The International Legal Definition of Trafficking in Persons: Consolidation of research findings and reflection on issues raised
Background and context Until December 2000, the term “trafficking in persons” was not defined in international law, despite its incorporation in several international legal instruments. The long-standing failure to develop an agreed-upon definition of trafficking in persons reflected major differences of opinion concerning the ultimate end result of trafficking, its constitutive acts and their relative significance, as well as similarities and differences between trafficking and related issues such as irregular migration and the facilitated cross-border movement of individuals into prostitution or irregular employment. The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Trafficking in Persons Protocol) is considered to be “the principal, legally binding global instrument to combat trafficking in persons,” not least because it sets out the very first international legal definition of “trafficking in persons”. Under article 3 of that instrument, trafficking in persons comprises three elements: (i) an “action”, being recruitment, transportation, transfer, harbouring or receipt of persons; (ii) a “means” by which that action is achieved (threats or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability, and the giving or receiving of payments or benefits to achieve consent of a person having control over another person); and (iii) a “purpose” (of the action/means): namely, exploitation, which includes, 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”.
All three elements must be present to constitute “trafficking in persons” except in relation to trafficking of children for which the “means” element is not required. The consent of a victim in trafficking is specified as irrelevant when any of the stipulated “means” are used. Achieving international agreement on the definition of trafficking in persons was widely considered to be a major step forward in articulating a common understanding of the nature of the problem and establishing the foundation upon which the necessary cooperation between States could be developed. From a legal perspective, a definition of trafficking was rightly seen as the necessary foundation upon which a legal framework of obligations and responsibilities could be built. In many senses these hopes have been realized. While there has been widespread acceptance of the Protocol’s definition at the international, regional and national levels, its implementation in practice has been complicated. As States seek to grapple with practical, day-to-day challenges such as identification of victims and prosecution of traffickers, questions have arisen about certain aspects of the definition—most particularly, but not exclusively, those aspects that are not elsewhere defined in international law and/ or not well established in national law and practice. The existence of such questions means that, despite the best efforts of the drafters and subsequent harmonization of national laws with the international definition, the parameters around what constitutes “trafficking” are not yet firmly established. Under what circumstances, if any, will the exploitation of a child for profit not be trafficking? What role does consent play (or not play) in relation to trafficking for purposes of removal of organs? When does prostitution involving a measure of financial or other exploitation morph into trafficking?
That States with very similar laws and very similar legal definitions of trafficking are answering such questions in very different ways confirms the fluidity of those parameters. The stakes for definitional clarity (and indeed definitional ambiguity) are high because to characterize certain conduct as “trafficking” has substantial and wide-ranging consequences for States, for the perpetrators of that conduct and for the victims. Persons who are victims of that conduct become “victims of trafficking”, and thereby entitled to special measures of assistance and protection that may not be available to those who are not identified as having been trafficked. Criminals involved in a practice that is identified as “trafficking” are likely to be subject to a different and typically harsher legal regime than would be applicable if they had been charged with another crime. For the State, characterization of certain conduct as “trafficking” will trigger a range of criminalization and cooperation obligations as well as protection measures.7 It will also impact on national understanding of the nature and extent of the “trafficking problem”, and affect a State’s interaction with external compliance institutions and mechanisms.
The potential breadth and narrowness of the definition has raised several issues that States have taken quite different positions on. There is a tension between those who support a conservative or even restrictive interpretation of the concept of trafficking, and those who advocate for its expansion: between understandable efforts to expand the concept of trafficking to encompass most, if not all forms of severe exploitation; and the practical challenge of setting priorities and establishing clear boundaries, particularly for criminal justice agencies involved in the investigation and prosecution of trafficking-related crimes. The complex and fluid definition contained in the Trafficking in Persons Protocol has contributed to ensuring that such tensions remain unresolved. These tensions sit within a broader political and advocacy framework that is impatient with complexity and the need for legal nuance. Certainly, there have been strong and consistent efforts to simplify the definition and forms of trafficking in ways that will advance advocacy (and sometimes public communication) efforts. The increasingly common merging of “trafficking” with “modern slavery”, a term that is not defined—or indeed recognized—in international law is one manifestation of this trend, as are claims that “all trafficking is slavery” and “all forced labour is trafficking”.
