The Protocol to Prevent, Suppress and Punish Trafficking in Persons


Part I - Purpose, scope and criminal sanctions (Articles 1-3)

Articles 1 and 2 set out the basic purpose and scope of the Protocol. Essentially, the Protocol is intended to "prevent and combat" trafficking in persons and facilitate international cooperation against such trafficking. It provides for criminal offences, control and cooperation measures against traffickers. It also provides some measures to protect and assist the victims. Some issues remain open with respect to the application of the Protocol to purely domestic activities (e.g. movement of victims within a country), which support international trafficking.

"Trafficking in persons" is intended to include a range of cases where human beings are exploited by organized crime groups, where there is an element of duress involved and a transnational aspect, such as the movement of people across borders or their exploitation within a country by a transnational organized crime group.

Trafficking is the "...recruitment, transportation, transfer, harbouring or receipt of persons..." by improper means, such as force, abduction, fraud or coercion, for an improper purpose, like forced or coerced labour, servitude, slavery or sexual exploitation. Countries that ratify the Protocol are obliged to enact domestic laws making these activities criminal offences, if such laws are not already in place (Art.3).

This has been a difficult exercise in drafting and negotiation because of the wide variety of activities that many of the countries are seeking to control. Some states have taken the position that, since the major abuses of trafficking involve women and children who are most in need of protection, the Protocol should focus domestic efforts accordingly. Others felt that abuses against all "persons" should be included. As presently worded, the Protocol applies to all "persons", but generally refers to "...persons, especially women and children..."

Finding language to capture a wide range of coercive means used by organized crime has also proven difficult. With the exception of children, who cannot consent, the intention is to distinguish between consensual acts or treatment and those in which abduction, force, fraud, deception or coercion are used or threatened. As with the Convention, the nature and degree of international and organized crime involvement required before the Protocol applies has also been the subject of extensive discussions. Generally, cases in which there is little or no international involvement can be dealt with by domestic officials without recourse to the Protocol or Convention. On the other hand, requiring too direct a link might make it impossible to use the Protocol provisions in cases where purely domestic offences were committed by foreign offenders or as part of a larger transnational organized crime scheme.

Part II - Protection of trafficked persons (Articles 4-6)

In addition to taking action against traffickers, the Protocol requires states that ratify it to take some steps to protect and assist trafficked persons. Trafficked persons would be entitled to confidentiality and have some protection against offenders, in general and when they provide evidence or assistance to law enforcement or appear as witnesses in prosecutions or similar proceedings. Some social benefits, such as housing, medical care and legal or other counselling are also provided for.

The legal status of trafficked persons and whether they would eventually be returned to their countries of origin has been the subject of extensive negotiations. Similar discussions have taken place with respect to the return of smuggled migrants in the Protocol dealing with them. Generally, developed countries to which persons are often trafficked have taken the position that there should not be a right to remain in their countries as this would provide an incentive both for trafficking and illegal migration. Countries whose nationals were more likely to be trafficked wanted as much protection and legal status for trafficked persons as possible. The negotiations are still ongoing, but the text presently requires states "to consider" laws which would allow trafficked persons to remain, temporarily or permanently, "in appropriate cases".

(Art.5). States would also agree to accept and facilitate the repatriation of their own nationals (Art.6).

Part III - Prevention, cooperation and other measures (Articles 7-11)

Law enforcement agencies of countries that ratify the Protocol would be required to cooperate with such things as the identification of offenders and trafficked persons, sharing information about the methods of offenders and the training of investigators, enforcement and victim support personnel (Art.7). Countries would also be required to implement security and border controls to detect and prevent trafficking. These include strengthening their own border controls, imposing requirements on commercial carriers to check passports and visas (Art.8), setting standards for the technical quality of passports and other travel documents (Art.9) and cooperation in establishing the validity of their own documents when used abroad (Art.6, para (3)).

Cooperation between states who ratify is generally mandatory. Cooperation with states who are not parties to the Protocol is not required but is encouraged (Art.11).

Social methods of prevention, such as research, advertising and social or economic support are also provided for, both by governments and in collaboration with non-governmental organizations (Art.10).