International law

From the beginning of the 19th century, the moral condemnation surrounding slavery and the slave trade led to the development of international agreements against these practices, which, today, are recognised as one form of exploitation in the context of trafficking in persons. 

While early slavery conventions focused on banning the slave trade from Africa, gradually a prohibition of the institution of slavery itself developed, culminating in the 1926 Convention to Suppress the Slave Trade and Slavery,[1] which abolished slavery in all its forms.  This Slavery Convention was the first instrument to define both the terms ‘slavery’ and ‘slave trade’ and is, today, widely recognised as customary international law.  The 1956 UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery further obliges States Parties to adopt all appropriate measures to abolish practices ‘similar to slavery’, including debt bondage, serfdom, servile marriage and the exploitation of children.[2]

The abolition and prohibition of slavery has also been recognised in international human rights law.  Article 4 of the 1948 Universal Declaration of Human Rights states that ‘[n]o one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms’.  Similarly, Article 8 of the 1966 International Covenant on Civil and Political Rights (ICCPR) provides that ‘no one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited; no one shall be held in servitude’.[3]

The development of conventions by the International Labour Organisation (ILO) in relation to labour exploitation led to an extension of the scope of trafficking in persons beyond the sole focus on prostitution and sexual exploitation.  The ILO considers trafficking a ‘degrading misuse of human resources resulting in undignified and unproductive work’.[9]  Forced labour refers to all work or service extracted from any person under the menace of any penalty and for which the person has not offered himself or herself voluntarily.[10]

In its efforts to ban labour exploitation, the ILO initially built upon the Slavery Convention, which attempts to ward against forced labour degenerating into slavery-like conditions.  The 1930 Forced Labour Convention and the 1957 Abolition of Forced Labour Convention[11] institute measures to prevent compulsory labour from degenerating into conditions similar to slavery.

The 1949 Convention Concerning Migration for Employment deals with the recruitment, placing, and conditions of migrant workers.[12]  The 1973 Migrant Workers Supplementary Provisions Convention also includes provisions concerning trafficking in persons.[13]  The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families addresses the elimination of the exploitation of migrant workers throughout the migration process and attempts to institute measures for the protection of documented and undocumented migrants.

The 1973 Convention Concerning Minimum Age for Admission to Employment introduces a generalised abolition of child labour, replacing 10 earlier treaties that established a minimum age for admission to employment.[14]  The 1999 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour deals specifically with the abolition of the worst forms of child labour, calling on States Parties to abolish such practices ‘as a matter of urgency’.[15]

More recently, the ILO introduced the Protocol of 2014 to the Forced Labour Convention 1930.[16]  This Protocol requires States Parties to take additional measures to suppress forced labour, recognizing that the contemporary labour marketplace is unrecognizable from the one that existed when the Convention was first drafted. Additionally, non-binding practical guidance is provided to States Parties in areas such as enforcement and international cooperation through Recommendation No. 203.[17]

To this day, international human rights law complements the system established with the Trafficking in Persons Protocol by balancing the criminal justice approach of the Protocol and as a mechanism to enforce applicable human rights norms and principles.  Several international human rights instruments make specific reference to the abolition of slavery and trafficking in persons.  Article 8 of the ICCPR, as mentioned earlier, contains an explicit ban on slavery, servitude and forced labour.  Article 7 of the International Covenant for Economic, Social and Cultural Rights further stipulates that ‘[t]he States Parties to the … Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work’.[18]

The 1989 Convention on the Rights of the Child is the first major instrument to consider child trafficking as a separate phenomenon, requiring specific preventative and victim rehabilitation measures.[19]  Article 35 of the Convention requires States Parties to take all appropriate measures to prevent the abduction of, the sale of, or traffic in children for any purpose or in any form.  The Protocol on the Sale of Children, Child Prostitution and Child Pornography supplements Article 31 of the Convention by calling on States Parties to criminalise national and transnational practices relating to child sexual exploitation, removal of organs for profit, forced labour, illegal adoption, child prostitution and child pornography.[20]  The Optional Protocol on the Involvement of Children in Armed Conflicts extends the definition of child trafficking to the movement of child soldiers for the purpose of exploitation.[21]

The UN Protocol for the Prevention and Suppression of Trafficking in Persons, especially Women and Children was opened for Signature in 2000 and entered into force four years later.[22]  The term 'trafficking in persons' is defined in Article 3(a) of the Protocol to mean: 
the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
The purposes of the Protocol, as stated in its Article 2 are:

• to prevent and combat trafficking in persons, paying particular attention to women and children;
• to protect and assist the victims of such trafficking, with full respects to their human rights; and
• to promote cooperation among States Parties in order to meet those objectives.

