2
The International Abolition of Slavery
and the Slave Trade and the Action against
Trafficking in Human Beings
2.1 Introduction
This chapter offers a global overview on the instruments of international law
adopted in the last three centuries to fight against slavery, the slave trade and
trafficking in persons. It discusses the international condemnation of slavery and
the slave trade that was obtained after a long and difficult process starting with
the first declarations and conventions of the XIX century and culminating
with the adoption by the League of Nations of the Slavery Convention. The
Supplementary Convention on the Abolition of Slavery, the Slave Trade and
Institutions and Practices Similar to Slavery subsequently adopted by the United
Nations includes debt bondage, serfdom and any other institution or practice
whereby a woman or a child may be transferred by a person to another among the
practices similar to slavery that have to be abolished as well.
The chapter continues by analysing the fight conducted from the end of the
XIX century by the international community against a new slavery-like practice,
a phenomenon know as the white slave traffic that consisted in the abduction of
European women and young girls who were transported abroad—in many cases
with false job offers—and forced to prostitute themselves. Five international
conventions were adopted to fight against this phenomenon—namely, the 1904
International Agreement for the Suppression of the White Slave Traffic, the 1910
International Convention for the Suppression of the White Slave Traffic, the
1921 International Convention for the Suppression of the Traffic in Women and
Children, the 1933 International Convention for the Suppression of the Traffic in
Women of Full Age, and the 1949 Convention for the Suppression of the Traffic
in Persons and the Exploitation of the Prostitution of Others—but unfortunately
none of these has been effective in abolishing the practice completely.
As regards the phenomenon known as traffic or trafficking in persons, an international definition was lacking until the adoption of the UN Trafficking Protocol,
although it was widely believed that the practice referred to the kidnapping and
Trafficking in Human Beings: Modern Slavery. Silvia Scarpa.
© Oxford University Press 2008. Published 2008 by Oxford University Press.
42
Slavery, the Slave Trade and Human Trafficking
transportation of persons—mainly women and children—abroad in order to
exploit them by prostitution. The UN Trafficking Protocol adopts a wider definition of human trafficking that comprehends various forms of exploitation
and it also sets out measures designed to prevent the phenomenon, prosecute
the traffickers and protect the victims (the so-called three Ps approach). Chapter
2 goes on to differentiate trafficking in human beings from the smuggling of
migrants, which is the offence punished by another UN Protocol, annexed to the
Convention against Transnational Organized Crime.
Some relevant soft law instruments, including the UNHCHR Principles
and Guidelines on Human Rights and Human Trafficking, the UNICEF
Guidelines for Protection of the Rights of Child Victims of Trafficking and the
UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, are reviewed to complete the picture on the issue of the protection that
States might grant to trafficked victims. Finally, the chapter points out that the
prohibition on slavery is considered to be a well-established jus cogens principle
and it is argued that trafficking in persons falls within it.
2.2 The abolition of slavery and the slave trade
The first international condemnation of the slave trade was contained in the
Declaration relative to the Universal Abolition of the Slave Trade annexed to the
Act adopted during the Congress of Vienna of 1815, stating that the slave trade is
‘repugnant to the principles of humanity and universal morality’.¹ Eight powers
signed the Vienna Declaration: Austria, France, Portugal, Prussia, Russia, Spain,
Sweden and the United Kingdom.²
The British Foreign Secretary, Lord Castlereagh, had gone to Vienna with
the proposal of a treaty that would have outlawed the trade within three years
and would have given the right to countries to search each other’s ships.
However, the other European powers were not ready for such a far-reaching
plan. Consequently, at the Congress of Vienna it was only possible to obtain a
general consensus on a declaration that did not set a time limit for the abolition of the slave trade and that did not contain enforcement provisions either
to abolish the slave trade, or to consider it as a criminal offence. As recognized
by Miers, ‘. . . although useless in practical terms, [the Vienna Declaration] was
the first hesitant step in the direction of the present international human rights
¹ Vienna Congress Treaty (adopted 9 June 1815) Act XV, Declaration relative to the Universal
Abolition of the Slave Trade (adopted 8 February 1815) 63 CTS 473 (Vienna Declaration). It is
worth noting that Art 1 of the Additional Articles of the Peace Treaty of Paris signed in 1814 by
France and Great Britain already mentioned the need to abolish the slave trade and contained the
promise by France to abolish it within five years.
² In 1822 five of these powers, namely Austria, France, United Kingdom, Prussia and Russia
signed the Declaration of Verona to renew the Declaration signed at the Congress of Vienna.
Slavery, the Slave Trade and Human Trafficking
43
movement—the first declaration by the great powers that the slave trade was a
violation of the rights of man.’³
The Vienna Declaration was followed by many other international bilateral
and multilateral treaties and soft law instruments. The fight against the slave
trade and, subsequently, slavery was a long and difficult one: between 1839 and
1890 more than 300 international agreements were adopted to abolish the slave
trade but they were all ineffective.⁴ All these bilateral and multilateral treaties
were aimed at fighting the slave trade by sea, but none of them required the abolition of slavery as a morally unacceptable institution or of the slave trade by land.
The first attempt to ban the slave trade by land and to declare the abolition of
slavery within the contracting parties’ territories in the Congo Basin was made
in 1885 by the General Act of Berlin. Article 9 recognized that slavery and the
slave trade should be considered as forbidden and, consequently, the contracting
powers exercising sovereign rights or influence in the Congo Basin region should
have acted to put an end to the slave trade and to avoid the possibility that the
mentioned territories could have become the market or the means of transit for
such a trade.⁵
Five years later, the General Act of Brussels of 2 July 1890⁶—a comprehensive treaty of 100 Articles—declared that the contracting parties were ‘equally
animated by the firm intention of putting an end to the crimes and devastations
engendered by the traffic in African slaves, of effectively protecting the aboriginal populations of Africa, and of assuring to that vast continent the benefits of
peace and civilization.’⁷ Even if the General Act of Brussels did not prohibit the
institution of slavery, it provided at Article 5 that within one year from their signature, the contracting parties had to adopt penal laws to punish those who were
engaged in the capture, transportation and dealing of slaves and in any other
act against the individual liberty of persons. Article 22 subsequently granted a
reciprocal right of visit, search and detention on vessels at sea to the contracting
parties who would have concluded among themselves bilateral conventions for
the purpose of fighting against the slave trade. It is worth noting that this right
was limited to vessels of less than 500 tons sailing in the maritime zone specified
in Article 21 of the General Act of Brussels. Therefore, no action was possible
against those vessels flying a flag of a contracting party that did not conclude any
bilateral agreement or on those vessels of more than 500 tons.⁸ Moreover, in some
³ S Miers, Slavery in the Twentieth Century: The Evolution of a Global Problem (AltaMira Press,
2003) 14–15.
⁴ R Sawyer, Slavery in the Twentieth Century (Routledge & Kegan Paul Books Ltd, 1986) 217.
⁵ ECOSOC (Ad Hoc Committee on Slavery), ‘The Suppression of Slavery, Memorandum submitted by the Secretary-General’ (1951) UN Doc ST/SOA/4, United Nations Publications Sales
No 1951.XIV.2, 9.
⁶ General Act of Brussels (adopted 2 July 1890) (1928) 236 International Conciliation 38.
⁷ Preamble to the General Act of Brussels.
⁸ As emphasized by Gutteridge, the General Act of Brussels neither provided the contracting
parties with a general right of visit, search and detention, nor did it confer a right on all public
44
Slavery, the Slave Trade and Human Trafficking
cases the right of visit, search and detention produced the unwanted effect that
when a vessel was stopped for an inspection, the slaves were thrown into the sea to
avoid any accusation of slave trading.⁹
Two International Slavery Bureaux were set up on the basis of the General Act
of Brussels in Zanzibar,¹⁰ and Brussels;¹¹ the former, which was far more important than the latter, was composed of delegates of the contracting parties and it
centralized all the relevant information to suppress the slave trade within the
defined maritime area.¹² The latter was attached to the Belgian Foreign Office
and it aimed to collect and exchange information on the slave trade. The Zanzibar
International Slavery Bureau survived until the outbreak of the First World War;
as emphasized by Sawyer: ‘The Bureau’s successes had been limited to the trade;
its only effect on slavery was to limit numbers within given territories. After the
war, with no organization to oppose it, the trade revived and slavery persisted in
its traditional locations.’¹³
Both the General Act of Berlin and the General Act of Brussels were revised by
the Treaty of St-Germain-en-Laye of 10 September 1919.¹⁴ The new Convention
took a step back because it abrogated the right of visit, search and detention previously granted by the General Act of Brussels and it did not establish or revive an
international bureau, such as the Zanzibar or Brussels ones. However, it is worth
noting that, for the first time, it was internationally recognized that the contracting parties had to ‘endeavour to secure the complete suppression of slavery in all its
forms and of the slave trade by land and sea.’¹⁵
After the First World War the establishment of the League of Nations (LN)
had to guarantee peace and to prevent the outbreak of another catastrophic conflict. The Covenant of this new organization did not mention the abolition of
slavery. However, Article 22 established the mandate system whose aim was to
grant the administration of non-self-governing territories to mandatory powers;
in the specific case of Central Africa ‘. . . the prohibition of abuses such as the
slave trade’ had to be guaranteed. Moreover, Article 23(b) also provided that the
members of the League of Nations had ‘. . . to secure just treatment for the native
inhabitants of territories under their control.’¹⁶
vessels flying the flag of a contracting party. J A C Gutteridge, ‘Supplementary Slavery Convention
1956’ [1957] 6 ICLQ 449, 456.
⁹ M R Saulle, Dalla Tutela Giuridica all’Esercizio dei Diritti Umani (Edizioni Scientifiche
Italiane, 1999) 19.
¹⁰ Art 27 of the General Act of Brussels.
¹¹ Ibid, Arts 81–5.
¹² Ibid, Arts 74–80.
¹³ Sawyer (n 4) 217.
¹⁴ Treaty of St-Germain-en-Laye, 8 LNTS 25. The abrogation of the two treaties was provided
by Art 13 of the Treaty of St-Germain-en-Laye that was concluded between the United States,
Belgium, the British Empire, France, Italy, Japan and Portugal.
¹⁵ Art 11 of the Treaty of St-Germain-en-Laye (emphasis added).
¹⁶ Treaty of Versailles, Part I, Covenant of the League of Nations (adopted 28 June 1919, entered
into force 10 January 1920) UKTS 4 (Cmd. 153).
Slavery, the Slave Trade and Human Trafficking
45
In 1922 the Assembly of the League of Nations requested that the Council
submit a report on slavery for the purpose of discussing the issue further in its
following session.¹⁷ The Council instructed the Secretary General to ask Member
States to provide information on the practice, but the results were completely
unsatisfactory: only 11 States replied giving information on slavery.¹⁸ The
Assembly of the League of Nations acknowledged the lack of information and
the fact that some Member States were unable and—in some cases—even unwilling to co-operate to abolish slavery and it considered it necessary to conduct an
in-depth investigation on the phenomenon.¹⁹ Therefore, in 1924 the Council
appointed a Temporary Slavery Commission (TSC). The most important recommendation made by the TSC in its second Report was the clear recognition of the
need to negotiate a convention to abolish slavery.²⁰
The Slavery Convention was consequently adopted on 25 September 1926:²¹
even if the League of Nations did not succeed in guaranteeing stability to the
world, it surely paved the way for the international abolition of slavery and the
slave trade. The Slavery Convention is the first instrument of international law
that defines both the institutions of slavery and the slave trade as being:
(1) Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. (2) The slave trade includes all acts involved
in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all
acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts
of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged,
and, in general, every act of trade or transport in slaves.²²
The language used in the Slavery Convention to refer to the two phenomena is
different, however: while Article 2 requires States Parties to prevent and suppress
the slave trade, it only asks them to ‘bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.’²³ Moreover, apart from
¹⁷ LN OJ Special Supplement No 9 (1922) 37.
¹⁸ LN OJ Doc A.18.1923.VI (1923).
¹⁹ LN OJ Doc A.117.1923.VI (1923).
²⁰ LN OJ Doc A.19.1925.VI (1925).
²¹ Slavery Convention (adopted 25 September 1926, entered into force 9 March 1927) 60
LNTS 253.
²² Art 1.1 of the Slavery Convention.
²³ Art 2(a) and (b) of the Slavery Convention (emphasis added). No information is given on the
practices that could be considered as falling within the definition of slavery. It is worth noting that
in its first Report, submitted in July 1924, the TCS made the following considerations as regards
the matters to be considered in its work: ‘(1) (a) enslaving of persons; slave raiding and the slave
trade; (b) slave dealing (including transfer by exchange, sale, gift, or inheritance); (c) slavery or serfdom (domestic or predial). (2) Practices restrictive of the liberty of the person, or tending to acquire
control of the person in conditions analogous to slavery, as for example: (a) acquisition of girls by
purchase disguised as payment for dowry, it being understood that this does not refer to normal
marriage customs; (b) adoption of children, of either sex, with a view to their virtual enslavement or
the ultimate disposal of their persons; (c) all forms of pledging or reducing to servitude of persons
for debt or other reason.’ LN OJ Doc A.17.1924.VI (1924). Moreover, the Rapporteur commented
in its Report to the Assembly of the League of Nations that reference to domestic slavery and other
46
Slavery, the Slave Trade and Human Trafficking
this generic declaration, the Slavery Convention lacks an effective provision on
the suppression of the slave trade; as emphasized by Gutteridge: ‘The provisions
of the 1926 Convention relating to the slave trade left unresolved the unsatisfactory state of international law on this matter as it existed at the time of the conclusion of the Convention.’²⁴ Finally, it is worth noting that during the drafting
process an amendment to Article 2 was proposed to include a new paragraph
aimed at abolishing practices resembling slavery, such as debt slavery, sham adoption, childhood marriage and traffic in women.²⁵ However, it was not possible to
reach an agreement on these slavery-like practices and the amendment was not
approved.
