Few commentators have appreciated the impact of the Principles and Guidelines on what was to follow. By affirming and extending the Protocol, rather than seeking to displace it, the UN Trafficking Principles and Guidelines provided a way forward for the evolution of a cohesive, ‘international law of human trafficking’, which weaves together human rights and transnational criminal law.132 This can be seen most clearly in European law around trafficking. Both the 2005 Council of Europe Convention and the 2011 EU Directive reiterate the core provisions of the Protocol in relation to criminalisation, co-operation, prevention, and victim support, while articulating relevant human rights in far greater detail – frequently incorporating concepts and language first set out in the Principles and Guidelines.133 The international human rights system, regional institutions, and courts have continued this unified approach – contributing to clarification of the precise nature and scope of the rights of victims and the corresponding obligations of States, while also affirming obligations of criminalisation, prosecution, and prevention.134 The most recent addition to the international legal framework around trafficking, the ASEAN Convention against Trafficking in Persons, Especially Women and Children, has continued the tradition of affirming the Protocol’s core provisions while expanding on its meagre human rights protections.
As a result, there is now widespread acceptance that victims of trafficking are the holders of a special set of rights conferred upon them by their status as trafficked persons, and that those rights go well beyond the ones recognised in the Protocol. These include:
The right to be identified quickly and accurately;
The right to immediate protection and support;
The right to legal information and the opportunity to decide whether and how to co-operate in the prosecution of their exploiters;
The right to not be detained;
The right to not be prosecuted for offences that relate directly to the fact of having been trafficked;
The right to be returned home safely, or to benefit from another solution if safe return is not possible; and
The right to an effective remedy that reflects the harm committed against them.
It is also now widely accepted that certain categories of victims, most particularly children, benefit from additional, status-related rights in recognition of their special vulnerabilities and needs. In short, no State could convincingly argue that its human rights obligations in this area are limited to those set out in the Trafficking Protocol.
The challenge of weak implementation machinery
Strong and credible international compliance machinery is rightly considered to be an essential aspect of international legal regulation, and trafficking is no exception. Unfortunately, despite its position as the central instrument of legal obligation in this area, the Trafficking Protocol loses out on this front – operating under the very loose oversight of a working group of States Parties attached to the broader Conference of Parties to the Organized Crime Convention that meets annually.135 The Working Group does not equate, in any respects, to a human rights treaty body or equivalent compliance body. It does not examine reports from Parties on implementation of the Protocol. It does not issue recommendations to individual Parties, engage in a constructive dialogue, or otherwise interact with Parties in any meaningful way. A further useful comparison is provided by the current (unreported) controversy over the question of NGO participation in its sessions – something that is taken for granted within the human rights system. Some States are strongly supportive of opening its sessions to outsiders, while others resist fiercely. There is also opposition to proposals that the supervisory machinery attached to the UNCTOC and its Protocols be strengthened.136 Among Parties to the Trafficking Protocol, in particular, there appears to be little appetite for another monitoring mechanism in what has become a crowded, contested field.
Within these limitations, the Working Group on Trafficking has made some progress – particularly in expanding understanding of the Trafficking Protocol’s core provisions, and in affirming that Parties’ human rights obligations extend well beyond the minimal provisions of the Protocol. For example, it has been noted that, with respect to victims, Parties should: “Ensure victims are provided with immediate support and protection, irrespective of their involvement in the criminal justice process”.137 This recommendation, which goes beyond the strict requirements of the Protocol, makes an important contribution to aligning that instrument with emerging international consensus on this issue. Another relates to the contentious issue of non-punishment and non-prosecution of trafficked persons for status-related offences. While the Protocol is silent on this point, the Working Group has recommended that Parties consider “not punishing or prosecuting trafficked persons for unlawful acts committed by them as a direct consequence of their situation as trafficked persons or where they were compelled to commit such unlawful acts”.138 It has affirmed the need for a rights-based approach in relation to several provisions of the Protocol, including the requirement that Parties address trafficking-related demand.139 Another substantive and potentially far-reaching achievement of the Working Group relates to its support for a series of studies examining what it termed “problematic” concepts in the Protocol’s definition of trafficking.140 This work has done much to elucidate the ‘practice’ of anti-trafficking work at the national level, and it has also provided much needed conceptual clarity to States and the international community.
