DIFFICULTY OF DEFINITION
ITS APPLICATION,CHALLENGES AND
FUTURE DEVELOPMENTS
STUDIES BY THE UNODC EXPERT
WORKING GROUP ON TIPS
• The first Issue Paper, on the concept of “abuse of a position of
vulnerability” was completed and issued in 2012, along with a Guidance
Note for Practitioners.
• The study on the issue of “consent”, was the second in a series of three
studies
• The third was on the definition of exploitation.
• The methodology of each study included (i) a desk review of relevant
literature including legislation and case law; (ii) a survey of States
representing different regions and legal traditions through legislative and
case review as well as interviews with practitioners; (iii) preparation of a
draft issue paper; (iv) review of the draft issue paper and development of
additional guidance at an international expert group meeting; and (v)
finalisation of the issues paper and any associated guidance
METHODOLOGY
• Experts and consultants were selected to
research and review each of the selected three
topics and prepare and write a report
• A review of the Protocol itself together with the
Travaux Preparatoires: understanding of the
intention of the drafters
• Country case studies: what is happening on the
ground
• Close involvement of practitioners at all stages
• Practice based outcomes
SUBJECT OF THIS PRESENTATION
• Definitional Challenges- not the definition of trafficking
of persons per se but key elements of the definitionnamely, abuse of position of vulnerability, consent and
exploitation. This will include evidentiary issues
• Key Findings of the UNODC Studies- On the three
issues – reports and guidance notes are available on
the UNODC website
• Towards the Future- risks and recommendations- your
input
PALERMO PROTOCOL
• 15 years since it came into existence
• UNODC Expert Working Group has conducted
research/studies, and produced reports and
Guidance Notes with respect to three key
areas that relate to definitions
• The studies have been focused on problematic
issues that have been identified after 15 years
of practice
KEY ELEMENTS OF THE
OFFENCE OF TRAFFICKING
• WHAT DO TRAFFICKERS DO: recruit, transport, transfer,
harbour, or receive persons
• HOW DO THEY DO IT: threat or use of force or other
forms of coercion, abduction, fraud, deception, abuse
of power or position of vulnerability, giving or receiving
payments or benefits to achieve consent of a person
having control over another
• WHY THEY DO IT: Exploitation (at the minimum
prostitution of others, other forms of sexual
exploitation, forced labour or services, slavery,
servitude or the removal or organs)
ALL THREE ELEMENTS
MUST BE PRESENT
• In international law all three elements must be present
• An exception exists when the trafficked victim is a child- in
such case it is not necessary to prove that one of the acts
accomplished was through the use of any of the listed
“means”
• The definition clarifies that the concept of trafficking does
not just refer to the process by which an individual is
moved into a situation of exploitation but also extends to
include the maintenance of that person in a situation of
exploitation.
• over the past decade it has become evident that questions
remain about certain aspects of the definition, as well as its
application in domestic criminal law
DEFINITIONAL CHALLENGES
• The importance of the definition-evidence, investigations,
establishing a prosecution
• Questions emerged regarding those aspects of the definition that
are not elsewhere defined in international law or commonly known
to the major legal systems of the world
• This means that the parameters around what constitutes trafficking
are not firmly established
• Those who support a conservative or restrictive interpretation
consider that too wide a definition may encompass practices that
do not meet the seriousness threshold expected of trafficking.
• Those who advocate for a more expansive interpretation consider
that too narrow an understanding of what is trafficking may impede
investigations, prosecutions and convictions.
