The Trafficking Protocol and Recent Initiatives
last updated September 1, 2005

By the late 1990s, it was apparent that the existing 1949 Convention was inadequate for addressing the complex problem of trafficking in women and there was a clear need for consensus around a standard definition.  In December 2000, at an international conference in Palermo, Italy, the UN Convention Against Transnational Organized Crime was opened for signature.  A supplementary protocol, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Trafficking Protocol), was opened for signature in December 2002.  Together, the Organized Crime Convention and the Trafficking Protocol define signatory countries' obligations on trafficking in women.  The Interpretative Notes (Travaux Préparatories) to the Trafficking Protocol also set forth government commitments to combat trafficking. The Organized Crime Convention came into force on 29 September 2003.  The Trafficking Protocol received its 40th ratification at the end of September 2003 and entered into force on 25 December 2003. For more information on the signatories and ratification of the protocol, see the website of the United Nations Office of Drugs and Crime.

The International Human Rights Law Group, a U.S. human rights organization, has created a single annotated guide which explains and analyzes the three UN authoritative texts: the Convention Against Transnational Organized Crime, the Trafficking Protocol and the Interpretive Notes.  The Annotated Guide to the UN Trafficking Protocol is a "tool to assist advocates in the development of a human rights framework for national anti-trafficking laws and policies."  The Annotated Guide includes excellent analysis of where provisions of the Trafficking Protocol should be modified in the creation of domestic anti-trafficking law, in order to achieve greater protection for victims' human rights and facilitate prosecution of traffickers.  Some of the divergences between the Trafficking Protocol and national legal remedies are also discussed in the Trafficking Law and Policy section on domestic legislation.

As described by the International Human Rights Law Group, the Trafficking Protocol is primarily a law enforcement instrument.  It contains strong language on States' obligation to create law enforcement provisions at the national level.  However, provisions regarding protection of victims' human rights are weak.  The Protocol uses language that States shall undertake these measures merely "in appropriate cases" and "to the extent possible."  Despite the weaknesses in human rights protections offered by the Protocol, it represents a strategically important re-conceptualization of trafficking in women.

First, the Trafficking Protocol defines "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 is defined as "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."  (Article 3).  This definition is broad and detailed and represents the accepted international consensus that the key element of trafficking is the exploitation of the victim, rather than the movement of victim across borders or "means" by the trafficker involves the victim in trafficking. 

The Trafficking Protocol's language on sexual exploitation is also significant.  On one hand, the Trafficking Protocol acknowledges that trafficking in women is frequently for the purposes of prostitution and sexual exploitation.  On the other hand, the Protocol expands the previously-accepted definitions of trafficking to include all forms of forced labor, slavery and servitude, even within a country's borders.  Finally, the drafters of the Trafficking Protocol deliberately left the terms "exploitation of the prostitution of others" and "sexual exploitation" undefined.  This was the only way to achieve consensus among countries that criminalize prostitution and those which have laws that regulate (and decriminalize) adult sex work.  More information about the debate over the definition of trafficking can be found in the Trafficking: Explore the Issue section of this site.

Article 3 of the Trafficking Protocol further states 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] have been used."  This provision is consistent with international legal norms dictating that a person cannot legally consent when force, coercion, deception or abuse of power have been used.  The Interpretive Notes (Travaux Préparatories) to the 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."  By definition, if the crimes of forced labor, slavery or servitude have occurred, consent is irrelevant.  Thus, the very common situation in which a woman consents to certain specific actions, such as using false documents, working illegally abroad or working as a prostitute, will not allow a defendant to argue that she consented to be trafficked. 

Article 2 of the Trafficking Protocol, the Statement of Purpose, sets forth the goals of the document:

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 respect for their uman rights;
To promote cooperation among States Parties in order to meet those objectives.

Significantly, the Protocol articulates a need for State Parties to cooperate.  States should cooperate across borders on the following actions, outlined in the Trafficking Protocol: assistance and protection of victims (Article 6), repatriation of victims (Article 8), information exchange and training (Article 10) and border measures (Article 11).  Effective measures to combat trafficking require harmonized efforts by national governments

The relatively weak human rights language of the Trafficking Protocol is not reflective of an overall UN policy on trafficking victims' human rights.  In fact, the Recommended Principles and Guidelines on Human Rights and Human Trafficking, issued by the High Commissioner for Human Rights in May 2002 sets forth the primacy of human rights, which "shall be at the center of all efforts to prevent and combat trafficking and to protect, assist and provide redress to victims."  While not legally binding, the Recommended Principles are a document that is politically influential.  The document contains eleven recommended guidelines, including one on the promotion and protection of human rights, which begins "Violations of human rights are both a cause and a consequence of trafficking in persons.  Accordingly, it is essential to place the protection of all human rights at the center of any measures taken to prevent and end trafficking.  Anti-trafficking measures should not adversely affect the human rights and dignity of persons and, in particular, the rights of those who have been trafficked, migrants, internally displaced persons, refugees and asylum-seekers."  Thus, when read in conjunction with the Trafficking Protocol's purpose, the Recommended Principles provide advocates with useful guidelines on how to shape domestic law and policy.

Additionally, at the 60th session of the UN Commission on Human Rights a Special Rapporteur on Trafficking in Person, Especially Women and Children was appointed who is mandated to focus specifically on human rights aspects of the victims of trafficking in persons.  After her appointment as the first Special Rapporteur on Trafficking in Persons, Especially Women and Children, Ms. Sigma Huda released a report entitled “Integration on the Human Rights of Women and the Gender Perspective.”  In the report she defines part of her mandate around two basic principals: “that the human rights of trafficked persons shall be at the centre of all efforts to combat trafficking and to protect, assist and provided redress to those affected by trafficking; and that anti-trafficking measures should not adversely affect the human rights and dignity of the persons concerned.”  Yet the Protocol does contain an obligation to protect the rights of and provide assistance to trafficking victims, consistent with international human rights standards.  Such standards are found in human rights instruments of the United Nations and the European regional system, as discussed in the section on regional law and standards.  The Protocol thus emphasizes the importance of protecting trafficking victims and not labeling them criminals but as the Special Rapporteur states in her report, “in spite of its overwhelming human rights dimensions, trafficking continues to be treated as mainly a ‘law and order’ problem.”In another initiative, in July 2002, the Rome Statute of the International Criminal Court entered into force.  Within the statute's definition of "crimes against humanity," the Statute defines "enslavement" as "the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children."  (Article 7).  In fact, according to the Special Rapporteur on Trafficking:

Trafficking represents the denial of virtually all human rights: the right to liberty and integrity and security of the person; the right to freedom from torture and other cruel, inhuman or degrading treatment; the right to freedom of movement; the right to home and family; the right to the highest attainable standard of health; the right to education.  Under the Rome Statute of the International Criminal Court, trafficking in some circumstances can be a crime against humanity or a war crime.

The inclusion of enslavement, in the form of trafficking, in the Rome Statute indicates the high priority that the UN has given to addressing the crime of trafficking in women.