The Slavery Convention provides that States Parties shall prevent the embarkation, disembarkation and transportation of slaves in their territorial waters and
on vessels flying their flags,²⁶ and they shall assist one another to succeed in the
abolition of slavery and the slave trade.²⁷ The United Kingdom had lobbied for
a stronger provision to be included in this treaty: it wanted the slave trade to be
assimilated to piracy, so that the right of search could have been extended to all
ships on the high seas worldwide. This proposal was too far-reaching for many
States;²⁸ consequently, Article 3(2) made a mere reference to the Arm Traffic
Convention as a standard for the adoption of a future convention on the slave
trade at sea,²⁹ and Article 3(3) left the States Parties free to conclude bilateral
agreements among themselves to succeed in the abolition of the slave trade.
Article 5 aims at preventing compulsory or forced labour degrading into conditions analogous to slavery;³⁰ thus, it can only be exacted in exceptional cases
for public purposes and on the condition that the labourers receive adequate
remuneration and are not removed from their usual place of residence. Finally,
the following provision requires States Parties to adopt laws and regulations giving effect to the Convention and imposing severe penalties on those who do not
respect them.
The Slavery Convention constituted an important step forward in the fight
against slavery and the slave trade even if it did not lead immediately to a complete abandonment of the two practices. The main lacunae of this treaty are: the
practices analogous to slavery was omitted in Art 2 of the 1926 Slavery Convention because the
TSC believed that they already fell within the definition of slavery or that, even if they could not be
considered as forms of slavery on the basis of the definition given by Art 1, they should nonetheless
be fought. LN OJ Doc A.104.1926.VI (1926).
²⁴ Gutteridge (n 8) 449, 456.
²⁵ ECOSOC (Ad Hoc Committee on Slavery), ‘The Suppression of Slavery, Memorandum submitted by the Secretary-General’ (1951) UN Doc ST/SOA/4, United Nations Publications Sales
No 1951.XIV.2, 16.
²⁶ Art 3 of the Slavery Convention.
²⁷ Ibid, Art 4.
²⁸ Cf Miers (n 3) 125–6.
²⁹ Such a convention was, however, never drafted.
³⁰ The International Labour Organization dealt with the issue of compulsory and forced labour
in its Conventions Nos 29 and 105 which will be discussed below in ch 3, para 3.5.1.
Slavery, the Slave Trade and Human Trafficking
47
lack of clear enforcement measures and of a permanent monitoring body and the
possibility for the States Parties to declare that some territories placed under their
sovereignty, jurisdiction, protection, suzerainty or tutelage are not bound by the
Convention or by some of its provisions.³¹ States Parties actually have only a mere
duty to communicate to each other and to the Secretary General of the League of
Nations the laws and regulations enacted to comply with the Convention.³² As
emphasized by Sawyer:
Instead of an autonomous, or semi-autonomous, permanent body being entrusted with
the task of monitoring compliance with the principal articles of the Convention, signatories were merely required to ‘undertake to communicate to each other and to the
Secretary-General of the League of Nations any laws and regulations they might enact
with a view to the application of the provisions of the present Convention’.³³
A Protocol was adopted on 7 December 1953 to amend the Slavery Convention
allowing the United Nations and its bodies to continue the duties and functions previously held by the League of Nations: thus the UN Secretary General
replaced that of the League of Nations and the International Court of Justice
(ICJ) replaced the Permanent Court of International Justice.³⁴
In 1931 and 1934 other two Committees—namely, the Committee of Experts
on Slavery (CES) and the Advisory Committee of Experts on Slavery (ACES)—
were appointed in the framework of the League of Nations but they did not lead to
any remarkable new achievement in the fight against slavery and the slave trade.
However, in less than 20 years the League of Nations had succeeded in obtaining
important results in the fight against these two odious practices: first of all the
Slavery Convention was set to be a truly effective tool in the fight against slavery
and the slave trade, and was considered to be a clear victory against the two phenomena; in addition, according to Whitaker, the organization had also achieved
the legal abolition of slavery in Afghanistan, Iraq, Nepal, Tranjordania and Persia
and had refused Ethiopia’s application for membership on the ground that slavery still existed in that country.³⁵
The United Nations (UN) was built after the Second World War on the
ashes of the League of Nations. Its Constitutive Act—better known as the San
Francisco Charter—did not mention the abolition of slavery and thus, according to Sawyer: ‘The United Nations got off to a worse start than the League had
³¹ Art 9 of the Slavery Convention.
³² Art 7 of the Slavery Convention.
³³ Sawyer (n 4) 219.
³⁴ Protocol amending the Slavery Convention (adopted 23 October 1953, entered into force
7 December 1953) 182 UNTS 51. The 1926 Slavery Convention—as amended—was ratified by
95 States.
³⁵ ECOSOC, ‘Slavery, Report prepared by Benjamin Whitaker, Special Rapporteur of the SubCommission on Prevention of Discrimination and Protection of Minorities, updating the Report
on Slavery submitted to the Sub-Commission in 1966’ (1984) UN Publication Sales No E.84.
XIV.1 [122] (Whitaker Report). According to the Special Rapporteur, in the case of Ethiopia, the
LN obtained that concrete measures were taken to abolish slavery.
48
Slavery, the Slave Trade and Human Trafficking
done.’³⁶ However, as maintained by Whitaker, Article 1(3) of the Charter—
dealing specifically with the UN mission to promote the respect for human rights
and fundamental freedoms without distinctions based on race, sex, language and
religion—can be considered as an indirect reference to the abolition of slavery.³⁷
Furthermore, in 1956 the UN adopted the Supplementary Convention on the
Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to
Slavery.³⁸ According to Article 1 of the Supplementary Convention on Slavery,
States Parties have to adopt all the measures to abolish ‘progressively and as soon
as possible’ the following practices:
(a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor
of his personal services or of those of a person under his control as security for a
debt, if the value of those services as reasonably assessed is not applied towards the
liquidation of the debt or the length and nature of those services are not respectively
limited and defined;
(b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or
agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is
not free to change his status;
(c) Any institution or practice whereby: (i) A woman, without the right to refuse, is
promised or given in marriage on payment of a consideration in money or in kind
to her parents, guardian, family or any other person or group; or (ii) The husband of
a woman, his family, or his clan, has the right to transfer her to another person for
value received or otherwise; or (iii) A woman on the death of her husband is liable to
be inherited by another person;
(d) Any institution or practice whereby a child or young person under the age of 18 years,
is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young
person or of his labour.
Thus, the Convention considers debt bondage, serfdom and any other institution or practice whereby a woman or a child may be transferred by a person to
another as servile statuses,³⁹ or slavery-like practices. As D Weissbrodt pointed
out, this definition created some confusion, because serfdom was already
included in the definition of slavery contained in the Slavery Convention;⁴⁰
³⁶ Sawyer (n 4) 220.
³⁷ Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945)
3 Bevans 1153, Art 1(3); Whitaker Report (n 35) 27 [118].
³⁸ Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and
Practices Similar to Slavery (adopted 30 April 1956, entered into force 30 April 1957) 266 UNTS
3 (Supplementary Convention on Slavery). The Supplementary Convention on Slavery was ratified
by 119 States.
³⁹ Art 7(b) of the Convention actually defines a person of servile status as ‘. . . a person in the
condition or status resulting from any of the institutions or practices mentioned in article 1 of this
Convention’.
⁴⁰ D Weissbrodt and Anti-Slavery International, Abolishing Slavery and its Contemporary Forms
(United Nations, 2002) [17].
Slavery, the Slave Trade and Human Trafficking
49
nonetheless, it is worth noting that Article 1 of the Supplementary Convention
on Slavery clarifies that these institutions and practices have to be abolished
‘where they still exist and whether or not they are covered by the definition of
slavery contained in article 1 of the Slavery Convention signed at Geneva on
25 September 1926.’⁴¹ From this assumption it follows that the definitions contained in the Supplementary Convention on Slavery are not meant to replace
those of the Slavery Convention, but to complete them. Furthermore, Article 7
accordingly re-proposes the definitions of slavery and the slave trade contained
in the Slavery Convention and adds the definition of ‘slave’ that had not been
given by the latter treaty.⁴²
Much emphasis is put by Article 1(c) of the Supplementary Convention on
Slavery on the abolition of early and forced marriages, so that the sale and transfer of women for marriage and the possibility that they can be inherited by
another person on the death of their husband are clearly included among the
practices similar to slavery. Article 1(d) makes reference to a specific form of child
labour that has to be considered as a slavery-like practice, namely sham adoptions, whereby a child is sold or given by his family to a richer one to work in
their household. However, as emphasized by D Weissbrodt and Anti-Slavery
International: ‘That provision was implemented with the particular practice of
“sham adoptions” in mind, but it does, in fact, cover a wider range of practices
involving the exploitation of children.’⁴³
Most of the provisions contained in the Supplementary Convention on Slavery
refer to traditional slavery and slave trade practices, with the aim of abolishing
them, where they still exist in the world. Articles 3 and 4 that are contained in
Section II—dedicated to the slave trade—require States Parties to consider as a
criminal offence the transportation or the attempt to transport slaves from one
country to another, to prevent ships and aircrafts flying their flags to engage
in such an inhuman trade, to exchange information and, finally, to free every
slave who takes refuge on board one of their vessels. The next two provisions
are included in Section III, dealing with slavery and practices similar to it. They
require States Parties to punish anyone attempting to mutilate, brand or mark a
slave to indicate his/her status or to enslave or induce someone to place himself or
herself in slavery or servitude.
Although no reservation can be made to the Supplementary Convention on
Slavery,⁴⁴ this treaty did not provide for the establishment of a monitoring mechanism: Article 8 actually contains only a general obligation for States Parties to
co-operate with each other and with the United Nations and to communicate to
the Secretary General any provision adopted to implement it.
⁴¹
⁴²
⁴³
⁴⁴
Emphasis added.
According to this definition a ‘slave’ is a person in a condition or status of slavery.
Weissbrodt and ASI Report (n 40) 39 [129].
Art 9 of the Supplementary Convention on Slavery.
50
Slavery, the Slave Trade and Human Trafficking
2.3 The fight against the traffic in women and children
At the beginning of the XX century the white slave traffic seemed to be widespread in the world. Four international conventions were adopted in less than
30 years to try to abolish this phenomenon: the 1904 International Agreement for
the Suppression of the White Slave Traffic,⁴⁵ the 1910 International Convention
for the Suppression of the White Slave Traffic,⁴⁶ the 1921 International
Convention for the Suppression of the Traffic in Women and Children⁴⁷ and,
finally, the 1933 International Convention for the Suppression of the Traffic in
Women of Full Age.⁴⁸ These treaties had surely been inspired by the work of the
feminist Josephine Butler, leader of the abolitionist movement, who condemned
the systems of regulating prostitution and strongly advocated the abolition of the
practice.
The first of these international instruments aimed at establishing in every contracting party an authority collecting information on the procurement of women
and girls for immoral purposes abroad and at guaranteeing controls, especially
in railways stations or ports to identify victims of the white slave traffic.⁴⁹ Other
measures provided for the identification of the victims and for their eventual
repatriation, whose costs had to be borne by the victim or by her family; in cases
in which none would be able to pay, the costs would be shared between the country of origin and that of residence.
The International Convention for the Suppression of the White Slave Traffic,
adopted six years later, bound States Parties to punish every person who ‘in order
to gratify the passions of another person, has procured, enticed, or led away, even
⁴⁵ International Agreement for the Suppression of the White Slave Traffic (adopted 18 May
1904, entered into force 18 July 1905) 1 LNTS 83.
⁴⁶ International Convention for the Suppression of the White Slave Traffic (adopted 4 May
1910, entered into force 5 July 1920) 8 LNTS 278. The International Agreement for the Suppression
of the White Slave Traffic and the International Convention for the Suppression of the White Slave
Traffic were successively amended by a Protocol approved by the UN General Assembly. Protocol
amending the International Agreement for the Suppression of the White Slave Traffic, signed at
Paris on 18 May 1904, and the International Convention for the Suppression of the White Slave
Traffic, signed at Paris on 4 May 1910 (adopted 3 December 1948, entered into force 4 May 1949)
30 UNTS 23.
⁴⁷ International Convention for the Suppression of the Traffic in Women and Children (adopted
30 September 1921, entered into force 15 June 1922) 9 LNTS 415.
⁴⁸ International Convention for the Suppression of the Traffic in Women of Full Age (adopted
11 October 1933, entered into force 24 October 1934) 150 LNTS 431. The International Convention
for the Suppression of the Traffic in Women and Children and the International Convention for
the Suppression of the Traffic in Women of Full Age were also amended by a Protocol approved by
the UN General Assembly. Protocol signed at Lake Success, New York, on 12 November 1947, to
amend the Convention for the Suppression of the Traffic in Women and Children, concluded at
Geneva on 30 September 1921, and the Convention for the Suppression of the Traffic in Women of
Full Age, concluded at Geneva on 11 October 1933 (adopted 20 October 1947, entered into force
12 November 1947) 53 UNTS 13.
⁴⁹ Arts 1–2 of the International Agreement for the Suppression of the White Slave Traffic.