1.2. The work of UNODC on the definition of trafficking in persons In January 2010, the Working Group of States Parties to the Trafficking in Persons Protocol identified a lack of conceptual clarity with respect to the definition of trafficking as an obstacle to the effective implementation of the international legal framework around trafficking in persons, and its national equivalents. Specifically, it was noted that some critical concepts within the definition were not clearly understood and were being inconsistently implemented and applied. The Working Group recommended that: [t]he Secretariat should prepare, in consultation with States parties, issue papers to assist criminal justice officers in penal proceedings, on subjects such as consent; harbouring, receipt and transport; abuse of a position of vulnerability; exploitation; and transnationality. In response to this request, the Secretariat (United Nations Office on Drugs and Crime, UNODC) initiated a multi-year research project.
The first phase of the study, completed in 2012, considered “abuse of a position of vulnerability and other ‘means’ within the definition of trafficking in persons”. Its outputs included a detailed “issue paper”, as well as a guidance note for practitioners. In the second phase of the study, the role of “consent” in the Trafficking in Persons Protocol’s definition was considered and an issue paper on the subject published in 2014. The third issue paper, released in 2015, examined the concept of “exploitation” within the Trafficking in Persons Protocol’s definition of trafficking in persons. The national surveys were unique in their rigour and depth, examining not just national definitions of trafficking but also delving into how criminal justice agencies are interpreting and applying those definitions. This was made possible through detailed in-country surveys that included analysis of the legal framework and associated practice, as well as interviews with practitioners—mainly prosecutors but extending, in some countries, to investigators, defence lawyers and judges. Initial findings and conclusions were scrutinized by a group of expert practitioners drawn principally, but not exclusively, from the surveyed States. While the focus of the studies was very much on the domestic application of the selected concepts, they also sought to ascertain how, from the point of view of international law, and with reference to the drafting history of the Convention, the relevant provisions and their concomitant obligations should be understood by States Parties.
1.3. Scope, purpose and structure of this Consolidation and Reflection Paper The analysis by UNODC of the three definitional concepts (abuse of a position of vulnerability; the principle of the irrelevance of consent; the element of exploitation) provides a useful lens through which to approach broader questions that have emerged around the definition over the past several years. These questions relate, most particularly, to the scope of the definition and the possibility and desirability respectively of establishing common definitional parameters at the international level to support consistency in State practice and advancement of the Protocol’s purposes. The purpose of this Consolidation and Reflection Paper is to guide consideration and development of some practical guiding principles for criminal justice practitioners that emerge from the three definitional concept papers, and determine potential next steps for research and analysis. A further objective of this work is to identify how a particular interpretation of one of the terms may impact the interpretation and application of another concept in the same case.
In preparation for this consolidation and reflection paper, supplementary country research was conducted during the period August-October 2016 through the dissemination of surveys to selected countries (with responses received from Armenia, China, Djibouti, France, Mali, Niger, Kazakhstan, Romania, Russian Federation, Senegal, Singapore, South Africa and Tunisia). Those surveys were designed with a view to verifying, consolidating and extending initial findings, and inviting a broader range of perspectives by expanding the range of countries studied. A subsequent Expert Group Meeting held in Vienna, in November 2016 brought together national and independent experts to review the draft findings. The Consolidation and Reflection Paper is divided into four parts, of which this contextual introduction forms the first. Part 2 provides a summary and synthesis of key findings of the three studies and seeks, in its final section, to ascertain trends in how “trafficking” is being understood and defined at the national level. In part 3, challenges facing practitioners who are charged with identifying, investigating, prosecuting and adjudicating trafficking in persons cases are identified and discussed. In part 4, this analysis is used as the basis for a set of guiding principles for policymakers and criminal justice practitioners to support their understanding and application of the definition of trafficking in persons.
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