Moving towards a Common Definition of Trafficking

Last updated April 2019

Throughout the 20th Century, the international community was divided in its approach to the definition of trafficking in women. Until the drafting of the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol), the main international legal document concerning trafficking was the 1949 United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. The 1949 Convention took an approach to trafficking and prostitution that required state parties to punish any person who “[p]rocures, entices or leads away, for the purposes of prostitution, another person, even with the consent of that person; [or] [e]xploits the prostitution of another person, even with the consent of that person.”[1] In early international and domestic trafficking laws, trafficking was often synonymous with prostitution.[2] Later, trafficking was also conflated with the smuggling of male and female migrants over borders for economic gain, which is now considered a separate—though linked—phenomenon.[3]

Debates over the definition of trafficking surrounded the drafting of the Palermo Protocol. Some advocates argued for a definition of trafficking that would include all commercial sex work, regardless of whether the woman involved had consented.[4] These advocates took the position that prostitution is inherently exploitative because even when prostitution would appear to be consensual, the choices of the woman involved were usually the product of poverty or past abuse. Therefore, they argued that the question of "consent" should be irrelevant. In addition, including the question of consent in the definition of trafficking would help traffickers by giving them a defense against prosecution, while placing a burden on the victim of trafficking, who would then be required to show that she did not consent.

On the other side of the debate, some advocates rejected the notion that voluntary participation in prostitution could be considered trafficking, and sought to draw a clear distinction between consensual and forced prostitution.[5]  These advocates argued that women should be free to make choices about how to live their lives, including the choice to enter prostitution. In addition, they maintained that punishing all prostitution might simply drive prostitution underground, making already marginalized women further subject to exploitation.  

The Palermo Protocol represented an international consensus, defining “trafficking in persons” as:

the recruitment, transportation, transfer, harboring 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 labor or services, slavery or practices similar to slavery, servitude or the removal of organs.

The Palermo Protocol also explains that “the consent of a victim of trafficking in persons to the intended exploitation . . . shall be irrelevant where any of the means set forth [above] are established” or where the victim is a child or an otherwise vulnerable person. The Interpretive Notes (Travaux Préparatoires) to the Palermo Protocol clarify that a person in a “position of vulnerability” refers to “any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved.” Finally, the Interpretive Notes explicitly state that the Protocol does not define the terms “exploitation of the prostitution of others” or “other forms of sexual exploitation,” providing state parties with the leeway to define these terms according to national law.

Since the adoption of the Palermo Protocol, many documents have built upon this definition of trafficking.  For example, the European Union adopted the Palermo Protocol definition of trafficking in 2002. The EU Council Framework Decision on combating trafficking in human beings uses language that is nearly identical to that found in the U.N. Protocol. This Decision is binding on Member States, and must be implemented in domestic law before August 2004. By choosing to adopt a definition similar to that of the Protocol, the EU deferred to the national laws of its Member States, leaving the decision about whether to regulate or abolish prostitution to the individual States.

In 2009, the U.N. Office on Drugs and Crime released a model law against trafficking in persons in order to assist states with the implementation of the Palermo Protocol.[6] The model law defines the offence of trafficking in persons as the recruitment, transportation, harboring or receiving or another person by means of threats, force, other coercion, abduction, fraud, deception, abuse of power, or giving or receiving payment for exploitation.[7] Exploitation under the model law includes:

  1. The exploitation of the prostitution of other or other forms of sexual exploitation;
  2. Forced or coerced labor or services [including bonded labor and debt bondage];
  3. Slavery or practices similar to slavery;
  4. Servitude [including sexual servitude];
  5. The removal of organs;
  6. [Other forms of exploitation defined in national law].

In addition to providing definitions of offenses, aggravating factors, and duties of various actors, the model law is drafted in a manner that makes it easily adaptable to fit within many legal schemes, including providing optional provisions, alternate wording, and thorough commentary with examples of domestic legislation.[8]

[1] United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, art. 1.

[2] Maggy Lee, Trafficking and Global Crime Control 25–28 (2010).

[3] UNODC, Global Study on Smuggling of Migrants 19 (2018). Migrant smuggling is addressed in international law though the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime.

[4] Melissa Ditmore & Marjan Wijers, The Negotiations on the UN Protocol on Trafficking in Persons, 4 NEMESIS 79, 81 (2003).

[5] Id.

[6] UNODC, Model Law against Trafficking in Persons 1 (2009).

[7] Id. at 31.

[8] See generally id.