DEFINITIONAL CHALLENGES
• The challenge of complexity and lack of internal
definitions- TIP is a complex crime and constantly
evolving. Lack of clear definitions makes it
difficult to achieve a consistent response to TIP
• Application of definition is difficult: compounding
investigative and prosecutorial difficulties
• Key problem: scope/parameters of trafficking
highly fluid
• Hence the issue re definition has both legal and
policy dimensions
UNODC DEFINITION STUDIES
Focused on three problematic concepts, none of
which are defined in the Protocol :
• “Abuse of position of vulnerability” as a means
by which trafficking occurs
• The concept of “consent” being irrelevant
when any means are used
• The meaning/scope of the purpose element:
“exploitation”
ABUSE OF POSITION OF VULNERABILITY
ABUSE OF A POSITION OF
VULNERABILITY (APOV): KEY FINDINGS
• History and intent: The interpretative note to the
Protocol confirms that the concept is to be
understood as referring to “any situation in which
the person involved has no real and acceptable
alternative but to submit to the abuse involved”
• International law does not define the concept
• This was introduced to ensure a sufficiently wide
range of conduct established trafficking in
persons – greater scope
• Drafters were unprepared to establish key
parameters- no real or acceptable alternative
ABUSE OF A POSITION OF
VULNERABILITY (APOV): KEY FINDINGS
• Vulnerability is central to any understanding of
trafficking, and abuse to vulnerability is an
inherent feature
• States interpreting and applying APOV very
differently, often leading to overly broad
conceptions of what is “TIP”(see below)
• Guidance Note prepared: need to define
APOV, establish parameters, make the concept
justiciable and predictable
VULNERABILITY?
• “a condition resulting from how individuals
negatively experience the complex interaction of
social, cultural, economic, political and
environmental factors that create the context for
their communities”
• Evidential requirements: i)proof of the existence
of a position of vulnerability on the part of the
victim; and ii)proof of intent to abuse that
vulnerability as the means by which a trafficking
act was undertaken.
ABUSE OF POSITION OF
VULNERABILITY: GUIDANCE NOTE
• 2.5: Abuse of a position of vulnerability occurs when
an individual’s personal, situational or circumstantial is
intentionally used or otherwise taken advantage of, to
recruit, transport, transfer, harbour, or receive that
person for purpose of exploiting him or her, such that
the person believes that submitting to the will of the
abuser is the only real or acceptable option available to
him or her, and that belief is reasonable in light of the
victim’s situation. In determining whether the victim’s
belief that he or she has no real or acceptable option is
reasonable, the personal characteristics and
circumstances of the victim should be taken into
account
CONSENT
THE PRINCIPLE OF THE IRRELEVANT OF
CONSENT: KEY FINDINGS
• History and Intent: recognition of danger of consent being used as a
defense- especially where consent is given at some point. But difficult
questions remain: must “means” actually nullify/be sufficiently serious to
consent? And consent to what?
• High acceptance amongst States of the principle: reflecting underlying
and strong attitudes re impunity
• Consent highly relevant in practice: from identifying victims to deciding
which cases to prosecute
• Indications of consent make cases difficult to prosecute- can impact on
how victim is perceived, and how interpreted, and for sentencing
• Relevant to establishing exploitative purpose (eg forced marriage, forced
labour) and intention of accused
• The focus should be on the intentions and action of the trafficker not the
consent or otherwise of the victim?
COMPLEXITY OF THE
ISSUE OF CONSENT
• In complex cases where victims continue to assert consent, the
question of values rises:
• Can consent be permitted to trump fundamental human and social
values such as dignity, freedom and protection of the most
vulnerable within societies?
• Sexual exploitation provides a good example where there are
diverging views: values of human dignity are sometimes invoked to
support exploitation in this context, on the basis that prostitution
cannot be meaningfully consented to or that it constitutes a “de
fact” abuse of a position of vulnerability.
• Others argue that to reject the possibility that some persons
working in prostitution are exercising a form of agency, may
undermine the core values of autonomy and freedom.
CONSENT: CONCLUSIONS
• It is obvious from the studies that guidance is required. Has
to balance clarity and flexibility.
The concerns are obvious:
• If there is a rigid application of the principle of consent,
combined with liberal interpretation of means (especially
APOV) then it can widen the understanding of TIP beyond
the apparent spirit of the Protocol (eg. Poor situations of
employment v trafficking- see case studies)
• If there is a lack of attention to the principle of consent it
could narrow the understanding of what is TIP-greater
number of unclear cases and therefore less prosecutions
and understanding of TIP cases
CONSENT AND VICTIM INVOLVEMENT
IN CRIMINAL ACTIVITY
• The principle of non-criminalisation of victims for offences they
have been compelled to commit as a direct consequence of being
subject to trafficking, is widely adopted even though it is not
included in the Trafficking in Persons Protocol.