Fortunately, the shortcomings of the Protocol’s compliance machinery have been ameliorated somewhat by external developments. Within the European system, for example, the 46 Parties to the Council of Europe Convention are subject to a rigorous oversight mechanism that includes country assessment visits.141 Parties are, of course, assessed against that instrument, and not against the Trafficking Protocol. However, the correlation between the two is high, and the added protections in the former make its assessment machinery an even more valuable tool from a human rights perspective. The international human rights system’s attention to trafficking has improved dramatically over the past decade – helped by a growing awareness of a synthesised ‘international law of human trafficking’.142 The Human Rights Council,143 treaty bodies,144 the Special Rapporteur on trafficking in persons,145 and other mechanisms146 regularly draw attention to obligations under the Protocol, as well as to those that have built on its foundations. The recent adoption of new ILO instruments on domestic servitude and forced labour, both of which reference the Protocol, can be expected to further reinforce implementation of the Protocol by bringing the ILO supervisory bodies into this expanded network of implementation machinery.
The unilateral compliance mechanism established by the US Government – the annual US Department of State Trafficking in Persons Report – can be justifiably criticised on many grounds.147 However, it, too, has played a role in reinforcing the core provisions of the Trafficking Protocol; for example, in relation to whether States have criminalised trafficking, whether they are prosecuting and appropriately punishing offenders, and whether they are co-operating with each other to that end. The reports have also evolved over time to place increased emphasis on those underdeveloped aspects of the Protocol that have subsequently been clarified and extended. For example, country assessments now routinely consider how the State under review treats victims of trafficking in both law and practice – focusing on issues as diverse as detention of victims in shelters,148 to protection of trafficked persons who are co-operating in the prosecution of their exploiters.149 The reports also address, albeit somewhat unevenly, deeper structural issues – such as public sector corruption – that directly impact how trafficking happens and how it is responded to.150
Finally, it is important to recognise the role of an increasingly vibrant civil society in exposing human trafficking and placing pressure on States and others to respond. Exploitation in the global fishing industry has now been taken up by the US Government and International Organ-isations151 –but only a
fter researchers and advocates did much of the hard work documenting the horrific abuses involved.152 NGOs, such as Verité and Humanity United, are conducting in-depth and tightly focused research that would be difficult for public entities to replicate;153 and innovative research is being commissioned and funded by privately financed entities such as the Freedom Fund.154 One new and abundantly funded NGO has jumped in with its own compliance mechanism, which at this stage principally collates and extrapolates derived data to rank governments from best to worst in a ‘Global Slavery Index’.155
The challenge of an ambiguous definition
The development of an international legal definition of trafficking was a great victory, but it came at a heavy price. States involved in negotiating the definition did not agree on many points, and consensus was only achieved through the adoption of an unwieldy formulation that included a number of vague and undefined terms. Over the years, these compromises have been used to support expansive interpretations of trafficking that seem to go well beyond the intention of the drafters and, perhaps, beyond even the broader goals of the Protocol. Extreme claims – such as “all pornography is trafficking” or “all prostitution is trafficking” –are easily discredited through a careful application of the definition. However, other arguments are more difficult to refute. For example, some States have adopted a broad understanding of the phrase “abuse of a position of vulnerability” that enables courts to characterise the prostitution or economic exploitation of poor migrants as “trafficking”.156 A strict adherence to the principle of the irrelevance of consent has been shown to have a similar effect.157 The failure of the Protocol to precisely delimit “exploitation” (the purpose of trafficking) has enabled States to extend the definition to include practices as diverse as illegal, unethical adoptions, commercial surrogacy, begging, prostitution and pornography, involvement in criminal activities, use in armed conflict or religious rituals, and kidnapping for purposes of extortion or political terrorism.158 Ambiguities in the definition have also lent support to the careless and increasingly frequent equation of trafficking with slavery and ‘modern slavery’ (a term unknown to international law).
Of course, there are positive aspects to an expanded concept of trafficking. Many of the practices with which it is associated – from forced marriage, to debt bondage, to forced labour – have long been subject to legal prohibition at both national and international levels. However, international scrutiny has been almost non-existent, and States have rarely been called to task for even the worst violations. The abject failure of the international community – including the international human rights system and the ILO – to secure substantial progress on any of these fronts over the past half century should not be forgotten. Recent legal and political developments around trafficking have changed this situation fundamentally – giving previously moribund prohibitions a new lease of life. New laws, institutions, and compliance machinery strengthen the capacity of both national and international law to address such practices effectively. Civil society groups are no longer marginal actors. New organisations and new alliances are both creating and sustaining what appears to be an unstoppable momentum for change. It is not unreasonable to conclude that a broadening of the parameters of trafficking to embrace the many ways in which individuals are exploited for private gain – even those that appear to be at the less severe end of the spectrum – will have a similarly positive effect: focusing law, public attention, and resources where they are so badly needed.