Slavery, the Slave Trade and Human Trafficking
51
with her consent, a woman or girl under age, for immoral purposes’,⁵⁰ or ‘has, by
fraud, or by means of violence, threats, abuse of authority, or any other method of
compulsion, procured, enticed, or led away a woman or girl over age, for immoral
purposes’.⁵¹ The various acts constituting the offence could have been committed
in different countries. Moreover, if the woman was under the age of 20, her consent to the exploitation was irrelevant, while in cases where she was over that age,
the trafficker would be punished only if he/she had used one of the means listed
by the Convention. It is interesting to note, however, that a final Protocol stated
that the issue of the retention of a woman or a girl in a brothel, even against her
will, was not taken into consideration by the Convention and it was considered as
a matter of national jurisdiction.⁵²
The International Convention for the Suppression of the Traffic in Women and
Children and the International Convention for the Suppression of the Traffic in
Women of Full Age were concluded under the auspices of the League of Nations;
actually, the Covenant of this international organization stated that its mandate
comprised the general supervision on the international agreements in the field of
traffic in women and children.⁵³
The International Convention for the Suppression of the Traffic in Women
and Children recalled and partially extended the protective measures contained
in the previous two international treaties, taking into consideration children of
both sexes,⁵⁴ and raising the age limit for protection from 20 to 21 completed
years of age.⁵⁵ Finally, the International Convention for the Suppression of the
Traffic in Women of Full Age bound the States Parties to punish the acts or the
attempt to commit the acts of procuring, enticing or leading away, even with her
consent, a woman or a girl of full age to take her abroad for immoral purposes.
The requirement of constraint is removed from the definition of the offence; however, the Convention establishes rules that are only applicable to the international
traffic in women. As correctly emphasized by Wijers and Lap-Chew: ‘A State can
thus tolerate on a national level what it condemns on an international level’.⁵⁶
All the White Slave Traffic Conventions applied only to the recruitment and
transportation process but they considered prostitution as a matter of internal
jurisdiction. Therefore, as stated by the former Special Rapporteur on Violence
⁵⁰ Art 1 of the International Convention for the Suppression of the White Slave Traffic
(emphasis added).
⁵¹ Ibid, Art 2 (emphasis added). A woman was considered over or under age when she was over
or under ‘twenty completed years of age’.
⁵² M C Maffei, Tratta, Prostituzione Forzata e Diritto Internazionale, Il Caso delle ‘Donne di
Conforto’ (Giuff rè, 2002) 81–5.
⁵³ Art 23(c) of the Covenant of the League of Nations.
⁵⁴ Art 2 of the International Convention for the Suppression of the Traffic in Women and
Children.
⁵⁵ Ibid, Art 5.
⁵⁶ M Wijers and L Lap-Chew, Trafficking in Women, Forced Labour and Slavery-Like Practices
in Marriage, Domestic Labour and Prostitution (Foundation against Trafficking in Women and
Global Alliance against Traffic in Women, 1999) 25.
52
Slavery, the Slave Trade and Human Trafficking
against Women, these four treaties had been ineffective to fight against the
phenomenon.⁵⁷
Consequently, on 2 December 1949 the United Nations General Assembly
adopted the Convention for the Suppression of the Traffic in Persons and the
Exploitation of the Prostitution of Others,⁵⁸ that consolidated and extended the
scope of the four previous international agreements on the white slave traffic and
of the draft convention prepared by the League of Nations in 1937 that could not
be adopted because of the outbreak of World War II. The draft was the result of
two inquiries conducted by the League of Nations on traffic in women and children. The first inquiry was carried out in some countries of America, Europe and
the Middle East by a Body of Experts appointed in 1927.⁵⁹ The second one examined the situation in Asia and in the Far East and it was conducted by another
Body of Experts in 1932. However, both inquiries concluded that brothels are the
main factor in determining the national and international white slave traffic.⁶⁰
The Convention for the Suppression of the Traffic in Persons represents a step
forward in respect of the previous white slave traffic conventions, because it uses
a race, gender and age neutral terminology, thus being applicable not only to
white women and children, but more generally to persons, including also men
and young boys.⁶¹ This treaty is also the first international agreement to consider
prostitution as a matter of international law, rather than as a domestic jurisdiction issue.⁶²
Moreover, the Convention adopts an abolitionist perspective to manage
prostitution, even if there are some inconsistencies between its title, preamble
and text:⁶³ the title refers only to trafficking and the exploitation of the prostitution of others, the preamble acknowledges that both prostitution and trafficking in persons for the purpose of prostitution are incompatible with the dignity
⁵⁷ UNCHR, ‘Report of the Special Rapporteur on violence against women, its causes and
consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and
violence against women’ (2000) UN Doc E/CN.4/2000/68, 10.
⁵⁸ Convention for the Suppression of the Traffic in Persons and the Exploitation of the
Prostitution of Others (adopted 2 December 1949, entered into force 25 July 1951) 96 UNTS 271
(Convention for the Suppression of the Traffic in Persons).
⁵⁹ Cf H Wilson Harris, Human Merchandise, A Study on the International Traffic in Women
(Ernest Benn Limited, 1928).
⁶⁰ UNCHR (Sub-Commission), ‘Note by the Secretary-General, Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution of Others’ (1976) UN Doc E/CN.4/Sub.2/
AC.2/5, 3.
⁶¹ UN Dept of Economic and Social Affairs, ‘Study on Traffic in Persons and Prostitution—
Suppression of the traffic in persons and of the exploitation of the prostitution of others’ (1959) UN
Doc ST/SOA/SD/8, United Nations Publication Sales No 59.IV.5, 28.
⁶² N V Demleitner, ‘Forced Prostitution: Naming an International Offense’ (1994) 18 Fordham
International Law Journal 163, 172.
⁶³ Three models have been developed to deal with the moral issue of prostitution: the abolitionist one that considers it as a violation of human rights that has to be abolished, the prohibitionist
one that sees it as an illegal activity, thus proposing the punishment of both prostitutes and clients
and the regulationist one that regards prostitution as a necessary evil that has to be tolerated but,
nonetheless, regulated.
Slavery, the Slave Trade and Human Trafficking
53
of the human person and, finally, the text refers to prostitution as the form of
exploitation related to trafficking.⁶⁴ However, it is widely recognized that apart
from the moral condemnation of prostitution contained in the preamble, the
Convention aimed at targeting trafficking in persons and the related exploitation
of prostitution.
Article 1 of the Convention requires States parties to ‘. . . punish any person who,
to gratify the passions of another: (1) Procures, entices or leads away, for purposes
of prostitution, another person, even with the consent of that person; (2) Exploits
the prostitution of another person, even with the consent of that person.’ As further explained in the 1959 Study on Traffic in Persons and Prostitution prepared
by the UN Secretariat at the request of the Social Commission, this offence need
not be transnational, so that it can comprise both national and international trafficking and, finally, the purpose of the perpetrator is irrelevant.⁶⁵ Article 2 of the
Convention further establishes that keeping, managing, financing or taking part
in the financing of a brothel or lending and renting a building or a part of it to
exploit the prostitution of others are considered as offences that must be punished
by States Parties.⁶⁶
Moreover, according to Article 6, States Parties may not register or pretend
that people engaged in prostitution hold specific documents or requirements for
supervision or notification, while Article 16 declares that persons engaging in
prostitution are considered as victims and States Parties shall adopt measures for
the prevention of this crime and for the rehabilitation of those who have been
sexually exploited. Moreover, States Parties must establish the identity and civil
status of foreign victims,⁶⁷ to provide for their temporary care, repatriate those
who wish to be repatriated, or who have been claimed by someone having responsibility over them, or who have been expelled according to the law.⁶⁸ Finally, if
the victims cannot repay the cost of their repatriation by themselves, the States of
origin and of destination shall share it between them.⁶⁹ Article 20 acknowledges
that employment agencies may deceive people looking for a job and therefore
requires States Parties to supervise them as a measure to prevent trafficking in
persons, especially women and children for the purpose of prostitution.
⁶⁴ Demleitner (n 62) 174. The author acknowledges that: ‘While the title of the 1950 Convention
speaks of the “exploitation of prostitution”, the text tends to refer solely to prostitution. This created a
certain degree of ideological confusion, since the 1950 Convention’s focus remained ambiguous as to
whether all kinds of prostitution or only forced prostitution were at issue.’
⁶⁵ 1959 Study on Traffic in Persons and Prostitution (n 61) 28. As regards the second element, the 1959
Study on Traffic in Persons and Prostitution emphasizes that ‘. . . if the purpose of gain were to
constitute a necessary element of these offences, lack of evidence of gainful intent would make it very
difficult, and in many cases impossible, to prosecute the offenders’.
⁶⁶ The Final Protocol to the Convention declares that States Parties may even adopt stricter
measures to fight against trafficking for the purpose of the exploitation of the prostitution of
others.
⁶⁷ Art 18 of the Convention for the Suppression of the Traffic in Persons.
⁶⁸ Ibid, Art 19(1)(1) and (2).
⁶⁹ Ibid, Art 19(2).
54
Slavery, the Slave Trade and Human Trafficking
Finally, Articles 8–15 require States Parties to co-operate with each other
to abolish trafficking in persons; thus, they shall consider as extraditable offences
the ones referred to in Articles 1 and 2 in any extradition treaty they might eventually adopt,⁷⁰ they shall recognize and enforce foreign convictions of traffickers,⁷¹
and they may exchange information to the extent permitted by their domestic
law and judged desirable by their authorities.⁷²
In 1983 Mr Jean Fernard-Laurent, the Special Rapporteur on the suppression
of traffic in persons and the exploitation of the prostitution of others, nominated
by the Secretary General on the basis of a request made by the United Nations
Economic and Social Council,⁷³ noted in his report that since 1949 many recommendations referring to the Convention for the Suppression of the Traffic in
Persons had been adopted by consensus; he was thus affirming that the overwhelming majority of the States agree with the philosophy that lies behind that
treaty: ‘. . . prostitution and the accompanying evil of the traffic in persons “are
incompatible with the dignity and worth of the human person and endanger the
welfare of the individual, the family and the community”.’⁷⁴ This assumption can
only partially be agreed; there is no doubt that the exploitation of the prostitution
of others and trafficking in persons for the purpose of prostitution are condemned
by most of the States of the world, but as the low status of ratifications—only
74—of this Convention clearly shows, many States consider prostitution per se a
matter of national choice. The adoption of the abolitionist model to manage prostitution did not convince many States that preferred to adopt or maintain other
models so that, for this reason, they did not ratify this treaty.
The Convention has many lacunae: it does not contain a definition of trafficking in persons and, as in the previous treaties, it only refers to trafficking for
the purpose of prostitution, thus being outdated and limiting its sphere of application to this specific form of exploitation. Moreover, as maintained by Nanda
and Bassiouni, while the abolition of slavery and the slave trade was based on the
transformation of the basic values that permitted toleration of these practices,
in the case of the traffic in persons for the purpose of prostitution this change
never happened.⁷⁵ As summarized by the former Special Rapporteur on Violence
against Women, Ms Radhika Coomaraswamy:
⁷⁰ Ibid, Art 8.
⁷¹ Art 10 of the Convention for the Suppression of the Traffic in Persons.
⁷² Ibid, Art 15.
⁷³ ECOSOC, ‘Suppression of the traffic in persons and of the exploitation of the prostitution of
others’ Res 1982/20 (4 May 1982).
⁷⁴ Ibid 16 [51].
⁷⁵ V P Nanda and M C Bassiouni, ‘Slavery and the Slave Trade: Steps Toward Eradication’
(1972) 12 Santa Clara Lawyer 424, 440. In fact, the two authors rightly note that ‘. . . in an effective
international control scheme the emphasis should be along the lines of social attitudinal changes
by a transformation of the basic values which support or tolerate the behaviour sought to be altered.
Such emphasis accounts for the relative success of the eradication of slavery and the slave trade and
the relative failure of the abolition of the white slavery’.
Slavery, the Slave Trade and Human Trafficking
55
The 1949 Convention has proved ineffective in protecting the rights of trafficked women
and combating trafficking. The Convention does not take a human rights approach. It
does not regard women as independent actors endowed with rights and reason; rather,
the Convention views them as vulnerable beings in need of protection from the “evils of
prostitution”. As such, the 1949 Convention does very little to protect women from and
provide remedies for the human rights violations committed in the course of trafficking,
thereby increasing trafficked women’s marginalization and vulnerability to human rights
violations. Further, by confining the definition of trafficking to trafficking for prostitution, the 1949 Convention excludes vast numbers of women from its protection.⁷⁶
The lack of success of the Convention for the Suppression of the Traffic in Persons is also demonstrated by another fact: in 1976 the Working Group on Slavery
emphasized that the States Parties to this treaty were not transmitting reports regularly and some of them were not transmitting them at all.⁷⁷ Even the European
Parliament in its 1996 Resolution on Trafficking in Human Beings acknowledged
the widely felt need to draft a new international convention, considering the Convention for the Suppression of the Traffic in Persons to be ‘obsolete and ineffective’.⁷⁸
2.4 A landmark achievement: the adoption
of the Convention against Transnational
Organized Crime and of its Protocols
In the nineties there were growing concerns over the spread of international
organized crime in the framework of the United Nations and, in particular, of
its Office on Drugs and Crime (UNODC) based in Vienna and it was felt
that co-operation at the international level was necessary to fight against this
phenomenon. Therefore, in 1994 the UN General Assembly adopted the
Declaration of the Ministerial Conference of Naples, recognizing the need to
adopt an international convention as a way to combat transnational organized
crime. Consequently, in 1997 the General Assembly appointed an Open-Ended
Intergovernmental Group of Experts and entrusted it with this task.⁷⁹
The Group submitted a report containing a draft convention against transnational organized crime. On the basis of the latter, the United Nations General
Assembly adopted its resolution 53/111 of 9 December 1998, in which it decided
to establish an Open-Ended Intergovernmental Ad Hoc Committee on the
⁷⁶ UNCHR, ‘Report of the Special Rapporteur on violence against women, its causes and
consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and
violence against women’ (2000) UN Doc E/CN.4/2000/68 [22].