• The situation is less clear with regard to activities that are the
exploitative purpose of the trafficking itself, such as trafficking and
manufacturing in drugs or organised theft.
• In practice it appears clear that crimes committed incidentally are
more readily overlooked than crimes committed as a direct
manifestation of the exploitative purpose
• In such cases the threshold for disregarding apparent consent
appears to be higher and courts have been less willing to accept
broad interpretations of subtler means (such as abuse of a position
of vulnerability) as a justification for disregarding apparent consent
to involvement in criminal activities.
EXPLOITATION
EXPLOITATION
• Is not defined in the Protocol
• The Protocol does provide a non-exhaustive list of
exploitative purposes
• This flexibility permits new forms of exploitation to be
included when they arise
• States are obligated to domesticise at a minimum the
exploitative purposes that have been identified
• This is critical especially because some forms of
exploitation, such as labour trafficking, are hidden
within legitimate industries and therefore difficult to
identify
THE CONCEPT OF EXPLOITATION:
KEY FINDINGS
• The intention of Drafters was to secure sufficient clarity
around core practices without resulting in the undue
narrowing or restriction of future expansion
• The list is not exhaustive and existing legal definitions do
apply- so there is adherence to the concept of legality
• Research on national findings demonstrate that the
concept is not well or uniformly understood, with
significant differences in practices and applications
between States
• As examples- some narrower, some expanded (forced
begging, forced criminality, forced surrogacy, illegal
adoption), culture and national context relevant (discussion
point)
ROLE OF OTHER INSTRUMENTS OF
INTERNATIONAL LAW
• States have looked to other instruments to
define the exploitative purposes
• For example- definitions of slavery and forced
labour, servitude, and debt bondage
• Many States have gone beyond the list of
exploitative purposes- such as forced begging,
illegal adoption, commercial surrogacy and
trafficking of pregnant women so that their
babies can be sold
EXPLOITATION: CONCLUSIONS
OF THE STUDY
• There is a clear need for breadth and
flexibility: due to new and emerging forms of
TIP, changes in modus operandi of traffickers
and transnational gangs, use of different
mediums, improved understanding of forms of
TIP
• But also a need for clear parameters:
operationally focused definitions of forms of
exploitation
CONCLUSION
GENERAL FINDINGS
ACROSS THE STUDIES
• The studies concluded that though there was some clarity on the
basic definitional elements of TIP- that ultimately the definition of
TIP remains elusive
• This is important to remedy as it results in:
i.
Ineffective responses- vagueness and imprecision obstructs
effective responses and in turn enables harmful expansion. If laws
are clearly delineated with a measure of certainty then it enables
and fosters consistent application and practices, and a better
approach to lessons learned.
ii. Inflexibility can however be counter productive. Trafficking as a
crime is constantly evolving, new challenges are facing law
enforcement and prosecutors, the modus operandi of traffickers
is evolving, with new ways of manipulating consent, new forms of
exploitation. So there is a heightened need for definitional tools
to be abreast of the quickly evolving landscape.
FUTURE CHALLENGES
• Law is a very alive concept- we have seen changes across societies and
cultures of great proportions in the last 20 years- during the lifetime of
this Protocol
• This will only continue
• It is important to be vigilant and maintain a focus on law reform in a
generational sense- second and third law reform, internationally and
nationally
• Law reform must be able to reflect the lessons learned
• Lessons learned can only be derived from the collection and collation of
data- a topic for another day
• But international organisations such as UNODC and OECD maintain a
vigilant regime of oversight, collection of data, peer reviews and a
databank of lessons learned.
• The need for flexible legal working tools and approaches is important in
order to ensure more and better prosecutions, and better protection and
support of victims