That said, the dangers associated with what one scholar has aptly termed “the expansionist creep”159 must be openly acknowledged and actively managed. Making all exploitation ‘trafficking’ (and, indeed, making all trafficking ‘slavery’) complicates the task of those who are at the front line of investigating and prosecuting trafficking – presenting particular challenges in countries that lack specialist capacity and robust criminal justice systems. In all countries, the expansionist creep risks diluting attention and effort, and potentially deflecting attention away from the worst forms of exploitation that are most difficult for States to address. The equation of prostitution with trafficking provides a case in point: permitting States to claim easy credit for virtually effortless arrests and prosecutions that do little or nothing to address those egregious forms of sexual exploitation that the Protocol was intended to challenge. Prosecuting employers for lesser labour exploitations in the name of addressing trafficking is just as questionable. In most countries, a raft of offences is available to address such conduct. Why is the blunt instrument of trafficking being favoured over these apparently more appropriate alternatives? It is equally important to question crude international assessment systems that recognise and reward prosecutions for ‘trafficking’ while ignoring valuable prosecutions for related offences.
Conclusion
At the beginning of this century only a small handful of States specifically prohibited the process by which individuals were moved into, and maintained in, situations of exploitation at home or abroad. Many of the practices we now associate with trafficking were outlawed in most countries, but these laws, like their international equivalents, were almost never invoked. International scrutiny of State actions with respect to such exploitation was extremely limited and ineffective. With the benefit of hindsight, we can see clearly that it was the adoption of the Trafficking Protocol, under the expansive umbrella of the UNCTOC, that changed this situation dramatically and irreversibly. While imperfect instruments in many respects, the Protocol and its parent Convention provided both framework and impetus for the subsequent evolution of a comprehensive ‘international law of human trafficking’ that articulates, with much greater clarity than was ever previously possible, the obligations of States in relation both to ending impunity for traffickers and to providing support, protection, and justice for those who have been exploited. This is a singular achievement, and one that should not be forgotten as we work to address the many challenges ahead.
Notes
1 This chapter draws on several previous works of the author, including: Gallagher, A. T., The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010), especially chapter 2; and Gallagher, A. T., “Two Cheers for the Trafficking Protocol” (2015) 4 Anti-Trafficking Review 14–32.
2 International Agreement for the Suppression of the White Slave Traffic 1904, 1 LNTS 83; International Convention for the Suppression of the White Slave Traffic 1910, 3 LNTS 278 (both amended by a Protocol approved by the General Assembly on 3 December 1948, 30 UNTS 23); International Convention for the Suppression of Traffic in Women and Children 1921, 9 LNTS 415; International Convention for the Suppression of the Traffic in Women of Full Age 1933, 150 LNTS 431 (amended by a Protocol approved by the General Assembly on 20 October 1947, 53 UNTS 13).
3 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 1949, 96 UNTS 271 (1949 Trafficking Convention).
4 Convention on the Rights of the Child 1989, 1577 UNTS 3 (CRC), Article 35.
5 Convention on the Elimination of All Forms of Discrimination against Women 1979, 1249 UNTS 13 (CEDAW), Article 6.
6 Conference of Parties to the United Nations Convention on Transnational Organized Crime, Decision 4/4, “Trafficking in Human Beings”, reproduced in Conference of Parties to the United Nations Convention on Transnational Organized Crime, Report of the Conference of Parties to the United Nations Convention on Transnational Organized Crime on Its Fourth Session, Held in Vienna From 8 to 17 October 2008 (UN Doc. CTOC/COP/2008/19, 2008), p. 12, para. (d).
7 Gallagher, The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010).
8 As of March 2016, 186 States have ratified or acceded to the Convention against Transnational Organized Crime; and 169 States have ratified or acceded to the Protocol.
9 United Nations Convention against Transnational Organized Crime 2000, 2225 UNTS 209 (Organized Crime Convention).
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10 UN General Assembly, Follow-Up to the Naples Political Declaration and Global Action Plan Against Organized Transnational Crime (UN Doc. A/RES/52/85, 1997).
11 UN Economic and Social Council Commission on Crime Prevention and Criminal Justice, Report of the Meeting of the Inter-Sessional Open-Ended Intergovernmental Group of Experts on the Elaboration of a Preliminary Draft of a Possible Comprehensive International Convention Against Organized Transnational Crime (UN Doc. E/CN.15/1998/5, 1998).
12 UN General Assembly, Transnational Organized Crime (UN Doc. A/RES/53/111, 1999).
13 United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime 2000, GA Res. 55/25, Annex III, UN GAOR, 55th Sess., Supp. No. 49 (UN Doc. A/45/49 Vol. I, 2001), p. 62 (Migrant Smuggling Protocol).
14 United Nations Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime 2000, GA Res. 255 (UN Doc. A/RES/55/255, 2001) (Firearms Protocol).
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