⁷⁷ UNCHR (Sub-Commission), ‘Report of the Working Group on Slavery at its second session’
(1976) UN Doc E/CN.4/Sub.2/373, 3.
⁷⁸ European Parliament (EU), ‘Resolution on Trafficking in Human Beings’ [1996] OJ
C32/88.
⁷⁹ UNGA Res 52/85 (12 December 1997) UN Doc A/RES/52/85.
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Slavery, the Slave Trade and Human Trafficking
Elaboration of a Convention against Transnational Organized Crime that, by
the end of 2000, would elaborate a treaty against transnational organized crime
and would further discuss the elaboration of treaties dealing with ‘. . . trafficking
in women and children, combating the illicit manufacturing of and trafficking in
firearms, their parts and components and ammunition, and illegal trafficking in
and transporting of migrants, including by sea.’⁸⁰ The mandate given by the UN
General Assembly to the Ad Hoc Committee was ambiguous in regard to human
trafficking and to what was later called smuggling; the same term was, in fact, used
to identify both the offences. Moreover, trafficking was restricted to the phenomenon affecting only women and children.
The Ad Hoc Committee held 11 meetings in Vienna from January 1999 until
October 2000; more than 120 countries took part in the negotiation process of
these international treaties and many NGOs participated as well, although they
concentrated their efforts on the negotiations of the UN Trafficking Protocol.
In December 2000 the Convention and its Protocols against trafficking in persons and smuggling in migrants were opened for signature at the High Level
Political Signing Conference held in Palermo (Italy): delegates from 148 countries participated in this watershed event. The third Protocol against the Illicit
Manufacturing of and Trafficking in Firearms, their Parts and Components and
Ammunition could not be finalized in time, so that the Ad Hoc Committee met
again in its twelfth session to complete it.⁸¹
The Convention against Transnational Organized Crime (CTOC) entered
into force on 29 September 2003, followed by the UN Trafficking Protocol on 25
December 2003 and the UN Smuggling Protocol on 28 January 2004. The UN
Firearms Protocol was adopted by the UN General Assembly on 31 May 2001
and it came into force on 3 July 2005.⁸²
The CTOC contains general measures designed to prevent, investigate and
prosecute the following four offences:
1. the participation in an organized criminal group or the ‘organizing, directing,
aiding, abetting, facilitating or counselling the commission of a serious crime
involving an organized criminal group’;⁸³
2. the laundering of proceeds of crime;⁸⁴
3. corruption of public officials or of international civil servants;⁸⁵
4. obstruction of justice.⁸⁶
⁸⁰ UNGA Res 53/111 (20 January 1999) UN Doc A/RES/53/111 [10] (Ad Hoc Committee).
⁸¹ UNGA Res 55/255 (31 May 2001) UN Doc A/RES/55/255.
⁸² Convention against Transnational Organized Crime; and Protocol against the Smuggling of
Migrants by Land, Sea and Air (adopted 15 November 2000) 40 ILM 335 (2001). As of 15 December
2007 ratifications for these treaties are as follows: (1) Convention against Transnational Organized
Crime: 138 States Parties; (2) UN Trafficking Protocol: 116 States Parties; (3) UN Smuggling
Protocol: 108 States Parties; (4) UN Firearms Protocol: 67 States Parties.
⁸³ Art 5 CTOC.
⁸⁴ Ibid, Arts 6–7.
⁸⁵ Arts 8–9 CTOC.
⁸⁶ Ibid, Art 23.
Slavery, the Slave Trade and Human Trafficking
57
Moreover, according to Article 34(2) of the Convention, all the preceding
offences provided by Articles 5, 6, 8 and 23 have to be established in the domestic
law of States Parties ‘independently of the transnational nature or the involvement of an organized criminal group’. As regards the latter, Article 2(a) CTOC
defines it as being:
. . . a structured group of three or more persons, existing for a period of time and acting in
concert with the aim of committing one or more serious crimes or offences . . . in order to
obtain, directly or indirectly, a financial or other material benefit.
Th is provision also explains two other expressions used in this definition,
namely those of ‘serious crime’ and ‘structured group’. As regards the former,
Article 2(b) of the Convention states that a serious crime is an offence that is
punished by a maximum penalty of at least four years or more in prison. On
the latter, Article 2(c) specifies that to have a structured group, there are either
defined roles or a developed structure in the group or there is continuity in its
membership. A group ‘randomly formed for the commission of an offence’ cannot be considered as a structured group on the basis of the definition given by
the Convention.
The Travaux Préparatoires, containing the interpretative notes that were discussed by the Ad Hoc Committee on the Elaboration of a Convention against
Transnational Organized Crime during the negotiations of the Convention and
the Protocols, provide some clarification on the use of the expression ‘structured
group’: it can be used in a broad way to include both the groups organized with
a hierarchical or other kind of elaborate structure and those where the roles of
its members are not formally defined.⁸⁷ Moreover, it is also explained that the
‘financial or other material benefit’ that the organized criminal groups wish to
obtain should be interpreted broadly; according to the Ad Hoc Committee, in
fact, ‘sexual gratification’ of pornographers and paedophiles shall be considered
as included among these benefits.⁸⁸
The Legislative Guides for the Implementation of the United Nations
Convention against Transnational Organized Crime and the Protocols thereto,
recently elaborated by the United Nations Office on Drugs and Crime, confirmed
this broad interpretation given by the Travaux Préparatoires and further clarified
that its purpose is to guarantee that those organized criminal groups involved in
trafficking in persons or child pornography for sexual and not monetary reasons
⁸⁷ UNGA, ‘Report of the Ad Hoc Committee on the Elaboration of a Convention against
Transnational Organized Crime on the work of its first to eleventh sessions, Addendum,
Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United
Nations Convention against Transnational Organized Crime and the Protocols thereto’ (2000)
UN Doc A/55/383/Add.1 [4].
⁸⁸ Ibid [3]. As stated in the Travaux Préparatoires: ‘. . . the words “in order to obtain, directly
or indirectly, a financial or other material benefit” should be understood broadly, to include, for
example, crimes in which the predominant motivation may be sexual gratification, such as the
receipt or trade of materials by members of child pornography rings, the trading of children by
members of paedophile rings or cost sharing among ring members.’
58
Slavery, the Slave Trade and Human Trafficking
do not fall outside the definition given by the Convention against Transnational
Organized Crime.⁸⁹
Other measures contained in the Convention set basic rules on the confiscation
and seizure of the proceeds of crime and on establishing co-operation between
States Parties to this effect,⁹⁰ on extradition and on the transfer of sentenced
persons,⁹¹ on mutual legal assistance,⁹² on the conduct of joint investigations,⁹³
on co-operation in the use of special investigative techniques,⁹⁴ and on law
enforcement.⁹⁵
A very important provision is Article 24, concerning the protection of witnesses,
and—if appropriate—of their relatives and persons close to them. Therefore, witnesses’ protection may include physical protection, relocation, non-disclosure or
limitations on the disclosure of information on their identity and whereabouts
and their relocation. These provisions have to be applied to victims (including
trafficking ones) insofar as they are witnesses as well. However, these measures
are for the most part discretionary for States Parties.
An equally important provision is Article 25 that grants a right to protection
and assistance to all the victims of the offences covered by the Convention, in
particular if they have been the subjects of threats of retaliation or intimidation. States Parties shall also guarantee their right to compensation and restitution and, subject to their domestic law, they shall enable them to present their
views and concerns at appropriate stages of the criminal proceedings against the
offenders.
As regards the settlement of disputes on the interpretation and application of
the CTOC, Article 35(1) provides for negotiations between the concerned States
Parties; however, if the dispute cannot be settled within a reasonable time, one of
these States Parties may require that it is submitted to arbitration and if within
six months the Parties are unable to find an agreement on the organization of
the arbitration, any of them may refer it to the ICJ. However, it is worth noting
that many States Parties to the Convention ratified it with a specific reservation
on Article 35(2), thus they do not consider themselves bound by this provision.
Finally, Article 37 deals with the relationship between the Convention and its
Protocols, stating that the former is supplemented by the specific provisions
⁸⁹ UNODC, Legislative Guides for the Implementation of the United Nations Convention against
Transnational Organized Crime and the Protocols thereto (United Nations, 2004) 13 [26].
⁹⁰ Arts 12–13 CTOC.
⁹¹ Ibid, Arts 16–17. However, it is worth noting that extradition may be refused if the requested
State has substantial grounds for believing that the request has been made to prosecute or punish
a persons for his/her race, sex, religion, nationality, ethnic origin or political opinions. The transfer of sentenced persons is conditional on the existence of bilateral or multilateral agreements that
States Parties may decide to conclude between them.
⁹² Art 18 CTOC.
⁹³ Ibid, Art 19. States Parties may conclude bilateral or multilateral agreements to establish joint
investigative bodies or they may decide to conduct joint investigations on a case-by-case basis.
⁹⁴ Ibid, Art 20.
⁹⁵ Ibid, Art 27.
Slavery, the Slave Trade and Human Trafficking
59
contained in the three subordinate Protocols, so that they have to be implemented
in conjunction with it.
2.5 The UN Trafficking in Persons Protocol
During the negotiations process, a draft of the UN Trafficking Protocol was
initially submitted by the United States of America and it was subsequently
adjusted to take into consideration some elements that had been underlined by
Argentina.⁹⁶ This initial text was the one on which the delegations worked to find
consensus on a final document.
As already noted, many NGOs participated in the negotiations of the UN
Trafficking Protocol. They were subdivided into two groups: the International
Human Rights Network composed of over 140 NGOs,⁹⁷ and the Human Rights
Caucus.⁹⁸ The two groups promoted two different feminist approaches to prostitution and the related trafficking in persons—the radical feminist and the sex
workers ones—an issue that was debated at length during the whole negotiation
process. The International Human Rights Network actually believes that it is
not possible to distinguish between forced and voluntary prostitution, because all
forms of prostitution are considered to be forced and thus colluding with human
trafficking. Within this view even an adult cannot consent to prostitution, since
the latter is in itself a violation of human rights akin to slavery. Therefore, the
International Human Rights Network lobbied to obtain a definition of trafficking in persons that would not have distinguished between victims who can demonstrate they were forced and those who cannot; consequently, they sustained the
irrelevance of adult victims’ consent when one of the improper means (including
not only force, but also situations of vulnerability) had been used.⁹⁹
On the other hand, the Human Rights Caucus considers it necessary to maintain the distinction between free and forced prostitution because not all prostitutes
are coerced and thus, in some cases, prostitution can be considered as free sex
⁹⁶ UNGA, ‘Report of the Ad Hoc Committee on the Elaboration of a Convention against
Transnational Organized Crime on the work of its first to eleventh sessions’ (2000) UN Doc
A/55/383 [27].
⁹⁷ The most important NGOs that were part of the International Human Rights Network
were: Coalition Against Trafficking in Women (CATW), European Women’s Lobby (EWL), and
International Abolitionist Federation (IAF).
⁹⁸ The Human Rights Caucus was composed of the following NGOs: Global Rights (formerly
the International Human Rights Law Group—IHRLG), Global Alliance Against Trafficking
in Women (GAATW), Foundation against Trafficking in Women (STV), Asian Women’s
Human Rights Council (AWHRC), La Strada, Ban-Ying, Fundación Esperanza, Foundation for
Women, KOK-NGO Network against Trafficking in Women, Women’s Consortium of Nigeria,
and Women, Law & Development in Africa (Nigeria). On its twentieth anniversary in 2003 the
International Human Rights Law Group changed its name to Global Rights.
⁹⁹ J G Raymond, ‘The New UN Trafficking Protocol’ [2002] 25 Women’s Studies International
Forum 491.
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Slavery, the Slave Trade and Human Trafficking
work. For this reason, according to the Human Rights Caucus it is very important to maintain a clear distinction between sex work and trafficking in persons,
because they are two different issues. Consequently, this group of NGOs lobbied
to consider consent as a relevant issue and to omit the term ‘victim’ from the
text of the Protocol, substituting it with ‘trafficked person’ as a way to empower
them.¹⁰⁰
States’ representatives were also divided between these two divergent views;
thus, it is not surprising that the final text of the UN Trafficking Protocol is a
compromise treaty of 20 Articles containing a definition of the phenomenon and
very general measures designed to prevent and combat human trafficking, to protect and assist the victims and to promote co-operation between States Parties.
2.5.1 The definition of trafficking in persons: the issue of
consent and its scope of application
As already noted above, the adoption of the UN Trafficking Protocol in December
2000 introduced the first internationally recognized definition of trafficking in
persons. Article 3(a) of the UN Trafficking Protocol defines human trafficking
as a process comprising the ‘recruitment, transportation, transfer, harbouring or
receipt of persons’, through improper means—namely, ‘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’,¹⁰¹
for the purpose of sexual, labour or any other form of exploitation. Among the
forms of exploitation, the trafficking definition specifically mentions ‘. . . 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.’ From this definition three different phases can be identified:
(a) the movement of the victims from one place to another; (b) the achievement
of their consent through improper means; and (c) their final exploitation. If one
of these elements is missing it is not possible to consider a phenomenon as trafficking in adult persons. On the contrary, the definition of trafficking in minors
contained in Article 3(c) does not take into consideration the issue of consent, so
that the recruitment, transportation, transfer, harbouring and receipt of a child
followed by his/her exploitation is considered as child trafficking.
