focus. Such criticisms are naïve because they fail to appreciate that the alternative – a human rights treaty on trafficking – was never a serious possibility in the first place, because it would not have received the necessary level of political support. However, States were prepared to develop an instrument of international co-operation that identified trafficking as a problem of transnational crime requiring a co-ordinated response, and that imposed specific obligations of criminalisation and cross-border collaboration. After considerable prodding, States were also willing to include low-threshold human rights protections, as well as a savings cla
use that guaranteed that the Protocol and its parent instrument could not be used to modify existing human rights protections.124
While accepting a qualified victory, human rights advocates were nevertheless right to be nervous about the Protocol’s sparse and heavily qualified human rights protections. The failure to clearly specify certain rights, such as the right to immediate protection and support and the right of access to an effective remedy, implied that such rights did not in fact exist. A similar inference could be made of the Protocol’s failure to articulate certain critical obligations, such as the obligation to proactively identify victims.
The response to this rather dangerous situation was swift and effective. Less than two years after the Protocol’s adoption, the UN High Commissioner for Human Rights issued the highly influential Recommended Principles and Guidelines on Human Rights and Human Trafficking. While crafting what has come to be known as a ‘rights-based approach’ to the issue, the Principles and Guidelines did not seek to present an alternative to the Protocol. Rather, they carefully grafted human rights onto the skeleton that the Protocol provided. For example, the Protocol’s nod to the special situation of children125 is fleshed out with a clear explanation of the rights to which trafficked children are entitled under international law, as well as an affirmation that the “best interests of the child” must be the primary consideration in any decision regarding children who have been trafficked.126 The Protocol’s rather vague reference to remedies (i.e., national law to provide the possibility of compensation)127 is clarified in accordance with established rules of international law: States are obliged to provide victims of trafficking with access to effective remedies; and this requires attention to a range of legal and procedural issues, including the right to stay and the provision of information and protection.128 Even the criminal justice obligations of the Trafficking Protocol, its least ambiguous provisions, were fleshed out with reference to the standard of “due diligence” and the establishment of a now well-recognised connection between victim support and an effective criminal justice response.129 The Principles and Guidelines contained the first-ever acknowledgement of the risk of “collateral damage”, and of the need for responses to trafficking to be monitored closely for their negative impact on existing rights and freedoms.130 They also articulated, for the first time, the principle of non-criminalisation of victims in relation to offences committed as a result of their trafficking.131
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