Unlike earlier treaties, the Protocol reaches beyond sexual exploitation to cover all forms of trafficking regardless of the victim’s age and gender.  The Protocol aims to set out a uniform approach to trafficking to be taken by all States Parties, and to facilitate international cooperation among them.  It divides its approach into prosecution, protection, and prevention (sometimes referred to as the ‘3 Ps’). 

Supplementing the Convention Against Transnational Organised Crime,[23] the Protocol advocates a coordinated international response including uniform anti-trafficking legislation and prosecution of offenders.  With its criminal justice focus, almost all mandatory provisions in the Protocol relate to the criminalisation of trafficking in persons and the subsequent investigation and prosecution of offenders.  Article 5(1) of the Trafficking in Persons Protocol requires that criminal offences be established to criminalise the trafficking in persons as defined in Article 3.  Additionally, Article 5(2) requires States Parties to criminalise ‘attempting to commit an offence’, ‘participating as an accomplice in an offence’, and ‘organising or directing other persons to commit an offence’.

The Protocol also contains provisions for the protection victims of trafficking, although many of these provisions are not mandatory and are often perceived as subsidiary to those addressing prosecution and criminalisation.  States Parties, in appropriate cases, are required to protect the privacy of victims, provide victims with information on legal proceedings, and facilitate consideration of victim views and concerns during criminal proceedings against their traffickers.  States Parties shall also endeavour to ensure victim safety in their territory, and consider, in appropriate cases, the provision of legal advice, housing, medical and psychological assistance, education, employment, and training to victims.[24]  Further, States Parties shall adopt legislative measures to make victim compensation available.  Insofar as possible, repatriation of victims should be voluntary and States Parties are asked to allow victims to remain in their territories in appropriate cases.[25]

Article 9 of the Protocol requires States Parties to establish policies and programmes to prevent trafficking in persons, such as awareness raising campaigns, research, and data collection.  States shall also address related issues of the demand that fosters exploitation, and poverty, underdevelopment, and lack of equal opportunity which increase a person’s vulnerability to being trafficked.[26]  Further, States Parties shall, where appropriate, provide for inter-country information exchange,[27] and for the strengthening of border protection measures.[28]  Finally, States Parties shall provide training to law enforcement, immigration and other officials on prevention of trafficking in persons.[29] 

The Protocol does not set out formal reporting procedures or other arrangements under which States Parties report on the steps that they have taken to implement the Protocol, though the Conference of States Parties and the Working Group on Trafficking in Persons provide informal channels through which States Parties may voluntarily provide such reports and updates.

For a complete outline and analysis of the Trafficking in Persons Protocol, see Andreas Schloenhardt, Prevented, Suppressed, and Punished!? Twelve Years of the Trafficking in Persons Protocol, UQ Human Trafficking Working Group, Research Paper (January 2012).  The full report is available here [pdf].

As at 19 September 2015, the Trafficking in Persons Protocol has 167 States Parties; 117 States have also ratified the Protocol.  The perceived lack of incentives, the view that enough is already done through national laws or non-binding regional initiatives, and a general reluctance to accept binding obligations on issues that traditionally have been matters of national concern are among the principal reasons why some countries have not or not yet signed the Protocol.  The costs, expertise, and resources necessary to understand and comprehensively implement the Protocol domestically are further deterrents for many non-state parties, especially developing nations and small island states.  

Research conducted by the UQ Human Trafficking Working Group in 2011/12 identifies and explores potential barriers to ratification in the non-party states.  Using country and region specific example, this research project details a lack of capacity to implement the Protocol, lack of understanding of the Protocol and its requirements, and a lack of political will as the core issues preventing universal ratification.  To view the full report, see Andreas Schloenhardt & Ellen Bevan, ‘To Ratify or Not to Ratify? Exploring the Barriers to Wider Ratification of the Trafficking in Persons Protocol’ (2011) 9 New Zealand Yearbook of International Law 161–184.