¹⁰⁰ M Ditmore and M Wijers, ‘The Negotiations on the UN Protocol on Trafficking in Persons’
(2003) 4 Nemesis 79; J Doezema, ‘Who gets to choose? Coercion, consent, and the UN Trafficking
Protocol’ (2002) 10 Gender and Development 20.
¹⁰¹ The Travaux Préparatoires clarified that the ‘abuse of a position of vulnerability’ refers to those
situations in which there is no ‘acceptable alternative but to submit to the abuse involved’. UNGA,
‘Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational
Organized Crime on the work of its first to eleventh sessions, Addendum, Interpretative notes for
the official records (travaux préparatoires) of the negotiation of the United Nations Convention
against Transnational Organized Crime and the Protocols thereto’ (2000) UN Doc A/55/383/
Add.1 [63].
Slavery, the Slave Trade and Human Trafficking
61
Article 3(b) further specifies that if one of the means set forth in Article 3(a)
is used, it is irrelevant whether the person expressed her/his consent or not. The
issue of consent was a difficult one to overcome during the negotiations of the
UN Trafficking Protocol. Some States preferred a definition of human trafficking including the sexual exploitation of the victims, regardless of their consent, as
had been initially proposed by Argentina; however, this solution had already been
adopted by the 1949 Convention for the Suppression of the Traffic in Persons and
it does not distinguish between voluntary and coerced prostitution. Finally, the
idea of considering consent irrelevant only if one of the means listed in the definition is used to convince an adult victim prevailed. Consequently, the Legislative
Guide acknowledges that: ‘Once it is established that deception, coercion, force
or other prohibited means were used, consent is irrelevant and cannot be used as
a defence.’¹⁰² In so doing the burden of proof is not on the trafficked victim, but
on her/his traffickers.¹⁰³
Finally, a huge debate surrounded the fact that Article 4 of the UN Trafficking
Protocol inevitably limited its scope of application ‘. . . to the prevention, investigation, and prosecution of the offences established in accordance with Article 5 . . .
where those offences are transnational in nature and involve an organized criminal group, as well as to the protection of victims of such offences’.¹⁰⁴ The UN
Trafficking Protocol was initially criticized for narrowing human trafficking only
to the situations where these two elements are met. Therefore, both internal trafficking without any transnational element, which is widespread in some countries of the world, and the one organized by individuals or groups of two people or
by groups that cannot be considered as structured ones, would have risked being
excluded from the UN Trafficking Protocol.
Some international experts intervened on this issue to emphasize that, even
if the UN Trafficking Protocol restricts trafficking in persons, criminalizing
only the transnational crime committed by an organized criminal group, States
should adopt national legislation combating both internal and transnational trafficking in persons committed by individuals or groups.¹⁰⁵ Recently, the Special
Rapporteur on Trafficking in Persons stated that she will take action not only
¹⁰² Legislative Guide (n 89) 270 [37].
¹⁰³ Travaux Préparatoires (n 101) [68]; Raymond (n 99) 494.
¹⁰⁴ Art 4 of the UN Trafficking Protocol makes reference to offences that are ‘transnational
in nature’. Art 3(2) of the Convention against Transnational Organized Crime explains that an
offence is transnational in nature when: ‘(a) It is committed in more than one State; (b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes
place in another State; (c) It is committed in one State but involves an organized criminal group
that engages in criminal activities in more than one State; or (d) It is committed in one State but has
substantial effects in another State’.
¹⁰⁵ Jordan stated on this issue: ‘Domestic legislation should go further than the Trafficking
Protocol and include all domestic and cross-border trafficking and should punish individual
traffickers as well as organized criminal groups. Trafficking within some countries is as serious as,
or more serious than, cross-border trafficking’. A D Jordan, ‘The Annotated Guide to the Complete
UN Trafficking Protocol’ (Report) (International Human Rights Law Group, 2002) 14.
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Slavery, the Slave Trade and Human Trafficking
in cases of transnational trafficking in persons but also to combat the internal
phenomenon.¹⁰⁶
Finally, the Legislative Guide clarified the meaning of Article 34(2) of the
Convention and clearly stated that:
. . . in domestic law, the offences established in accordance with the Convention of participation in an organized criminal group, corruption, money-laundering and obstruction of justice and the Protocol offences of trafficking in persons, smuggling of migrants
and trafficking in firearms must apply equally, regardless of whether the case involves
transnational elements or is purely domestic.¹⁰⁷
This important principle is further clarified in other sections of the Legislative
Guide for the purpose of avoiding different interpretations of the Convention
and the Protocols by the States Parties. Therefore, it is also explained that: ‘. . . the
Trafficking in Persons Protocol also applies to the protection of victims regardless of transnationality and involvement of an organized criminal group.’¹⁰⁸
This statement is very important because it implies that ratifying States cannot
discriminate between (a) victims of internal and transnational trafficking; and
(b) the ones exploited by a structured group, as defined by the Convention against
Transnational Organized Crime and by an individual or any other kind of group.
The minimum protection provided by the UN Trafficking Protocol shall consequently be granted to all victims of human trafficking.
Even if the UN Trafficking Protocol’s definition is the result of a compromise
and is consequently not perfect, it is surely a landmark achievement as compared
to the previous conventions that for nearly a century had condemned the practice but had never defined it. Moreover, the UN Trafficking Protocol’s definition
extends the boundaries of the phenomenon, recognizing that it can be related
to various forms of exploitation and that men, women and children can be trafficked. The Legislative Guide clarified many issues; scholars, judges and experts
in this field are able to follow this line to interpret the definition, for the purpose
of further clarifying the boundaries of this phenomenon.
2.5.2 The prosecution of human traffickers
Article 5 of the UN Trafficking Protocol provides for States Parties to criminalize
the conduct of trafficking in human beings as defined by Article 3 and to punish
the attempt to commit, take part in, organize or direct other persons to commit offences related to human trafficking. The Travaux Préparatoires explained
that some countries intend the reference to the attempt to commit an offence to
include both preparative acts and the unsuccessful attempts.¹⁰⁹
¹⁰⁶ UNCHR, ‘Report of the Special Rapporteur on trafficking in persons, especially women
and children’ (2004) UN Doc E/CN.4/2005/71[26].
¹⁰⁷ UN Legislative Guide (n 89) 10–11 [18].
¹⁰⁸ Ibid, 259 [25] (emphasis added).
¹⁰⁹ Travaux Préparatoires (n 101) [70].
Slavery, the Slave Trade and Human Trafficking
63
Furthermore, the Legislative Guide notes that, according to Article 1(2) of the UN
Trafficking Protocol, the provisions of the UN Convention against Transnational
Organized Crime shall be applied, mutatis mutandis, to the Protocol. From this
assumption it follows that even though the UN Trafficking Protocol does not
directly provide specific measures on the criminal, civil or administrative liability
of legal persons, on money laundering, on asset confiscation, on extradition, on
mutual legal assistance, etc, the measures contained in the mother Convention
have to be applied to trafficking in persons too.¹¹⁰ Thus, for example, the extension of the measure on the criminal, civil or administrative liability of legal
persons contained in Article 10 of the UN Convention against Transnational
Organized Crime is very important in the fight against human traffickers who
may act through legal persons established as employment, travel and marriage
agencies, brothels and night bars.
2.5.3 The protection of trafficked victims
Considering that the Protocol is a criminal law instrument primarily designed
to punish human traffickers, the provisions dedicated to victims’ protection
are vague and they do not create strong obligations on States Parties. The main
reasons behind the discretionary language used in many protection measures
are: the lack of interest by government delegates to enhance the protection of
trafficked victims, who were mainly considered as a financial burden or as witnesses deserving only minimum rights, and the division between the two groups
of NGOs—the Human Rights Caucus and the International Human Rights
Network—during the negotiation of the UN Trafficking Protocol.
The Special Rapporteur on Violence against Women expressed her concerns
about the lack of strong protection measures in the UN Trafficking Protocol,
stating that:
. . . the first modern international instrument on trafficking is being elaborated in the
context of crime control, rather than with a focus on human rights. [This is] a failure of the international human rights community to fulfil its commitment to protect
the human rights of women.¹¹¹
The specific provisions on the protection of trafficking victims are contained
in Section II of the UN Trafficking Protocol, entitled ‘Protection of Victims of
Trafficking in Persons’ that comprises Articles 6, 7 and 8. Article 6 is the core
measure and it is composed of six paragraphs stating that the Contracting Parties:
(1) consider both protecting the identity and privacy of trafficked victims and
¹¹⁰ Legislative Guide (n 89) 272–5.
¹¹¹ UNCHR, ‘Report of the Special Rapporteur on violence against women, its causes and
consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and
violence against women’ (2000) UN Doc E/CN.4/2000/68 [7]. The author agrees with this statement but she believes that it has to be referred to every human being, including women, men and
children.
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Slavery, the Slave Trade and Human Trafficking
making legal proceedings related to such offence confidential; (2) if appropriate, adopt in their domestic legal or administrative systems measures designed
to provide trafficking victims with information on relevant proceedings and
assistance to enable them to testify against their traffickers; (3) examine the possibility of guaranteeing to trafficking victims physical, psychological and social
recovery and, in particular appropriate housing, counselling and information
in a language that they can understand at least on their legal rights, medical,
psychological and material assistance, education, the opportunity to fi nd an
employment and to attend professional courses; (4) take into account the age,
gender and special needs of trafficking victims, particularly those of children,
especially relating to housing, education and care; (5) make efforts to provide for
the physical safety of the victims residing in their territory; (6) introduce measures in their domestic systems to guarantee that trafficked victims may obtain
compensation for damaged suffered.
The Travaux Préparatoires clarified that Article 6(3) applies to both the States
of origin and of destination with the adoption of the following criteria:
. . . the type of assistance set forth in this paragraph is applicable to both the receiving
State and the State of origin of the victims of trafficking in persons, but only as regards
victims who are in their respective territory. Paragraph 3 is applicable to the receiving
State until the victim of trafficking in persons has returned to his or her State of origin
and to the State of origin thereafter.¹¹²
The Legislative Guide simplified the issue stating that the obligations of assisting
trafficking victims apply to every State of origin, transit or destination where the
victims are located.¹¹³
Article 7 suggests that States Parties consider adopting measures to guarantee trafficking victims the right to remain within their territory temporarily or
permanently, giving consideration to ‘humanitarian and compassionate factors’.
Finally, Article 8 contains a set of measures to facilitate the return of trafficked
persons to their State of nationality or of permanent residence.¹¹⁴
During the negotiations of the UN Trafficking Protocol, the Human Rights
Caucus proposed the use of confiscated assets to compensate trafficking victims,
to provide them with adequate services and to create a fund for anti-trafficking
programmes in the countries of origin and of destination.¹¹⁵ Unfortunately the
delegates refused this proposal; this was a pity as it would have been a good way to
overcome the scarcity of economic resources available for providing services for trafficked victims in many countries of the world.
¹¹² Travaux Préparatoires (n 101) [71].
¹¹³ Legislative Guide (n 89) 283 [52].
¹¹⁴ The Travaux Préparatoires clarified that ‘permanent residence’ does not only mean an indefinite one but also a long-term one: Travaux Préparatoires (n 101) [72].
¹¹⁵ Jordan (n 105) 34.
Slavery, the Slave Trade and Human Trafficking
65
Four years after the adoption of the UN Trafficking Protocol, the Legislative
Guide intervened on the discretionary character of many provisions dealing with
the protection of trafficked victims and it clarified the issue of some of these measures being considered to be mandatory while others are only optional. Among
the latter there are Article 6, paragraphs 3 and 4 on social assistance, victims’ protection and the special needs of children and Article 7 on the status of victims.¹¹⁶
As it is explained:
Generally, the provisions of the Protocol setting out procedural requirements and basic
safeguards are mandatory, while requirements to provide assistance and support for
victims incorporate some element of discretion . . . The nature of the social obligations
reflects concerns about the costs and difficulties in delivering social assistance to all
victims (or indeed, the general population) in many developing countries.¹¹⁷
The distinction made by the Legislative Guide is very important, even if it relegates to the role of optional measures the core provisions on the protection of
trafficked victims. It is regrettable that the only specific reference to children’s
rights, which is contained in Article 6(4), is an optional measure for the States
Parties to the UN Trafficking Protocol.
Nonetheless, the Legislative Guide thoroughly examined the issue and
even suggested that a guardian be appointed to accompany trafficked children
throughout the entire process, that special protection should be accorded to
those children who agree to testify, and that all efforts should be made to avoid
their re-victimization, including placing them in safe and suitable accommodation with skilled people taking care of them. Moreover, children should not be
returned to their country of origin, unless it is safe and in their best interest, and
a member of their family or a government agency is actually able to take care of
them. In cases in which it is not safe, or it is not in the best interest of the child
to return to his/her country of origin, the child should remain the responsibility
of the country of destination’s welfare authority; however, agreements between
the authorities of the country of origin and those of the country of destination
should be concluded to assess the situation of the child, and a thorough inquiry
should be conducted.¹¹⁸ It is highly recommended that States Parties follow
the suggestions made by the Legislative Guide on child trafficking, even if
they are not bound to do so.
As a matter of fact, the Legislative Guide clarified the obligations of States Parties
to the UN Trafficking Protocol; consequently the discretionary language used
¹¹⁶ Legislative Guide (n 89) 287–91.
¹¹⁷ Ibid, 283 [52]. The same principle is emphasized at [62] stating that ‘. . . the high costs of
these benefits and the fact that they apply equally to all States parties in which victims are found,
regardless of the level of socio-economic development or availability of resources, precluded these
from being made obligatory’.
¹¹⁸ Ibid, 289–91 [65]–[67].
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Slavery, the Slave Trade and Human Trafficking
in many provisions on the protection of trafficking victims cannot be considered
as a justification for States Parties’ inaction.
2.5.4 Prevention, co-operation and other measures
Article 9 of the UN Trafficking Protocol contains a set of prevention and
co-operation measures. According to this Article, States Parties shall establish
policies, programmes and other measures aimed at preventing human trafficking
and at protecting the victims to avoid their further re-victimization,¹¹⁹ and they
endeavour to undertake research, information and mass media campaigns, as
well as social and economic initiatives.¹²⁰ Bilateral and multilateral co-operation
between States Parties is envisaged as a way to address the root causes of trafficking in persons, namely poverty, underdevelopment and lack of equal opportunities.¹²¹ The demand issue was given consideration in the UN Trafficking
Protocol, through the recognition of the need to adopt or strengthen educational,
social, cultural and other measures to discourage it, as a way of combating trafficking and the related forms of exploitation.¹²² Whenever appropriate, States
Parties should co-operate with NGOs, other relevant organizations, and other
elements of civil society to adopt the measures listed in this provision in a way to
discourage the demand for trafficked persons’ services.
Article 10 deals with information exchange and training for law enforcement,
immigration and other relevant States Parties’ authorities. It is worth noting that
the training should focus on preventing human trafficking, on prosecuting the
traffickers and on protecting victims’ rights, including methods to keep victims
safe from traffickers. This training should also take into account ‘the need to consider human rights and child- and gender-sensitive issues and it should encourage
co-operation with non-governmental organizations, other relevant organizations
and other elements of civil society.’¹²³
The next provision envisages the strengthening of border controls to the extent
possible as a prevention and detecting measure against trafficking in persons.
States Parties are allowed to establish the obligation of transportation companies
to check that all passengers have a valid document to enter the State of destination. Article 12 also provides that States Parties may act to guarantee that their
issued travel and identity documents are not easily falsifiable or alterable, and to
prevent the creation and use of falsified or altered documents. Finally, Article 13
¹¹⁹ Art 9(1) of the UN Trafficking Protocol.
¹²⁰ Art 9(2) of the UN Trafficking Protocol.
¹²¹ Ibid, Art 9(4).
¹²² Ibid, Art 9(5). The Members of the Human Rights Caucus did not like this provision dealing with the issue of demand. As emphasized by Ditmore and Wijers: ‘This ambiguous “demand
language” essentially defines all sex work as trafficking and allows states to prosecute prostitutes’
clients as traffickers.’ Ditmore and Wijers (n 100) 86.
¹²³ Art 10(2) of the UN Trafficking Protocol.
Slavery, the Slave Trade and Human Trafficking
67
stresses that a State Party should verify upon request by another State Party the
validity of travel or identity documents issued in its name and suspected of being
used for the purpose of trafficking in persons.
2.5.5 The final measures
The first provision of Chapter IV, namely Article 14, is dedicated to saving
clauses. Its first paragraph provides that the UN Trafficking Protocol does not
affect existing rights and obligations under international law and, in particular, those provided by international humanitarian law and international human
rights law. Specific mention is made of the 1951 Convention relating to the Status
of Refugees, of its 1967 Protocol and of the principle of non-refoulement. The
second paragraph contains a non-discrimination clause, ensuring that trafficking victims are not discriminated against and that the UN Trafficking Protocol
is interpreted consistently with the well-established international principles of
non-discrimination. During the negotiations, the inclusion of a non-discrimination clause based on the one contained in the Rome Statute of the International
Criminal Court was proposed;¹²⁴ however, it was only possible to find agreement
on the adoption of a more limited and general one.
The next provision states that the disputes between States Parties shall be
solved through direct negotiations or arbitration; if it is not possible to reach an
agreement within six months on the organization of the arbitration, one of the
States Parties concerned may refer the dispute to the ICJ. However, some States
Parties that ratified the treaty made specific reservations to this measure, so that
they are not bound by it. The Travaux Préparatoires further clarify that, as regards
reservations to the UN Trafficking Protocol, States Parties shall follow the rules
of the 1969 Vienna Convention on the Law of the Treaties.¹²⁵ Article 16(2) of
the UN Trafficking Protocol and Article 32(2) of the UN Convention against
Transnational Organized Crime outline that any regional economic integration
organization may accede to them if at least one of its Member States has done
likewise. This is the case with the European Community which approved the
UN Trafficking Protocol on 6 September 2006.
Finally, according to Article 18, five years after the entry into force of the UN
Trafficking Protocol, any State Party may propose amendments to it. The proposals shall be voted on by the Conference of the Parties that had to be established
¹²⁴ Cf Ditmore and Wijers (n 100) 86. Art 21(3) of the Rome Statute of the ICC contains the
following anti-discrimination clause: ‘The application and interpretation of law pursuant to this
article must be consistent with internationally recognized human rights, and be without any
adverse distinction founded on grounds such as gender, as defined in article 7, paragraph 3, age,
race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin,
wealth, birth or other status.’
¹²⁵ Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force
27 January 1980) 1155 UNTS 331 (VCLT).
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Slavery, the Slave Trade and Human Trafficking
on the basis of Article 32(1) of the Convention against Transnational Organized
Crime. Once approved, the amendments are subject to ratification, acceptance
or approval by the States Parties. Those States Parties that do not ratify, accept or
approve an amendment are obviously not bound by it.
2.6 Trafficking in persons versus smuggling in migrants
As already emphasized, the UN Convention against Transnational Organized
Crime is supplemented by another Protocol dealing with the smuggling of
migrants by land, sea and air. This international instrument specifies that:
‘ “Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a
person into a State Party of which the person is not a national or a permanent
resident.’¹²⁶
The choice of supplementing the Convention against Transnational Organized
Crime with Optional Protocols clearly highlights the complexity of dealing with
the illegal activities of organized criminal groups. However, while smuggling of
migrants is a crime against States, trafficking in persons is a crime against the
individual, which presupposes exploitation.¹²⁷ This difference is highlighted by
the fact that the UN Trafficking Protocol refers to trafficked persons as victims,
whereas the UN Smuggling Protocol considers smuggled persons as migrants or
persons who buy an illegal transportation service from a smuggler: their relationship ends once they arrive at their destination. Consequently, they are considered
to be mere clients; trafficked persons, on the other hand, do not have any control
over what happens to them and after their transportation they are held in exploitative situations.
Another difference between the two offences is that smuggling in migrants
takes place across national frontiers, although this is not always the case for trafficking in persons. Finally, smuggled persons are always illegal immigrants while
internationally trafficked ones may have entered into the State of destination
both legally or illegally.
Even if in theory the definitions of trafficking in persons and smuggling
in migrants clearly distinguish between the two phenomena, in practice they
may overlap, as there is a considerable grey area between them. Traffickers and
smugglers often adopt the same routes for their illegal activities, so that clients
and victims may travel together and the difference between them may become
evident only at the end of the trip.¹²⁸ Furthermore, it is always possible that
¹²⁶ Art 3(a) of the UN Smuggling Protocol.
¹²⁷ Commission (EU), ‘Combating trafficking in human beings and combating the sexual
exploitation of children and child pornography’ (Communication) COM (2000) 854 final/2,
22 January 2001.
¹²⁸ A Cockburn, ‘Un mondo di Schiavi’ (2003) 12 National Geographic Italia 2, 10.
Slavery, the Slave Trade and Human Trafficking
69
illegal immigrants who bought a transportation ticket from unscrupulous
smugglers may subsequently find themselves in difficulties leading to a condition of exploitation and abuse. On the contrary, it seems less likely that a trafficked person may be able to change his/her status during the transportation
phase to avoid being held in an exploitative situation.¹²⁹ Therefore, as recently
argued by many authors, it would be better to consider the two phenomena as
a continuum.¹³⁰
The main danger determined by the confusion between trafficking in persons
and smuggling in migrants is that if trafficking victims are not identified as such,
they may not even receive the (scarce) protection they are entitled to by the UN
Trafficking Protocol.¹³¹ The UN Smuggling Protocol in fact contains only some
basic measures dealing with the protection of smuggled migrants, who are only
granted: (1) the right not to be held criminally liable for having been smuggled;¹³²
(2) the right to life and the right not be subjected to torture and other cruel,
inhuman or degrading treatment or punishment;¹³³ (3) the right to be protected
from violence related to their status;¹³⁴ (4) assistance to guarantee their safety;¹³⁵
(5) special account to be taken of the needs of women and children;¹³⁶ (6) where
applicable, the duty of States Parties to inform the detained smuggled persons
of the provisions of the Vienna Convention on Consular Relations, concerning notification to and communication with consular officers;¹³⁷ (7) the respect
for the rights eventually granted to them by other international human rights
law and international humanitarian law instruments, including, where applicable, the 1951 Convention on the Status of Refugees, its 1967 Protocol and the
principle of non-refoulement as contained therein;¹³⁸ (8) an anti-discrimination
saving clause.¹³⁹
¹²⁹ The problematical nature of these definitions has been emphasized by the European
Commission Experts Group on Trafficking in Human Beings in its 2004 Report on Trafficking in
Human Beings that will be specifically discussed in ch 5, para 5.6. Cf also J Bhabha and M Zard,
‘Smuggled or trafficked?’ (2006) 25 Forced Migration Review 6.
¹³⁰ ILO, Trafficking in Human Beings: New Approaches to Combating the Problem (ILO, 2003)
2; L Kelly, ‘“You Can Find Anything You Want”: A Critical Reflection on Research on Trafficking
in Persons within and into Europe’ [2005] 43(1/2) International Migration 236, 238. The ILO
Report clearly emphasizes that ‘. . . it is not always easy to differentiate between people smuggling
and trafficking, because “voluntary” agreement may be a result of deception, or may involve an
individual or family entering into debt to pay for the travel, debt that puts them at the mercy of the
lender. It may result in physical confinement when the human cargo is locked into a vehicle or into
a sending or reception centre. It may result in forced labour, where compliance is assured because
documents have been confiscated, or by threats of disclosure to the authorities. In these cases, the
“voluntary” agreement has become a ticket to trafficking.’
¹³¹ A Gallagher, ‘Trafficking, Smuggling and Human Rights: Trick and Treaties’ (2002) 12
Forced Migration Review 25, 27.
¹³² Art 5 of the UN Smuggling Protocol.
¹³³ Ibid, Art 16(1).
¹³⁴ Ibid, Art 16(2).
¹³⁵ Ibid, Art 16(3).
¹³⁶ Ibid, Art 16(4).
¹³⁷ Ibid, Art 16(5).
¹³⁸ Ibid, Art 19(1).
¹³⁹ Ibid, Art 19(2).
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Slavery, the Slave Trade and Human Trafficking
Consequently, the Legislative Guide assumed that most of the States ratifying the UN Smuggling Protocol may have already adopted other international
instruments granting these basic rights, adding that: ‘. . . none of the requirements
to protect or preserve the human rights of migrants and illegal residents should
raise legislative issues, although they should be carefully considered in developing administrative procedures and the training of officials.’¹⁴⁰
2.7 The follow-up process
According to Article 32(1) of the Convention against Transnational Organized
Crime, a Conference of the Parties had to be established, whose main objectives
are: promoting co-operation between States Parties and their capacity to fight
against transnational organized crime, and reviewing the implementation of the
Convention. The UN Secretary General should have convened its first session one
year after the entry into force of the Convention. Consequently, the Conference
of the Parties held its first session in Vienna from 28 June to 9 July 2004.¹⁴¹
In order to achieve its objectives—including the periodical review of the implementation of the Convention by States Parties and the formulation of recommendations to eventually improve it—Article 32, paragraphs 4 and 5, states that the
Conference of the Parties shall be informed on the national measures adopted to
conform with the Convention and on the difficulties encountered.
These measures apply to the Protocols as well. Consequently, during its first
session, the Conference of the Parties adopted Decision 1/5, stating that it will
extend the exercise of the functions granted to it by Article 32 of the Convention to
review the implementation of the UN Trafficking Protocol too.¹⁴² It also decided
that at its second session it would have analysed some specific issues related to
the implementation of this instrument and for this reason a questionnaire was
approved and circulated not only among its States Parties, but also among signatories and non-signatory countries. As explained in the Report of the Secretariat
on the second session, the questionnaire was also disseminated to non-signatory
States because the Secretariat believed that it ‘. . . would be a way to assist them in
gaining experience on how States that were already parties to the Trafficking in
Persons Protocol had adjusted their legal and institutional framework in order to
respond to the challenges posed by this criminal activity.’¹⁴³
¹⁴⁰ Legislative Guide (n 89) 366 [74].
¹⁴¹ The second session was subsequently held from 10 to 21 October 2005 and the third one
from 9 to 18 October 2006.
¹⁴² UN (Conference of the Parties to the United Nations Convention against Transnational
Organized Crime), ‘Report of the Conference of the Parties to the United Nations Convention
against Transnational Organized Crime on its fi rst session’ (2004) UN Doc CTOC/COP/
2005/6, 5.
¹⁴³ UN, ‘Implementation of the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, supplementing the United Nations Convention against
Slavery, the Slave Trade and Human Trafficking
71
The questionnaire consisted of 25 questions, whose aim was to assess whether
States had adopted the definition of trafficking in persons contained in the UN
Trafficking Protocol, if their national definitions of the term ‘child’ differed from
one another, what conduct was criminalized under their national laws, their
eventual distinction between trafficking in persons and smuggling in migrants
as two different offences, if they had encountered any difficulty, and the eventual need for technical assistance to implement the Protocol’s provisions in their
national legislation.¹⁴⁴
The issues related to protection and assistance of trafficked victims and to prevention measures were also mentioned by Decision 1/5, so that they should have
been included in the Conference of the Parties’ programme of work for its second
session. However, the Conference of the Parties subsequently agreed that questions on the issues contained in Articles 6 and 9 of the UN Trafficking Protocol
should not be included in the questionnaire, and that they would have only
been the object of discussion among States for the purpose of exchanging views
and experiences. As explained during the second session ‘. . . the decision of the
Conference was taken on the understanding that preventive policies and measures adopted for the protection of victims of trafficking constituted substantive
areas for action to which more time should be devoted in subsequent sessions,
after having addressed the basic criminalization and international co-operation
standards and requirements.’¹⁴⁵
The questionnaire was disseminated in November 2004 and the expiration
date was 29 July 2005. Notwithstanding the eight months given to States to prepare and send their replies, only 56 countries actually did so on time; of these
States, 37 were parties to the Protocol, 13 were only signatories and six were nonsignatories. This was not a good start: only 43 per cent of the States Parties to the
UN Trafficking Protocol—who numbered 87 at that time—responded to the
questionnaire.¹⁴⁶
At its second session, the Conference of the Parties assessed the answers to
the questionnaire provided by those States that sent replies. Although in many
of those States action had been taken to fight against trafficking in persons, the
Conference of the Parties considered that ‘. . . further work needs to be done to
promote the consistency of national legislative responses with the concepts and
requirements of the Protocol.’¹⁴⁷ In its Decision 2/3, the Conference of the Parties
Transnational Organized Crime—Analytical report of the Secretariat’ (2005) UN Doc CTOC/
COP/2005/3 [9] (Report of the Secretariat on the Second Session).
¹⁴⁴ UN (Conference of the Parties to the United Nations Convention against Transnational
Organized Crime), ‘Questionnaire on implementation of the Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime’ (28 July 2004) <http://www.unodc.
org/pdf/ctoccop_2005/quest_1-5_e.pdf> accessed 17 December 2007.
¹⁴⁵ Report of the Secretariat on the Second Session (n 143) [15].
¹⁴⁶ Ibid, 4–5.
¹⁴⁷ Report of the Secretariat on the Second Session (n 143) [51].
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Slavery, the Slave Trade and Human Trafficking
urged those States Parties which had not already responded to the questionnaire
to provide the relevant information and requested that those who had replied
update the information provided. A similar invitation was made to State signatories.¹⁴⁸ Unfortunately only 14 States sent responses after this second reporting cycle (ten States Parties to the UN Trafficking Protocol, three signatories
and one non-signatory), meaning that only 47 per cent of the States Parties to
the UN Trafficking Protocol (47 States Parties out of 101 at 24 July 2006) had
complied with their reporting obligations provided by Article 32(5) CTOC.¹⁴⁹
Responses to the questionnaires sent to States Parties to the Convention and to
the other Protocols were thin on the ground as well. As pointed out by UNODC
Executive Director, Mr Antonio Maria Costa, the lack of co-operation by almost
half of the States Parties is ‘. . . casting doubt on the effectiveness and authority of
the Conference as the review institution under the Convention’.¹⁵⁰ The proposal
made by the Executive Director would require the abandonment of the questionnaire approach and the adoption of a different method based on self-assessment
of States Parties’ compliance with the Convention and the Protocols based on a
checklist of issues and a set of guidelines produced by the Secretariat. The selfassessment approach would be accompanied by an Action Plan that:
. . . would identify specific actions, set clear time frames for the implementation of such
actions, establish priorities and determine which actions could be undertaken using the
resources available to the Government and for which actions the Government would
require technical assistance. This package could be reviewed from time to time by the
Government as it proceeds with its work on implementation.¹⁵¹
The Action Plan would be modelled on similar initiatives tested with success by
other international bodies, including the European Commission.¹⁵² The model
approach proposed by the Executive Director would be tested in the framework
of a limited voluntary programme running for two years until the convening of
the fourth session of the Conference of the Parties and taking into consideration
only a limited set of provisions of the Convention and perhaps of the Protocols.
With its Decision 3/1, the Conference of the Parties laconically requested the
¹⁴⁸ UN, ‘Report of the Conference of the Parties to the United Nations Convention against
Transnational Organized Crime on its second session, held in Vienna from 10 to 21 October 2005’
(2005) UN Doc CTOC/COP/2005/8, 7–8.
¹⁴⁹ UN ‘Implementation of the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime: updated information based on additional responses received from
States for the first reporting cycle, Analytical report of the Secretariat’ (2006) UN Doc CTOC/
COP/2005/3/Rev.1 [14].
¹⁵⁰ UN, ‘Relaunching the Conference of the Parties, Note by the Executive Director’ (2006)
UN Doc CTOC/COP/2006/10 [12].
¹⁵¹ Ibid [22].
¹⁵² As regards specifically trafficking in persons, this approach is the one adopted by the EU
Plan on Best Practices, Standards and Procedures for Combating and Preventing Trafficking in
Human Beings that will be discussed below in ch 5, para 5.7.
Slavery, the Slave Trade and Human Trafficking
73
Secretariat ‘. . . to develop a sample format for the voluntary provision of supplementary information, with a view to assisting States Parties in undertaking a
detailed evaluation of their compliance with specific provisions of the Convention
and the Protocols thereto’.¹⁵³
It remains to be seen if the Conference of the Parties will be able to reassess
its authority and to perform the role that the Convention against Transnational
Organized Crime attributed to it. The proposal made by UNODC Executive
Director is surely a way to overcome the problem and establish a more co-operative
attitude towards States Parties, helping them to reach their goals instead of judging
their progress—or, their failures—that could eventually resolve the stalemate situation in which this body currently finds itself trapped.
2.8 Soft law on trafficking in human beings:
enhancing victims’ protection
Even if soft law instruments are not binding on States they are, in many cases, a
fundamental source of inspiration for those willing to make their national laws
conform to the principles they promote. Moreover, it should be kept in mind
that if broadly implemented, soft law principles could even become an international customary norm that would, in the future, bind all the States of the
world. An international customary norm requires two elements for its creation:
an objective one—a consistent and widespread conduct of the majority of States
of the international community (diuturnitas)—and a subjective one—the belief
that that behaviour is required of them by a law or a social norm (opinio iuris
sive necessitatis).154 Therefore, three important soft law instruments, namely the
UNHCHR Recommended Principles and Guidelines on Human Rights and
Human Trafficking, the UNICEF Guidelines for Protection of the Rights of
the Child Victims of Trafficking and the UN Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power are discussed in the following
paragraphs.
2.8.1 The UNHCHR Recommended Principles and Guidelines
on Human Rights and Human Trafficking
The former United Nations High Commissioner for Human Rights, Mary
Robinson, adopted in May 2002 the Recommended Principles and Guidelines
on Human Rights and Human Trafficking. This international instrument is an
¹⁵³ UN, ‘Report of the Conference of the Parties to the United Nations Convention against
Transnational Organized Crime on its third session, held in Vienna from 9 to 18 October 2006’
(2006) UN Doc CTOC/COP/2006/14, 4.
¹⁵⁴ B Conforti, Diritto Internazionale (Editoriale Scientifica, 2006) 32–3.
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effort to provide for a practical and rights based policy guidance for States, international and non-governmental organizations, emphasizing the need to protect
and assist trafficking victims instead of only trying to fight against the traffickers.¹⁵⁵ The 17 principles and 11 guidelines stress the primacy of trafficked persons’ human rights, the need to adopt strategies to prevent human trafficking
and to protect and assist the victims and, finally, the necessity to criminalize
this activity, to punish traffickers and to guarantee appropriate legal remedies for
victims.
There are four basic Principles listed by the former High Commissioner for
Human Rights:
•
•
•
•
Principle 1: The primacy of human rights;
Principle 2: Preventing trafficking;
Principle 3: Protection and assistance;
Principle 4: Criminalization, punishment and redress.
The 11 Guidelines expand upon the Principles, putting them into practice.
They deal specifically with:
•
•
•
•
•
•
•
•
Guideline 1: The promotion and protection of human rights;
Guideline 2: The identification of trafficked persons and traffickers;
Guideline 3: Research, analysis, evaluation and dissemination;
Guideline 4: Ensuring an adequate legal framework;
Guideline 5: Ensuring an adequate law enforcement response;
Guideline 6: Protection and support for trafficked persons;
Guideline 7: Preventing trafficking;
Guideline 8: Special measures for the protection and support of child victims
of trafficking;
• Guideline 9: Access to remedies;
• Guideline 10: Obligations of peacekeepers, civilian police and humanitarian
and diplomatic personnel;
• Guideline 11: Co-operation and co-ordination between States and regions.
The UNHCHR Recommended Principles and Guidelines are also an important
tool insofar as they offer a definition of the term ‘traffickers’ as including:
. . . recruiters; transporters; those who exercise control over trafficked persons; those who
transfer and/or maintain trafficked persons in exploitative situations; those involved
¹⁵⁵ ECOSOC, ‘Report of the United Nations High Commissioner for Human Rights to the
Economic and Social Council, Addendum, Recommended Principles and Guidelines on Human
Rights and Human Trafficking’ (2002) UN Doc E/2002/68/Add.1 (UNHCHR Recommended
Principles and Guidelines).
Slavery, the Slave Trade and Human Trafficking
75
in related crimes; and those who profit either directly or indirectly from trafficking, its
component acts and related offences.¹⁵⁶
The UN Trafficking Protocol does not contain such a definition, so it is highly
recommended that States adopt this definition.
Even if they are not binding, the UNHCHR Recommended Principles and
Guidelines can provide some hints on the minimum standards that States
should adopt to protect the rights of trafficking victims. Recently, the Special
Rapporteur on Trafficking in Persons emphasized their importance stating that:
‘The Guidelines and their implementation must be considered within the broader
framework of the Protocol and other relevant conventions and treaties.’¹⁵⁷
2.8.2 The UNICEF Guidelines for Protection of the Rights
of the Child Victims of Trafficking
Following the example of the UNHCHR, in 2003 UNICEF developed a set of
Guidelines for Protection of the Rights of Child Victims of Trafficking in SouthEastern Europe. Three years later this international organization published a
Reference Guide containing explanations of the Guidelines and examples of good
and bad practices to help States in their implementation.¹⁵⁸ The Guidelines adopt
the same definition of ‘child trafficking’ given by the UN Trafficking Protocol
and to avoid any doubt it is clearly pointed out that there are no limitations as
regards the person(s) committing the crime and the offence can be committed
nationally or transnationally.
They are founded on the basic principles enshrined in the Convention on the
Rights of the Child: the best interest of the child, the right to non-discrimination,
the respect for the views of the child which should be given due weight according
to his/her age and maturity, the right to information and confidentiality and to
be protected by States. The non-discrimination clause is not identical to the CRC
¹⁵⁶ Ibid, 4. The Special Rapporteur on Trafficking in Persons recently investigated the concrete situation of domestic migrant workers in Lebanon and she traced a distinction between them,
clearly stating that some of them are trafficked persons. Consequently, she declared that an employment agent ‘. . . can be considered a trafficker if he knows or turns a blind eye to the fact that the employer
is recruiting the worker for the purpose of exploitation, but is deceiving the worker about this
intention’. This interpretation is fully consistent with the UN Trafficking Protocol’s definition;
moreover travel, modelling or wedding agents should also be added to the employment ones, so that
they should be considered as traffickers not only in the case in which they are directly participating
to the exploitation of the victims, but also when they know about the exploitative purpose and they
participate in the deception of the victim, instead of reporting the case to the authorities. UNCHR,
‘Report of the Special Rapporteur on the human rights aspects of the victims of trafficking in persons,
especially women and children, Sigma Huda, Addendum, Mission to Lebanon’ (2006) UN Doc
E/CN.4/2006/62/Add.3 [29].
¹⁵⁷ UNCHR, ‘Report of the Special Rapporteur on trafficking in persons, especially women
and children’ (2004) UN Doc E/CN.4/2005/71 [15].
¹⁵⁸ UNICEF, Reference Guide on Protecting the Rights of Child Victims of Trafficking in Europe
(UNICEF 2006) 9.
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one though, and it requires that all children are entitled to the same protection
irrespective of their ‘. . . status, nationality, race, sex, language, religion, ethnic or
social origin, birth or other status’.¹⁵⁹
Following this list of basic principles, the remaining guidelines are a very useful step-by-step catalogue of what to do and what not to do for the purpose of correctly dealing with a case of child trafficking. First, a guardian has to be appointed
following the rapid identification of the child; victims should be registered by
law enforcement authorities and they should be questioned in a child-sensitive
manner only for the purpose of collecting their biographical data and social
history information, while questioning on the trafficking experience should take
place afterwards and in the presence of the guardian. Law enforcement authorities should guarantee that children are not prosecuted or sanctioned for offences
related to their trafficking experience and are not detained for their status as
trafficking victims. An efficient referral mechanism should be established
involving co-operation between different authorities and children should receive
‘. . . immediate care and protection including security, food, and accommodation
in a safe place, access to health-care, psychological support, legal assistance, social
services and education’.¹⁶⁰ Moreover, children should be placed in safe and suitable accommodation and not in a law enforcement detention facility and, finally,
in the case in which child victims are not nationals or residents in the country
in which they find themselves they shall be granted a Temporary Humanitarian
Visa until a durable solution has been identified.
As a general principle, children may be returned to their country of origin
but only if his/her parents, or a legal guardian or an appointed member of the
social services take responsibility for the child concerned. Nevertheless, if a risk
and security assessment demonstrates that it is not possible to safely return the
child to her/his country of origin, the authorities of the State in which the child
finds her/himself should arrange for long-term care. Whenever the child may not
return to the country of origin and she/he may also not remain in the country of
destination, resettlement in a third country should be arranged.
As regards the possibility of children testifying in criminal proceedings against
their traffickers, they should be given some time to make their decision as to
whether or not they wish to testify, and protection should not in any case be conditional on their willingness to testify. Children who do testify against their traffickers should be granted special protection to guarantee their security and that
of their family members, whether they are staying in the country of destination
or not. Minors should also be informed of their right to initiate civil proceedings
to claim compensation for the exploitation and abuses suffered. Finally, all the
agencies dealing with child victims of trafficking should recruit and train their
personnel properly so as to ensure that all members of such agencies possess the
relevant skills.
¹⁵⁹ Ibid, 147–56.
¹⁶⁰ UNICEF (n 158) 152.
Slavery, the Slave Trade and Human Trafficking
77
Even if the Guidelines were originally drafted having in mind the situation in
South-Eastern European countries and later amended to be implemented all over
Europe, they may be considered as basic good practices for States, international
and non-governmental organizations facing child trafficking in any region of the
world.
2.8.3 The UN Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power
The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of Power was adopted by consensus by the General Assembly in 1985 and it can
be considered as a landmark soft law document containing the basic principles of
justice for victims of crime and abuse, including their rights: to be treated with
compassion and respect; to be informed about proceedings; to present their views
at appropriate stages of proceedings affecting them; to be legally aided throughout the legal process; to privacy and, when necessary, to have their safety, and
that of their families and witnesses on their behalf guaranteed; to utilize, where
appropriate, informal mechanisms for dispute resolution; to restitution by the
offender(s) or third parties responsible for their behaviour and when the latter
is not fully available, to compensation by the State in specific cases; and to have
material, medical, psychological and social assistance. Some of these principles
were also subsequently incorporated in the Convention against Transnational
Organized Crime and in the UN Trafficking Protocol. Finally, the Declaration
defines ‘victims’ as being:
. . . persons who, individually or collectively, have suffered harm, including physical or
mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative
within Member States, including those laws proscribing criminal abuse of power.¹⁶¹
It should be pointed out that according to the Declaration a person might also
be considered a victim ‘. . . regardless of whether the perpetrator is identified,
apprehended, prosecuted or convicted and regardless of the familial relationship
between the perpetrator and the victim’ and that, where appropriate, even ‘the
immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization’
can be included in this category.¹⁶²
Even if this Declaration is a soft law instrument, it should be pointed out that
being approved by consensus by the United Nations General Assembly—a body
that represents all the 192 States Parties to this international organization—
means that it represents the opinio iuris of the majority of States even if a coherent
¹⁶¹ UNGA Res 40/34, Annex (29 November 1985) UN Doc A/RES/40/34 [1].
¹⁶² Ibid [2].
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and extensive conduct (diuturnitas) is still lacking.¹⁶³ However, there is no doubt
that some of the principles contained in this Declaration might in the future
reach the level of international customary law.
2.9 Is the prohibition of trafficking in persons part
of the jus cogens principle of international law
providing for the abolition of slavery?
Even though there is not a pre-established catalogue of peremptory norms and
scholars usually disagree on the practices that should constitute it and on how
a norm might attain this recognition,¹⁶⁴ it can be assumed that the two Slavery
Conventions and all the preceding treaties adopted in the XIX century contributed to the attainment of the status of jus cogens by the abolition of slavery and
the slave trade both in time of peace and war.¹⁶⁵ This assumption is believed to
be well established in international law considering the unequivocal States’ practice of outlawing these phenomena and the opinio iuris constituted by the belief
that it is their international legal obligation to do it. Moreover, the peremptory
character of these norms has also been recognized by international bodies and
prominent scholars.¹⁶⁶
The Working Group on Contemporary Forms of Slavery recently confirmed
this assumption stating that: ‘. . . slavery, in its various forms and practices, is a
¹⁶³ W van Genugten, and others, ‘Loopholes, Risks and Ambivalences in International
Lawmaking: The Case of a Framework Convention on Victims’ Rights’ (Tilburg University
Faculty of Law Legal Studies Research Paper, 2006) <http://ssrn.com/abstract=999315> accessed
15 December 2007. The authors recognize that: ‘The (limited amount of) empirical data clearly
indicate that compliance with the standards of the Declaration is neither extensive, nor virtually uniform. There are vast differences between States in this respect, and it is obvious that a
very substantial number of jurisdictions hardly pay any attention at all to the specific provisions of
the Declaration.’
¹⁶⁴ M C Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’ [1996] 59(2)
Law & Contemporary Problems 63, 67.
¹⁶⁵ Art 4(2)(f) of the Additional Protocol II to the four Geneva Conventions provides that in
non-international conflicts, both slavery and the slave trade in all their forms are prohibited at any
time and at any place. Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted
8 June 1977, entered into force 7 December 1978) 1125 UNTS 609.
¹⁶⁶ M C Bassiouni, ‘Enslavement as an International Crime’ (1991) 23(2) New York University
Journal of International Law and Politics 445; M C Bassiouni, International Criminal Law, Crimes
(Transnational Publishers, 2nd edn, 1999) 663; A Y Rassam, ‘Contemporary Forms of Slavery and
the Evolution of the Prohibition of Slavery and the Slave Trade Under Customary International
Law’ (1999) 39 Virginia Journal of International Law 303; UNHRC, ‘General Comment No 24’
in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies’ (2004) UN Doc HRI/GEN/1/Rev.7, 162 [8]; A Cassese,
Diritto Internazionale (Il Mulino, 2003) 238; L Hannikainen, Peremptory Norms (Jus Cogens) in
International Law: Historical Development, Criteria, Present Status (Lakimiesliiton Kustannus,
1988); Weissbrodt and ASI Report (n 40) 3 [6].
Slavery, the Slave Trade and Human Trafficking
79
crime against humanity and that any acquiescence by a State in such practices,
irrespective of whether it has acceded to the conventions on slavery, is a violation
of basic human rights and constitutes a breach of jus cogens.’¹⁶⁷
Jus cogens norms are non-derogable by any other kind of treaty or customary
norm and they can only be derogated by another peremptory norm of contrary
effect. Article 53 of the 1969 Vienna Convention on the Law of Treaties consequently clarifies that:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the present convention, a peremptory norm
of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law having the same
character.
It is well established that a customary rule of international law corresponding
to Article 53 of the 1969 Vienna Convention on the Law of Treaties has progressively developed.¹⁶⁸ Article 64 adds that if a new norm of jus cogens emerges,
any existing treaty that is in conflict with it becomes void and terminates and,
finally, Article 66(a) states that if there is a dispute concerning the application or
interpretation of the mentioned provisions and the parties are not able to find a
solution within 12 months following the date on which the objection was raised,
any one of them shall submit it to the ICJ for a decision unless the parties agree to
submit the dispute to arbitration.
However, it has to be questioned whether the new forms of slavery—including
the protection from trafficking in persons—can be considered as being included
in the definition of slavery contained in the Slavery Conventions and consequently as part of the international jus cogens norm prohibiting this practice. The
two Slavery Conventions included in the definition of slavery, the slave trade and
practices similar to slavery specific practices—the African slavery and slave trade,
domestic slavery, traditional early and forced marriages, bonded labour, serfdom
and the transfer of children for their exploitation—among the ones that they
were willing to outlaw.
This issue has further been clarified by the International Criminal Tribunal for
the former Yugoslavia (ICTY) in Prosecutor v Kunarac. The ICTY explains the
content of the definition of slavery contained in the 1926 Slavery Convention as
follows:
Under this definition, indications of enslavement include elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent
¹⁶⁷ UNCHR (Sub-Commission), ‘Report of the Working Group on Contemporary Forms of
Slavery on its eighteenth session’ (1993) UN Doc E/CN.4/Sub.2/1993/30, 38.
¹⁶⁸ Cassese (n 166) 239.
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or free will of the victim is absent. It is often rendered impossible or irrelevant by, for
example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim’s position of vulnerability; detention
or captivity, psychological oppression or socio-economic conditions. Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or
service, often without remuneration and often, though not necessarily, involving
physical hardship; sex; prostitution; and human trafficking.¹⁶⁹
Therefore, trafficking in persons may be included in the definition of slavery given
by the Slavery Conventions if the elements listed by the ICTY—particularly control and ownership—are met. This assumption is also confirmed by the recent
definition of enslavement as a crime against humanity contained in the Statute
of the International Criminal Court (ICC) that comprehends, under the same
limitations, trafficking in persons too.¹⁷⁰
The preceding considerations are very important because from them it follows
that:
• every treaty and every other international norm that has not attained the
status of jus cogens and that is in contrast with the abolition of slavery is void
ab initio;¹⁷¹
• reservations to a multilateral treaty that are in contrast with the jus cogens
principle regarding the abolition of slavery are inadmissible;¹⁷²
• States are obliged to avoid the recognition of an entity that has all the qualifications to be considered an international subject if it violates any jus cogens principle, including the abolition of slavery;
• States may avoid granting international legitimacy to national legislative and
administrative Acts of other States authorizing behaviour that is contrary to an
international peremptory norm;
• finally, according to some judges and authors, it also seems that crimes contravening a jus cogens principle may be sanctioned through universal criminal
jurisdiction to punish the offender.¹⁷³
¹⁶⁹ Prosecutor v Kunarac (Judgment) ICTY-96-23-T and ICTY-96-23/1-T (22 February 2001)
193 [542].
¹⁷⁰ The defi nition of enslavement contained in the ICC Statute is discussed below in ch 3,
para 3.4.
¹⁷¹ Cassese (n 166) 241–3.
¹⁷² On this issue the Human Rights Committee emphasized in its General Comment No 24
that: ‘Reservations that offend peremptory norms would not be compatible with the object and
purpose of the Covenant. Although treaties that are mere exchanges of obligations between States
allow them to reserve inter se application of rules of general international law, it is otherwise in
human rights treaties, which are for the benefit of persons within their jurisdiction. Accordingly,
provisions in the Covenant that represent customary international law (and a fortiori when they
have the character of peremptory norms) may not be the subject of reservations. Accordingly, a
State may not reserve the right to engage in slavery’. UNHRC (n 166) Annex V [8].
¹⁷³ Cassese (n 166) 244. For instance, the ICTY explained the universal jurisdiction principle
in relationship to torture in Prosecutor v Furundzija stating that ‘. . . one of the consequences of the
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81
These assumptions can consequently be applied to trafficking in persons as well,
as far as the practice falls within the definition of slavery, as summarized above.
2.10 Concluding remarks
Traditional slavery and the related Atlantic slave trade are surely abolished by
international law. Much of the merit for this important success can be attributed
to the great number of treaties concluded in the XIX and XX centuries for this
purpose and to the two Slavery Conventions. The same cannot be said with regard
to trafficking in persons. The four white slave traffic Conventions applied only to
the recruitment and transportation process but they considered prostitution as a
matter of internal jurisdiction. The subsequent Convention for the Suppression
of the Traffic in Persons constituted a step forward because it uses a race, gender
and age neutral terminology, making it applicable to every human being and it
fights against trafficking and the related exploitation of the prostitution of others.
However, many States did not agree with the decision to adopt the abolitionist
model to manage prostitution; consequently they did not ratify this instrument
and decided to maintain or to choose a different model. Finally, another lacuna of
this treaty is that it did not even provide a definition of ‘traffic in persons’.
The adoption of the UN Convention against Transnational Organized Crime
and of its Protocols in 2000 was primarily determined by the need to establish
common rules to fight against the worrying phenomenon of transnational organized crime. The complexity of the issue of trafficking in persons and the difficulty
of dealing with it required the adoption of a Protocol containing measures aimed
at establishing an effective law enforcement mechanism, at protecting the human
rights of the victims and at preventing the phenomenon from occurring at all.
However, the UN Trafficking Protocol predominantly adopts a criminal law
approach in respect of the human rights one and the protection and assistance
that has to be granted to trafficked victims is contained in only three provisions.
Although the discretionary language used to draft them could have undermined their effectiveness, the Legislative Guide distinguished between mandatory and optional measures and clearly pointed out States Parties’ obligations.
Notwithstanding this clarification, the UN Trafficking Protocol lacks effective
and far-reaching human rights measures to protect trafficked victims.
Consequently, at least three soft law instruments can be adopted to supplement the UN Trafficking Protocol: the UNHCHR Principles and Guidelines on
Human Rights and Human Trafficking, the UNICEF Guidelines for Protection
jus cogens character bestowed by the international community upon the prohibition of torture is
that every State is entitled to investigate, prosecute and punish or extradite individuals accused of
torture, who are present in a territory under its jurisdiction’. Prosecutor v Furundzija (Judgment)
IT-95-17/1-T (10 December 1998) [156].
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of the Rights of Child Victims of Trafficking and the UN Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power. They are primarily focused on the issue of victims’ protection and indicate the relevant measures
that all the States of the world may adopt to succeed in this effort. However, they
can only recommend the best way for States to enhance the protection of trafficking victims.
Finally, it is noted that the prohibition of slavery and the slave trade is considered as a well-established international jus cogens norm and it is asserted that
according to the recent ICTY judgment in Prosecutor v Kunarac, trafficking in
persons can be considered, under certain circumstances, as a form of slavery.